Legal aspects of telepsychiatry
When conducting telepsychiatry services, clinicians need to consider several legal issues, including federal and state regulations, as well as professional liability. In a 2017 article, Vanderpool26 provided a comprehensive overview of the legal aspects of telepsychiatry. In March 2020, due to the COVID-19 pandemic, several key federal telehealth regulations were suspended. Telehealth service locations were broadened to allow patients to be interviewed at their homes. In addition, Health Insurance Portability and Accountability Act (HIPAA) requirements were loosened to allow for nonsecure communications with patients in certain settings. Box 1 highlights these changes and offers tips for using telepsychiatry during the COVID-19 pandemic.
Box 1
Using telepsychiatry during the COVID-19 pandemic
As part of the efforts to contain the spread of coronavirus disease 2019 (COVID-19), the use of telemedicine, including telepsychiatry, has increased substantially. Here are a few key facts to keep in mind while practicing telepsychiatry during this pandemic:
- The Centers for Medicare and Medicaid Services relaxed requirements for telehealth starting March 6, 2020 and for the duration of the COVID-19 Public Health Emergency. Under this new waiver, Medicare can pay for office, hospital, and other visits furnished via telehealth across the country and including in patient’s places of residence. For details, see www.cms.gov/newsroom/fact-sheets/medicare-telemedicine-health-care-provider-fact-sheet. This fact sheet reviews relevant information, including billing codes.
- Health Insurance Portability and Accountability Act requirements, specifically those for secure communications, will not be enforced when telehealth is used under the new waiver. Because of this, popular but unsecure software applications, such as Apple’s FaceTime, Microsoft’s Teams, or Facebook’s Messenger, WhatsApp, and Messenger Rooms, can be used.
- Informed consent for the use of telepsychiatry in this situation should be obtained from the patient or his/her guardian, and documented in the patient’s medical record. For example: “Informed consent received for providing services via video teleconferencing to the home in order to protect the patient from COVID-19 exposure. Confidentiality issues were discussed.”
Licensure. State licensing and medical regulatory organizations consider the care provided via telepsychiatry to be rendered where the patient is physically located when services are rendered. Because of this, psychiatrists who use telepsychiatry generally need to hold a license in the state where their patients are located, regardless of where the psychiatrist is located.
Some states offer special telemedicine licenses. Typically, these licenses allow clinicians to practice across state lines without having to obtain a full professional license from the state. Be sure to check with the relevant state medical board where you intend to practice.
Because state laws related to telepsychiatry are continuously evolving, we suggest that clinicians continually check these laws and obtain a regulatory response in writing so there is ongoing documentation. For more information on this topic, see “Telepsychiatry during COVID-19: Understanding the rules” at MDedge.com/psychiatry.
Malpractice insurance. Some insurance companies offer coverage that includes the practice of telepsychiatry, whereas other carriers require the purchase of additional coverage for telepsychiatry. There may be additional requirements for practicing across state lines. Be sure to check with your insurer.
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