By Amanda I. Forbes, J.D.

Starting in 2020 and throughout the COVID-19 pandemic, tele-behavioral health services, also known as “e-counseling,” rapidly expanded. Because individuals were quarantined or fearful to venture out, remote mental health care services became very popular among patients. A study published in The Journal of the American Medical Association (JAMA), including 36 million working-age individuals, revealed that tele-health services increased by 766% in the first three months of the pandemic.

Thanks to remote services like tele-behavioral health, the doctor’s “house call” is making a comeback;  but instead of ringing the doorbell, your doctor will be ringing your smartphone.

What is Tele-behavioral Health?

The National Institute of Mental Health defines telebehavioral health as “the use of telecommunications or videoconferencing technology to provide remote mental health services.” Providers can use video conferencing, text messaging, or smartphone apps. Additionally, many different types of behavioral health services are available remotely.
The U.S. Department of Health and Human Services (HHS) says remote visits are a safe and convenient way for mental and behavioral health providers to offer services such as:

1. One-on-one and group therapy
2. Substance abuse counseling
3. Medication management and prescribing
4. Anxiety and depression monitoring
5. Mental health screening
6. Referrals

What Are the Potential Benefits?
Tele-behavioral health services enable clinicians to reach more patients, such as people living in rural areas, working irregular hours, and homebound patients. It removes patient barriers to attending in-person appointments, such as taking time off work, transportation, and arranging childcare.

The Downside to Tele-behavioral Health.

In addition to its convenience, tele-behavioral health also ushers in a new era of risks for treatment providers to be aware of.  It’s particularly true if the counseling occurs via text or a similar instant messaging application. As a licensed mental health care professional, you must know about liability exposures and ways to improve patient safety.
Click here to read about a case study demonstrating the issues that can arise when conducting tele-behavioral health.
When it comes to tele-behavioral health services and technology, there are significant legal considerations to think about.
To make sure you can provide remote counseling effectively while handling the risks that come with it, follow these risk management tips and recommendations:

1. Obtain the necessary training to provide telebehavioral health services. Take continuing education units (CEUs) in tele-behavioral health and retain any certificates of completion associated with those CEUs.

2. Determine whether tele-behavioral health treatment is in the client’s best interest. The provider should consider the following: Can the client effectively use the technology required for tele-behavioral health?  Does the client’s insurance cover telebehavioral health services?  Is the client emotionally and cognitively compatible with this treatment modality?

3. Obtain informed consent from the client.  In addition, document the purpose of the counseling, the use of technology to facilitate the tele-behavioral health services, and confidentiality and privacy. Obtain informed consent by having the client sign a consent form.  Have a document record of the consent process and consent form in the client’s file.

4. Providers must adhere to encryption standards. Some examples are using a secure platform, ensuring that the vendor signs a HIPAA Business Associate Agreement, which is required by HIPAA laws and regulations, and stating the vendor will follow federal privacy requirements.
5. Ensure client confidentiality by advising them of their responsibility to be in a private space during the telebehavioral health session. Document this discussion and include this as part of your agreement with the client.

6. Providers must check their state and third-party requirements related to tele-behavioral health services, credentialing, and licensure. Contact your respective licensing board for additional information and consult a health law attorney if unsure.

To read one of our prior blogs on telehealth services and learn more information on this growing area of practice, click here.

Contact Health Law Attorneys Experienced Investigations of Mental Health Counselors, Psychologists, Social Workers, and Family Therapists.

The attorneys of The Health Law Firm provide legal representation to mental health counselors, psychologists, psychiatrists, social workers, and family therapists in Department of Health (DOH) investigations, Department of Regulatory Agencies (DORA) investigations, board hearings, FBI investigations, and other types of investigations of health professionals and providers. We also defend health professionals and health facilities in general litigation matters and business litigation matters.
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Counselor Liability Claim Report: 2nd Edition.”CNA AND HPSO COUNSELOR SPOTLIGHT: Telebehavioral Health”. Healthcare Providers Service Organization (HPSO). (2019). 
Department of Health and Human Services (HHS). “Telehealth and behavioral health”. (July 25, 2023).,a%20long%2Dterm%20treatment%20plan. 
National Institute of Mental Health (NIMH). “What is Telemental Health?” (Accessed on December 12, 223). 

About the Author:
Amanda I. Forbes, practices health law with The Health Law Firm in its Altamonte Springs, Florida, office. Its main office is in Orlando, Florida, area. The Health Law Firm, 1101 Douglas Ave. Suite 1000, Altamonte Springs, FL 32714, Phone: (407) 331-6620 or toll-free: (888) 331-6620.

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