Telehealth Part 1: Legalities, Competencies, and Best Practices
by Katherine J. Collmer, M.ED., OTR/L
Over the years, I have received a number of inquiries from occupational therapists about my experience with the telehealth service delivery model. In the past 6 months, I have noticed an increase in these inquiries and realized that it would be an important area to address in an article. My contacts with these wonderful therapists had piqued my interest in the area once again, so I went about searching the internet for new information and resources. I will share what I’ve found with you in the first part of the article and then conclude in Part 2 with my experiences with telehealth; my thoughts and resources that address the benefits, drawbacks, and ethical concerns; as well as my impressions regarding the implications of these three areas in our practice.
Telehealth as a service model has marched to the forefront of the healthcare industry, with studies indicating that “an estimated 1.8 million health consumers [were expected] to take part in some form of telehealth….” by the end of 2017. The various technological modalities listed under the telehealth umbrella have been proposed as the next generation of delivery service models to benefit both clients and practitioners. In that light, it is important to understand the accurate interpretation of the term “telehealth.” The Center for Connected Health Policy (CCHP) applies the term to “a collection of means or methods, not a special clinical service, to enhance care delivery and education.” It further clarifies that telehealth versus telemedicine is “a more universal term for the current broad array of applications in the field” crossing most health disciplines and including consumer and professional education.
Telehealth has been defined by writers in the media in various ways. For the purposes of this article, the AOTA and State of California definitions will be offered as references. These were chosen because this article’s focus is on the delivery of occupational therapy services and the California state law definition provides a clear and specific model for interpreting this delivery model. It is important to note, however, that the definition of telehealth varies among the states, with some states not addressing this mode of service delivery at all. This aspect will be discussed in detail further on in the article.
“AOTA defines telehealth as the application of evaluative, consultative, preventative, and therapeutic services delivered through telecommunication and information technologies.” Whereas, “telerehabilitation within the larger realm of telehealth is the application of telecommunication and information technologies for the delivery of rehabilitation services.”
“Telehealth means the mode of delivering health care services and public health via information and communication technologies to facilitate the diagnosis, consultation, treatment, education, care management, and self-management of a patient’s health care while the patient is at the originating site and the health care provider is at a distant site. Telehealth facilitates patient self-management and caregiver support for patients and includes synchronous interactions and asynchronous store and forward transfers.” (Source as cited in referenced link: CA Business and Professions Code Sec. 2290.5)
Laws, Regulations, and Licensing
In the same way that the state’s definitions of telehealth differ, so do their individual laws and regulations pertaining to licensing requirements, their laws regulating its use, and their rules for reimbursement for telehealth services. This section will address the regulating laws and licensing issues, while reimbursement will be reviewed in a separate section.
Although there are compilations provided by various agencies outlining licensing regulations among the states, it is important to contact the licensing board in the state where you are licensed to verify the current laws that apply to the use telehealth as a delivery model as well as the scope of those services that the law allows. Each state and its board makes individual decisions on these issues.
Laws and Regulations:
- For instance, Arizona provides both a legal definition of the delivery service models and a Regulation Telemedicine/Telehealth Definition:
Under Arizona Statute, Public Health & Safety, “telemedicine means the practice of health care delivery, diagnosis, consultation and treatment and the transfer of medical data through interactive audio, video or data communications that occur in the physical presence of the patient, including audio or video communications sent to a health care provider for diagnostic or treatment consultation.” (Source as cited in above link: AZ Revised Statute Sec. 36-3601; link not available).
“Under State Administrative Code, Department of Insurance, Health Care Services Organization Oversight, ‘telemedicine means diagnostic, consultation, and treatment services that occur in the physical presence of an enrollee on a real-time basis through interactive audio, video, or data communication.” (Source as cited in referenced link: AZ Admin. Code Sec. R20-6-1902
- South Dakota also has both a legal definition and a regulation, however the latter provides a more limited scope for the use of the service models:
“ ‘Telehealth’ is a mode of delivering healthcare services that utilizes information and communication technologies to enable the diagnosis, consultation, treatment, education, care management and self-management of patients at a distance from health care providers.” (Source as cited in referenced link: HB 1183 (2017)
“ ‘Telehealth services’ is a home based health monitoring system used to collect and transmit an individual’s clinical data for monitoring and interpretation.” (Source as cited in referenced link: SD Regulation 67:40:18)
- In the case of Montana, the state provides a detailed legal telemedicine/telehealth definition, but does not provide a regulation relative to the provision of those service modalities:
“Telemedicine means the use of interactive audio, video, or other telecommunications technology that is:
1. Used by a health care provider or health care facility to deliver health care services at a site other than the site where the patient is located; and
2. Delivered over a secure connection that complies with the requirements of HIPPA.
The term includes the use of electronic media for consultation relating to the health care diagnosis or treatment of a patient in real time or through the use of store-and-forward technology.
The term does not include the use of audio-only telephone, e-mail, or facsimile transmissions. (Source as cited in above link: MT Code Sec. 33-22-138)
In the case of licensure requirements, there is a great deal of variation among the states relative to the establishment of standards and regulations specific to occupational therapy and telehealth. Some state licensing boards have established specific standards of practice for the delivery of services through telehealth modalities, while others have not addressed this despite the fact that their states provide definitions and regulations for telehealth/telemedicine.
For instance, Alaska has written a unique condition for occupational and physical therapists into their administrative code, as cited in this link. This condition states that occupational and physical therapists “must be physically present in the state while performing telerehabilitation,” thereby preventing the use of telehealth as a service delivery model by their licensed practitioners residing outside of the state.
California’s occupational therapy regulations, as cited in that same link, contain another unique component stating that the therapist “must assess whether or not an in-person evaluation or intervention is necessary, and consider a number of specific factors outlined in the rule, before a telehealth visit can take place.” If it is determined to be more appropriate, then an OT or a COTA must be available in person.
An interesting addition to a Kentucky Board of Physical Therapy bill approved in March 2014 (as cited in the same link) “makes Kentucky the US state with the most detailed telehealth regulation related to physical therapy,” outlining the tasks that must be completed by the therapist during the initial and continuing treatment.
Some state boards simply cite AOTA’s 2013 position paper titled, “Telehealth,” as an acknowledgement that telehealth/telerehabilitation is an accepted service delivery model, while others have not yet taken a position on the issue. It is vital, therefore, to verify the licensing regulations with your state’s board before embarking on a telehealth endeavor. Members of AOTA can access this link for some information about each state’s licensing requirements. However, it remains the practitioners’ responsibility to ensue that they are working under the provisions of the state licensing requirements in their home state and/or in the state in which the telehealth services are provided.
The licensing issue is complicated further because of the lack of a licensure compact affording occupational therapists the ability to practice outside their home state without obtaining a license for each additional state. This is the reason that traveling therapists must obtain a license for each state in which they practice. Interstate compacts are used as a measure to ensure cooperative action among states. They are “contracts between two or more states creating an agreement on a particular issue, adopting a certain standard or cooperating on regional or national matters.” Although physical therapy has recently had such a compact approved in 10 states, thus beginning the rigorous process toward the creation of a Physical Therapy Compact Commission, occupational and speech therapy have not yet achieved this.
The services provided in my practice were offered on a private-pay basis; therefore, I do not have first-hand knowledge of insurance reimbursement policies. For information relative to reimbursement policies and the government programs, regulations, laws, and policies that are impacted or intersect with telehealth policy, I offer the following sources as a starting point in your search:
Confidentiality compliance as it relates to the 1996 Health Insurance Portability and Accountability Act (HIPPA) is a complicated and complex system to navigate. It is important to contact government resources to discuss the HIPPA requirements as they pertain to individual practices. I offer some resources as a starting point in your search:
The following source includes a section on HIPPA but is also an excellent source for a wide range of questions related to telehealth: “Telehealth Regulatory and Legal Considerations: Frequently Asked Questions,” by Jana Cason, DHS, OTR/L, and Janice A. Brannon, MA.
The question of competency for the use of telehealth as a service delivery model addresses the therapists’ ability to utilize the technology inherent in its delivery. The sudden increased interest in telehealth has placed technological knowledge and expertise at a higher premium as it will be the single most important facet for achieving success connected to the delivery method. Technology disruption and failures can hamper outcomes, patient engagement, and therapist satisfaction, as well as the desired cost savings. A thorough understanding of the mechanics, benefits, and limitations of the technology in play will be important skills in the use of telehealth for providing occupational therapy services.
A review of the literature, however, does not suggest that the profession as a whole, faculty nor therapists, has yet met the mark in this area. The American Occupational Therapy Association Advisory Opinion for the Ethics Commission on Telehealth, under the section titled, “Provider Competence,” acknowledges the need for this understanding of technology in its statement,
“occupational therapy practitioners must be competent in the use of the technology to ensure effective service delivery, and the equipment or technology must be of sufficient quality and in dependable working order. Lapses in sound or picture transmission can impede the therapeutic encounter (Denton, 2003; Grosch, Gottlieb, & Cullum, 2011). To avoid disruption of services, facilities and private practitioners should have a sound plan of action in the event of equipment malfunction (Denton, 2003).”
In addition, under the section titled, “Quality Care and Adherence to Standards,” it states that “practitioners also must gain and maintain competency in the use of all relevant technology to provide safe and effective services (Brennan et al., 2010).”
However, while that same paper, under the section titled, “Quality Care and Adherence to Standards,” states that in the Ethics Code, Principle 1E, “occupational therapists and occupational therapy assistants are obligated to provide services within their level of competence and scope of practice,” and in Principle 1G that they are “to take responsibility for maintaining high standards and continuing competence in practice,” it also cites Principle 1F that “specifically refers to situations in which ‘generally recognized standards do not exist in emerging technology’ and directs therapists to take steps to ensure their own competence and weigh benefits of service provision with the potential for client harm.” This acknowledgement that there lacks sufficient training in telehealth leaves therapists in a confusing bind relative to ethical considerations.
It also appears that the path toward competence with technology and telehealth are not being addressed by professional organizations or educational institutions; but instead left to the responsibility of the therapist. The reference to this is presented in an AOTA paper titled, “Model Continuing Competence Guidelines for Occupational Therapists and Occupational Therapy Assistants: A Resource for State Regulatory Boards.” In Chapter 02, Optional Provisions, Section 01., titled, “Continuing Competence Plan for Professional Development,” Subsection A clearly reflects this in its statement:
“It is the responsibility of each licensee to design and implement his or her own strategy for developing and demonstrating continuing competence. Each licensee has current and/or anticipated roles and responsibilities that require specific knowledge, attitude, abilities, and skills. It is incumbent upon each licensee to examine his or her unique responsibilities, assess his or her continuing competence needs related to these responsibilities, and develop and implement a plan to meet those needs.”
Further, in that same document, Chapter 02. Optional Provisions, the responsibility for assessing skills and determining needs are casually placed on the therapist within its description of the AOTA Continuing Competence Plan for Professional Development. In this section it further states that the plan “encourages occupational therapists and occupational therapy assistants to examine each area of responsibility relative to their practice and perform a self-assessment of professional development strengths and needs in order to develop and implement an effective continuing competence plan for professional development.” It is understandable to expect professionals to take responsibility for their own professional development and their continued competence in their fields. However, with an emerging service model such as this that requires expertise in an area not typically addressed in current occupational therapy program curriculums, it would seem appropriate then that the educational institutions concerned would then enhance their programs to include both an understanding of the use of telehealth as a delivery model and of the technology it employs.
This may also be taking off at a slow pace as “only a fraction of OT faculty members across the nation has enough expertise in this area to adequately teach this subject matter to students. p. 3).” Their confidence in their knowledge of technology and their limited experience with the telehealth modality seem to have faculty approaching course offerings with reluctance. Results of a small study conducted at a medium-sized combined Bachelor’s of Science/Master’s of Science three-year occupational therapy programming an urban community demonstrated that this may not yet be happening. The results indicated that “faculty in this specific OT program lack the knowledge needed to fully evaluate and therefore make a decision about adopting this subject matter [telehealth as a service delivery model] into their course syllabi and fully integrate this topic into the program curriculum (p. 89).” In addition, they voiced concerns about their lack of technological knowledge relative to “how to navigate the available technology; specifically what technology is available, how to set it up, and how to troubleshoot…. (p. 94).”
This raises concern about the level of competency that can be achieved by therapists in this time of rapidly growing interest in telehealth as an option for private practice, to provide care to underserved clients, and to reduce costs.
Best Practice Guidelines and Ethical Considerations
Telehealth as a service delivery method has been shown to be more convenient for patients, to have “the potential to cost-effectively meet the therapeutic needs of children living in rural areas,” to be effective in assessing “the functional mobility needs of clients being assessed for new wheeled mobility devices,” to be a feasible and accurate method for “conducting pre-admission orthopaedic occupational therapy home visits,” and to be a significant factor in reducing costs and improving health conditions. However, the questions surrounding client privacy and confidentiality, the quality of care and communication, the client’s or caregiver’s competency with technology, the effective engagement of the client, and client and practitioner satisfaction loom largely in the minds of those considering or entering into this emerging market. These are professional standards issues. It is important to remember that the method of delivery does not dictate a professional’s standards. AOTA clearly states that “The Standards of Practice for Occupational Therapy are requirements for occupational therapists and occupational therapy assistance for the delivery of occupational therapy services.” Further, The American Occupational Therapy Association Advisory Opinion for the Ethics Commission on Telehealth, section “Quality Care and Adherence to Standards,” states that
the “determination for appropriateness of occupational therapy intervention using telehealth technology should be made on a case-by-case basis according to sound clinical reasoning and should be consistent with published professional standards (Brennan et al., 2010). That is, a decision to implement telehealth service delivery should be client-centered and based on advocating for recipients to attain needed services (Principle 4B of the Code) rather than on factors related to convenience or administrative directives.”
The advisory also notes that therapists should maintain current knowledge of laws and AOTA policies regarding the delivery of services and the reimbursement for services policies, as well as understand the benefits and drawbacks of offering this type of service to clients.
More specific guidelines are offered in an AOTA paper titled, “Telehealth.” This paper outlines the use of telehealth within occupational therapy and addresses tele-evaluation, teleintervention, telerehabilitation, teleconsultation, and telemonitoring services. It further addresses practitioner qualifications and ethical considers, including a table detailing “Ethical Considerations and Strategies for Practice Using Telehealth Technologies.” Finally it briefly covers legal and regulatory considerations and funding and reimbursement.
Conclusion of Part 1
There is much unchartered territory facing occupational therapists and health care professionals in general as we look to provide services through the telehealth modalities. However, the journey can be exciting as we venture into it in these beginning stages.
Part 2 will share more resources, as well as my experiences with telehealth; my thoughts and resources that address the benefits, drawbacks, and ethical concerns; as well as my impressions regarding the implications of these three areas in our practice.
The Handwriting is Fun! Blog is published by and is the property of Handwriting With Katherine.
Katherine J. Collmer, M.Ed., OTR/L, is a pediatric occupational therapist who specializes in the assessment and remediation of handwriting skills. In her current book, Handwriting Development Assessment and Remediation: A Practice Model for Occupational Therapists, she shares a comprehensive guide and consistent tool for addressing handwriting development needs. She can be contacted via her website, Handwriting With Katherine.
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1 Disclaimer: This article is provided for informational and educational purposes only and is not a substitute for legal advice or the professional judgement of health care professionals in evaluating and treating patients. The author encourages the reader to review and verify the timeliness of information found on supporting links before it is used to make professional decisions. The author also encourages practitioners to check their state OT regulatory board/agency for the latest information about regulatory requirements regarding the provision of occupational therapy via telehealth.
2 Disclaimer: The information shared on the Handwriting With Katherine website, blog, Facebook page, Twitter page, Pinterest page; in the Universal Publishing Handwriting Teachers’ Guides; on any guest blog posts or any other social media is for general informational purposes only and should not be relied upon as a substitute for sound professional medical advice or evaluation and care from your physician/medical team or any other qualified health care providers. Therefore, the author of these links/posts take no responsibility for any liability, loss, or risk taken by individuals as a result of applying the ideas or resources.