Navigating the Inconsistencies in Telemental Health Laws, Regulations, and Policies Across the 50 States

It may come as no surprise that consistency is lacking across states with regards to laws, regulations, and regulatory policies regarding telemental health, as the technology and capabilities have advanced much faster than policy. As a result, all behavioral health providers need to be knowledgeable and aware that depending on their state and their license type, there are a myriad of differing rules and requirements. A great state by state resource for behavioral health providers is available as part of the report 50 State Legal Survey of Telemental/Telebehavioral Health 2016.

This report found that in general for psychiatrists, as practicing physicians, they must comply with all the obligations that apply to physicians practicing telehealth generally. Very few states exempt mental health services from these requirements, despite the fact that many psychiatrists never lay hands on patients.

A few of the state specific highlights from this report are as follows:

  • Texas is one of the few states that explicitly carves out mental health services from requirements applicable to the provision of other telehealth services.
  • In Delaware, an individual practicing “telepsychology” must conduct a risk-benefit analysis and document findings specific to issues, such as whether a patient’s presenting problems and apparent condition are consistent with the use of telepsychology to the patient’s benefit. They must also evaluate whether the patient has sufficient knowledge and skill to use the technology involved in rendering the service or do they need a personal aid or assistive device to benefit from the service.
  • Kansas requires psychologists and social workers providing telemental health services to obtain the informed consent of the patient before services are provided.
  • In Maryland, physicians (psychiatrists) are required to develop a procedure to prevent access to data by unauthorized persons through password protection, encryption, or other means. They must also develop a policy on how soon an individual can expect a response from the physician to questions or other requests included in a transmission.
  • Montana psychologists may initially establish a “defined professional relationship” electronically so long as the means of communication involves a two-way, real-time, interactive platform providing for both audio and visual interaction.
  • In South Dakota they rely on the Association for Marriage and Family Therapy's Code of Ethics to regulate marriage and family therapists, which requires that therapists evaluate whether electronic therapy is appropriate for individuals and inform them of the potential risks and benefits associated with electronic therapy.
  • Nevada allows APRNs to practice by using equipment that transfers information concerning the medical condition of a patient electronically, telephonically, or by fiber optics from inside or outside Nevada or the United States.

While this report is a great resource for relatively recent sate specific rules and regulations, it is important to keep in mind that policy is constantly evolving. As behavioral health telehealth providers, it is imperative to monitor your state and federal policy to remain current and compliant in your practice.