A 2011 Recap of the 1996 Telemedicine Development Act

Catherine Atkins, JD Deputy Executive Director
November/December 2011
The Therapist

The purpose of this article is to briefly review telemedicine generally and the issues surrounding telemedicine since its creation in California in 1996.

What is telemedicine? In the LMFT world, it is telephone and internet therapy. According to Business and Professions Code §2290.5, telemedicine is the practice of health care using "interactive" audio, video, or data communications. The term "interactive" means an audio, video, or data communication involving a real time (synchronous) or near real time (asynchronous) two-way transfer of medical information.

Excluded from the definition of telemedicine, however, are routine and/or administrative phone and email conversations between provider and patient. For additional information on telemedicine generally, see the CAMFT article, "Telemedicine: AKA On-Line Therapy & Mandatory Informed Consent" (The Therapist, September/October 2002).

It is important to note that starting in 2012, the term telemedicine will now be referred to as "telehealth" due to passage of recent legislation (AB 415.) Throughout the rest of this article, the term "telehealth" will be used in anticipation of this new terminology.

The Pros and Cons of Telehealth
California was one of the first states to utilize telehealth starting back in the 1990s, and enacted one of the first laws regarding telehealth reimbursement. The purpose of the Telemedicine Development Act of 1996 was to reach underserved populations who, due to geographic and/or economic barriers, could not access health care. Telehealth helps reduce barriers by connecting patients and providers over great distances (e.g., those in remote parts of the state, those with disabilities, or those with dialects not commonly found in their area). Telehealth makes therapy available to those who otherwise would not or could not find accessible providers.

The downside to telehealth is the possibility of missing verbal, body, or language cues. Security of technology is always a consideration. And of course, emergency situations, such as danger to self and others, become even more complicated.

The Telemedicine Form
Currently, if you choose to practice telemedicine, Business & Professions Code §2290.5 requires you to make certain disclosures, both verbally and in writing, to the patient before any services are rendered. A sample of this "telemedicine" form can be found on the CAMFT website, under "Forms." However, due to the passage of AB 415, starting in January of 2012 this requirement will change so that, prior to the delivery of health care via telehealth, the health care provider shall verbally inform the patient that telehealth may be used and obtain verbal consent from the patient for this use. The verbal consent shall be documented in the patient's medical record.

Telehealth and Insurance Reimbursement
California law mandates that managed health care service plans and insurers cover services that can be provided through telehealth. (See, Health and Safety Code, §1374.13, Welfare and Institutions Code §14132.72, and Insurance Code §§10123.13 and 10123.85.) The intent of the Telemedicine Act was to "encourage health insurers to establish reimbursement policies for telehealth providers." It required every insurer issuing group or individual policies of disability insurance to reimburse claims for those expenses within 30 working days after the receipt of claim unless contested; prohibited health care service disability insurers, non-profit plans, and the Medi-Cal program, from requiring face-to-face contact between patient and physician as a condition of payment for services; and, required service plans to adopt reimbursement policies to compensate telehealth services.

The legislature found and declared that: "Lack of primary care, specialty providers, and transportation continue to be significant barriers to access health services in medically underserved rural and urban areas... Telemedicine is part of a multifaceted approach to address the problem of provider distribution... Consumers of health care will benefit from telemedicine in many ways, including expanded access to providers, faster and more convenient treatment, better continuity of care, reduction of lost work time and travel costs, and the ability to remain with support networks... And that without the assurance of payment and the resolution of legal and policy barriers, the full potential of telemedicine will not be realized."1

Telehealth and the Diversity Gap
As briefly mentioned above, one distinct advantage of telehealth is the availability of appropriate therapists regardless of geographic location. While researching therapeutic trends and the diversity of consumers, CAMFT discovered that it is not uncommon for consumers speaking non-English languages to be unable to find a therapist in their area who speaks their language. For example, on CounselingCalifornia.com, out of the 8000+ therapists listed, only five therapists list that they speak Thai (in all of California). However, with the advent of telehealth, any consumer can receive mental health care without having to drive 100 miles plus to access it.

Marketing Your Telehealth Practice
As telehealth is fairly new and very little is known about it, there remains a lack of consumer education that telehealth exists. Providers should let consumers know that they are open to practicing telehealth. In search criteria, in addition to "addiction" or "PTSD," let the consumer know that you provide telehealth. On CounselingCalifornia.com, one of the search criteria is "telehealth," and this is true of most therapist search databases.

Telehealth and Out-of-State Services
With telehealth comes the question of "can I provide therapy out of state?" Generally speaking, CAMFT does not recommend providing therapy to patients out of state unless you are licensed in the state where the patient is receiving treatment. Issues such as "where does therapy occur," "which state's law do you apply in dangerous patient situations," or "which law governs legal disputes" put the provider in a very precarious position. Until the law surrounding issues such as these becomes clearer, CAMFT recommends providing telehealth solely to individuals within California. For more information on providing telehealth out of state, please review the following two CAMFT articles: "My Patient is Moving to Another State, Can I Continue Therapy Over the Phone?" (The Therapist, March/April 2007)

Setting Up Your Telehealth Practice
As telehealth becomes more popular, various companies have popped up for the purpose of setting up health care facilities and practitioners with telehealth capability. Some examples of such companies are: americantelemed.org, telehealthresourcecenter.org, californialivevisit. com, and cteconline.org. (Note: CAMFT has no independent knowledge of the professionalism and/or quality of the services provided by these companies.) Clearly there is no requirement that a therapist hire a company to provide these services, it simply comes down to the therapist's comfort level on setting up the proper technology required.

CAMFT Members and Telehealth
On August 11, 2011, CAMFT surveyed its membership to inquire as to whether members utilized telehealth and if so, how many, in what context, etc. The following is a summary of some of the more relevant responses2:

Ninety-one percent of respondents were licensed (versus pre-licensed)
Sixty-five percent of respondents stated they used telehealth in their practice
Forty-three percent of respondents practiced by phone only
Eight percent of respondents practiced by internet only
Sixty-two percent of respondents practiced using both the internet and the telephone
Forty-two percent of respondents practiced telehealth outside of their city
Ten percent of respondents practiced telehealth outside of the state of California
Twenty-four percent of respondents practiced outside of their city and California
Sixty-five percent of respondents provided telehealth forms to their clients
Fifty-three percent of respondents experienced difficulties with insurance reimbursement for telehealth
Sixty-five percent of respondents advertise their telehealth practice via their website
Thirty-nine percent of respondents advertise their telehealth practice via a business card
Sixty-one percent of respondents advertise their telehealth practice via a professional internet listing

The Future of Telehealth
As California's population becomes more and more diverse, and technology continues to grow and expand, telehealth will become a greater staple in the psychotherapy world. CAMFT is not encouraging or discouraging members from practicing telehealth, but instead cautioning members to be aware of the laws, issues, and pros/cons surrounding telehealth before deciding if and how to utilize this form of therapy.

Catherine L. Atkins, JD, is a Staff Attorney and the Deputy Executive Director at CAMFT. Cathy is available to answer members' questions regarding business, legal, and ethical issues.

1 SB 1665 (1996)
2 Results as of August 31, 2011.