While licensed professionals are required to comply with all applicable telehealth laws and regulations, telehealth informed consent (IC) is by far the most useful for protecting all parties from legal entanglements. When clinicians work for an employer, those employers typically focus on IC as the cornerstone of telehealth risk management strategies. Regardless of your situation, knowing how to conduct a thorough telehealth IC is essential to inform your client of what will happen in their treatment and get their legal approval.
Why Bother With Informed Consent?
However confusing or difficult to find state telehealth IC requirements may be, your lack of compliance can make or break your defense if you find yourself in front of a licensing board or a court of law. And to make matters worse, meeting the state’s requirement is only the beginning. Your malpractice carrier may not cover your work if you break the law by working in a foreign state or country without a license, particularly if your informed consent process was lacking needed clauses to protect your work.
Wise clinicians practice telehealth risk management by 1) following their state regulations and 2) following telehealth best practices for telehealth IC regardless of minimal standards required by some states. The terms “client” and “patient” will be used interchangeably throughout this article. We provide more guidance for your telehealth IC.
Differences in State Laws Regarding Telehealth Informed Consent
Telehealth IC regulations can differ widely from state to state and country to country. The first step in understanding informed consent is understanding whose rules to follow. (Most untrained telehealth practitioners get this wrong, so bear with me.)
- Many clinicians mistakenly believe they can deliver services to any resident of their home state where they are licensed. This is a serious error. A client may have a residence in a California licensee’s home state (California) but be in Vermont for the summer. Working with them is illegal if you are not licensed or registered in Vermont. You will be in even deeper hot water if you don’t have appropriate informed consent to protect you from errors.
- Telehealth legal requirements follow the client. That means that if you are licensed in California, and your client visits or temporarily stays in Vermont, you must be licensed in Vermont at the time of your contact.
- Your licensure does not transfer without you officially passing the licensing exam in the foreign jurisdiction, registering, or otherwise complying with the formal process in the foreign jurisdiction.
- In effect, telehealth’s best practice is to follow the same law regarding licensure as you would in person. That is, a California licensee who found themselves in Vermont would be prohibited from delivering care to citizens of Vermont without local licensure or registration. (Just because the Internet allows clinicians to deliver care anywhere in the world does not make it legally permissible.)
What Are State Requirements for Telehealth Informed Consent?
Almost all states require telehealth informed consent before initiating technology-mediated healthcare services, including telephone interventions. That point is their only clear point of agreement. As for the rest, differences within and across state boards can cause confusion and potential liability for you. One state board may issue requirements that contradict those required by different boards in the same state.
I’m going to focus on California because it just passed the most detailed telehealth IC-related law yet shows a disconcerting amount of disorganization between boards within the state. Consider the following about three California boards:
1. CALIFORNIA BOARD OF BEHAVIORAL SCIENCES. California has requirements for the Board of Behavioral Science (BBS) master’s level clinicians §1815.5: Standards of Practice for Telehealth and Business & Professions Code). The telehealth informed consent section of the BBS Telehealth tab states that therapists must (emphasis mine):
Inform the patient about the use of telehealth; AND
Obtain, and document, verbal or written consent from the patient for this use.
BBS-licensed clinicians must obtain three hours of telehealth training in legal and ethical issues by July 1, 2023. Requires are much more specific, but I have kept this discussion to one salient point for the sake of brevity.
2. CALIFORNIA PSYCHOLOGY BOARD. The California Board of Psychology’s telehealth standards (2021) include several mentions of telehealth consent, some of which overlap those required by the BBS. The option of obtaining written or verbal consent isn’t mentioned. Rather, it refers to consent this way (emphasis mine):
The licensee obtains and documents informed consent for the provision of psychological health care services via telehealth from the client. Such consent shall cover concerns unique to the receipt of psychological health care services via telehealth, including risks to confidentiality and security, data storage policies and procedures specific to telehealth, the possibility of disruption and/or interruption of service due to technological failure, insurance coverage considerations, and other issues that the licensee can reasonably anticipate regarding the non-comparability between psychological health care services delivered in person and those delivered via telehealth.
Unlike master’s level therapists in California, psychologists are not required to obtain formal training in telehealth, so guessing proper procedure has been the norm in general, as far as I can tell. (I should mention that I am a California-licensed psychologist and have trained thousands of my colleagues on this issue).
3. MEDICAL BOARD OF CALIFORNIA. The medical board,
Requires the practitioner to obtain verbal and written informed consent from the patient prior to delivering health care via telemedicine, and also requires that this signed written consent statement becomes part of the patient’s medical record.
The Problem with Telehealth IC Inconsistencies
For practitioners supervising other clinicians in California, the differing requirements may cause complications. The confusion and increased risk of liability are compounded by clinicians coming to California from another state and California clinicians going to other states to deliver care.
Who is watching?
Perhaps the boards are not watching. This may be inconsequential to most of us, except if a client or their family brings us up on charges. Then what? We alone stand to suffer the consequences of guessing incorrectly about telehealth law and especially telehealth IC.
Why All the Fuss?
If you have not had the eye-opening experience of watching a well-intentioned but unwitting clinician facing telehealth allegations, you may benefit from this video training: Telehealth Courtroom Realities: How to Stay Out of Legal Hot Water.
Reportedly, clients can claim that informed consent never happened, didn’t understand the terms used in the document, or were not in their right mind when they agreed.
What Is the Safest Way to Obtain Telehealth Informed Consent?
Getting telehealth informed consent is manageable. The best telehealth IC that we have seen includes a comprehensive telehealth IC that includes all the statutory requirements of all relevant licensing boards PLUS the informed consent ethical code sections for all relevant professional groups.
Telehealth IC Clauses to Consider
Specific language may need to be included regarding the risks and benefits of each modality, such as a list for using apps, email, texting, telephone, and video. You may want to include language that describes the following:
- The voluntary nature of consent and the patient’s right to in-person services if they prefer
- Where you are licensed and your license or registration number
- Your duty to adhere to HIPAA and those ramifications for the client
- Telehealth policies, such as whether you or they will be recording the session
- Where they must be at the time of the contact
- What will happen if they are not in an area where you are licensed
- They cannot be driving, in a moving vehicle, or in a public place during sessions
- Important emergency contacts you can use if you cannot reach them within _____ # of hours
- What you agree to say to their emergency party or parties
- You or they may make a technical error that leads to a breach of their privacy
- Their message(s) may not reach or be visible to you
- You will not record the session, and you expect they will not either, and if they change their minds, they agree to inform you before any recording
- Your data storage policies and procedures specific to telehealth
- Insurance coverage for telehealth services
- How you will terminate sessions if your clients or patients are unresponsive to your messages.
See the Telehealth.org Informed Consent Library of Legal Clauses for a more specific list of legal clauses to consider.
How Is Telehealth Consent Documented?
Paper vs. Digital?
We’ve seen that whether telehealth informed consent is paper or digital matters little to state boards. How to process?
- You can ask the client to sign a paper IC downloaded from your website and use a secured email system if you have one to send back to you, or they can return it to you through traditional surface mail in an envelope.
- Your future client can complete and send the IC digitally through a patient portal. A signed document can easily be transferred to the patient’s record through a patient portal or an electronic health record (EHR).
- You are not allowed to send a document to a potential client in an unencrypted, HIPAA-compliant email. Even if your respected colleague sends a PDF to prospective clients in an unencrypted, non-HIPAA-compliant email, don’t do it. No exceptions.
Clinician – Protect Yourself and Your Client(s)
It could be considered short-sighted for a clinician to simply check a box in an electronic health record for any form of consent.
Telehealth Informed Consent Best Practices
As the next few paragraphs will demonstrate, California masters-level licensees are allowed to accept verbal informed consent while also being required to cover very specific topics when giving consent. They are:
How, then, is a licensee who accepts verbal consent able to prove that they covered required telehealth consent when questioned? They can’t. That’s where the second step of telehealth informed consent best practices come into play.
- The first best practice when offering telehealth informed consent is to be aware of the geographic limits of your licensure and to convey those limits to your client.
- The second best practice is to think beyond licensing requirements to include basic risk management principles that you can fold into your telehealth IC.
In short, detailed, written, informed consent may not be required by a licensing board but is highly recommended. Leading telehealth attorneys and clinicians have discussed this issue at length in many of my training. Unanimously, they agree that regardless of a state’s minimal standard, the best protection for all parties is to write client questions on the IC document, along with a few words indicative of the clinician’s response to the client’s question. Engage in a telehealth IC discussion, and don’t just rely on a signed document.
If your client hasn’t yet mailed you a signed IC document at your first meeting, read one that you have in your hands in the session and engage their questions as you make your notes on a copy you have in your possession during the discussion. Those notes will prove that the discussion occurred and that you addressed questions. Chunk out the process to cover some issues over multiple sessions.
What Are the Common Risks & Benefits of Telehealth Services?
Your IC process and form may need to include a list of telehealth risks and benefits. Although they will differ when working with special populations such as children, immigrants or refugees, and incarcerated or older dependents, these general statements are usually in order:
- It is often easier, more convenient, and more efficient to receive care
- Complications of in-person office appointments, such as travel and other costs, can be avoided.
Limitations or Risks
- Immediate care may sometimes not be available
- The electronic equipment could fail during a telehealth visit
- Their privacy may be compromised if they cannot find a private area, experience interference or interruptions by third parties
- If a batterer is in the client’s environment, you will not know if your client doesn’t tell you.
It is most beneficial to follow all applicable state and federal laws when conducting telehealth and be thoughtful about your informed consent process. It is the most crucial protection for your practice, future income, and peace of mind.
The following suggestions may be helpful:
- Accept the notion that licensing board requirements set the bar for minimal competence. Just as someone who passes a driver’s license exam doesn’t necessarily drive prudently, following a licensing board’s minimal requirements won’t necessarily protect you in court.
- Be more rather than less specific in your IC for telehealth.
- Have a full telehealth IC discussion rather than relying on a signature on an IC form or documenting verbal informed consent.
- Invest in the training you need to be above reproach. See these links for a 3-hour, six-hour, or 15.5-hour telehealth law and ethics training bundle at Telehealth.org.
- Form a study group with a colleague or two and help each other develop the needed documents.
- If one exists, join your board’s mailing list, or set your calendar to search your board’s website for updates every six months.
Sleep well. The world needs you.
Telepractice: Telehealth Law & Ethics Implementation Workshop
Comply with federal, state, national accreditation and association requirements for telehealth documentation.