Telehealth FAQS for Therapists During COVID-19
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Telehealth FAQS for Therapists During COVID-19

Members Only Legal Articles Legal Department Staff Articles Telehealth FAQS for Therapists During COVID-19

Telehealth FAQs for Therapists during the COVID-19 Coronavirus Pandemic

by Ann Tran-Lien, JD,
Managing Director of Legal Affairs

Government officials and health care entities continue to announce emergency policies regarding the use of Telehealth during the COVID-19 crisis. Below are the most prominent considerations for therapists who want to utilize Telehealth platforms to safely continue client care. If you work in a hospital or clinic setting, be sure to follow your organization’s protocols for safety and readiness, including their protocols for Telehealth.

Q: Do I need training to provide Telehealth?
A: California law does not require training to provide Telehealth services. As with all psychotherapy services, it is important that you are competent and knowledgeable about using technology in providing treatment. It is also important to recognize the risks and benefits of providing Telehealth services for your clients.

Q: As an LMFT, what are the California regulations that I should know regarding the provision of Telehealth?
A: In 2016, the BBS published regulations for the Standard of Practice for Telehealth. To read more about the regulations and what the BBS requires of LMFTs, LCSWs, and LPCCs in the provision of Telehealth services, read CAMFT’s article Regulatory and Legal Considerations for Telehealth. You can also view our Checklist for Telehealth.

Q: Does CAMFT have any video recordings on Telehealth?
A: Yes, CAMFT has two recordings that members can access immediately! Members can view the educational content for FREE, and have the option to purchase the test for CEs:

Q: Do I need a written informed consent form to provide Telehealth services?
A: The law does not require written informed consent from clients to participate in Telehealth. However, therapists providing Telehealth services must obtain consent from the client as required by law, which includes:

  1. Informing the client about the use of Telehealth
  2. Obtaining from the client verbal or written consent for the use of Telehealth as an acceptable mode of delivering psychotherapy services, and
  3. Documenting the consent obtained by the client in the client’s treatment record.

Q: What should I know about HIPAA laws in the provision of Telehealth during the COVID-19 emergency? Can I use Skype or Facetime now since I have not had time to vet any Telehealth platforms?
A: HIPAA requires that “covered entities” (see next bullet point) follow the Security Rule, including obtaining a Business Associate Agreement (BAA) from the utilized Telehealth provider. However, given the COVID-19 outbreak, as of March 17, 2020, the Office for Civil Rights (OCR) who enforces HIPAA issued a Notice, that effective immediately, the OCR will not impose penalties against covered providers for the lack of a BAA or for any other noncompliance with the HIPAA rules that relate to provision of Telehealth services during this time. That means that a provider who needs to provide Telehealth services to their patients during this time may use platforms that would otherwise not be “HIPAA-compliant” such as Facetime or Skype. Providers may use other popular applications that allow for video chats, including Facebook Messenger video chat, Skype, or Google Hangouts video to provide Telehealth without risk that the OCR will penalize.

Important Notes:

  • The OCR Notice encourages providers to notify patients that these third-party applications potentially introduce privacy risks, and providers should enable all available encryption and privacy modes when using such applications.
  • The OCR Notice does state that “Facebook Live, Twitch, TikTok, and similar video communication applications that are public facing should not be used in the provision of Telehealth by covered health care providers.”

Q: If I provide Telehealth services to my patients, will that make me a “covered entity” under HIPAA?
A: HIPAA only applies to organizations and providers who qualify as “covered entities” The mere use of electronic technology to provide Telehealth services does not transform a health care provider into a covered entity. Therapists who are not covered entities do not have to comply with HIPAA requirements.

“Covered entities” refers to health care providers who transmit protected health information (“PHI”) in connection with certain administrative or financial transactions (“covered transactions”) Examples of typical covered transactions by health care providers include the use of the Internet to electronically transmit insurance claims, conduct benefit eligibility inquiries, or to make referral authorization requests with insurance plans. To read more about covered entities, view CAMFT’s article Are You a Covered Entity.

Q: What are the HIPAA regulations pertaining to the provision of Telehealth that I should be familiar with if I want to learn more?
A: Although the restrictions regarding HIPAA compliance are being eased during the COVID-19 pandemic, many providers, even those who are not covered entities, may still want to follow industry best-practice and utilize HIPAA compliant Telehealth platforms. Please read the CAMFT article, Telehealth, HIPAA, and Compliant Telehealth Platforms, for more information about relevant HIPAA regulations.

Q: I want to use a HIPPA complaint Telehealth service provider. Is there a list?
A: There are several HIPAA compliant Telehealth companies out there. The OCR mentions these vendors in their Notice

  • Skype for Business
  • Updox
  • VSee
  • Zoom for Healthcare
  • Doxy.me
  • Google G Suite Hangouts Meet

Note: The OCR has not reviewed the BAAs offered by these vendors, and this list does not constitute an endorsement, certification, or recommendation of specific technology, software, applications, or products. Further, the OCR does not endorse any of the applications that allow for video chats listed above.

Here are some additional HIPAA compliant Telehealth vendors that are popular with psychotherapists:

Disclaimer: CAMFT has an affinity partnership with Simple Practice. CAMFT does not endorse or have a partnership with the other listed vendors.

Q: What CPT Codes do I use to bill for Telehealth services?
A: Some plans may vary. However, most plans are using the CPT code modifier for “synchronous telemedicine” via videoconferencing, which is currently 95 or GT depending on the plan. Synchronous telemedicine refers to services which are rendered via real-time interactive audio and video. As an example, the CPT code for telemedicine, 45 minutes, is 90834 with modifier 95 (or 90834 with modifier GT).

Effective January 1, 2017, the place of service (POS) code for Telehealth is 02. (Previously, POS code 11 was used for Telehealth). POS code 02 refers to the location where health services are provided or received through telecommunications technology.

Q: Have any regulatory agencies taken action to help ensure insurance plans will reimburse for Telehealth services?
A: Yes, several agencies have announced plans and mandates to help secure Telehealth reimbursements. Here are the most recent developments:

  • The Department of Managed Healthcare (DMHC) released their All Plan Letter on March 18, 2020, stating that all health plans shall, effective immediately, comply with the following:
    • Health plans shall reimburse providers at the same rate, whether a service is provided in-person or through Telehealth, if the service is the same regardless of the modality of delivery, as determined by the provider’s description of the service on the claim. For example, if a health plan reimburses a mental health provider $100 for a 50-minute therapy session conducted in-person, the health plan shall reimburse the provider $100 for a 50-minute therapy session done via Telehealth.
    • For services provided via Telehealth, a health plan may not subject enrollees to cost-sharing greater than the same cost-sharing if the service were provided in-person.
    • Health plans shall provide the same amount of reimbursement for a service rendered via telephone as they would if the service is rendered via video, provided the modality by which the service is rendered (telephone versus video) is medically appropriate for the enrollee.
  • The Insurance Commissioner from the Department of Insurance (DOI), which mainly authorizes PPOs, released this statement on Plan Filing Requirements for Telehealth on March 18, 2020, stating that insurers’ plans should maximize the use of Telehealth in all appropriate settings, reflecting the federal government’s request on March 17 that private insurers remove barriers to Telehealth, consistent with the federal government’s actions in Medicare. This includes waiving, or expediting, any network provider credentialing, certification, or pre-authorization requirements. Plans must address:
    • Whether the insurer permits Telehealth use by all types of providers, particularly and expressly as to providers of medical/surgical services, and, separately, as to providers of mental health and substance use disorder services.
    • For any service for which Telehealth is not permitted, describe how access to the service is provided in a way that avoids unnecessary exposure of insured persons and providers to COVID-19 infection.
    • Facilitation of Telehealth as an infection control measure through waiver of applicable cost-sharing for services provided via Telehealth, even for services for which a cost-sharing amount might apply if provided in-person, and describing the permitted technological methods of accessing covered Telehealth services, as well as any limitations on location of service, technology method, or similar limitations.
  • The Center for Medicare and Medicaid Services (CMS) adjusted Medicare payment restrictions, allowing Medicare to pay for office, hospital, and other visits furnished via Telehealth across the country and including in patient’s places of residence starting March 6, 2020.
  • For Medi-Cal recipients, on March 18, 2020, the Department of Health Care Services (DHCS) sent an All Plan Letter (APL) to Medi-Cal Managed Care Plans (MCPs) requiring they take steps to allow their enrolled members to obtain health care via Telehealth when medically appropriate to do so. All Medi-Cal managed care plans must, effective immediately:
    • Reimburse providers at the same rate, whether the service is provided in-person or through Telehealth, if the service is the same regardless of the modality of the delivery (unless otherwise agreed to by the provider and the MCP); and
    • Provide the same amount of reimbursement for a service rendered via telephone as they would if the service is rendered via video, provided the modality by which the service is rendered (telephone versus video) is medically appropriate for the member. Read more about the requirements for Telehealth services rendered by MCP providers.
  • In response to DHCS’s Request for Section 1135 Waiver Flexibilities, CMS approved some of the DHCS’s requests, including but not limited to, temporarily suspending Medi-Cal Fee-for-Service prior authorization requirements, extending pre-existing authorizations, and waiving certain provider enrollment requirements. CMS continues to work on the additional waiver requests that are not currently reflected in the most recent approval. CAMFT is monitoring for updates.

Q: Still, what do providers do if health care plans are not waiving certification requirements and refuse to reimburse?
A: The federal government, as well as Governor Newsom, have encouraged Telehealth and social distancing. The Department of Managed Health Care and the Department of Insurance have encouraged all health plans to expedite or relax their pre-certification requirements. CAMFT and other mental health stakeholders have reached out to the Governor, the DMHC, the Department of Insurance, and the California Association of Health Plans to enforce a 60-day freeze requiring all plans to reimburse Telehealth with no pre-certification requirements.

If a provider is in the situation where it is unsafe to provide in-person therapy, they should act in the spirit of the law, fully document their decision-making on why they utilized Telehealth with their clients prior to obtaining pre-certification, and request full reimbursement. There is a risk that if the contract with the health plan does not include Telehealth, you might not be paid. If that occurs, CAMFT recommends that the appropriate appeal steps be taken with the Department of Managed Health Care or the Department of Insurance.

Q: Will my malpractice carrier still cover me if I’m using Telehealth?
A: CAMFT has been in touch with our most prominent malpractice insurer, CPH. CPH has reassured us that they will cover the practitioners they insure even when they are utilizing Telehealth. We believe most insurers will provide coverage as well, but if your malpractice insurer is not CPH, CAMFT recommends that you check with your insurer to clarify.

Q: I don’t think Telehealth is appropriate for my patient. Can I still see my patient in person if I think it is medically necessary? 
A: Governor Newsom’s recent Shelter in Place Executive Order does give exemptions for mental health providers as essential workers.  It is up to each provider to determine if they need to continue to do in-person therapy or whether Telehealth is a better option.

Q: Can I terminate with my patients or postpone my services during this time?
A: It is important to be mindful of your ethical duties to patients even during this time of nationwide emergency. We urge that you use sound clinical judgment when terminating services with a patient. It is encouraged that you offer referrals to the patient. Please refer to the relevant CAMFT Code of Ethics below:

1.3 TREATMENT DISRUPTION: Marriage and family therapists are aware of their professional and clinical responsibilities to provide consistent care to clients/patients and to maintain practices and procedures that are intended to provide undisrupted care. Such practices and procedures may include, but are not limited to, providing contact information and specified procedures in case of emergency or therapist absence, conducting appropriate terminations, and providing for a professional will.

1.4 TERMINATION: Marriage and family therapists use sound clinical judgment when terminating therapeutic relationships. Reasons for termination may include, but are not limited to, the client/patient is not benefiting from treatment, continuing treatment is not clinically appropriate, the therapist is unable to provide treatment due to the therapist’s incapacity or extended absence, or due to an otherwise unresolvable ethical conflict or issue. (See also sections 3.8 Client/Patient Benefit and 5.11 Scope of Competence.)

Q: What about Pre-licensees, Telehealth, and Videoconferencing Supervision during this time?
A: Trainees, Registered Associates and supervisors should follow California law as outlined in the BBS’s Statement on Coronavirus Disease 2019 (COVID-19) and Telehealth. Although these laws are written into statute, the BBS has highlighted that the Governor issued an Executive Order recommending social distancing and isolation if sick. If a Pre-licensee is in a situation where it is unsafe to obtain the required face-to-face supervision, or is compelled to provide services via Telehealth in a non-typical setting, they should act in the spirit of the law and fully document their decision-making to continue outside the letter of the law.

This FAQ article was written on March 18, 2020. CAMFT is aware that the landscape of these issues is changing on a daily basis. We will update these FAQs regularly on the CAMFT website.