Telehealth: Regulation Of Interstate Psychology

By George J. Alexander, J.D., J.S.D.,
Sutro Professor of Law at Santa Clara University

 

Originally posted at https://www.telehealth.net/articles/regulation.html.Posted by permission. Copyright by Marlene M. Maheu, Ph.D.

The interstate practice of psychology is growing quickly as technology advances. Regulation of the field, beyond professional regulation of licensed psychologists, is very sparse. How regulation applies to cyberpsych (telEhealth) is still less clear even as it concerns licensed psychologists with clients out of the state of their license. It seems that they are governed by the laws of the states of their clients which generally prohibits anyone not licensed in that state from practicing there. A few states have expressly dealt with cyberpsych but they have not added clarity to the practice.

All states prohibit therapist from calling themselves psychologists unless theyare licensed in that state (or allowed to practice on the basis of anotherstate’s license). This provision is called the reservation of title provision.All states other than New York and Washington have a similar prohibitionagainst practicing as a psychologist even without calling oneself apsychologist.

It is extremely difficult to define the practice of psychology because itoverlaps many practices no one would call professional psychology. This makesit difficult to write legislation barring the practice of psychology.Some states follow the California example and broadly prohibit a large range ofacts, which many other professions use, as the practice of psychology. Forexample: methods relating to learning, perception, motivation, emotions andinterpersonal relationships are expressly covered. California then allowsnon-psychologists to use those methods if they are licensed in another field. Most of these exemptions are equally broadly drawn.

The federal government, which has a great interest in cyberpsych as a means ofproviding entitlements as cheaply as possible, serving remote places for whichit bears responsibility and, especially, the military, has been in theforefront of attempting to develop a national delivery system. While there hasbeen some movement toward multi-state admission of psychologists by the states,there has been more activity to clarify the need for a license in each state ofpractice.

There is general agreement that (with the possible exception of an occasionalcontact with a present client who is briefly in another state) the practitionermust be licensed in the state in which the client is being treated.

For many forms of cyberpsych, this requirement presents an insuperable barrieras the location of the client cannot be definitively established. Californiaeven expressly bars its licensed psychologists from transmitting treatment intoother states which have not given their permission. It is also, however,studying a provision which would allow out of state psychologists to obtain aspecial license for interstate practice into California. There is, in anyevent, almost no enforcement of the practice rules upon those unlicensed. Infact, a recent study of attorneys-general demonstrates total ignorance ofmajority of them that their state even has regulatory provisions for unlicensedpractice of psychology.

Few states have expressly regulated cyberpsych in their own state. Californiapassed what may become a model act. Its principal requirements are: obtaininginformed consent, non-discrimination against those who do not consent to itsuse, and preserving confidentiality. To obtain informed consent, thepractitioner must explain the risks and benefits of telemedicine. Theliterature makes clear that there is insufficient research to know risk andbenefits.

By amendment, the statute now does not cover telephone and electronic messageswhich seem more professionally problematic than interactive video conferenceswhich are covered. Since the non-included practice is apparently notoutlawed, this seems to be an advantage to using it.

On the other hand, the statute also requires the state and some insurers tocompensate covered practices thus providing an incentive to supply services byinteractive video. Of course, none of these comments have asked what therationale of regulation is. That question should be answered. When it is,much of the law should be repaired to meet the agreed on objective.