Disclaimer: Sections from the Education Law, Rules of the Board of Regents or Regulations of the Commissioner of Education are presented below for general informational purposes as a public service. Although reasonable efforts have been made to ensure that these sections are current, complete, and accurate, the State Education Department does not warrant or represent that this information is current, complete, and accurate. The statutes, rules, and regulations are subject to change on a regular basis. Readers are advised to consult McKinney's Consolidated Laws of New York (West Publishing Corporation) and Title 8 of the Unofficial Version New York Codes, Rules and Regulations - Title 8 (8 NYCRR), published by the Department of State, and the State Register for the official exposition of the text of these statutes, rules and regulations, as well as for amendments and any subsequent changes or revisions thereto.
What is Telepractice?
Telepractice includes the use of telecommunications and web-based applications to provide assessment, intervention, consultation, supervision, education and information across distance. It may include providing non-face-to-face applied behavior analysis (ABA) services via technology such as telephone, e-mail, chat and videoconferencing.
Telecommunications and Electronic Medical Records (EMRs) may include computer files, documents, e-mails, interactive media sessions, CD’s, audio-tapes, video-tapes, fax images, phone messages and text messages.
Telepractice issues of concern to practitioners include the therapeutic relationship, specifically, one’s ability to maintain an effective working relationship in spite of physical distance. Potential licensure and jurisdiction issues mean that practitioners should become familiar with and abide by competency and licensure requirements when practicing across state and national borders. In order to practice in a safe, legal, and confidential manner, it is important for licensed behavior analysts (LBAs) and certified behavior analyst assistants (CBAAs) to understand the technology and potential limitations to confidentiality of both the software and hardware they are using. In order to ensure confidentiality, encryption and other technologies should be used whenever possible. Guidance regarding specific telepractice issues appears below.
To the extent it involves providing professional services in a jurisdiction other than the one in which the practitioner is physically located, telepractice raises the issue of the jurisdiction or jurisdictions in which the practitioner must be licensed. In New York State, a practitioner must hold a New York license, or be otherwise authorized to practice, when providing professional services to a patient/client located in New York or when the practitioner is located in New York.
EMRs: Same Responsibilities as any Other Medical Record
EMRs are subject to the same confidentiality and privilege as any other medical record. Privacy and security should be maintained and, to ensure this, encryption or password-restricted access may be necessary. It is necessary that EMRs can be reproduced if requested by patients and/or their authorized caregivers or by court order and that fees charged for such reproduction are consistent with New York laws and regulations. Practitioners should also be aware that they are responsible for maintaining the confidentiality of the records of their patients/clients and, therefore, must ensure that the billing or storage vendors engaged by them agree to follow all relevant privacy and security rules regarding medical records, and that the records will not be destroyed or released unless so directed by the licensee.
Cautions Regarding e-Data
One must remain cognizant of the fact that cell phones, e-mail, and text messages may not be secure modes of communication, specifically recognizing the question of who has access to the communication device and/or communication. Web-based applications vary in the level of security that is provided. In addition, digital storage devices (including computer hard drives) and fax and copy machines can retain images unless they are electronically wiped. Before disposing of a computer, it is the licensed professional’s responsibility to ensure that all patient/client information is securely deleted. It is strongly recommended that once the memory is cleared of patient/client information, the device should be destroyed in a secure manner. It is important that patients and/or their authorized caregivers are informed that there are risks to electronic communication. In addition, one should have a contingency plan in the event that telecommunications fail (i.e., another way to contact patient and/or their authorized caregiver). Finally, one must be aware that there is always a potential for a patient/client to misrepresent his/her name, presenting problem or other information when engaging in electronic communications and the licensee bears responsibility for assuring the identity of the patient/client.
Social Media Telecommunications
Social Media has great potential as a public education tool that can be used to reach a wide audience with information about applied behavior analysis. One should, however, remain aware that a professional web presence must be consistent with laws and regulations related to advertising and engaging in professional relationships. A personal web presence can potentially involve issues of boundary violations and should not allow patient/client access.
Example: Friend requests on social media sites should be confined to friends and colleagues, while not accepting such requests from patients/clients or potential patients/clients.
A LBA or CBAA licensed under Title VIII of the Education Law may be charged with unprofessional conduct under section 29.1 of the Rules of the Board of Regents for advertising that is not in the public interest if he/she engages in advertising on web-postings that are fraudulent, false, deceptive or misleading, to the same extent as advertising in more traditional media.
While a licensed professional cannot be responsible for the patient’s/client’s social media interactions, when appropriate, the licensee should provide information to patients and/or their authorized caregivers or discuss with them some of the pitfalls of social media as it may relate to the receipt of professional services. Due to the persistent stigma about autism, autism spectrum disorders, and related disorders, the licensed professional may want to point out to the patient/client that certain activities may provide more information than the patient/client is comfortable with sharing in the social media community, such as:
- posting a status update of "waiting in Dr. Smith’s office for my weekly ABA session" or
- allowing the GPS device in his/her smart-phone, tablet or computer to identify his/her location as the office of "Dr. Jones, Licensed Behavior Analyst."
The licensee may be wise to consider including similar examples as a cautionary note to be discussed as part of the informed consent process, to avoid unfortunate, accidental disclosures of information.
Videoconferencing includes varied points of delivery, including hospitals/ER’s, Community Mental Health Centers (CMHCs), doctors’ offices, institutional settings (e.g., nursing homes, prisons, schools), and patients’/clients’ homes.
Clinical applications of videoconferencing include clinical interviews for intake and assessment, consultation with other providers including the referring provider and with family members, emergency pre- and post-hospitalization evaluations, outpatient ABA services (scheduled and crisis), medication management or consultation, and professional consultation.
Videoconferencing may include supervision and consultation. A licensed professional who is consulting with other health professionals or, if allowed by State law and regulation, receiving supervision through video technology, should exercise caution in these interactions, in order to ensure the confidentiality of patient/client information. A licensed professional remains responsible for the security of patient/client communications and information to the same extent as if the session or consultation were occurring with all parties in the practitioner’s office. Prior to using any videoconferencing technology, the licensed professional should verify the encryption and security of data to protect the confidentiality of patient/client information.
Potential benefits of videoconferencing may include that it:
- can reduce costs to both patient/client and practitioner,
- can reach patients/clients who might not otherwise have access to treatment,
- has overall empirical support for outcomes similar to traditional ABA services, and
- patients/clients report positive experiences with videoconferencing.
Concerns regarding videoconferencing include whether practitioners are:
- ensuring that patients/clients are able to adequately participate and understand the appropriate uses of videoconferencing (Informed Consent);
- whether videoconferencing technologies that are used are secure;
- whether the empirical validation of this methodology is sufficient; and
- whether individual states require that practitioners are qualified and licensed to practice within that state.
If using telecommunications, it is recommended that patients and/or their authorized caregivers are informed there are risks to electronic communications. Practitioners should also have a contingency plan for telecommunications failures (e.g., a back-up way of contacting the patient). Patients and/or their authorized caregivers should be informed as to how they can verify the LBA’s or CBAA’s professional license (the license status of all New York licensees can be ascertained here), and LBAs and CBAAs should be aware of the potential for patient and/or their authorized caregiver misrepresentation.
Avatars & Virtual Environments (VE)
Avatars and virtual environments (VE) are increasingly being researched for clinical application possibilities. Applications being investigated include treatment of autism, autism spectrum disorders, and related disorders.
Avatars are used to create a virtual representation of the patient/client, the practitioner (agent) or both; however, it may be unclear whether the "agent" is an actual trained clinician or a computer programmer. Professional services must be rendered only by those authorized to do so. VEs are used to create planned and controlled environments that allow the patient/client to be exposed to a situation or to explore an environment that relates to the issues of focus.
The potential benefits of avatars and VEs include some empirical support for the effectiveness of these techniques, reduction of costs to both patient/client and practitioner, and greater accessibility to environments for exposure therapies.
Concerns regarding avatars and VEs include determining who the virtual therapeutic agents are, ensuring that they are authorized to provide professional services; defining the roles and training of virtual therapeutic agents; and determining whether these techniques are safe and effective, whether the technologies used are secure, and whether each patient/client knows how to exit the program if under duress (e.g., during an immersion).
Effective & Legal Telepractice
Telepractice should be considered a modality and applied only as appropriate to address the patient’s/client’s needs. In order to engage in telepractice in an effective, safe and legal manner, LBAs and CBAAs should:
- Develop procedures for and obtain informed consent prior to providing remote services.
- Ensure that informed consent includes both benefits and risks.
- Conduct an initial assessment of each patient/client to determine whether the telepractice modality is appropriate, given the patient’s/client’s treatment needs. If not, determine available alternatives and consider referrals.
- Learn relevant telepractice laws across all jurisdictions in which they will be providing online services before such services are provided.
- Not practice outside the scope of their license and training.
- Attend to issues of danger to self or others in duty to warn and protect situations, and to mandated reporting requirements in accordance with law.
- Make arrangements, as appropriate, in the consumer’s local area to address emergency and crisis situations that may arise, and be knowledgeable of community resources that may be accessed in such situations.
- Ensure the accuracy of advertising and public statements about telephone and online services offered without making statements that imply a level of treatment or effectiveness that is beyond what is actually provided.
- Remain aware of the limitations of the online services provided and the technology used to offer these services.
- Evaluate online services offered to ensure their effectiveness and to modify them, as needed, on the basis of outcome data to most effectively meet patient/client needs.
- Stay within one’s scope of practice and limits of competence. As with all emerging areas of practice, one should use caution to ensure competence of the practitioner and the protection of patients/clients.
- Attend to cultural, ethnic, language and other differences that may impact on their ability to effectively communicate with and treat patients/clients.
- Employ professional standards of practice that include adequate documentation and record keeping, adherence to termination and abandonment guidelines, and appropriate practices for fees and financial arrangements.
- Verify the patient’s/client’s state of residence prior to providing telepractice services, as this may dictate those states in which a practitioner must be licensed.
- Possess the technological competence and clinical competence necessary to provide services via the online modality offered.
- Consult knowledgeable colleagues, relevant statutes, applicable ethical codes and available professional standards when unsure of any of the above.
- Consult with an attorney specifically experienced in these matters when legal questions arise.