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Legal Considerations for Psychologists Providing Telepsychology Services

By Abbey Friedler

The framework below is meant to identify some of the key legal considerations for psychologists engaging in the practice of telepsychology. It is not intended as definitive legal advice and the examples provided herein are meant for illustration purposes only. A psychologist should contact counsel for legal advice about a specific telepsychology activity.

Establishing Patient/Client Relationship

Massachusetts
Not prohibited, but the Board has opined: “Psychologists should seriously consider conducting the initial evaluation of a client in-person before beginning electronic provision of services, and holding sessions in-person periodically thereafter.” (1)

U.S. (outside Massachusetts) & International
May or may not be addressed in the laws and regulations in other U.S. states and/or foreign countries. Psychologists should consult the laws of the local jurisdiction.

  • In jurisdictions where it is generally acceptable to establish a patient/client relationship via telepsychology, use of synchronous or two-way audiovisual telecommunication equipment is often the required modality.

Licensure

United States
The practice of psychology is generally deemed to occur where the patient/client who is receiving the service is physically located at the time of the service.

If a MA-licensed psychologist is providing services to a patient/client who is physically located in a state other than MA at the time of the service, the psychologist must consult the law of the state where the patient/client is physically located to determine if s/he is required to obtain licensure in the state, or if the psychologist may be exempt under applicable provisions of the state’s licensure laws.

  • A comprehensive review of each state’s licensure laws is beyond the scope of this outline; however, common examples of exemptions appearing in state licensure laws include:
    • Licensed out-of-state psychologist may practice in [state] for a period not to exceed [xx] days in a given [month/calendar year].
    • Exemption may also be conditioned on notifying the local licensure Board and obtaining a temporary permit to practice.

International
Foreign countries may also require that a psychologist located in another jurisdiction obtain licensure (or comply with an applicable exemption) to provide telepsychology services to a patient/client located in that country. Psychologists must consult the laws of these other jurisdictions.

Modality

Everywhere
General conceptions/considerations:
There is no universal definition for telemedicine/telehealth/telepsychology services and such terms are often used interchangeably. When used broadly, such terms may include any service provided to a patient/client which is not furnished in-person. Despite the lack of a general definition for the services, the health care industry has generally agreed upon certain differentiations in modes of telemedicine/telehealth/telepsychology services—

  • Asynchronous telecommunication: when medical information is stored and forwarded to be reviewed at a later time by a clinician at a distant site.
  • Synchronous telecommunication: communication of medical information in “real time” between the distant site clinician and patient/client, using interactive audiovisual equipment.
  • Telephone/audio-only: No visual component to the service.

Security/Confidentiality

Everywhere
General considerations:
There are numerous telemedicine/telehealth/telepsychology technology platforms being offered, but not all platforms are HIPAA-compliant. Psychologists should conduct due diligence in selecting appropriate platforms for engaging in telepsychology services to ensure they provide a secure and confidential environment.

  • Beware of common commercially-used platforms such as Skype or FaceTime; agreeing to the standard user terms and conditions may mean that each participant in the telepsychology session is agreeing to third-party collection of session recordings or other potential uses of such information.
  • Inform patients/clients of the possible failure of the technology.
    Additionally, psychologists should consider:
  • Patient/client preference and competence in using telepsychology technologies.
  • Ability to identify the patient/client at the distant/remote site and other individuals who may be present during the service.
  • Ability to identify/mobilize appropriate resources at the patient/client’s distant site as necessary (e.g., crisis intervention). (2)

Billing

Everywhere
General considerations:
Billing requirements and coverage for telepsychology services varies across federal healthcare programs and private third-party payors; psychologists must consult each payor’s policies, as applicable, for a given patient/client.
Key concepts to keep in mind when assessing payor billing/coverage requirements:

  • Use of appropriate modifiers (e.g., GT and 95) place of service codes (e.g., POS 02) to differentiate service rendered in-person vs. via telepsychology, as different reimbursement levels could apply.
  • Credentialing/provider agreement requirements for billing out-of-state payors/payor networks.
  • Covered vs. non-covered modalities (e.g., telephone-only services may not be reimbursed by the payor).
  • Telepsychology services still be subject to medical necessity and documentation reviews.

Medicare: psychologists are included in the list of qualifying practitioners who may bill Medicare Part B for telemedicine services under certain conditions (e.g., patient in rural area and at qualifying “originating site”, limited to certain CPT service codes, use of required modifiers/place of service codes, services provided through synchronous telecommunications technology). (3)
BCBSMA: generally covers psychiatric diagnostic evaluation and individual/family psychotherapy services as described in its payment policy.(4)

Citations

  1. MA Board of Registration of Psychologists, Provision of Services Via Electronic Means (updated Oct. 2015), available at: mass.gov/policy-advisory/board-policies-and-guidelines-psychologists
  2. See also, American Psychological Association, Guidelines for the Practice of Telepsychology (Dec. 2013), available at: apa.org/pubs/journals/features/amp-a0035001.pdf
  3. See CMS, Telehealth Services Fact Sheet ICN 901705 (Feb. 2018), available at: cms.gov/Outreach-and-Education/Medicare-Learning-Network-MLN/MLNProducts/downloads/telehealthsrvcsfctsht.pdf
  4. See BCBSMA, Telemedicine – Behavioral Health Payment Policy (updated Feb. 1, 2018), available at: provider.bluecrossma.com/ProviderHome/wcm/connect/5149bfaf-4616-41a0-b46c-143f8d117f30/Telemedicine-BH_payment_policy.pdf?MOD=AJPERES&CONVERT_TO=URL&CACHEID=5149bfaf-4616-41a0-b46c-143f8d117f30

About the Author

Abbey Friedler

Abbey Coffin is a Boston attorney providing state and federal regulatory guidance and corporate legal services to healthcare providers. You can find her on LinkedIn.

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