Psychologists

Psychologists

Texas State Board of Examiners of Psychologists, Telepractice Policy Statement

Vol 12 No.2

December 1999

• Telepractice Policy Statement

• Policy on Licensees Working in Exempt Facilities

• No Duty to Warn: Says Texas Supreme Court

Telepractice Policy Statement

The delivery of psychological services by telephone, teleconferencing, and the Internet is a rapidly evolving area. Board rules do not specifically address telepractice, teletherapy, teleconferencing, or electronically providing services. No rules currently prohibit such services.

However, it is important for psychologists to be aware of a number of concerns about telecommunication-based service delivery including the following:

1. The increased potential that a therapist will have limited knowledge of a distant community’s

resources in times of crisis.

2. Problems associated with obtaining informed consent.

3. The lack of standards for training providers in the use of technology as well as the special therapeutic considerations in the use of the medium.

4. The lack of vocal, visual, and other sensory cues.

5. The potential that equipment failures may lead to undue patient anxiety particularly in crisis situations.

6. The potential inability of patients in crisis or those unfamiliar with technology to adequately access and use the technology.

7. The lack of full disclosure of provider credentials.

8. The lack of definition of professional relationships.

9. The lack of confidentiality and privacy. All of these issues are actively being explored, discussed, and debated at both state and national levels. It is important to remember that the Psychologists’ Licensing Act and all other laws affecting the delivery of psychological services apply to all psychological services delivered anywhere within the state of Texas, regardless of whether or not they are provided via electronic media.

Complaints received by the Board regarding psychological services delivered through electronic media, including telephone, teleconferencing, electronic mail and Internet, will be evaluated by the Board on a case-by-case basis. However, the following general principles apply.

An individual who is physically located in another state shall be considered to be practicing psychology in Texas and, therefore, subject to the Act, if a recipient of psychological services provided by the individual is physically located in the state of Texas. Licensees should also be aware that the services they offer to consumers in other states may similarly be regulated by the laws of the state in which the consumers are located.

The Board currently considers the use of non-traditional media to deliver psychological services, including telephone, teleconferencing, e-mail, and the Internet, as “emerging areas” as set forth in Board rule 465.9(e), Competency. That rule states: “in those emerging areas in which generally recognized standards for preparatory training do not exist, psychologists nevertheless take reasonable steps to ensure the competence of their work and to protect patients, clients, students, research participants, and other affected individuals from the potential for harm.” Board rule 465.9(d) requires that licensees who provide services in new areas or involving new techniques do so only after undertaking appropriate study, training, supervision, and/or consultation from persons who are competent in those areas or techniques.

Other Board rules that licensees should also consider include:

465.1. Definitions

465.6. Listings and Advertisements

465.8. Psychological Services Are Provided within a Defined Relationship

465.10. Basis for Scientific and Professional Judgments

465.11. Informed Consent/Describing

Psychological Services

465.12. Privacy and Confidentiality

465.15. Fees and Financial Arrangements

465.16. Evaluation, Assessment, Testing, and Reports

465.17. Therapy and Counseling

465.36. Code of Ethics.

Other rules may also apply depending on the type of services involved. It is important for licensees considering such services to review the characteristics of the services, the service delivery method, and the provisions for confidentiality to ensure compliance with the rules of the Board and the acceptable standards of practice.

Policy on Licensees Working in Exempt Facilities

In compliance with Section 501.004 of the Act, persons who are licensed with this Board and who work in exempt settings are exempt from the Act if their “activities and services” are a part of the duties of their positions with the exempt agencies.

Section 501.004 states that persons who are employed in exempt facilities as psychologists or psychological associates are not required to be licensed with this Board. However, this section does require that persons who are employed by an exempt agency and who provide services to the public for added compensation above their salary from the exempt agency have to be licensed with the Board.

Therefore, any “activities and services” regarding the practice of psychology and licensure with this Board outside the context of the exempt setting are subject to the requirements of the Act and the rules and to the discipline of the Board. For example, a licensee may work part-time in an exempt facility and part-time in private practice. The private practice would be subject to all the rules regarding supervision, record keeping, confidentiality, etc. However, the work in the exempt facility would be exempt from such rules of the Board.

Since activities such as renewal, payment of fees, submission of mandatory continuing education, etc. are not considered “activities and services” performed in the context of an exempt setting, the licensee would have to adhere to these provisions of the Act and rules to keep the license in good standing. Complaints received by the Board concerning the “activities and services” of a licensee in an exempt setting are referred to the appropriate exempt agency so that the matter can be resolved in the most expedient and proper manner. Complaints pertaining to the “activities and services” occurring outside of the exempt setting by a licensee who is employed by an exempt agency will be investigated and resolved by the Board.

No Duty to Warn: Says Texas Supreme Court

On June 24, 1999, the Supreme Court of Texas delivered its opinion concerning mental health professionals’ duty to warn third parties as to specific threats of harm made by a patient of the professional. In Thapar v. Zezulka, a psychiatrist had been treating a patient for approximately three years for post-traumatic stress disorder, alcohol abuse, and various delusional beliefs about his stepfather. After being admitted to the hospital, the patient stated to his psychiatrist that he had felt like killing his stepfather. A few weeks after being released from the hospital, the patient did, in fact, shoot and kill his stepfather.

The specific issue before the court was whether or not the psychiatrist was negligent in failing to disclose the patient’s threats to the family or to law enforcement officials. Chapter 611 of the Texas Health and Safety Code provides that mental health information is confidential and permits disclosure of mental health information only in limited circumstances.

Section 611.004 lists these exceptions and specifically states in 611.004(a)(2) that,

(a) A professional may disclose confidential information only:

(2) to medical or law enforcement personnel if the professional determines that there is a probability of imminent physical injury by the patient to the patient or others or there is a probability of immediate mental or emotional injury to the patient.” Texas Health and Safety Code Ann. 611.004(a)(2).

Because Section 611.004 does not provide an exception for disclosure to third parties threatened by the patient (such as the potential victim or their family members), the court concluded that the psychiatrist could not have legally warned the patient’s stepfather or his family without violating the confidentiality statute. As such, the doctor in Thapar was prohibited from warning the patient’s family members as to the threat and, therefore, had no duty to warn potential third party victims as a result.

However, Section 611.004 does allow disclosure of serious threats to medical or law enforcement personnel. Nevertheless, the court determined that this disclosure was permissive on the part of the professional rather than mandatory. Consequently, a mental health professional has no legal duty to warn a third party of a patient’s threat but may contact the appropriate officials in the event that the professional has determined that there is a probability of imminent injury by the patient to himself or others or mental or emotional injury to the patient. The current law will not penalize a mental health professional for failing to disclose threats to the proper officials even if he or she truly believes that some type of harm is imminent. However, professionals who do choose to disclose threats are not immune from civil liability for improper disclosure of confidential communications. This is true even if the disclosure was made in good faith. While there are circumstances where a patient’s right to confidentiality may be legally compromised, it will be incumbent on the mental health professional to show why the disclosure was permissible and made pursuant to the exception stated in 611.004(a)(2).

Copies of the Texas Supreme Court opinion in this Thapar v. Zezulka can be obtained at the Court’s website on the June 1999 “Opinions” page.

Texas State Board Of Examiners Of Psychologists’ Rules Of Practice.

Texas Administrative Code, TITLE 22, PART 21, CHAPTER 465, RULE §465.9 

Competency

(a) Licensees provide only services for which they have the education, skills, and training to perform competently.

(b) Competency includes the ability to provide services concerning a specific individual that takes into account characteristics of that individual including age, gender, ethnicity, national origin, disability, language, and socio-economic status.

(c) Licensees maintain current knowledge of scientific and professional information that ensures competency in every area in which they provide services.

(d) Licensees provide services in an unfamiliar area or involving new techniques only after first undertaking appropriate study and training, including supervision, and/or consultation from a professional competent to provide such services.

(e) In emerging areas in which generally recognized standards for preparatory training do not exist, licensees take reasonable steps to ensure the competence of their work and to protect patients, clients, research participants, and other affected individuals from the potential for harm.

(f) Licensees are responsible for ensuring that all individuals practicing under their supervision are competent to perform those services.

(g) Licensees who delegate performance of certain services such as test scoring are responsible for ensuring that the entity to whom the delegation is made is competent to perform those services.

(h) Licensees who lack the competency to provide particular psychological services to a specific individual must withdraw and refer the individual to a competent appropriate service provider.

(i) Emergency Situations. In emergencies, when licensees are asked to provide services to individuals for whom appropriate mental health services are not available and for which the licensee has not obtained the necessary competence, licensees may provide such services only to the extent necessary to ensure that services are not denied. If ongoing services are provided, licensees must comply with subsection (d) of this section as soon as practicable or refer the patient as per subsection (h) of this section.

(j) Licensees refrain from initiating or continuing to undertake an activity when they know or should know that there is a substantial likelihood that personal problems or conflicts will prevent them from performing their work-related activities or producing a psychological report in a competent and timely manner. When licensees become aware of such conflicts, they must immediately take appropriate measures, such as obtaining professional consultation or assistance in order to determine whether they should limit, suspend, or terminate the engagement in accordance with Board rule §465.21 of this title (relating to Termination of Services).

Source Note: The provisions of this §465.9 adopted to be effective June 3, 1999, 24 TexReg 4017; amended to be effective September 12, 2002, 27 TexReg 8479; amended to be effective June 5, 2005, 30 TexReg 3099; amended to be effective May 30, 2007, 32 TexReg 2864; amended to be effective September 19, 2012, 37 TexReg 7289

Private Pay Telehealth Parity Law

Refer to the section on the state's response to COVID-19

Source: TX Insurance Code 1455.004(a)

(a) A health benefit plan:

(1) must provide coverage for a covered health care service or procedure delivered by a preferred or contracted health professional to a covered patient as a telemedicine medical service or telehealth service on the same basis and to the same extent that the plan provides coverage for the service or procedure in an in-person setting; and

(2) may not:

(A) exclude from coverage a covered health care service or procedure delivered by a preferred or contracted health professional to a covered patient as a telemedicine medical service or a telehealth service solely because the covered health care service or procedure is not provided through an in-person consultation; and

(B) subject to Subsection (c), limit, deny, or reduce coverage for a covered health care service or procedure delivered as a telemedicine medical service or telehealth service based on the health professional's choice of platform for delivering the service or procedure.

Refer to the source provided for all requirements and limitations.

Response to COVID-19

Click here to view the state’s response to COVID-19 in regard to Counselors.

Click here to view the state’s response to COVID-19 in regard to Social Workers.

Click here to view the state’s response to COVID-19 in regard to Marriage and Family Therapists.

Click here to view the state’s response to COVID-19 in regard to Psychologists

Source: Texas Department of Insurance:  Telemedicine emergency rule

What does the emergency rule require?

Under the emergency rule, state-regulated health insurers and health maintenance organizations must:

• Pay in-network health professionals at least the same rate for telemedicine services as for in-person services, including covered mental health services.
• Cover telemedicine services using any platform permitted by state law.
• Not require more documentation for telemedicine services than they require for in-person services.

Governor Greg Abbott also suspended a law limiting coverage for medical services or consultations by phone. By suspending the law, insurers must pay for covered visits or consultations provided over the phone.

In addition, the Texas Medical Board (TMB) issued guidance March 14 to allow physicians and other health-care professionals to use phone consultations to establish a physician-patient relationship. Before the change, telemedicine services could be provided only after the physician-patient relationship had been established during an in-person visit.

For provider questions on what types of care can be provided by telephone or telemedicine, documentation, and billing, providers should see the Texas Medical Board FAQ, which includes billing guidance, or check with the agency that issued your license.

What health insurers must comply with this rule?

The emergency rule applies to fully funded health plans regulated by the state. This accounts for about 15% of the Texas market and includes plans purchased through Healthcare.gov.

It doesn’t apply to Medicare or Medicaid. (The federal government also has issued information expanding access to telemedicine for Medicare services.)

• For questions about Medicare call 800-252-9240
• For questions about Medicaid plans call 800-252-8263

It also doesn’t apply to the state employee or teacher retirement systems or self-funded employer-sponsored health plans. For these plans, contact the health plan administrator.

• For Employee Retirement System plans, call 877-275-4377
• For Teacher Retirement Systems plans, call 888-237-6762

How do I know if someone has state-regulated coverage?

State-regulated plans include:

• Plans that have “TDI” or “DOI” on the ID cards. (See examples)
• Short-term insurance, disability plans, and other limited benefit plans.

What providers are included in TDI’s emergency rule on telemedicine?

TDI’s emergency rule uses the definition of health professional from Insurance Code 1455.001. This definition includes licensed physicians and others, such as:

• Licensed or certified mental health professionals
• Physician assistants
• Nurse practitioners
• Dentists
• Physical therapists

How will health-care professionals code claims for telemedicine services?

Please see the Texas Medical Board FAQ. If you still have questions, call 800-248-4062. For providers not licensed by the Texas Medical Board, please contact the regulatory agency that issued your license.

The U.S. Centers for Medicare and Medicaid Services also has issued guidance on Medicare billing for telemedicine.

How long does the emergency rule last?

The rule, extended in June, will remain in effect through September 12.

Are there concerns these temporary changes could create opportunities for fraud?

The Texas Department of Insurance, Texas Medical Board, and other relevant state agencies will investigate allegations of fraud and take action as warranted. Violations of law will be subject to civil or criminal penalties.