The current pandemic has led to an exponential increase in telehealth services nationwide as individuals desire to obtain care from their own homes and people seek access to providers who may not be located in their local area. This has also been true in the independent school context where school counselors and other professionals may seek to maintain relationships with patients/students during pandemic-related campus closures.
While from the patient perspective telehealth is as easy as logging onto a Zoom or Skype call, health care providers need to be cognizant of a web of federal and state-by-state regulations which limit who may provide telehealth services in a particular state and set forth the requirements applicable to the delivery of such services. Among the most vexing of these regulations are those that require a provider to be licensed in the state where a patient is located in order to provide telehealth services to that patient. This means that, for example, a provider located in Wisconsin would need to hold a Connecticut license in her or his field of practice in order to have a telehealth session with a patient located in Connecticut. Recognizing these hurdles, there have been a plethora of pandemic-related Executive Orders and governmental guidance issued to relax various telehealth-related state and federal regulations. While these have been well-intentioned and often helpful, they have largely come up short in creating a regulatory environment which easily allows cross-border care. Specifically, the regulatory actions often do not apply to all provider types, are inconsistent among the states, and are often so temporary that a provider cannot rely upon the action to create any long-term patient care plan.
All of this has created a headache for many independent school health centers. If not all students are coming back to campus this fall or if a local outbreak requires a campus to be temporarily closed, how will the health center provide services to these students who may be living in dozens of states? Short of having all of your health center staff licensed in all 50 states, how should a health center plan for these and other similar eventualities?
While many are developing plans based upon various combinations of Executive Orders, licensure waivers, and collaborations with local providers, another idea which has been percolating is the concept of designating all or certain health care services as “non-therapeutic” or, simply put, not health care. The gist is that if a service is not health care, then it would thus not be subject to all of the laws regulating health care, including restrictions on the provision of telehealth. While the concept is enticing due to both its simplicity and promise of regulatory freedom, we urge independent schools to move cautiously and consider at least the following when contemplating such a plan:
- What is “Non-Therapeutic”?
The foremost consideration is that while states generally endeavor to define what activities are included within the practice of a particular field of health care (e.g. medicine, social worker, counseling), bright-line rules and clear delineations are rare and the concept of “non-therapeutic” services is neither defined nor contemplated. This lack of clarity and definition, particularly when viewed in light of 50 states each with their own scope of practice rules, makes it exceedingly difficult for providers to know with any reasonable degree of certainty whether she is or is not providing “non-therapeutic” services at any given time or in a particular state. Simply put, there is no single definition of the term (and there is usually no definition of the term) upon which a provider may rely. This will leave many providers guessing whether a particular service or session is or is not “non-therapeutic.”
- Implications of Guessing Incorrectly
In light of there being no clear definition of “non-therapeutic” care, and no “safe harbor” which would give health center providers a meaningful degree of comfort, it’s important for a school to be conscious of the potential implications of it or its providers guessing incorrectly. Should a licensed health center staff person provide what he believes to be a “non-therapeutic” service to a student located in a state in which the staff person is not licensed, but a local regulator believes that the service is in fact covered by state licensing laws, the staff person may be found in violation of state licensing rules. Penalties for such violations could conceivably include censure, suspension of license, or loss of license.
- Practice Alterations
Should a school decide to adopt a “non-therapeutic” approach to health center services, it should do so with care and with the following practice points in mind:
- Designation: Unfortunately, simply designating an existing service as “non-therapeutic” does not make it so. If the service is a health care service or is intended to treat any disease, condition or injury, the law will treat it as health care. Remember what they say about ducks?
- Notice: Should a school decide to offer some form of new, “non-therapeutic” services, it is important to notify both students and parents that these services are not health care services and are not intended to treat any disease, condition or injury.
- Content: If not health care, what could “non-therapeutic” services be? Consider educational counseling, academic advising, peer-to-peer support, and the like. And a rule of thumb – if you would only seek the service from a licensed health care professional, it’s probably not a “non-therapeutic service.”
- Separation from Health Center: To reinforce the status of “non-therapeutic” services as non-health care services, consider providing such services through a school department other than the health center. This may also be necessary to protect your health center’s state facility license.
- Performance by Unlicensed Staff: To avoid confusion to regulators, parents and students, and to reduce the risk of a licensed health care provider inadvertently providing a health care service during a “non-therapeutic” session, consider having only unlicensed staff provide the “non-therapeutic” services.
- Insurance Coverage
Lastly, note that many schools and individual health center staff carry medical malpractice coverage insurance for health center-related services. Schools also carry general commercial liability coverage. However, few (if any) schools carry insurance directly applicable to “non-therapeutic” student services and thus any school planning to offer such service should consult with their insurance broker to ensure that existing general liability coverage would apply to such non-health, “non-therapeutic” care services.
Telehealth can be a powerful tool to ensure accessible, uninterrupted care and treatment to your student community. When devising a telehealth program for the upcoming academic year, we recommend a careful approach to protect your school, the licenses of your health care providers, and the well-being of your student body.
If you have any questions regarding school health center responses to COVID-19, please do not hesitate to contact William Roberts or any member of Shipman & Goodwin LLP’s Independent School Practice Group.