During the pandemic, therapists have overwhelmingly been providing services via telehealth. In many cases, they’ve been doing so from their homes. While the transition hasn’t been easy, there is little evidence so far to suggest that it has created significant problems for client care or therapist supervision.
Now, some of that working from home may be coming to an end. At the end of October, the waiver that has allowed remote supervision for all California BBS-governed supervisees will expire. As supervisees in private practice contexts will need to return to the office for in-person supervision, questions have naturally arisen about therapy. Namely, can BBS supervisees continue providing telehealth therapy services from home after current waivers expire?
The answer is complicated. While the law initially seems to suggest that it’s OK, the BBS has been relatively quiet on the issue, and CAMFT is taking a conservative approach. Let’s dig in on each.
The letter of the law
Business and Professions Code section 4980.43.4(a) reads as follows: A trainee, associate, or applicant for licensure shall only perform mental health and related services at the places where their employer permits business to be conducted.
That’s the section for MFTs; there’s parallel language for PCCs (BPC 4999.46.4(a)) and CSWs (BPC 4996.23.3(a)). The language doesn’t limit the places that an employer could permit business to be conducted, so they could permit a supervisee to work from home.
It’s fair to say that wasn’t the original intent of the law, though. It was designed to allow supervisees to provide services at clients’ homes, at schools, during homeless outreach, and in other instances where the supervisee wouldn’t reasonably be expected to be able to provide services in an office. Put differently, the law didn’t contemplate the current pandemic-influenced environment.
Current waivers related to the pandemic don’t specifically address telehealth among supervisees; they don’t need to. It’s well-established in law that California supervisees can provide services via telehealth. The existing waivers have focused on supervision. Under normal circumstances, associates working in private practice and other non-exempt settings need to be supervised in person. An emergency waiver related to COVID-19 has allowed that supervision to happen remotely. The waiver is currently set to expire at the end of 2021, and the BBS has stated the waiver will not be further extended. Without another extension, those supervisees will need to be back in the office for in-person supervision starting January 1, 2022. Again, though, that’s for supervision — not therapy.
The BBS response
The pandemic has been influential in the BBS response to questions about working from home. During the pandemic, they’ve been understanding about the need for services to be provided from home, especially when therapists couldn’t come to their offices because of state, county, and city-level orders requiring people to stay home. But the environment gets more complicated as those orders end, and more workers are returning to their offices. It could be considered different, from a regulatory perspective, if someone is providing services from home because they have to, as opposed to providing services from home because they want to.
Bearing in mind that the environment is still in flux, the BBS hasn’t publicly said much on this question. It came up at the October 1, 2021 Telehealth Committee meeting, where they simply acknowledged that the current law cited above does not prohibit working from home. They discussed this in the context of being something the committee should look at in the future. But there’s no legislative or regulatory change coming in the immediate future that would alter the current statutory language. Which, again, appears to allow an employer to authorize a supervisee to conduct telehealth services from home, so long as all other legal and ethical requirements (confidentiality, HIPAA compliance, and so forth) associated with those services are met.
“Appears” is a key word there. As an important reminder, I’m not an attorney. It’s good to consult attorneys when you have legal questions. And lots of folks have — they’ve been calling the attorneys at CAMFT.
The conservative approach
“The guidance of where associates and trainees can practice in the long term is vague and complicated,” said Cathy Atkins, Deputy Executive Director of CAMFT. “We want to ensure pre-licensees are crystal clear in what they can and cannot do. We believe the BBS will be providing additional guidance on this issue.” CAMFT and its attorneys have been encouraging a conservative approach where supervisees would return to the office, even to conduct telehealth, starting on November 1. This seems to be at least in part based on a disciplinary action from early 2020, where a supervisor was disciplined for (among many other issues) allowing a supervisee to practice full-time from home. In that case, the administrative law judge looked at the history of the current statutory language, and decided that the legislature did not intend to allow supervisees to do a full-time telehealth practice from their homes.
Lots of caveats on that case, though. First and foremost, people aren’t expected to be psychic about the law’s intent. They’re generally expected to engage in a good-faith, plain-language reading of the law and follow what most people would imagine that law to mean. Second, this reflects the kind of kitchen-sink approach to disciplinary actions that boards often take: To maximize the chances of charges sticking, they charge every possible violation they can find, and negotiate down from there. It’s unclear whether this would have even been a charge if it had been the only known problem with the therapist’s practice. Third, it’s a ruling from just one administrative law judge out of many, and it’s specific to the facts of the individual case, so it doesn’t necessarily carry a lot of weight as precedent. Lastly, and perhaps most importantly, the conduct the person was disciplined for began prior to 12/31/2018, and so it was under the previous statutory language, not the current language allowing supervisors to approve remote work locations. It may not have been charged if it was only occurring after that point, even with the legislative history the judge cited.
All of that said, I understand the approach from CAMFT in light of this decision. CAMFT certainly wants its members to avoid getting caught up in future disciplinary actions. The current regulatory environment for supervisees doing therapy from home is less than fully clear. And when supervisees are working from home, there’s at least the opportunity for problems that can be more controlled in an office setting, particularly around security and confidentiality. So having supervisees return to the office, even for telehealth services, is the lowest-risk approach.
I’m not so sure that it’s the only allowed approach, though, and that’s where things get gray. For employers, supervisors, and supervisees alike, this may be a question of how much risk they can tolerate, until there’s a clearer long-term policy. And that doesn’t seem to be coming any time soon.
Some employers are telling me they’re willing to take their chances, and will continue allowing supervisees to work from home. Some clinicians are telling me that, at least until the pandemic is more fully resolved, they are not willing to work for an employer that doesn’t allow work from home. And some may wait and see how they feel on January 1, 2022, when for the first time in more than 18 months, they’ll get in their car to go to an in-person supervision meeting.
Ben Caldwell is the Education Director for SimplePractice Learning.