VA’s telehealth rule raises licensing concerns

By James Bradshaw, Senior Editor
July 24, 2018

telemental-heatlh services veterans virgniaA sweeping move by the Veterans Administration to permit staff psychologists to conduct telemental health sessions with veterans across state lines is generating mixed reactions and perplexing questions.

The VA finalized the rule effective June 11 to permit VA psychologists and other health professionals to use technology, such as video conferencing, to perform or facilitate treatment of veterans regardless of the state in which the practitioner works or the state where the patient resides.

Proponents of telehealth services speculated on whether the move could set a precedent for broader interstate health services that might someday include practitioners in private practice. Others questioned how regulators could police treatments generated outside their jurisdictions.

The expansion is the latest development in the VA’s “Anywhere to Anywhere” telehealth initiative outlined last year by then Secretary of Veteran Affairs David Shulkin, M.D., and President Trump.

Although interstate behavioral health services are the chief concern of psychologists, the rule permits using such technology to deliver or facilitate any health service, including medical treatment and physical therapy. It applies only to VA staff and specifically does not include health care providers under contracts with the VA.

In announcing the rule, the VA said: “This rule ensures that VA health care providers can offer the same level of care to all beneficiaries, irrespective of the state or location in a state of the VA health care provider or the beneficiary. This final rule achieves important federal interests by increasing the availability of mental health, specialty and general clinical care for all beneficiaries.”

During the public comment period while the rule was under consideration, the Federal Trade Commission applauded the proposed amendment of VA regulations, stating it would “provide an important example to non-VA health care providers, state legislatures, employers, patients and others of telehealth’s potential benefits and may spur innovation among other health care providers and, thereby, promote competition and improve access to care.”

Marlene Maheu, Ph.D., executive director of the Telebehavioral Health Institute (THI), and a long-time proponent of expanding the use of telemental health practices, saw the potential of the rule to lead to interstate services by psychologists in private practice.

In the online THI newsletter, Maheu wrote: “The new telehealth interstate practice rule now permits telehealth to be integrated nationwide as a routine part of patient care at the VA. This precedent sets the bar for legislation to relax interjurisdictional barriers for telehealth service nationwide.”

While some may see that as a good thing and progress toward more universally available mental health care, Stephen T. DeMers, Ed.D., CEO of the Association of State & Provincial Psychology Boards (ASPPB), foresees potential problems.

DeMers shared a string of emails between him and some psychologists employed by the VA. He said the emailers, mostly chief psychologists at various VA medical centers across the nation, asked his opinion on several issues of concern.

DeMers said they agreed to let him release contents of the email exchanges but asked that their identities be removed. He also stressed that while he responded to their questions, the opinions are his alone. The ASPPB has taken no official position on the move.

He said the psychologists similarly agreed to let him share their questions and comments, with their identities removed, with other organizations that regulate doctors, nurses, physical therapists, pharmacists, occupational therapists and social workers.

The psychologists’ chief concern was whether staff psychologists could be sanctioned for practicing in states where they are not licensed. One noted that they were assured that the VA’s Office of General Counsel “likely” would defend a psychologist charged with practicing without a license in a particular state but no staffer wants to be “the guinea pig” for such an action.

DeMers responded that he does believe a VA psychologist offering service to a veteran outside of a federal facility (the rule specifically includes serving veterans in their homes) and within a state where they do not hold a license to practice could be subject to a complaint or cease-and-desist order for practicing without a license.

He added that the issue could be headed for a legal showdown between the federal supremacy doctrine and states’ rights under the Constitution.

DeMers said when the rule was proposed the VA sent the ASPPB a letter requesting its support “to remove barriers and accelerate access to telehealth for our veterans.”

The letter noted the VA is committed to cooperating and collaborating with state boards but added, “At the same time, VA believes that telehealth expansion is needed expeditiously to immediately enhance access to critical VA services that can help address veteran suicide.”

DeMers said he responded on behalf of the board, pointing out ASPPB’s efforts to promote interstate mobility of licensure, including creating the Certificate of Professional Practice in Psychology that allows psychologists to bank their credentials with the board to facilitate seeking licensure in other states.

DeMers said his letter stressed that ASPPB would be happy to assist in exploring options for expanding veterans’ access to care “that also maintains adequate patient protections,” the primary function of licensing boards.

He said he also suggested the VA could help with the adoption of the interstate compact PSYPACT that would allow psychologists to provide telepsychology services across state lines among participating states.

PSYPACT would give psychologists a legal defense to answer licensing complaints, DeMers said. As of press time, the board had received no reply from the VA to that letter.

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