The World Health Organization has declared the ongoing outbreak of coronavirus disease (COVID-19) a pandemic.  The US Centers for Disease Control and Prevention (CDC) has recommended that health care providers begin taking steps to provide some services remotely in order to help slow the spread of COVID-19.  Last week, the Trump administration advised it would waive certain federal rules to make it easier for providers to treat patients remotely using video chats and other services.  On Tuesday, March 17, President Trump announced that “Medicare patients can now visit any doctor by phone or video conference at no additional cost, including with commonly used services like FaceTime and Skype.”  The President also added that the administration “will not enforce applicable HIPAA penalties so that doctors can greatly expand care for their patients using telehealth.”  As a result, many mental health professionals have begun transitioning their practice to include teletherapy sessions in light of concerns surrounding the spread of COVID-19.

Once limited to use with affluent patients for convenience and rural communities as a stop-gap, teletherapy is increasingly being used both domestically and abroad in order to improve access to mental health services and make therapy more effective and efficient.  Platforms for teletherapy include telephone, internet, video-conferencing, mobile apps, and remote devices.  By leveraging technology, mental health professionals become a click or a dial away from their clients and can effectively provide mental health services without traditional barriers (such as geography) and more novel barriers (such as precautions related to the spread of COVID-19).  Mental health practitioners with a desire to engage clients in teletherapy should be aware of the laws, regulations, administrative policies, and practice guidelines that govern the provision of teletherapy in Colorado.

Not unlike the delivery of traditional in-person psychotherapy, teletherapy requires that providers place the welfare of their clients first and maintain generally accepted standards of practice.  Appropriate consent for teletherapy must first be obtained clients prior to engaging in teletherapy and appropriate disclosures must be made.  Providers engaged in the delivery of teletherapy are still required to adhere to the ethical codes and guidelines governing their profession and to take efforts to protect their clients’ confidentiality.

While it is generally recommended that initial therapeutic contact with a client be in person, in light of the ongoing pandemic and concerns of social distancing, regulations provide that a provider-patient relationship may be established using teletherapy technologies so long as the relationship is established in conformance with generally accepted standards of practice.  Whether done in-person or electronically, initial therapeutic contact must be adequate to provide a conclusive diagnosis and therapeutic treatment plan prior to implementing teletherapy.  When done in an online setting, treatment and consultation recommendations are nevertheless held to the same standards of appropriate practice as those in traditional settings.

A teletherapy client’s chart must include all appropriate documentation as would apply in a traditional setting, such as copies of all electronic communications, treatment notes, evaluations and consultations, records of past care, teletherapy disclosure statements, and mandatory disclosure statements.

Prior to engaging in teletherapy, providers should obtain a signed teletherapy consent form from clients outlining the structure of teletherapy as well as the potential benefits and risks, including confidentiality and security issues.  A teletherapy disclosure form must be obtained in addition to the mandatory disclosure statements required by law.

In choosing a telehealth platform, providers should assess the software’s compliance with HIPAA as well as state privacy, confidentiality, security, and medical record retention rules.  There are a number of video conferencing software providers, such as RingCentral and Zoom, that advertise compliance with HIPAA and the provision of a Business Associate Agreement. As an alternative to video conferencing, teletherapy may also be delivered utilizing a telephone.

Providers should take steps to ensure the security and confidentiality of communications made in the course of teletherapy and should engage their clients in a discussion regarding appropriate means of communications.  Providers should determine the most appropriate platform for teletherapy, taking into account the clients’ circumstances, such as the clients’ means and ability to obtain the tools required for teletherapy (such as a computer or mobile device), the reasons for the transition to teletherapy, and other circumstances that may affect the clients’ ability to participate in teletherapy and/or the providers’ ability to deliver effective teletherapy.  Teletherapy may not be appropriate for all clients, and providers must continually assess whether teletherapy remains appropriate.  If teletherapy is no longer indicated, providers should consider transitioning back to treatment in a traditional setting and/or termination and referral to a more appropriate provider.

Practical considerations in the delivery of teletherapy include finding a quiet, private space to ensure privacy; appropriate lighting and distance (in the case of video conferencing) so that the client and practitioner are visible to each other; and turning off notifications (if using a mobile device) so that distractions are minimized during each session.

In participating in teletherapy, providers must also be aware of the physical location of each of their clients.  The provision of psychotherapy is deemed to take place where the client is located at the time of the session.  Thus, if a client is located in a state where the provider is not licensed, the provider runs the risk of practicing psychotherapy without a license.  It is recommended that providers ask where their client is physically located at the beginning of each session.  An emergency contact should also be obtained prior to the start of each session.

If you have questions or concerns about transitioning your practice to teletherapy in light of the ongoing COVID-19 pandemic, please feel free to contact Andrew Nickel, Chad Gillam, or Ariana Busby.