The law of telemental health

Abstract

The law of telemental healthcare is multifarious, evolving, and, often, uncertain. First, the law lags behind the science; second, on a number of issues, our nation is still sorting out policy considerations whose resolution will shape the rules. We must therefore recognize that even an accurate snapshot will likely be out of date soon. Acknowledging that limitation, we nevertheless examine here telemental health’s principal legal issues. Licensure is the chief tool that states use to regulate healthcare professionals. Distance care stretches the traditional framework because patient and provider need not be in the same jurisdiction. Privacy is exquisitely important in mental healthcare, and the law has struggled with how to protect it when sensitive data are transmitted and stored electronically. For consent to be “informed” in contemplation of law, what information the provider must furnish to the client is neither entirely clear nor fixed. In our litigious society, professional liability is a constant threat, augmented in an environment as technologically sophisticated as that of distance care by the possibility of coexisting product liability claims. The intricacies of our reimbursement scheme are in no way simpler when care is provided at a distance than when provided in a more conventional fashion, yet providers need to have a working knowledge of the rules just to keep their doors open. Finally, under our federal system, virtually all the issues need to be evaluated under two lenses, one federal and one state, augmenting the complexity. It is hoped that from this chapter the reader will nevertheless gain a clearer understanding of the law’s application to telemental healthcare and thus become better enabled to conform to the law’s requirements.