179 The Professional Counselor | Volume 13, Issue 3 Navigating Laws and Ethics As part of responsible practice, counselors who engage in TMH need to consider ethical considerations and risks. The ACA Code of Ethics (2014) dedicates Section H to “Distance Counseling, Technology, and Social Media” (p. 17). This section was added in the 2014 iteration of the ethical code in recognition of the fact that TMH was a growing tool for the counseling profession (Dart et al., 2016). These ethical guidelines address competency, regulations, use of distance counseling tools, and online practice. According to the most recent counselor liability report from the Healthcare Providers Service Organization (2019), the most common reasons for licensing board complaints within the last 5 years are issues related to sexual misconduct, failure to maintain professional standards, and confidentiality breaches. Mental health professionals adhere to federal and state laws regarding privacy and security of information stored electronically (Dart et al., 2016). Such federal and state laws have been enacted to protect the privacy and security of information, and counselors must adhere to them in order to avoid legal ramifications (Dart et al., 2016). The ACA Code of Ethics (2014) provides guidelines for counselors to consider when in ethical dilemmas. For example, the ACA Code of Ethics advises counselors to adhere to the laws and regulations of the practice location of the counselor and the client’s place of residence. When working within a counselor’s statutory legislation and regulation, the ACA Code of Ethics directs counselors to address conflicts related to laws and ethics through ethical decision-making models. There are several models for counselors to follow (Levitt et al., 2015; Remley & Herlihy, 2010; Sheperis et al., 2016). Counselors, then, should be familiar with these ethical decision-making models to address ethical dilemmas with consideration of legal statutes in their state of practice. The ACA Code of Ethics strongly aligns with the NBCC Policy Regarding the Provision of Distance Professional Services (2016) providing guidance for National Certified Counselors (NCCs). Counselors need to ensure compliance with applicable state and federal law in the provision of TMH services. For instance, the Health Insurance Portability and Accountability Act (HIPAA) is a federal law that establishes legal rules in the security and privacy of medical records, and the electronic storage and transmission of protected health information (Dart et al., 2016). Counselors need to select HIPAA-compliant software and technologies to maintain the security, privacy, and confidentiality of electronic client information. For example, regarding videoconferencing, Skype is not HIPAA-compliant (Churcher, 2012), but VSee and several other vendors have the appropriate level of encryption to meet HIPAA standards for compliance (Dart et al., 2016). Once HIPAA-compliant platform usage is established, counselors need to implement and collect the following information related to clinical documentation: 1) verbal or written consent from client or representative of client in the case of minors or those declared legally unable to provide consent; 2) category of the office visit (e.g., audio with video or audio/telephone only based on acceptable practice in that state); 3) date of last visit or billable visit; 4) physical location of client; 5) counselor location; 6) names and roles of participants (including any potential third parties); and 7) length of visit (Smith et al., 2020). Finally, as part of HIPAA standards, a vendor must offer a Business Associate Agreement (BAA), which demonstrates that the software or tool aligns with HIPAA encryption and privacy standards in communication with clients, transmission of data, and storage of client data (U.S. Department of Health & Human Services [HHS], 2013). During the COVID-19 federal state of emergency, the Office for Civil Rights, tasked with enforcement of HIPAA regulations related to telehealth, exercised discretion and declared the agency would not impose penalties on counselors for lack of compliance in the provision of telehealth, assuming the counselor demonstrates a good faith effort to adhere to standards (HHS, 2021). These guidelines related to the discretion of enforcement cited the use of teleconferencing or chat tools without the adequate level of encryption as allowable, but only during the declared state of emergency.
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