An Open Letter to Kansas BSRB

“As long as he denies his own agency, real change is unlikely because his attention will be directed toward changing his environment rather than himself.” 
― Irvin D. Yalom, The Gift of Therapy: An Open Letter to a New Generation of Therapists and Their Patients
Dear Board Members, 
     The Behavioral Sciences Regulatory Board (BSRB) for marriage and family therapists in Kansas has failed to legislate concrete regulations regarding telehealth/telemedicine. At this time, your unofficial stance is to defer to the regulations set forward by HIPAA. While these regulations are helpful guidelines, there are certain factors which impact MFT’s differently than other providers. Telehealth is not only here to stay, research suggests it will only grow larger in the coming years. It is estimated 7 million patients will use telehealth by 2018; this is up from 350k in 2013. Forty-two states have passed legislation regarding the use of telehealth. Twenty-nine states have passed laws requiring health plans to cover telehealth services. Telehealth is NOT going away. The “wait and see” approach is having direct impacts on therapist malpractice risk, income, and patient care.
     The reluctance of the BSRB to pass statutes guiding therapists on appropriate implementation, training, and understanding of telehealth will directly impact our ability to ethically and legally treat patients. Without regulations requiring HIPAA compliant telehealth services, therapists are open to lawsuits and accidental breaches of patient confidentiality. Without these regulations, MFT’s are not restricted to operating within the state(s) where they are licensed, which puts an undue burden on other states and therapists to complete due diligence. Without these regulations, there is no baseline by which all MFT’s can be held accountable, and this puts practitioners at risk for inadvertent malpractice. If there are no regulations regarding additional malpractice coverage to address the practice of telehealth, most providers will be unaware this should be purchased. 
     In 2015, the Board noted that Kansas was “not interested in being part of the “telepsychology compact”.” This was supposed to be discussed in the next meeting, as it was clear nearly 3 years ago that the ubiquity of internet access and technology would make telehealth a meaningful option for more people than ever before. However, no legislation has been created or, as near as I can tell, suggested. This can impact MFT’s ability to bill insurance companies. The Department for Health and Human Services Centers for Medicaid and Medicare Services (CMS) has outlined the requirements to bill for telehealth services. It is feasible that, without consistent definitions of terms, an MFT could bill for what the MFT considers telehealth, while it may not meet the criteria for CMS. There is an additional hindrance to patients covered by KanCare. KanCare has addressed telehealth, but our governing body has failed to do this. 
     The lack of these regulations will directly impact patient care. I have had a patient contact me and request I provide family therapy via telehealth for themselves and a family member living in another state. I declined as I was not licensed in the other state and they did not provide reciprocity. This patient contacted me after finding a therapist who would help and expressed frustration and anger at the incongruence within the profession. Patients entering college may travel out of state but not change residency; where do we stand on providing therapeutic support when there is no reciprocity offered by the other state? What about military personnel living overseas with the ability to participate in family therapy while deployed? 
     While regulations would not ensure complete congruence throughout all MFT practitioners, it will provide those who are compliant a reference source for patients. This is a critical step in maintaining cohesiveness within our profession and our ability to educate patients on our ethical requirements. 
     My suggestion is to create requirements which meet these criteria:
  1. Meet HIPAA guideline
  2. Establish specific criteria for HIPAA compliant software without making specific recommendations
  3. Require a telehealth component to our required ethics training
  4. Suggested malpractice coverage rates
  5. Requirement regarding participation in telehealth/text/phone therapy as it relates to participating in commercial providers (i.e. Talkspace)
  6. Clear regulations for providing telehealth therapy across state lines; particularly in regards to patients in college and the military
  7. Clear regulations on providing telehealth therapy for therapists living outside Kansas; will we offer case specific licensure at a reduced rate?
While there will be many cases not completely covered by your regulations, we must have a starting point. I urge the Board to begin addressing these issues in the next meeting. Please take steps to decrease our professional risk, increase our ethical practice, and protect our patients. We can no longer expect our environment to change. In our profession, we must be congruent and ask of ourselves the same thing we ask of our patients: To embrace our agency and begin changing what we can without externalizing our responsibility.

   Therapists, if you agree it is imperative the BSRB craft and implement regulations regarding MFT’s providing telehealth, please contact the board.


Nathan D. Croy, MA, LCMFT

Nathan D. Croy, (C) 2017