JOURNAL OF CHILD AND ADOLESCENT PSYCHOPHARMACOLOGY
Volume 26, Number 3, 2016
ª Mary Ann Liebert, Inc.
Pp. 198–203
DOI: 10.1089/cap.2015.0018
Telemental Health for Children and Adolescents:
An Overview of Legal, Regulatory, and Risk
Management Issues
Gregory M. Kramer, JD, PhD,1 and David D. Luxton, PhD1,2
Abstract
Objective: The use of technology to provide telemental healthcare continues to increase; however, little has been written
about the legal and regulatory issues involved in providing this form of care to children and adolescents.
Methods: This article reviews existing laws and regulations to summarize the risk management issues relevant to providing
telemental healthcare to children and adolescents.
Results: There are several legal and regulatory areas in which telemental health clinicians need to have awareness. These
areas include: 1) Licensure, 2) malpractice liability, 3) credentialing and privileging, 4) informed consent, 5) security and
privacy, and 6) emergency management.
Conclusions: Although legal and regulatory challenges remain in providing telemental healthcare to children and adolescents, it is possible to overcome these challenges with knowledge of the issues and appropriate risk management strategies.
We provide general knowledge of these key legal and regulatory issues, along with some risk management recommendations.
Introduction
T
he use of telecommunications technologies to deliver
mental healthcare in the public and private sectors continues to
expand, as technological advances make it easier to provide services beyond traditional in-person clinic settings. In particular,
governmental agencies such as the United States Department of
Veteran Affairs and the Department of Defense have active programs that are using technologies to improve access to mental
healthcare. Providing mental healthcare from a distance using
technology is sufficiently advanced to have its own name: Telemental health (TMH). Often defined as a subset of the broader
and more commonly used terms ‘‘telehealth’’ and ‘‘telemedicine,’’
TMH generally refers to methods of using technologies to connect
patients at one location with providers of psychiatric, psychological, or other behavioral health services at a distant location.
Research continues to demonstrate the benefits and effectiveness
of delivering mental healthcare using technology such as videoteleconferencing (VTC) (Richardson et al. 2009; Grady et al. 2011;
Backhaus et al. 2012; Hilty et al. 2013), including TMH services
specifically for children and adolescents (Nelson and Bui 2010).
Despite the many technological and empirical advances, many
clinicians have legitimate concerns about how to practice TMH
safely, given the current legal and regulatory environment that is
largely based on providing healthcare in the traditional in-person
setting. The good news is that with the increasing use of TMH
throughout the world, few absolute barriers to providing safe and
effective TMH services remain, and many obstacles specific to
TMH have been reduced (Brooks et al. 2013).
This article provides a general overview of some of the key TMH
legal and regulatory issues that currently exist in TMH, with a
special focus on some particular issues relevant to providing services to children and adolescents. This article does not provide any
legal opinion; advice of counsel is always encouraged for specific
legal questions relevant to an individual situation. This article focuses specifically on TMH delivered via videoconferencing technology. There are additional considerations for TMH conducted
with other technologies such as web sites, e-mail, mobile applications, and social media, which we do not address here. Our overall
aim is to provide introductory knowledge of the key TMH legal and
regulatory issues along with some common risk management
strategies, which will enable all mental health professionals to be
more knowledgeable and comfortable with TMH.
Licensure
Licensure is one of the primary TMH legal issues pertinent to
services for adults as well as for children and adolescents, given that
TMH provides the opportunity to provide care across state lines in
distant or neighboring states. Via ‘‘police powers’’ granted to states
1
National Center for Telehealth and Technology (T2), Joint Base Lewis-McChord, Tacoma, Washington.
University of Washington School of Medicine, Seattle, Washington.
The views expressed are those of the authors and do not reflect the official policy or position of the Department of Defense, the Department of the
Army, or the United States government.
2
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TMH LEGAL AND REGULATORY ISSUES
under the Tenth Amendment of the United States Constitution, the
individual states have historically had control over establishing and
enforcing licensure requirements for healthcare professionals located within their jurisdiction (United States Department of Health
and Human Services 2010). The perceived financial and administrative burden of obtaining multiple licenses to see patients in
distant states, along with the promise of TMH to increase access to
care if more licensure mobility were possible, have increased debate on the limits of the current state-based licensure system (Miller
et al. 2005; Gupta and Soa 2010; Ameringer 2011).
A variety of ‘‘solutions’’ have been proposed, including allowing states to create interstate licensure compacts with each other
whereby states can mutually recognize the licenses of other participating states (in general or for specific purposes), creating a
special telemedicine license, and creating a national license (Gupta
and Soa 2010; Ameringer 2011). The debate is vigorous enough
that national health organizations representing different healthcare
disciplines such as the Federation of State Medical Boards (FSMB),
the Association of State and Provincial Psychology Boards, The
National Council of State Boards of Nursing, and the American
Telemedicine Association (ATA) (see www.fixlicensure.org, dedicated to reforming the state-based medical licensing system in
favor of a national license portability system) have all undertaken
efforts to address licensure portability for healthcare professionals
in different ways (see individual web sites of each organization
to see efforts to date). It is of note that the American Medical
Association continues to support a state-based licensure system
and, ‘‘opposes efforts to change such to federal licensure of telemedicine.’’ (American Medical Association Policy Statement
H480.969 2012; American Medical Association Resolution 920
2013). However, the FSMB recently approved policy to study the
creation of an ‘‘interstate compact’’ licensure system ‘‘to increase
efficiency in the licensing of physicians who practice in multiple
states.’’ (Federation of State Medical Boards 2014).
For some federal employees (e.g., employees of the Veterans
Administration [VA], Indian Health Service (IHS) Department of
Defense [DoD]), cross-state licensure is less of an issue because
statute or case law interpretation allows certain categories of federal
employees to provide healthcare services anywhere under federal duty
as long as they are licensed in one state. In what was seen as positive
precedent in the telemedicine licensure area, the DoD recently expanded the categories of DoD telemedicine providers granted portability of licensure to include not only members of the armed forces,
but also civilian employees of the DoD, personal services contractors,
and select others when performing their federal duties (Title 10,
United States Code, Section 1094[d], as amended by Section 713 of
the National Defense Authorization Act for Fiscal Year 2012).
At the state level, and as it pertains to most TMH practitioners,
the ability to practice across state lines without obtaining multiple
licenses remains an issue. A recent legal case highlights the dangers
of not paying attention to the issue. In Hageseth v. Superior Court
(2007) a psychiatrist was convicted of practicing medicine without
a license and sentenced to 9 months in a county jail, after a patient
to whom he prescribed fluoxetine died by suicide. The psychiatrist
convicted in this case was licensed in Colorado, but had prescribed
the medication to a California resident after administering him an
online questionnaire, and without conducting an in-person examination (Hageseth v. Superior Court 2007). There were other relevant issues in this case related to whether it is an appropriate
standard of care to prescribe online without physically examining a
patient, which we discuss in the next section; however, this case
highlights that states can take the licensure issue seriously.
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Some attention to state law regarding where any individual
practices and sees patients is recommended, given the constantly
changing legal environment, as many states are developing, reviewing, and modifying telemedicine licensure requirements and
other aspects relevant to TMH practice. There is great variability in
terms of the licensure and practice issues that these laws address, as
some simply define telemedicine, some stipulate informed consent
and information management procedures, and some define acceptable services one could provide in a state without a full license.
Some laws are general to all healthcare providers, whereas others
are specialty specific, leaving lack of clarity regarding what applies
to what professions when the law is silent. For medical professionals, the FSMB has a handy Board-by Board ‘‘Telemedicine
Overview’’ that is an excellent resource (Federation of State
Medical Boards 2013). For psychologists, the American Psychological Association has a 50 state review of laws (American Psychological Association 2013). The ATA has a State Telemedicine
Legislation Tracker to keep people up to date with current tends
(American Telemedicine Association 2014).
Although there may be some exceptions for certain states and
certain circumstances, for now, the safest risk management approach for most is to obtain licenses in each state where one wishes
to see patients (more specifically, the state where the patient is
located when receiving services). Given the flurry of legislative
activity, this could change in the future for some.
Malpractice Liability Issues
Given that TMH is a new method of care delivery to many, it is
natural that questions would arise over appropriate standards of
care to help avoid malpractice liability. One thing to consider is
that TMH ‘‘is not a clinical service itself, but rather a mode of
service used to connect patients or providers located in one location with providers in a distant location’’ (Kramer et al. 2013).
As a result, in general, best practices, standards, and guidelines for
in-person care also apply for TMH care, although additional
guidelines, regulations, and best practice information that are
TMH specific is emerging. Of particular note, the ATA TMH
Special Interest Group has published three guidelines: one on
evidence-based practice, one on practice guidelines for videoconferencing-based TMH, and, most recently, another on guidelines for video-based online mental health services (Yellowlees
et al. 2010; Grady et al. 2011; Turvey et al. 2013). The ATA is
also currently developing guidelines for children and adolescents,
although published guidelines that focus on children and adolescents already exist (Myers and Cain 2008).
Because few cases of TMH malpractice have been adjudicated,
the full range of issues and what constitutes appropriate standard
of care for TMH services is emerging. Most of the early ‘‘telemalpractice’’ cases, such as Hageseth, have focused on the issue of
prescribing medication via technology (telephone, Internet) without conducting an appropriate initial examination of the individual
(Natoli 2009). Another case that recently received attention is State
of Oklahoma ex rel. the Oklahoma Board of Medical Licensure and
Supervision v. Thomas Edward Trow, M.D. (2013). In this case, an
Oklahoma licensed physician was found guilty of unprofessional
conduct, and as a result had his license suspended for 9 months and
was placed on 2 years of probation. Although much news coverage
of the case focused on the use of Skype (which is not a method of
providing services approved by the Oklahoma Health Care Authority, the agency that operates Oklahoma’s Medicaid program),
the major issues the Board identified were related to Dr. Trow’s not
200
following the standard of care in prescribing controlled substances,
and his failure to perform adequate initial examinations (Heartland
Telehealth Resource Center 2013). According to the record,
Dr. Trow would send his nurse to travel to the patients and have her
present them to him via Skype, or in some cases, he would just talk
to patients over the phone as a result of a nurse-only visit, without
actually seeing them via Skype.
Both this and the Hageseth case highlight that physicians providing TMH need to follow appropriate standards of care when
prescribing medications, particularly when prescribing controlled
substances. In particular, TMH prescribers need to become aware
of the Ryan Haight Online Pharmacy Consumer Protection Act
(Public Law No. 110-425, H.R. 6353 2008) that regulates Internet
prescribing, and the Drug Enforcement Administration Final Rule
that implements this statute and defines telemedicine (21 Code of
Federal Regulations Parts 1300, 1301, 1304, 1306 2009). TMH
physicians who wish to prescribe medication via technology should
become familiar with medical practice laws within their own state,
as well as the state where the patient is located, to know what will
satisfy requirements for establishing a physician–patient relationship, and what is sufficient for meeting the initial examination
requirement (see, e.g., Natoli 2011 for a discussion of these key
issues related to telemedicine and prescribing). Although some
states may have or create exceptions for telemedicine prescribing,
currently most states do require physicians to have an initial inperson encounter prior to prescribing via technology.
With regard to malpractice liability insurance, because TMH is
a newer form of care, many malpractice insurance carriers are
silent on the issue of telepractice. It is recommended that physicians look at their current coverage to see if it mentions any
form of telepractice, and also to see whether it includes coverage
for care provided to a patient physically located out of state (note
that some policies may cover practice in any state where the
clinician is licensed). Even if a particular policy is silent, it might
be wise to consider contacting the insurance carrier to try to get
answers to the extent that the particular policy might or might not
cover TMH. According to one informal survey of professional
liability insurance companies, most telepsychiatry questions were
handled on a case-by-case basis with no common approach
(Hyler and Gangure 2004). It is hoped that more insurance carriers will soon include telemedicine clauses in their policies; but
even if they do not, physicians need to be assertive in trying
to get answers, and it is recommended to document any oral
conversations with malpractice insurance carriers when trying to
get answers.
Credentialing and Privileging
As any healthcare professional with privileges at multiple hospitals may know, hospitals often use different local administrative
processes to verify credentials (e.g., diploma, license) and grant
privileges to practice an appropriate medical specialty. The credentialing and privileging (C + P) process is relevant to TMH because
clinicians need to have privileges at each site where they see patients,
including the remote hospital or clinic where the patient is physically
located when receiving the service. TMH conceptually allows clinicians to see patients located at many different sites from the convenience of their home hospital, clinic, or office; but the process of
initially obtaining and maintaining privileges every few years at more
than one site has traditionally been burdensome for some clinicians.
To ease that burden somewhat, the agency that issues C + P
standards for certifying hospitals – the Centers for Medicare and
KRAMER AND LUXTON
Medicaid Services (CMS) – recently released a new regulation on
telemedicine C + P in 2011 (42 Code of Federal Regulations, Part
482 and 485 2011) meant to streamline the process. The new regulation allows a local hospital to rely upon the C + P decision of a
distant site hospital under certain conditions (see 42 Code of Federal Regulations, Part 482 and 485 for a list of the conditions). This
new ‘‘privileging by proxy’’ rule applies to telemedicine and likely
TMH, as it broadly defines telemedicine to include ‘‘overall delivery of healthcare’’ (42 Code of Federal Regulations, Part 482 and
485 2011). As a result of and consistent with the new rule, The Joint
Commission (TJC) issued similar telemedicine standards ( Joint
Commission Perspectives 2012). Although it remains unclear how
effectively hospitals will implement this new regulation to improve
the C + P process, this is one area in which the regulatory environment has opened up the possibility for processes more supportive of TMH advancement.
Risk Management Strategies
Although we have highlighted some potential areas of concern
for TMH clinicians, we also emphasize that TMH is safe and effective with some basic risk management strategies. We highlight a
few areas in which TMH clinicians can take informed steps to
engage in ‘‘best practices’’ that help to mitigate risks. Although the
evolving legal and regulatory arena for TMH still leaves many open
questions, attention to informed consent, data security and privacy,
and emergency management procedures can help to reduce risks
and assure competent and ethical TMH practice.
Informed consent
Informed consent is an important consideration in TMH care and
is a standard of care as in traditional in-person care. Several states
have specific legal requirements for what constitutes valid informed consent, and it is recommended that TMH clinicians review
any applicable informed consent regulations in their state to see
what specific consent elements are required (see American Psychological Association Practice Organization 2010 for a review of
the issue). Recent TMH guidelines from the ATA have highlighted
the importance of obtaining informed consent with patients in real
time (Turvey et al. 2013). Those guidelines also provide some
recommended elements for TMH informed consent (in the absence
of specific law or regulation), that include the following: Confidentiality and limits to confidentiality when using electronic
communications, emergency plan, process for documentation and
storage of information, potential for technical failure and procedures for coordination of care with other professionals, protocol for
contact between sessions, and conditions under which TMH services are terminated and a referral for face-to-face care made
(Turvey et al. 2013).
An additional issue to consider when providing TMH to children
and adolescents is age of consent. Age of consent laws vary from
state to state; therefore, TMH professionals should familiarize
themselves with the age of consent requirements for any state
where patients are receiving services, as most state law considers
care as occurring in the state where the patient is physically located.
Failure to know the specific age of consent laws when providing
TMH services to other states can expose the TMH clinician to
potential liability for not obtaining appropriate informed consent.
Knowing and considering age of local consent laws is also relevant
to emergency management when working with children and adolescents, as it may help determine appropriate parents or guardians
to involve in safety planning.
TMH LEGAL AND REGULATORY ISSUES
Emergency management
Safety planning ahead of initiating TMH services is an important
risk management strategy. TMH professionals should consider and
establish a plan for addressing technical, medical, and clinical
emergencies. Fortunately, industry guidelines (Yellowlees et al.
2010; Turvey et al. 2013) and other resources (Luxton et al. 2012b,
2104) provide useful recommendations for establishing a safety
plan. Because this topic is of sufficient importance, we recommend
reviewing these and other resources to gain additional information
on this issue beyond the scope of what we can mention here.
However, given the importance of this topic, here are several
considerations physicians need to consider, including some specific
to working with children and adolescents.
1. Know the local civil commitment laws and Tarasoff type
duty to warn/protect requirements where patients are located, because procedures for hospitalization and Tarasoff
warnings vary by jurisdiction (Tarasoff v. Regents of the
University of California 1974, 1976; Walcott et al. 2001;
Herbert 2002; Godleski et al. 2008; Turvey et al. 2013).
2. Know the specific emergency procedures (if they exist) for
any site (e.g., clinic, school) where treatment of children or
adolescents take place. If none exist, establish emergency
procedures, including who will do what at each site to ensure
coordination; ensure there is a backup/secondary method for
contact in emergencies. Specifics to consider when planning
emergency procedures, as presented in the ATA Practice
Guidelines for Video-Based Online Mental Health Services
(2013) include: Identifying local emergency resources and
contact information; identifying location of nearest hospital
emergency department capable of managing psychiatric
emergencies; having patient’s family/support contact information; and collection of contact information for other local
professional associations, such as the city, county or state,
provincial or other regional professional association(s), in
case a local referral is needed to follow up with a local
professional. Regardless of what emergency procedures are
in place, it is a good practice to discuss with the patient all
technical, clinical, and emergency procedures at the initial
encounter as part of informed consent. Also, depending upon
age of consent issues, it may be necessary to communicate to
and even include the parent or guardian in all emergency
procedures.
3. Become familiar with transportation issues and what access,
means, and geographical restraints caused by long travel
distances, the child or adolescent may have if needing urgent
response for a clinical or medical emergency. Having a local
support person (staff, parent or guardian) involved in the
emergency plan can help consideration of these issues ahead
of time.
4. Finally, as with civil commitment and duty to warn laws, it
is also recommended to know the local requirements, procedures, and phone numbers for mandated reporting to Child
and Protective Services, as state requirements for mandated
reporting may vary as to types of professionals who must
report, what is required to report, procedures and timeframes
for reporting, and to whom to report.
Security and privacy
Given the diversity in technologies available for TMH (e.g.,
VTC, Internet, mobile phone apps), assuring patient privacy and
201
data security that are compliant with the Health Insurance Portability & Accountability Act of 1996 (HIPAA) needs to be a priority for TMH professionals. New HIPAA rules enacted in 2013
make the fines and consequences for HIPAA noncompliance
greater than they have been in the past (78 FR 5565 2013). It is
important to consider that HIPAA compliance is a set of processes
that one can employ, and not simply technical requirements that
are to be met. For example, just because a software company may
claim its product meets HIPAA’s 128 bit encryption standard,
there are other considerations that can make the product HIPAA
compliant or not, such as whether the company enters into business associate agreements with providers or healthcare organizations they do business with and whether they allow patient
health information audits if a security breach does occur. For this
and other reasons, choice of technology is important. There
continues to be debate on whether the use of commercially
available products, such as Skype, is HIPAA compliant (Mahue
and McMenamin 2013).
The first step in risk management is knowledge of the appropriate
rules and, fortunately, the American Medical Association has written
a summary of the new HIPAA rules (http://www.ama-assn.org/
resources/doc/washington/hipaa-omnibus-final-rule-summary.pdf).
It is also important for physicians to know any relevant state privacy
laws in the state where they reside, as state laws that have more
stringent privacy and security requirements might preempt HIPAA
(Hyler and Gangure 2004; Genomics Law Report 2011). In addition, there are a several guidelines and other TMH resources specific
to HIPAA compliance, appropriate technology to use, and methods
to safeguard data security and patient privacy (Yellowlees at al.
2010; Luxton et al. 2012a; Kramer et al., 2012; Turvey et al. 2013).
Ultimately, in addition to privacy and data security concerns, TMH
clinicians should use technology that allows them to feel comfortable enough in interacting with the patient to make accurate clinical
decisions.
Additional Considerations: Children and Adolescents
in Nontraditional Settings
TMH provides the opportunity to reach out to children and adolescents in a variety of settings, including nontraditional clinic
settings, like a home, foster home, group home, or residential care
facility. Some of these settings may not have clinical staff available
on site or may not have staff who are available full time, therefore
raising additional considerations for providing care in these environments. Recommendations for safe provision of in-home care
exist (Gros et al. 2011; Shore 2011; Luxton et al. 2012b; Turvey
et al. 2013) and data provide initial indication that TMH care can
safely occur in environments such as a home (Luxton et al. 2010).
At least one federal agency – the VA – already has established inhome TMH programs.
When providing care to a child or adolescent who may reside in a
clinically unsupervised setting, such as a foster or group home, it is
essential to have contact information of someone (a foster parent,
guardian, group home staff) who can assist in an emergency, and
who may have to initiate a 9-1-1 call from the child or adolescent’s
home residence, and/or assist with transporting the child or adolescent in a medical or clinical emergency. These care collaborators
can also provide technical assistance in the case of equipment
malfunction, particularly in the case of children who are too young
to understand how to independently resolve the technical issue. It is
preferable to include those with appropriate legal interest in the
child or adolescent (e.g., foster parent, case worker, court staff,
202
group home staff) in safety planning. In particular, this person
could help assess and maintain a safe physical environment for the
child or adolescent receiving home-based care. This might include
assessing or restricting access to weapons or otherwise ensuring
that the physical environment is safe (e.g., open windows or other
hazards), private (e.g., reducing distractions that could occur from
other children in the home intervening in the treatment), and otherwise conducive to treatment.
Assessing for risk is also important when treating children from
a distance who may become easily distracted by a TMH session or
by other factors at their local site, such as other children in the
home. An initial assessment of the technology available in the
home is recommended to ensure that the patient’s equipment
(personal computer, videocamera) are reliable and adequate to
establish and maintain a private and secure connection (Luxton
et al. 2012b). Of course, the legal rights of the child and adolescent
are paramount, and may vary depending on circumstance (e.g., age,
foster status); therefore, it is important to ensure that whoever has a
legal right to be included in treatment with or without consent in an
in-person environment is also afforded the same right in a TMH
environment.
Conclusions
TMH options will continue to expand the opportunities to provide children, adolescents, and their families with quality care.
TMH legal and regulatory issues persist, although solutions are
emerging. Knowledge of the key issues can help any clinician
considering or using TMH make informed decisions and engage in
‘‘best practice.’’ TMH practice consistent with published guidelines and risk management strategies mentioned in this article can
increase comfort level and mitigate risk.
Disclosures
No competing financial interests exist.
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Address correspondence to:
Greg M. Kramer, JD, PhD
National Center for Telehealth and Technology (T2)
9933 West Hayes Street
Joint Base Lewis-McChord, WA 98431
E-mail: gregory.m.kramer7.civ@mail.mil
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