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HIPAA and TeleMental Health: Get Compliant!
Is your telemental health practice HIPAA compliant? It’s a question that can cause a knot in the stomach of even the most experienced telemental health professionals. For those just starting out in telehealth, it may even cause a bout of panic. Exactly how does HIPAA impact counselors who are using telehealth? Are the rules different than the rules for in-person therapy?
Even if you’ve taken a continuing education class covering HIPAA, it may not have covered telemental health and you may have questions.
Let’s start with some basics:
Telehealth is Expected to Get a Big Boost in the Biden Era
Even before he was confirmed as President Joe Biden’s health secretary on March 18, 2021, Xavier Becerra had signaled his support for expanding telehealth. During his confirmation hearings in February, Becerra said, "I wholeheartedly believe we're going to be doing expansion of telehealth."
The counseling profession has struggled with barriers to delivering mental health services to clients across state lines since the conception of licensure law. Most states require counselors to be licensed in the state where the client resides. This means clients have to find a new counselor if they move out of state. It also limits telehealth options for many clients.
To address this dilemma the American Counseling Association (ACA) – in collaboration with the National Center for Interstate Compacts (NCIC) – has been working on an interstate licensure compact. This compact would create licensure portability for professional counselors – creating a way for counselors to practice in multiple states.
To explore what the interstate compact would mean for counselors, Raymond Barrett, CEO of the Telehealth Certification Institute (TCI), interviewed Dr. Lynn Linde, chief knowledge and learning officer at ACA.
The jurisdictional structure of the counseling profession has hampered counselors and their clients for decades. Differing state licensure requirements associated with educational coursework, supervision hours, and professional examinations have fragmented the profession since the founding of the American Counseling Association (ACA) in 1952 and continue to impact counselors. An easy, straightforward answer to this dilemma has eluded industry decision-makers for years, but a professional reformation is underway—set in motion by a three-year investigative study, true portability for counselors is possible.
The healthcare industry is taking a simple and effective step in protecting its nurse workforce: listening to and allying with their needs. Groups like the National Council of State Boards of Nursing (NCSBN) have put pieces in place to enhance the work-life balance of advanced practice registered nurses (APRN). The APRN compact, influenced by a big legislative push from the NCSBN, is restructuring how patients are treated across the U.S. The compact has opened a new channel for multi-state practice for nurses licensed in a state that has signed the agreement.
The terms telehealth and telemedicine are often used interchangeably by the public, even though they describe distinct processes. In the most generic sense, telehealth and telemedicine involve conducting health care services remotely. The difference between the two terms arises when one examines the medical portion of telemedicine. The nuance isn’t just a lexicological typo, it ties a specific clinical component to the provided services.
Telehealth, on the other hand, is more inclusive. Non-clinical activities related to education, staff training, healthcare administration, professional conferences, or patient-provider clinical services all fall under the telehealth label. Three of the main telehealth modalities are live patient-provider video sessions, the store-and-forward technique—which collects clinical data and sends it to a separate location for evaluation—and off-site patient monitoring that studies clinical data as it elapses in real-time.
History of Telehealth Services
The telehealth revolution found its footing in a 1925 science fiction premise, which questioned the possibility of remote-based medical procedures. Matt Novak of Smithsonian Magazine pointed to entrepreneur and author, Hugo Gernsback, who imagined a world where doctors could interact with patients using radio waves—an insight that has helped clinicians grow their virtual presence and deliver patient-centered care over the internet.
Helen Oscislawski is the co-founder & frequent author on the Legal Health Information Exchange, a rich resource of blog articles and a compliance resource library. She was elected in 2020 to the "Super Lawyers" issued by Thomson Reuters, for healthcare law in New Jersey.
Helen is known to many as a “go-to” attorney for legal guidance on HIPAA, HITECH, state privacy laws, and electronic Health Information Exchange (HIE) and is well-regarded for her work with the legal aspects of health information exchanges, HIPAA law, and 42 CFR Part Two for privacy and security law around healthcare information regarding substance abuse treatment. A trusted advisor, Helen now represents some of the most cutting edge and sophisticated HIEs, RHIOs and ACOs in the nation.
Helen and Ray Barrett met for one of our "Telehealth Facts Friday" sessions on Facebook Live. Watch the full interview for answers to frequently asked questions about the legal aspects of telehealth care, including:
March 27, 2020, is the date that the Coronavirus Aid, Relief, and Economic Security Act (CARES Act) was passed. The CARES Act is a $2 trillion stimulus package and designates emergency funding for topics such as healthcare, state funding, and overall relief.
What immediate impact does the CARES Act have on healthcare during the period of the COVID-19 emergency?
Ray Barrett recently met with Mei Kwong, the Executive Director at CCHP, Center for Connected Health Policy to discuss recent regulation changes pertaining to the COVID-19 epidemic.
March 2020 marked the release of the 21st Century Cures Act: Interoperability, Information Blocking, and the ONC Health IT Certification Program Final Rule by the Department of Health and Human Services (HHS). This has been a five-year process and a promise for improvement and progress in the United States health care system.
In December 2016, the Office of the National Coordinator for Health IT (ONC’s) Cures Act was signed into law by Congress and has been under revision so that the newly issued Final Rule supports modern-day technology. The Cures Act is designed to accelerate medical product development, information innovation and advancements in access to patient information. A goal of the Cures Act is to establish the means by which the market takes the lead and drives development – to not wait on legislation and regulations in order to make improvements.