Ethics 2.0 – When Clinical Goes Digital* Professional Issues in the Information Age

8/14/2020

Jeff Ashby, Ph.D. ABPP

Disclosures

• All statements made in this presentation are my own and do not represent the policies or recommendations of Eagle Ranch or Georgia State University. • I receive no industry sponsorship and have no conflicts of interest to report.

ETHICS is traditionally seen as serving 5 primary purposes including: 1) outline professionals’ responsibilities to clients, 2) outline professionals’ responsibility to society, 3) provide standards of practice, 4) protect the public, 5) protect the profession.

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Rate of Change…

(Krugman, 2012) 4

The “New Situation” of Information and Technology

• The safety plan for Wade’s adolescent client dictated that she call Wade, a private practitioner in La Plata, Md., whenever she felt like cutting herself. But instead of calling, the client kept texting Wade. When Wade responded by calling the client back to try to de-escalate the situation, the girl would hang up on Wade, insisting she didn’t want to talk. The client would then explain the whole situation via text. “I clearly had an ethical obligation to communicate with her, [but] I needed to do it in a way that she was going to be receptive to,” says Wade, a member of the American Counseling Association who also works in a group counseling practice and is working toward her doctorate. “We had a discussion about the lack of confidentiality regarding [texting] and my uneasiness about it, but the fact of the matter was, I had to do what was in the best interest of my client. And in that situation, it was to text and calm her down that way.”

Finding technology’s role in the counseling relationship - • Counseling Today – October 2011

Current* Case Example • Given the current health situation, you have notified all your clients that you are going to continue to provide services online using a telehealth platform. However, in one phone call with a client, the client indicates that they do not want to be treated using telehealth and insist that they need to come to see you face to face. They argue that the treatment isn’t adequate using an electronic platform and that, as a licensed health-care provider, you have an obligation to not abandon the client and provide adequate care. Do you have an ethical obligation to open your office to provide face-to-face care for this client? Would the diagnosis of the client make a difference? Would your own health status (or that of immediate family members) have an impact?

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Current Context – Ethical Perspective** • Meta-ethical principal of Non-malfeasance – Avoiding the harm of abandonment and discontinuing services prematurely. • APA Standard 2.02, “Providing Services in Emergencies,” allows psychologists to provide services for individuals for whom other services aren’t available through the duration of such emergencies, even if they have not obtained the necessary training. The Ethics Committee supports those psychologists working in good faith to meet the needs of patients, clients, supervisees and students.

Most Popular Social Networking Sites in the World… 1. Facebook- 8. SnapChat- 110,000,000 2,200,000,000 9. Ask.fm- 105,000,000 2. Youtube- 1,850,000,000 10. Tumblr- 95,000,000 3. Instragram- 11. Flickr- 90,000,000 1,100,000,000 12. VK- 85,000,000 4. Twitter- 375,000,000 13. LinkedIn- 5. WhatsApp - 85,000,000 1,500,000,000 14. Tagged- 35,000,000 6. Pinterest 250,000,000 15. Meetup- 30,000,000 7. Reddit- 370,000,000

http://www.ebizmba.com/articles/social-networking-websites 8

Nearly 50% of Waking Hours spent with a Screen of some kind

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How did you learn about the competent and ethical use of that technology?

• Coursework? • Workshops? • Supervision? • Consultation?

Challenge of the Technology Culture

•Digital Natives •Digital Immigrants • Use the language • Have to of technology consciously learn naturally… and speak the • Texting and social language networking sites as primary means of communication with each. • (Prensky, 2001)

Primary Ethical Issues

•Informed Consent •Competence •Confidentiality •Dual/Multiple Relationships

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Question: Can I get sued for that? Answer: ???

“There is nobody who is not dangerous to someone.” - Marquise de Sevigne

Malpractice (negligence) cases require: •The clinician owed a duty to the patient •The clinician "breached" (i.e. failed to live up to the standards of) the duty •The breach directly caused or played a crucial role in the patient’s actual harm or injury

http://www.alllaw.com/articles/nolo/medical-malpractice/psychologist-be-sued.html

Fiduciary Relationship?

•Readers of your blog •Followers on Twitter, Instagram, Pinterest, Tumblr •Friends on your professional Facebook page •Connections on Linked-In •Frequent visitors to your professional webpage 15

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Practice Areas of Greatest General Legal Risk

• Failure to obtain/document informed consent • Client Abandonment • Marked departure from established therapeutic practice • Practicing beyond scope of competency • Misdiagnosis • Repressed or False Memory • Multiple Relationships with clients • Failure to control a dangerous client Corey, Corey & Callanan (2011) Issues and Ethics in the Helping Professions

Ethical Codes • Social Workers (NASW, 2017; 20 pages) • Counselors (ACA, 2014; 17 pages; NBCC,2016 9 pages) • Psychologists (APA, 2010; 14 pages) • Marriage and Family Therapists (AAMFT, 2015; 4 pages*) • Psychiatrists (APA, 2013, 27 pages*)

Ethics as Evolving

•Susceptible to “drift” •Adjusting to changing cultural values •Changing to meet new situations

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Example: Facebook

• Founded in February, 2004 • More than 2.5 billion monthly active users • 1.66 billion people log on to Facebook everyday • 300 million photo uploads a day • 83 million fake profiles • Every 60 seconds: • 510,000 comments are posted • 293 statuses are updated • 136,0000 photos are uploaded

https://zephoria.com/top-15-valuable-facebook-statistics/

How do you currently make ethical decisions? 1) Consequentialism 2) Deontology 3) Virtue 4) Feminist 5) Discourse

What makes something an ethical dilemma?

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NOT a Dilemma… (Isn’t it Obvious?)

Mental Health Professionals do not engage in sexual intimacies with individuals they know to be close relatives, guardians, or significant others of current clients/patients. Mental Health Professionals do not terminate therapy to circumvent this standard.

Ethical Dilemmas

•Prima Facie- follow principles unless they conflict with a higher principle •Ethical Dilemmas are situations where no course of action is satisfactory, •There are reasons for more than one course of action… •(Kitchener, 1984)

Meta-Ethical Principles 1) autonomy - freedom of action and choice self-determination 2) nonmaleficence - “above all, do no harm” 3) beneficence - when possible, promote good 4) justice - essentially fairness 5) fidelity - faithfulness, loyalty, promise- keeping

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In many cases…

It Depends.

Consider… A clinician has come to you concerned that another licensed mental health professional has developed a youtube channel (with embedded video and links from the same clinician’s Linked-In profile, professional Facebook page, and practice website) with interviews with past and present clients, all being known entertainment industry stars. In the interviews, the clinician encouraged clients to discuss why they sought treatment and their experiences in therapy. Your colleague is concerned that these videos violated the clinician-client confidentiality principle as it was unprofessional, and disclosed client identity and treatment details. The clinician in question responded that the clients suggested these programs. She discussed the risks and benefits of such self-disclosure and all agreed that the advantages to the general public outweighed any risks. Further, the clinician secured written informed consent agreements, and all clients were willing to authorize statements to explain the course of events.

Two levels of moral reasoning 1) The intuitive level

2) The critical evaluative level 1) Professional Codes, Rules, and Laws 2) Meta-ethical principles 3) Ethical theory (Kitchener, 1984)

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Decision-Making Models 1. Identify the problem or dilemma 2. Identify the potential issues involved 3. Review the relevant ethical guidelines 4. Obtain consultation 5. Consider possible and probable courses of action 6. Enumerate the consequences of various decisions 7. Decide on what appears to be the best course of action (Corey, Corey, & Callanan, 2011)

ACA Decision-Making Model

1. Identify the problem. 2. Apply the ACA Code of Ethics. 3. Determine the nature and dimensions of the dilemma. 4. Generate potential courses of action. 5. Consider the potential consequences of all options and determine a course of action. 6. Evaluate the selected course of action (Justice, Publicity, Universality). 7. Implement the course of action. (Forester-Miller & Davis, 2016)

Primary Ethical Issues

•Informed Consent •Competence •Confidentiality •Dual/Multiple Relationships

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Current Context – Ethical Perspective**

• Meta-ethical principal of Non-malfeasance – Avoiding the harm of abandonment and discontinuing services prematurely.

• APA Standard 2.02, “Providing Services in Emergencies,” allows psychologists to provide services for individuals for whom other services aren’t available through the duration of such emergencies, even if they have not obtained the necessary training. The Ethics Committee supports those psychologists working in good faith to meet the needs of patients, clients, supervisees and students.

HIPAA Notification of Enforcement Discretion for Telehealth Remote Communications

• The Office for Civil Rights (OCR) at the U.S Department of Health and Human Services (HHS) announced 3/17/20, that it will exercise its enforcement discretion and will waive potential penalties for HIPAA violations against health care providers that serve patients through everyday communications technologies during the COVID- 19 nationwide public health emergency.

• https://www.hhs.gov/hipaa/for-professionals/special-topics/emergency- preparedness/notification-enforcement-discretion-telehealth/index.html

Notification of Enforcement Discretion for Telehealth Remote Communications

• This exercise of discretion applies to widely available communications apps, such as FaceTime or Skype, when used in good faith for any telehealth treatment or diagnostic purpose, regardless of whether the telehealth service is directly related to COVID-19.

• Under this Notice, however, Facebook Live, Twitch, TikTok, and similar video communication applications are public facing, and should not be used in the provision of telehealth by covered health care providers.

• * If a clinician uses a service that normally would not be allowed under HIPAA, the clinician needs to inform patients/clients that there are privacy risks involved in the use of the software.

• https://www.hhs.gov/hipaa/for-professionals/special-topics/emergency-preparedness/notification- enforcement-discretion-telehealth/index.html 33

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Practicing Across State Lines

• During the COVID-19 response emergency, many licensing boards and state governors are enacting temporary rules which permit out-of-state clinicians to work within their borders. Rules vary by state. • North Carolina - Temporarily waives North Carolina licensure requirements for healthcare and behavioral healthcare personnel who are licensed in another state, territory, or the District of Columbia to provide healthcare services within the emergency area. • California - Any out-of-state personnel, including medical personnel, entering California to assist in preparation for, responding to, mitigating the effects of, and recovering from COVID-19 shall be permitted to provide services in the same manner as prescribed in Government Code Section 179.5

Reimbursement

• Restrictions on telehealth reimbursement and coverage are being quickly lifted, and many private insurers are paying for phone sessions (before the emergency, they nearly always paid only for secure videoconferencing sessions.)

• Medicare has also lifted many restrictions through the Coronavirus Preparedness and Response Supplemental Appropriations Act 2020. • Telehealth is now available to Medicare beneficiaries in all parts of the country, not just in rural areas. • Telephones may be used only with audio and video functions that provide two-way real-time interactive communication. A telephone call without video does not qualify as a telehealth service. • Psychotherapy including individual (90832, -34, -37), group (90853), family (90846, -47), and psychotherapy for crisis (90839, -40) provided by telehealth can be billed. • https://www.congress.gov/bill/116th-congress/house-bill/6074/text

Informed Consent Allows Clients

•To be informed about services •To make autonomous, voluntary decisions regarding participation •To understand benefits and risks of services (e.g., therapy, assessment) •To understand alternatives to services

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Informed Consent More than a “form” clients sign…

Informed Consent • Capacity • Comprehension • Voluntariness

NASW Informed Consent (1.03) Social workers should use clear and understandable language to inform clients of the purpose of the services, risks related to the services, limits to services because of the requirements of a third-party payer, relevant costs, reasonable alternatives, clients’ right to refuse or withdraw consent, and the time frame covered by the consent. Social workers should provide clients with an opportunity to ask questions.

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ACA Informed Consent (A.2) A.2.a. Informed Consent Clients have the freedom to choose whether to enter into or remain in a counseling relationship and need adequate information about the counseling process and the counselor. Counselors have an obligation to review in writing and verbally with clients the rights and responsibilities of both counselors and clients.

National Board of Certified Counselors Informed Consent (72)

•Counselors shall obtain a client’s consent prior to the provision of services.

American Association of Marriage and Family Therapists 1.2 Informed Consent

•Marriage and family therapists obtain appropriate informed consent to therapy or related procedures and use language that is reasonably understandable to clients.

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APA Informed Consent (10.01) Psychologists inform clients/patients as early as is feasible in the therapeutic relationship about the nature and anticipated course of therapy, fees, involvement of third parties, and limits of confidentiality and provide sufficient opportunity for the client/patient to ask questions and receive answers.

Particularly complex for: - clients who are minors, - clients for whom you will be requesting third party payment (e.g., medical insurance) - clients who are in crisis, - Others?

Traditional Informed Consent

1) Therapist Role- 7) Insurance Reimbursement 2) Anticipated Length of 8) Credentials treatment 9) Ethical and professional 3) Recognized techniques and Guidelines procedures 10) Cancellation Policy 4) Therapist Availability 11) Affiliation with other 5) Clarifies Voluntary Practitioners Participation 12) Supervisory Relationship 6) Risks Associated with 13) Disputes and Complaints treatment- 14) Contacts Permission: 7) Confidentiality 15) Clients Signature 8) Limits on Confidentiality 16) Therapists Signature 6) Fees

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State of Georgia Composite Board Rule Chapter 135.11 Telemental Health*

Purpose: The purpose of this rule is to define TeleMental Health and to establish minimum standards for the delivery of services by a licensed Professional Counselor, Social Worker, or Marriage and Family Therapist using technology-assisted media. *“TeleMental Health" adopted. Sep. 17, 2015; eff. Oct. 7, 2015.

(a) Definitions

TeleMental Health - means the mode of delivering services via technology-assisted media, such as but not limited to, a telephone, video, internet, a smartphone, tablet, PC desktop system or other electronic means using appropriate encryption technology for electronic health information. TeleMental Health facilitates client self-management and support for clients and includes synchronous interactions and asynchronous store and forward transfers.

(a) Definitions

• Synchronous interaction - means a real-time interaction between a client and a licensee located at a distant site.

• Asynchronous store and forward - means the transmission of a client's information from an originating site to a licensee at a distant site without the presence of the client.

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(a) Definitions

• Originating site - means a site where a client is located at the time TeleMental Health services are provided via technology-assisted media or where the asynchronous store and forward services originates.

• Distant site - means a site or location from which services are delivered by a licensee via a technology- assisted media.

Synchronous vs. Asynchronous

• Voice calling and video conferencing are synchronous.

• Email and texting are asynchronous • An asynchronous communication does not require the simultaneous active involvement of both parties. • Voicemail is also asynchronous, but is generally associated with synchronous voice calling.

Telemental Health Equivalent to In-Person

• Hilty, Ferrer, Parish, Johnston, Callahan, & Yellowlees (2013) • Reviewed 755 studies and included 85 studies • Results: Telemental health is effective for diagnosis and assessment across many populations (adult, child, geriatric, and ethnic) and for disorders in many settings (emergency, home health) and appears to be comparable to in-person care. In addition, they identified new models of care (i.e., collaborative care, asynchronous, mobile) with equally positive outcomes.

Hilty, D. M., Ferrer, D. C., Parish, M. B., Johnston, B., Callahan, E. J., & Yellowlees, P. M. The effectiveness of telemental health: A 2013 review. Telemedicine and Ehealth. 19(6):444- 54. doi: 10.1089/tmj.2013.0075.

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Telemental Health has similar outcomes to In-Person • Backhaus and colleagues (May, 2012) reported in their meta-analysis: • 821 potential articles were identified, and 65 were selected for inclusion. • The results indicate that videoconferencing psychotherapy has been used in a variety of therapeutic formats and with diverse populations, is generally associated with good user satisfaction, and is found to have similar clinical outcomes to traditional face-to-face psychotherapy.

Backhaus, A., Agha, Z., Maglione, M. L., Repp, A., Ross, B., Zuest, D., Rice-Thorp, N. M., Lohr, J., & Thorp, S. R. (2012). Videoconferencing psychotherapy: A systematic review. Psychological Services, 9(2), 111–131. https://doi.org/10.1037/a0027924

Telemental Health and Working Alliance

• A number of studies have found that the treatment alliance in psychotherapy provided via telemental health platforms is comparable to the therapeutic alliance found in in-person treatments (e.g., Cook & Doyle, 2002; Hanley, 2009; Morgan, Patrick, & Magaletta, 2008).

• Telebehavioral Health Institute (TBHI) searchable database of over 1200 telebehavioral health references: • https://telehealth.org/bibliography/

Continued Evidence

• 2017 Meta-analysis indicated that telepsychology or teletherapy can be just as effective as in- person therapy. • Improves patient satisfaction • Reduces costs • Related technologies are useful in diagnosing and treating • What do you think are the pros and cons of telemental health?

Langarizadeh, M., Mohsen, S.T., Tavakol, K., et. al (2017) www.ncbi.nlm.nih.gov/pmc/articles/PMC5723163/

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APA Guidelines for the Practice of Telepsychology

Guideline 3: Informed Consent

Psychologists strive to obtain and document informed consent that specifically addresses the unique concerns related to the telepsychology services they provide. When doing so, psychologists are cognizant of the applicable laws and regulations, as well as organizational requirements that govern informed consent in this area.

NASW Informed Consent

NASW 1.03

• (e) Social workers who provide services via electronic media (such as computer, telephone, radio, and television) should inform recipients of the limitations and risks associated with such services.

AAMFT – Technology-Assisted Professional Services (Standard VI)

• 6.2 Consent to Treat or Supervise. • Clients and supervisees, whether contracting for services as individuals, dyads, families, or groups, must be made aware of the risks and responsibilities associated with technology-assisted services. Therapists are to advise clients and supervisees in writing of these risks, and of both the therapist’s and clients’/supervisees' responsibilities for minimizing such risks.

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ACA Section H Distance Counseling, Technology, and Social Media

H.2.a. Informed Consent and Disclosure Clients have the freedom to choose whether to use distance counseling, social media, and/or technology within the counseling process. In addition to the usual and customary protocol of informed consent between counselor and client for face-to-face counseling, the following issues, unique to the use of distance counseling, technology, and/or social media, are addressed in the informed consent process:

ACA Section H (Continued)

- distance counseling credentials, physical location of practice, and contact information; - risks and benefits of engaging in the use of distance counseling, technology, and/or social media; - possibility of technology failure and alternate methods of service delivery; - anticipated response time; - emergency procedures to follow when the counselor is not available; - time zone differences; -cultural and/or language differences that may affect delivery of services; - possible denial of insurance benefits; and - social media policy. 59

Telehealth Informed Consent

• The Trust Practice and Risk Management Association (TrustPARMA) • See the top/right side of the page at; https://parma.trustinsurance.com/Workshops- Webinars/Telepsychology • • Person Centered Tech - Free Practice Resources - free sample telemental health informed consent form: https://personcenteredtech.com/?utm_source=Person%20Centered%20Tech%20News letter&utm_c ampaign=efd469216a- frontpage_quickstart_guide_announce&utm_medium=email&utm_term=0_e9b2dcace3 - efd469216a-125883169&goal=0_e9b2dcace3-efd469216a- 125883169&mc_cid=efd469216a&mc_eid=4047a3ad0e

• American Psychological Association Informed Consent Checklist for Telepsychological Services: • https://www.apa.org/practice/programs/dmhi/research-information/informed-consent- checklist

• National Association of Social Workers – Informed Consent for Telemental Health - https://www.socialworkers.org/LinkClick.aspx?fileticket=fN67-dWQReM%3d&portalid=0

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Sample* Language (Knapp & Baturin, 2015)

• Telehealth services will be conducted via teleconferencing (or other method). I understand that telepsychology services may not include the same ease of communication as face to face treatment. • I check e-mail messages once a day, unless notified otherwise. • I understand that despite reasonable efforts on the part of the clinician that some information could be disrupted or distorted by technical failures or interrupted by an unauthorized person. I will keep records of our session in the same manner that traditional psychotherapy records are kept, although I may keep a copy of a particular transmission if it is important for the quality of treatment. • I understand that I may not be eligible for third party reimbursement for this service and assume full financial responsibility for the services delivered. • I understand that I will contact the clinician directly in an emergency situation.

Primary Ethical Issues

•Informed Consent •Competence •Confidentiality •Dual/Multiple Relationships

Competence What can you “competently” do? How do you know you are competent to do it? What are the “boundaries” of your competence?

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Marriage and Family Therapists

3.1 Maintenance of Competency.

Marriage and family therapists pursue knowledge of new developments and maintain their competence in marriage and family therapy through education, training, and/or supervised experience.

NASW Competence

1.04 Competence (a) Social workers should provide services and represent themselves as competent only within the boundaries of their education, training, license, certification, consultation received, supervised experience, or other relevant professional experience. (b) Social workers should provide services in substantive areas or use intervention techniques or approaches that are new to them only after engaging in appropriate study, training, consultation, and supervision from people who are competent in those interventions or techniques.

APA Competence

2.01 Boundaries of Competence

(a) Psychologists provide services, teach, and conduct research with populations and in areas only within the boundaries of their competence, based on their education, training, supervised experience, consultation, study, or professional experience.

(c) Psychologists planning to provide services, teach, or conduct research involving populations, areas, techniques, or technologies new to them undertake relevant education, training, supervised experience, consultation, or study. 66

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National Board of Certified Counselors (22) •Counselors shall perform only those professional services for which they are qualified by education and supervised experience.

ACA Competence

C.2.a. Boundaries of Competence Counselors practice only within the boundaries of their competence, based on their education, training, supervised experience, state and national professional credentials, and appropriate professional experience.

H.1.a. Knowledge and Competency Counselors who engage in the use of distance counseling, technology, and/or social media develop knowledge and skills regarding related technical, ethical, and legal considerations (e.g., special certifications, additional course work).

AAMFT – Technology-Assisted Professional Services (Standard VI)

6.1 (d) Only commence electronic therapy or supervision after appropriate education, training, or supervised experience using the relevant technology.

6.6 Training and Use of Current Technology. Marriage and family therapists ensure that they are well trained and competent in the use of all chosen technology-assisted professional services.

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APA Practice Guidelines

Guideline 1: Competence of the Psychologist

Psychologists who provide telepsychology services strive to take reasonable steps to ensure their competence with both the technologies used and the potential impact of the technologies on clients/patients, supervisees or other professionals.

Ga Composite Board Reg. 135-11-.01 1. (i) Prior to the delivery of clinical TeleMental Health, the licensee shall have obtained a minimum of six (6) continuing education hours. The continuing education hours may include but are not limited to the following, in the discretion of the Board…

(ii) If the licensee has taken the hours required in this section within the last 5 years, those hours do not need to be repeated in order to meet requirements in this section.

Competence – Continuing Education

• COVID-19 and Telebehavioral Health: Ethical Considerations During a Public Health Emergency - American Counseling Association Free CE of the month. • https://aca.digitellinc.com/aca/sessions/18866/view • Trust Parma – link of free telehealth webinars: https://parma.trustinsurance.com/Workshops- Webinars/Free-CE/A-Practical-Guide-to-Providing-Telepsychology-with-Minimal-Risk • Telepsychology Best Practice 101 Series – Free for limited time: • https://apa.content.online/catalog/product.xhtml?eid=15132&eid=1921 • Telebehavioral Health and your Clinical Practice since Covid-19 - NASW • https://naswinstitute.inreachce.com/Details/Information/33c1336f-06ee-4a0e-a3ba- fd9991b3b64b • Key Developments in Medicare Telehealth Options During COVID-19- NASW • https://naswinstitute.inreachce.com/Details/Information/85a24b92-d413-4ce2-b281- c73ec9816632 • APA Telehealth Continuing Education Resources • https://www.apa.org/ed/ce/telehealth • SAMHSA – HRSA Telebehavioral Health Training and Technical Assistance - FREE • https://www.integration.samhsa.gov/operations-administration/telebehavioral-health#1 • PESI - Telehealth for Mental Health Professionals: 2-Day Distance Therapy Training • https://catalog.pesi.com/item/52191/?utm_source=featuredad&utm_medium=banner&utm_campaign=BH_telehe alth_POS055645 72

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Competence - Certification

• PESI - Telehealth for Mental Health Professionals: 2-Day Distance Therapy Training • https://catalog.pesi.com/item/52191/?utm_source=featuredad&utm_medium=banner&utm_campaig n=BH_telehealth_POS055645 • Telebehavioral Health Certificate Training (15-39 CEUs) • https://telehealth.org/telebehavioral-health-certificate-2/?gclid=EAIaIQobChMI5- ynz4na6AIVjovICh0n6gtZEAAYASAAEgJQCfD_BwE • Telehealth Certification Institute (10.5 CEUs) • https://www.telementalhealthtraining.com/thtc-certificate-courses/product/listing • Zurin Institute Certificate Program in Telemental Health and Digital Ethics (26 CEUs) • https://www.zurinstitute.com/course/certificate-in-telemental-health/A • Person Centered Tech Telemental Health Certification (17 CEUs) • https://personcenteredtech.com/tmh/

Books

A Practitioner’s Guide to Telemental Health: How to Conduct Legal, Ethical, and Evidence-Based Telepractice.

Luxton, D.D., Nelson, E.L., & Maheu, M.M. (2016) American Psychological Association: Washington DC

Books

Telemental Health: Clinical, Technical, and Administrative Foundations for Evidence-Based Practice.

Myers, K., & Turvey, C. (2013) Elsevior: Cambridge, MA

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Resource for Download

Therapeutic Tools in Behavioral Health Services. Treatment Improvement Protocol (TIP) Series 60. HHS Publication No. (SMA) 15-4924

Substance Abuse and Mental Health Services Administration. Using Technology-Based . Rockville, MD: Substance Abuse and Mental Health Services Administration, 2015. HHS, Rockville, MD • http://store.samhsa.gov/product/TIP-60-Using-Technology-Based- • Therapeutic-Tools-in-Behavioral-Health-Services/SMA15-4924

Competence

• Trust Parma – link of free telehealth webinars: https://parma.trustinsurance.com/Workshops-Webinars/Free-CE/A- Practical-Guide-to-Providing-Telepsychology-with-Minimal-Risk

• Telepsychology Best Practice 101 Series – Free for limited time: • https://apa.content.online/catalog/product.xhtml?eid=15132&eid=1921

• PESI - Telehealth for Mental Health Professionals: 2-Day Distance Therapy Training (Promo Code: TELEFREE) • https://catalog.pesi.com/item/52191/?utm_source=featuredad&utm_me dium=banner&utm_campaign=BH_telehealth_POS055645

Supervision vs. Consultation

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Online Therapy Institute List of Areas

• Online Therapy • Internet Addictions • Online Clinical Supervision • Social Media • Online Peer Supervision • Mixed Reality • Avatar Therapy • Online Relationships • Cyberpsychology • Second Life • Text-based Therapy • Online Peer Support • Telehealth • SMS Text Messaging • Behavioral Telehealth • Virtual Worlds • Telepsychiatry • Virtual Reality

www.Onlinetherapyinstitute.com/ethical-training 79

Competence •Intellectual Competence •Knowing About (Formal Didactic Training) •Knowing How (Supervised Experience) •Emotional Competence

Emotional Competence

“therapists’ ability to emotionally contain and tolerate the clinical material that emerges in treatment, their willingness and skill at detecting the intrusion of personal biases into their work, and their capacity for self-care in the context of the difficult work of psychotherapy.” (Koocher & Keith-Spiegel, 2008; p. 71)

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Primary Ethical Issues

•Informed Consent •Competence •Confidentiality •Dual/Multiple Relationships

Confidentiality

(with particular challenges in an “information age”)

Maintaining Confidentiality

• ACA - “Counselors protect the confidential information of prospective and current clients. Counselors disclose information only with appropriate consent or with sound legal or ethical justification.” • NASW - “Social workers should protect the confidentiality of all information obtained in the course of professional service, except for compelling professional reasons.” • APA - “Psychologists have a primary obligation and take reasonable precautions to protect confidential information obtained through or stored in any medium.” • AAMFT – “Therapists respect and guard the confidences of each individual client.”

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Ethical Confidentiality Breach

- the client has waived his/her right to confidentiality, - identifying information is adequately disguised or removed, or - a breach is required or permitted by law.

HIPAA Security Rule “…Covered entities must do the following: (1) Ensure the confidentiality, integrity, and availability of all electronic protected health information the covered entity creates, receives, maintains, or transmits. (2) Protect against any reasonably anticipated threats or hazards to the security or integrity of such information. (3) Protect against any reasonably anticipated uses or disclosures of such information... (4) Ensure compliance with this subpart by its workforce.” 45 CFR §164.306 (a)

The HIPAA/Hi-Tech Omnibus Final Rule of March 2013

• Make Business Associates of Covered Entities directly liable for compliance with certain of the HIPAA Privacy and Security Rules' requirements

• Strengthen the limitations on the use and disclosure of protected health information for marketing and fundraising purposes, and prohibit the sale of protected health information without individual authorization.

• Expand individuals' rights to receive electronic copies of their health information and to restrict disclosures to a health plan concerning treatment for which the individual has paid out of pocket in full.

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Notification of Enforcement Discretion for Telehealth Remote Communications

• the Office for Civil Rights (OCR) at the U.S Department of Health and Human Services (HHS) announced 3/17/20, that it will exercise its enforcement discretion and will waive potential penalties for HIPAA violations against health care providers that serve patients through everyday communications technologies during the COVID-19 nationwide public health emergency. • This exercise of discretion applies to widely available communications apps, such as FaceTime or Skype, when used in good faith for any telehealth treatment or diagnostic purpose, regardless of whether the telehealth service is directly related to COVID-19. • https://www.hhs.gov/hipaa/for-professionals/special-topics/emergency- preparedness/notification-enforcement-discretion-telehealth/index.html 88

Confidentiality and Platforms

• APA Office & Technology Preparation Checklist (For reference to prepare your office and practice for telehealth.) • https://files.constantcontact.com/1926e23c001/39d04563-719b-4609-ac4d- e9e965e1e528.pdf

• Guidelines for Choosing a Video Platform outlining major decision points for components needed to start telehealth to orient those unfamiliar with telehealth. https://files.constantcontact.com/1926e23c001/83553d04-5f67- 4fef-8032-55e5301b04d8.pdf

• APA “Comparing the Latest Telehealth Solutions.” Solutions.” https://www.apaservices.org/practice/business/technology/tech- column/telehealth-solutions

Using Email… or not…

While encryption of email is required by HIPAA the 2013 HHS Omnibus rule states:

“If individuals are notified of the risks and still prefer unencrypted email, the individual has the right to receive protected health information in that way, and covered entities are not responsible for unauthorized access of protected health information while in transmission to the individual based on the individual’s request. Further, covered entities are not responsible for safeguarding information once delivered to the individual. (US Department of Health and Human Services, 2013)

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• Message Content • Initial Contact? Scheduling? Cancellation? Updates? • When Not to Use Email (more appropriate face to face) • http://drkkolmes.com/2010/04/28/email-tips-for-clinicians/ • Email Policies and Procedures • What staff members, if any, will read and respond to emails? • Turnaround Time for Responses

Case Study

A potential new client has communicated to you through email using the address listed on your professional website (Linked In profile, Psychology Today profile, etc.). While the first paragraph of the email asks traditional questions around fees, insurance, qualifications, etc., subsequent paragraphs (that go on for nearly three pages) detail the potential client’s current symptoms, patterns of distress related to the symptoms, suicidal ideation, and allusions to using potentially harsh forms of corporal punishment in parenting the potential client’s two young children. What is your ethical obligation in responding to this prospective client’s email?

• Fees • Charging for reading and responding? • Documentation and Recordkeeping • All correspondence is part of the legal record and “clinically relevant” correspondence is part of the clinical record • Informed Consent

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ACA Ethics Code - Security

• H.2.d. Security Counselors use current encryption standards within their websites and/or technology-based communications that meet applicable legal requirements. Counselors take reasonable precautions to ensure the confidentiality of information transmitted through any electronic means. (American Counseling Association, 2014)

Texting

• Encryption • Message Content • Initial Contact? Scheduling? Cancellation? Updates? • When Not to Use Texts (more appropriate face to face) • http://www.zurinstitute.com/digital_records.html • Turnaround Time for Responses • Informed Consent • Record Keeping

Email and Texting…

• Computer Security • Disk encryption • Firewall • Anti-virus • Auto-logoff • Strong passwords • Secured WiFi

• http://zurinstitute.com/hipaasecurity_resources.html#mobile

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Email and Texting…

• Mobile Device Security • Remote Tracking • Remote Wipe • Encryption • Antivirus • Strong passwords • Secured WiFi

• http://www.healthit.gov/providers-professionals/your-mobile-device- and-health-information-privacy-and-security

ACA Code H.6 Social Media

H.6.a. Virtual Professional Presence In cases where counselors wish to maintain a professional and personal presence for social media use, separate professional and personal web pages and profiles are created to clearly distinguish between the two kinds of virtual presence. H.6.b. Social Media as Part of Informed Consent Counselors clearly explain to their clients, as part of the informed consent procedure, the benefits, limitations, and boundaries of the use of social media. H.6.c. Client Virtual Presence Counselors respect the privacy of their clients’ presence on social media unless given consent to view such information. H.6.d. Use of Public Social Media Counselors take precautions to avoid disclosing confidential information through public social media 98

Consumer Review Sites

•Clients’ Ratings • YELP • Yahoo • Healthgrades • Google Reviews • Glassdoor • Docloop • Ratemds

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Tweeting and Blogging

Both are Narrative Based… First Person Assumed

•Twitter • Personal or Professional • Self Disclosure • Potential Impact

•Blogs • Personal or Professional • Self Disclosure • Clinical Examples

http://www.apa.org/monitor/2014/06/blogging.aspx 100

Primary Ethical Issues

•Informed Consent •Competence •Confidentiality •Dual/Multiple Relationships

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Multiple Relationships

“the entire discussion of dual (multiple) relationships is subtle and complex, defying simplistic solutions or absolute answers”

(Corey, Corey, & Callanan, 2011,p. 142).

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Dual Relationships When a professional holds 2 or more relationships with a client at the same time or sequentially For example: Therapist and friend Therapist and supervisor Therapist and instructor Therapist and business partner Therapist and sexual partner

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NASW 1.06 Conflicts of Interest

• (c) Social workers should not engage in dual or multiple relationships with clients or former clients in which there is a risk of exploitation or potential harm to the client. In instances when dual or multiple relationships are unavoidable, social workers should take steps to protect clients and are responsible for setting clear, appropriate, and culturally sensitive boundaries.

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APA Multiple Relationships

3.05 A psychologist refrains from entering into a multiple relationship if the multiple relationship could reasonably be expected to impair the psychologist's objectivity, competence, or effectiveness in performing his or her functions as a psychologist, or otherwise risks exploitation or harm to the person with whom the professional relationship exists.

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AAMFT 1.3 Multiple Relationships

• Marriage and family therapists are aware of their influential positions with respect to clients, and they avoid exploiting the trust and dependency of such persons. Therapists, therefore, make every effort to avoid conditions and multiple relationships with clients that could impair professional judgment or increase the risk of exploitation. Such relationships include, but are not limited to, business or close personal relationships with a client or the client’s immediate family. When the risk of impairment or exploitation exists due to conditions or multiple roles, therapists document the appropriate precautions taken.

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Counselors have a higher bar…

“Counselor–client nonprofessional relationships with clients, former clients, their romantic partners, or their family members should be avoided, except when the interaction is potentially beneficial to the client” (A.5.c., p. 5).

Note that code goes on to say that if a counselor decides to engage in a potentially beneficial relationship, the counselor must document in case records prior to the interaction, the rationale for the interaction and potential benefits and consequences

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National Board of Certified Counselors Multiple relationships (5)

• Counselors shall not engage in harmful multiple relationships with clients.

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ACA Code “Virtual Relationships”

A.5.e. Personal Virtual Relationships With Current Clients

Counselors are prohibited from engaging in a personal virtual relationship with individuals with whom they have a current counseling relationship (e.g., through social and other media).

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Kitchener (1988) identified three potential factors in a dual role relationship that may result in a professional’s causing harm to a consumer.

1) incompatibility of expectations between roles, 2) divergence of the obligations associated with the roles, and 3) the power and prestige of the professional.

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Dual Relationships Among the 12 most common areas where therapists leave themselves open to law suits and licensing board complaints are: A) Sexual Relationship with client (whether current or former client) B) Business Relationships with client C) Out of Office Contact with client

(Caudil, B. Malpractice & Licensing Pitfalls for Therapists: A Defense Attorney’s List. http://kspope.com/ethics/malpractice.php)

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Consider

• Is the dual relationship necessary? • Is the dual relationship exploitive? • Who does the dual relationship benefit? • Is there a risk that the dual relationship could damage the patient? • Is there a risk that the dual relationship could disrupt the therapeutic relationship? • Am I being objective in my evaluation of this matter? • Have I adequately documented the decision making process in the treatment records? • Did the client give informed consent regarding the risks to engage in the dual relationship?

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The Internet Blurs Professional Boundaries…

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Clients Searching for Psychotherapists

• Survey of 332 clients – • 70% reported finding personal information about therapist on the internet • 87% of these individuals indicated they found the information intentionally • 13% indicated they found it accidentally • 78% found information on Google • 42% found information of Facebook • 17% found information on LinkedIn • 10% found information on a Blog

(Kolmes & Taube, 2013)

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Controlling your Web Visibility

• Carefully choose which email address you use to join sites • Understand the privacy settings on your (and family members’) profiles • Know what’s Out There About You • Correct misinformation • Google URL Removal Tool/ Google Alert • Understand and Use Privacy Settings • Consider the potential impact of posted information • Distinguish between personal and professional use of social networking sites (Kolmes, 2014)

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Self-Disclosure

• Deliberate – intentional disclosure of personal information about self (e.g., personal reactions, experience, impressions) intended to benefit client. • Unavoidable – appearance, accent, disability, pregnancy • Accidental – unplanned reactions, public encounters • Inappropriate – for psychologists’ benefit, potentially harmful to the client

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Online Self-Disclosure

• *Through deliberate actions of clients - • Web searches of you • Social Media (e.g., Facebook, Linked In) searches • Reading your posted c.v. • Reading articles you’ve written online, • Reading your blog • Viewing you on YouTube (e.g., video of a family event, doing Karaoke). (Lehavot, 2009)

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When Considering Online Disclosure…

• What are the costs of posting information? Benefits? • What is the likelihood clients will be affected negatively? • How will the disclosure affect my relationship with my clients? • Does the disclosure threaten my credibility or undermine the public’s trust in the profession? (Lehavot, 2009)

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*Telecommunication Guidelines

• According to the APA Guidelines on the Practice of Telepsychology, psychologists “will explain to their clients/patients how they will interact with them using the specific telecommunication technologies involved. . . [including] the procedures for responding to electronic communications from clients/patients” (pp. 795-796).

• A clinician’s client sends periodic emails that are very informal and almost overly friendly in nature, although in session the client’s behavior is generally appropriate. What kinds of phrasing or emoticons would alert you that a client is crossing a professional boundary and becoming too informal in his or her messages - to the point where you feel a need to discuss it with the patient?

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Friending and Following… Dual Relationship? • Many clients participate in social networking sites… • Managing friend and connection requests • Potential impact of declining on the relationship (informed consent) • Understanding that clients may be “following” you

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Dual Relationships: Friendships

• Do social relationships interfere with current therapy relationships? • Defenders of social relationships suggest that sometimes a “blended” role can assist a client.

• Senario: A person who found you on Linked In indicates they also looked up your personal Facebook page and says that “you seem like the kind of person who could really help me” and wants makes an appointment for therapy services. • What are your concerns? • Do you share your concerns with the client? • What options do you have?

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Guidelines for Friendships

• Maintain clear boundaries with clients regarding potential blended roles (e.g. members of same advocacy group, shared political activism therapist/coach of client’s son) • Former clients may need therapy in future (rather than a friendship) • Power differential difficult to change • Safest to avoid social relationships with former clients

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Recommendations (Barnett & Kolmes, 2016)

• Follow all requirements for ethical conduct from your profession's code of ethics regardless of the telemental health medium used.

• Become familiar with and be guided by relevant telemental health practice guidelines.

• Learn and follow the relevant telemental health laws in all jurisdictions in which you will be providing clinical services.

• Assess each potential client's treatment needs to ensure the appropriateness of participating in telemental health and that the most appropriate medium is used. Make referrals to other competent professionals when in the client's best interest.

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Recommendations (Barnett & Kolmes, 2016)

• Use a comprehensive informed consent process that addresses all issues relevant to the practice of telemental health.

• Take all reasonable actions and use all readily available technology to protect each client's confidentiality, such as the encryption of email communications.

• Only use HIPAA-compliant software programs to provide video conferencing with clients.

• Only provide clinical services that you are competent to provide based on your education, training and relevant clinical experience.

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Recommendations (Barnett & Kolmes, 2016)

• Before providing telemental health services, develop competence regarding all hardware and software you will be utilizing to communicate with clients.

• Ensure multicultural competence and attend to linguistic and other diversity issues in your online interactions with clients.

• Learn about and follow all duty to warn and mandatory reporting requirements in the jurisdictions where you are providing telemental health services.

• Before providing telemental health services, learn about resources in each client's local area and make arrangements there for emergency and crisis situations.

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Recommendations (Barnett & Kolmes, 2016) • Document all telemental health services provided just as you would document in-person mental health services, ensuring that all records are stored securely so that each client's confidentiality is preserved.

• When unsure if a client should be treated via telemental health, utilize an ethical decision-making model and consult with experienced colleagues.

• Maintain appropriate liability insurance coverage and confirm that your malpractice insurance policy covers the provision of telemental health services.

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Clear Mandate…

•Even if you’re a “digital native” and not “plugged in” – •you need a “Social Media Policy” as part of informed consent… http://www.drkkolmes.com/docs/socmed.pdf

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THANKS!

Jeffrey S. Ashby PhD ABPP Georgia State University Atlanta, GA [email protected]

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References

• Barnett, J. E., & Kolmes, K. (2016). The practice of tele-mental health: Ethical, legal, and clinical issues for practitioners. Practice Innovations, 1(1), 53–66. • Boeschen, C. Can a psychologist be sued for malpractice? Retrieved from: http://www.alllaw.com/articles/nolo/medical-malpractice/psychologist-be- sued.html • Cook, J.E., & Doyle, C. (2002). Working alliance in online therapy as compared to face-to-face therapy: preliminary results. Cyberpsycology Behavior, 5, 95-105. • Corey, G., Corey, M. S., & Callanan, P. (2011). Issues and ethics in the helping professions (8th ed.). Belmont, CA: Brooks & Cole. • Corey, G., Corey, M. S., Corey, C., & Callanan, P. (2015). Issues and ethics in the helping professions (9th ed.). Pacific Grove, CA: Brooks/Cole. • Forester-Miller, H., & Davis, T. E. (2016). Practitioner’s guide to ethical decision making (Rev. ed.).Retrieved from http://www.counseling.org/docs/default-source/ethics/practioner’s-guide- toethical-decision-making.pdf

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References

• Hanley, T. 2009. Developing youth-friendly online counseling services in the United Kingdom: A small scale investigation into the views of practitioners. Counselling & Psychotherapy Research, 6, 182-185. doi:10.1080/14733140600857535. • Hilty, D., Ferrer, D., Parish, M., Johnston, B., Callahan, E., & Yellowlees, P (2013). The Effectiveness of Telemental Health: A 2013 Review. Telemedicine Journal and e-Health. 19(6) 444-454. http://doi.org/10.1089/tmj.2013.0075 • Kitchener, K. S. (1984). Intuition, critical evaluation and ethical principles: The foundation for ethical decisions in counseling psychology. Counseling Psychologist, 12(3), 43-55. • Kitchener, K.S. (1988). Dual role relationships: What makes them so problematic? Journal of Counseling and Development, 67, 217-221. • Knapp, S. & Baturin, R. (2015). Understanding and Applying the APA Guidelines on Telepsychology. https://c.ymcdn.com/sites/www.papsy.org/resource/collection/963F4F5F- A142-47DE-B287-78F6B4E04F03/W33__telepsychology_handouts_2015.pdf

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References

• Kolmes, K. (2014). Digital and Social Media Ethics for Psychologists: Current Issues and Ethical Dilemmas. The California Psychologist. January/February. • Kolmes, K. & Taube. D. O. (2016) Client discovery of psychotherapist personal information online. Professional Psychology: Research and Practice Advance online publication. doi: doi.org/10.1037/pro0000065 • Koocher, G.P. & Keith-Spiegel, P. (2008). Ethics in Psychology and the Mental Health Professions: Standards and Cases (3rd e d.). New York: Oxford University Press. • Krugman, P. (2012). Technology and Wages, the Analytics. https://krugman.blogs.nytimes.com/2012/12/10/technology-and- wages-the-analytics-wonkish • Lehavot, K. (2009). “MySpace” or yours? The ethical dilemma of graduate students’ personal lives on the Internet. Ethics & Behavior, 19(2), 129–141. doi:10.1080/10508420902772728

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• Morgan, R.D., Patrick, A.R., & Magaletta, P.R. (2008). Does the use of telemental health alter the treatment experience? Inmates' perceptions of telemental health versus face-to-face treatment modalities. Journal of Consulting and Clinical Psychology, 76, 158-162. • Prensky, M. (2001) "Digital Natives, Digital Immigrants Part 1", On the Horizon, Vol. 9 Issue: 5, pp.1-6, https://doi.org/10.1108/10748120110424816 • Shallcross, L. (2011). Finding technology’s role in the counseling relationship. Counseling Today. Retrieved from: https://ct.counseling.org/2011/10/finding-technologys-role-in-the-counseling- relationship/ • Richardson, L.K., Frueh, B.C., Grubaugh, A.L., Egede, L., & Elhai J.D. (2009). Current Directions in Videoconferencing Tele-Mental Health Research. Clinnical Psychology Review, 16, 323-338. • Top 10 Mental Health Apps. Top 15 Most Popular Social Networking Sites – January 2020. http://www.ebizmba.com/articles/social-networking-websites • The Top 20 Valuable Facebook Statistics - https://zephoria.com/top-15- valuable-facebook-statistics/

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