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Texas counselors battling over proposed ‘distance’ therapy restrictions

The table is set in Texas for another skirmish over regulatory board restrictions concerning the growing use of “distance” technology, such as videoconferencing, to care for patients.

Last year, the fight involved doctors. This time, licensed professional counselors are objecting to a proposed rule that would require an in-person session with a client before using distance technology for counseling sessions.

Further, the rule requires counselors, as well as clients, to reside in Texas, unless the client is in the military, and it requires counselors to get a signed informed-consent agreement before providing services.

The rule comes at a time of widespread shortages of psychiatrists and other mental health workers in Texas. A state report says that in in September 2014, 201 counties out of 254 had provider shortages. In 174 counties, there wasn’t a single psychiatrist. A recommendation from the Statewide Health Coordinating Council was to expand distance therapy services.

More than 130 counselors have signed a petition against the proposed rule, and dozens have sent comments — almost all opposing the rule — to the nine-member Texas State Board of Examiners of Professional Counselors, which could act at its meeting Wednesday. The board’s rules committee will hold a hearing on the proposal at its 8 a.m. meeting, and the full board will do so at its 12:30 p.m. session, both at the Travis Building, 1701 N. Congress Ave.

A letter attached to the petition, initiated by Austin counselor Donna Rose and Fort Worth counselor Stephanie Adams, says, in part, “Texans deserve to be on par with all other US citizens in their choices and access to mental health care! The new rule would prevent thousands of Texans from getting potentially life-saving mental health care remotely in the privacy of their own home for years to come if passed.”

Rose counsels about 20 percent of her clients using secure videoconferencing and, in special circumstances, a phone, she said in an interview.

“I feel strongly about this because this is for people who wouldn’t otherwise get to access this care,” Rose said. “Some of these people are professionals who travel every week. Some are rural residents who are really strapped.”

Others have disabilities or they’re veterans, single moms, low-income or elderly folks who don’t drive, Rose and others said.

“I have been able to serve the health care needs of Texas residents as far away as the Middle East and Indonesia, as well as a number of Texans in rural areas within Texas,” she said.

Informed consent can easily be obtained using distance technology, Rose said. “E-signing is as valid as a pen on paper.”

The proposal to require an initial face-to-face meeting is similar to one the Texas Medical Board approved in April 2015, but the medical board exempted mental health physicians — not other kinds of doctors. After the vote, Lewisville-based Teladoc sued the board, saying the rule would critically wound its business, reduce patient access to care, drive up costs and fly in the face of a national movement to expand telemedicine, or telehealth, services.

In December, a federal judge in Austin denied the medical board’s attempt to toss out Teladoc’s lawsuit, and while a trial is pending, Teladoc is continuing business as usual in Texas, a company spokeswoman said.

Other mental health boards in Texas don’t require an in-person session before allowing distance therapy, which would place the state’s licensed professional counselors — there were 18,641 in 2013 — at at competitive disadvantage, opponents told the board.

The American Telemedicine Association in Washington sent comments voicing its opposition, as did other groups, including the Texas Counseling Association, Breakthrough Behavioral Inc., MAP Health Management and the Texas Association for Counselor Education and Supervision.

French A. Jones, who founded Global Counseling Initiative in Dallas, told the board the rule would hurt his ability to provide free counseling to missionaries around the world.

“The board is concerned about abuse. We know of none,” Rose said. “It’s hard to understand the rationale.”

Board members did not return calls about the proposal. The Statesman left messages for six of the nine board members, including Chairwoman Glynda Corley. The newspaper could not reach the other three because their contact information was outdated or, in one case, listed as confidential.

In publishing the proposed rule in January, the board’s interim executive director, Sarah Faszholz, outlined potential benefits.

“Specifically, proposed requirements regarding distance counseling are designed to allow licensees to better assess the client using non-verbal cues at the initial session, following which the licensee may determine which method of counseling to use and the frequency of subsequent sessions,” she said. “The amendments will also allow licensees to better establish the identity of the client, ensure confidentiality during the initial session, use modalities other than talk therapy at the first counseling session, and should the client appear to be a danger to him or herself, keep the client with the licensee until help arrives.”

Faszholz did not return an email or calls seeking comment.

One person who wrote to the board in favor of the rule, Bobbe Alexander, said that if someone the counselor hasn’t met contacts the counselor at a critical time, the counselor would have no way of getting help for the client, leaving both vulnerable.

The absence of an in-person meeting “would not be truly protecting that client,” Alexander wrote.

In August 2013, a person named Bobbe Alexander was the executive director of the board when it considered but did not adopt a similar rule. Rose said it was because of robust opposition.

The medical board exempted mental health providers from an initial in-person session for several reasons, spokesman Jarrett Schneider said.

“The change was made to expand access to mental health services in under-served areas and due to the growth in the field of telemedicine and changes in the scope of technology,” Schneider wrote in an email. “There are inherent diagnostic differences in which a hands-on physical exam is not needed in the case of mental health services. In many instances, the primary diagnostic tools include the observation of, and discussion with, the patient.”

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