October 25, 2021

Nicki Drotleff, LCMFT
Chair
Board of Professional Counselors
4201 Patterson Avenue, Suite 316
Baltimore, Maryland 21215-2299

Dear Ms. Drotleff:

The Licensed Clinical Professional Counselors of Maryland appreciates the telehealth flexibility extended to health care practitioners during the Governor’s state of emergency.   Governor Hogan, the Maryland Department of Health, and the Board of Professional Counselors and Therapists are to be commended for ensuring that Marylanders continued to receive behavioral health services in these difficult times.

Since the State public health emergency has ended, we are reviewing existing regulations and requirements in regards to telehealth practice.   We have identified several provisions under COMAR 10.58.06 that are not consistent with the teletherapy laws recently enacted. Since teletherapy has become a primary mode of providing treatment to clients, our members need to be clear about when they are at risk of disciplinary action regarding how they provide teletherapy services. We are asking the Board to offer LCPCs guidance regarding the following:

• Location of the Practitioner:  Under 10.58.06.03, the regulations state that telehealth requirements apply if either the Maryland licensed practitioner or client is located in Maryland.  However, Maryland’s law is structured differently.  Under Health Occupations Article §1-1005, Maryland’s telehealth law applies to only when the patient is located in Maryland.  We understand when patients are located in another state and the practitioner is in Maryland, the telehealth laws of the patient’s state apply; otherwise, a practitioner could be subject to two conflicting standards.  We would appreciate clarification on the issue;
  
  

• Audio-Only:  While Health Occupations Article §1-1001 did not include audio-only in the definition of telehealth, it is our understanding that the law still permits practitioners to provide services to patients through audio-only communications.  Those communications are not required to be regulated in the same manner as telehealth services, although a Board could choose to impose similar requirements just as long as those requirements were not inconsistent with the law.
  

  This past session, the Maryland General Assembly clarified its intent that the Maryland Medicaid Program and State-regulated private insurers reimburse for somatic, behavioral health, and somatic care services delivered through audio-only technology.House Bill 123/Senate 3 is clear that the Maryland General Assembly’s intent is that audio-only services be permitted for behavioral health services.
  

  We ask that the Board communicate with its licensees that audio-only services are permitted through regulation or guidance.  Many licensees are confused, especially with all changes in telehealth policies under the state and federal public health emergencies.
  
  

• Asynchronous Technology:  Under Health Occupations Article §1-1002, practitioners are permitted to establish patient relationships using either synchronous or asynchronous technology.  The Board’s regulations conflict with statute if COMAR 10.58.06.05 is intended to specify that a practitioner must perform a patient evaluation using synchronous technology before establishing a patient relationship.  We would appreciate a clarification of the Board’s intent.

Thank you for the opportunity to submit these comments to the Board.  If we can be helpful in any other way, please contact our legislative representative, Robyn Elliott, at relliott@policypartners.net

Sincerely,
Susan Roistacher, LCPC
President