Standards of Practice for Telehealth Regulation Advisory
Purpose: California Code of Regulations, Title 16, Section 1396.8 relating to standards of practice for telehealth services was added effective August 10, 2021.
History: In 2011, as part of the Board’s Sunset Review, the Legislature asked the Board if legislative or regulatory changes needed to be made to address telehealth or online practice. In its report back to the Legislature, the Board stated it was researching and analyzing the use of telehealth as a mode for the practice of psychology and what impact this newer mode of psychotherapy delivery will have on the consumer of psychological services. In 2016, as part of its next Sunset Review, the Board committed to developing telepsychology regulations that would instruct licensees how to provide telehealth to Californians, and give additional opportunities to provide care to underserved populations. In its efforts to meet its commitment, the Board established the ad hoc Telepsychology Committee (Committee). The Committee considered the American Psychological Association Guidelines (APA Guidelines) for the Practice of Telepsychology and the Association of State and Provincial Psychology Board (ASPPB) Telepsychology Task Force Principles and Standards when developing draft regulatory language.
Summary of Changes: The regulation governs three types of telehealth transactions:
1. A California licensee providing telehealth services to clients located in California.
2. A California licensee providing telehealth services to clients that have received services in California, but who are temporarily located out-of-state, subject to the laws of the other jurisdiction.
3. A California licensee located out-of-state providing services to clients that are located in California.
The language clarifies that licensees may provide services as noted above, subject to the laws and regulations of the other jurisdiction because the Board cannot dictate that it is allowable for either the licensee or client to deliver and receive services in that other jurisdiction, even though such services would not violate California’s laws and regulations, provided all other conditions are met.
This regulation also establishes the conditions under which the provision of psychological health care services via telehealth must be provided. This proposal requires that licensees hold a valid and current license issued by the Board to provide psychological health care services via telehealth. It also requires that licensees obtain informed consent from the client specific to the considerations unique to the receipt of such services via telehealth. Additionally, it requires that licensees are competent to deliver such services, determine that the delivery of services via telehealth is appropriate for each client, take reasonable steps to ensure that electronic data is transmitted securely, and comply with all other provisions of the Psychology Licensing Law and its attendant regulations.
Business and Professions Code section 2290.5 requires a licensee to obtain a patient’s informed consent to use telehealth, including the risks to confidentiality and data security, potential for connection disruption, insurance issues, and other ways in which telehealth differs from in-person health care services. This is necessary to advance consumer protection because the informed consent must address the uniqueness of receiving telehealth services, making for a more educated consumer who is more able to determine whether receipt of services in this manner is right for the client.
Additionally, the licensee is likewise required to evaluate whether services can be appropriately provided to a client, taking into account the client’s needs, preferences, risks/benefits, and physical location and circumstances. This is necessary to advance consumer protection because the licensee must consider whether the individual client’s needs and safety will be met by telehealth. The regulation further requires that the provision of telehealth be within the licensee’s (or trainee’s) own competence including the information technology chosen for the delivery of telehealth, before engaging in telehealth services. Consumer protection requires that the licensee be competent to provide services through telehealth because of the different nature of this modality, which also requires familiarity with the available platforms and their appropriate use. This is necessary because confidentiality of data, HIPAA compliance, and client privacy are bedrock ethical and legal concerns of the practice of psychology.
Lastly, it would require the licensee to comply with all provisions of the Psychology Licensing Law and attendant regulations, as well as any laws or standards of care in California and any other jurisdiction state, if any, where either the licensee or the client is located. This is necessary to inform licensees that providing services via telehealth does not release them from their other legal and ethical responsibilities in their practice of psychology. Telepsychology is not a type of psychological service but a mode of delivery for the services provided, and subject to all the standards otherwise applicable to the services being rendered.
Regulation Text Effective August 10, 2021
§1396.8. Standards of Practice for Telehealth Services (a) A licensee is permitted to provide psychological health care services via telehealth subject to the laws and regulations of the other jurisdiction where either the licensee and/or the client is located, including, but not limited to, the following circumstances:(2) To a client who has received services in this State, and who is temporarily located outside of this State.
(3) To a client who is located in this State when a licensee is temporarily located outside of this State.
(c) The provision of psychological health care services under subdivision (a) are subject to the following conditions:
(2) 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.
(3) The licensee determines that delivery of psychological health care services via telehealth is appropriate after considering at least the following factors:
(B) The client’s preference for receiving psychological health care services via telehealth;
(C) The nature of the psychological health care services to be provided, including anticipated benefits, risks, and constraints resulting from their delivery via telehealth;
(D) The benefits, risks, or constraints posed by the client’s physical location.
These include the availability of appropriate physical space for the receipt of psychological health care services via telehealth, accessibility of local emergency psychological health care services, and other considerations related to the client’s diagnosis, symptoms, or condition.
(E) The provision of telehealth services is within the scope of competency of a psychology trainee, or other supervised individuals as specified in (b) above, who provides psychological health care services under the supervision of the licensee.
(5) The licensee takes reasonable steps to ensure that electronic data is transmitted securely, and informs the client immediately of any known data breach or unauthorized dissemination of data.
(6) The licensee complies with all other provisions of the Psychology Licensing Law and its attendant regulations, and all other applicable provisions of law and standards of care in this State and the other jurisdiction, if any, where either the licensee or the client is located.
Authority: Section 2930, Business and Professions Code
Reference: Sections 686, 2290.5, 2904.5, 2960, and 2960.6, Business and Professions Code
For more information on this regulation, visit our web site, at https://www.psychology.ca.gov/laws_regs/regulations.shtml
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