By Ofer Zur, Ph.D.
Table Of Contents
One of the hottest topics in telehealth is the issue of inter-jurisdictional – across state or country boundaries (across states’ lines). This topic relates to situations where the practitioner (i.e., psychotherapist or counselor) and the client or clients are not in the same state or even the same country. The issues at hand are whether a psychologist in State A can treat a patient who is in State B via telehealth if the practitioner is licensed only in State A but not in State B; a psychologist who is temporarily in State B, without a license there, can treat the patient back home in State A via telehealth; and whether when both psychologist and client are physically not in State A, where the practitioner has a license, can treatment via telehealth take place. This topic also covers international issues such as whether a European or South American counselor can treat a patient in the US, where the counselor or psychotherapist is not licensed. Or visa versa, whether a US licensed counselor can treat a patient in China or other country without being licensed there.
Traditionally, licensing laws for mental health care disciplines in the United States, have been intentionally defined and regulated by the authority of individual states to allow licensing boards to operate independently. Consequently, definitions for the scope of practice for each discipline, and the regulation of the professional requirements, are often quite different between boards across states. Another reason for the state-specific laws involves states’ territorial agendas: the desire to protect the livelihood of local professionals, especially in sparsely populated states, from being overrun by practitioners from other states. Given that most of these licensing laws were written in the 1950s, they don’t reflect the dramatic changes allowing people to travel easily between states or countries nor the revolution of the internet. It is obvious to almost all practitioners and experts alike that many state licensing laws are still archaic and do not match 21st century digital realities. While most states address telehealth issues, not all states have addressed yet the issue of cross-border licensing. But recent changes like the creation of The Psychology Interjurisdictional Compact (PSYPACT), of which you will read below, and the fact that many national associations are currently working to develop a cross-state practice model, is encouraging. Until things become clearer and more regulated, the question becomes how to apply telehealth issues across state lines to the existing traditional regulations. This article will first discuss some of the ethical and legal issues that deal with practicing across state lines within the US.
When it comes to telemental health, telepsychology or e-counseling, the over-arching question is where does the psychotherapy or counseling take place? Does it take place where the client is, where the therapist is, in both places, in cyberspace, or in all three places? It is obvious that old definitions of the location of treatment are not suitable to modern digital and Internet based treatments. This question gets additionally complicated when considering what is now becoming the prevalent practice of cross-jurisdictional clinical work. A basic thing that a practitioner needs to understand is that when a clinician is physically located in a state different from his/her client, the jurisdiction over the therapeutic relationship falls on both states. It is therefore important for mental health professionals to fully understand and comply with the regulations of both states. Given the variability in different state laws, this can get quite complex. For example, if a psychotherapist is licensed in state A and treats a client who is present in state B (also known as the foreign or host state), s/he might not be violating state A’s licensing laws but may be violating state B’s licensing laws (if they have laws that are relevant to the issue). Some states, for example, openly allow clinicians licensed outside of their borders to offer telehealth to clients in their jurisdiction, other states restrict and regulate it and some states prohibit it altogether.
A complex issue that some therapists face involves situations where the person they are treating is going to college in another state where the therapist is not licensed. The most relevant questions to this issue are the concerns with state licensing laws and the welfare of the client. Psychotherapists must consider these issues seriously. Therapists may want to consider obtaining a permanent or temporary license in the other state. They must also take into consideration continuity of care issues. For example, an important factor is the client’s mental state and the question of whether the client’s situation is such that he/she may be at risk if therapy with the original therapist is terminated at that time. Transition times can be challenging and, from a clinical point of view, it may be important to have continuity of care. The situation may become more complicated if the client is unwilling to see a local therapist. Therapists who encounter such complex situations should seek consultation as well as become aware of emergency, medical, psychiatric and other resources in the vicinity of the client’s new residence. Contacting the licensing board where the client resides would also be a good idea and may be required in some states. If the client comes back from college during summer, winter or other breaks, of course the therapist can see the client, if it is clinically appropriate, in their home state.
When it comes to the question of “residence vs. presence” of a client in a state other than the state of the practitioner, one should know that as soon as a client is simply present on the ground of a different jurisdiction, not necessarily as a resident, the client falls into the responsibility of that state’s licensing board. It means therefore that the board of the foreign state decides if the clinician is in compliance with their laws, regulations and rules when working with a person within their jurisdiction.
A primary question that arises is whether it is legal or ethical to violate state B’s (the foreign state’s) laws and regulations, where the practitioner does not have a license, if they have such rules for inter-state clinical work? The secondary question is how likely is it that state B would pursue the therapist who resides in state A or file for his/her extradition from state A. So far, it is not very likely that state A will spend time, efforts, resources and thousands of dollars (or even dozens of thousands of dollars) to try to extradite a therapist from state A so it can bring him/her to justice in state B (and then spend more money in court costs). That being said, therapists need to be mindful of potential penalties for unlawful practice of telehealth. If State B discovers that a practitioner is offering services in their jurisdiction without the appropriate authorization, they might be able to bring penalties against the practitioner, which could include reprimand, fines, charges of criminal behavior, or, while unlikely, even incarceration. Furthermore, and highly significantly, for example, under California Law for MFTs, if a practitioner is found by another state’s regulatory board to violate their state’s licensing laws, the practitioner is required to report the offense to the BBS, the licensing board in CA. It is, then, up to the CA licensing board to determine the consequences of such actions or what BBS may classify as “Unprofessional behavior”, which could include penalties such as denial, suspension or revocation of a license.
Some states have temporary licensing provisions; some have reciprocity arrangements for psychologists via CPQ (Certificate of Professional Qualification in Psychology). At present, mental health professions in the United States do not have a national license or any reciprocity arrangement whereby a clinician who is licensed in one jurisdiction may be automatically eligible to practice under that license in other jurisdictions (see updates below). Such an arrangement is presently being implemented in Canada but not yet in the United States. Nursing has an arrangement that allows nurses licensed in one jurisdiction to practice in another jurisdiction under his or her one license. This interstate compact has been agreed to by approximately 24 states. While such a nurse may practice in one state using the other state’s license, the nurse is responsible to be knowledgeable of and follow all relevant laws and regulations in the state where he or she is practicing. Similar arrangements have been instituted for medics and EMTs who may need to cross state lines in their line of duty. Regretfully, such an arrangement is not available for mental health professionals, yet. At present, most licensing boards require that professionals from other jurisdictions apply for and utilize a temporary license for practicing in their jurisdiction if the professional is already licensed in another jurisdiction and is seeking authorization to provide services in that second jurisdiction, temporarily. One must apply for a temporary license as it is not enacted automatically.
What are the considerations for continuing to provide mental health services to a client who travels to other states or is temporarily in another jurisdiction, where the therapist in not licensed? Such travel can be part of a client’s employment or s/he may be going on vacation. If the client’s residency has not changed, and the client does not want to see another therapist, the therapist may be allowed (depends on the licensing boards’ regulations) to continue therapy for a short time with him/her as long as his/her mental health issues are such that they can be effectively treated via the phone, videoconferencing or other Internet-based or digital technologies. Therapists need to check with the licensing board that regulates their profession in the state where their client is temporarily present to find out if that state has provisions for licensees of other states that allow treating temporarily people in their state. Some states don’t offer these temporary practice provisions.
Where should telemental health professionals find temporary practice provisions of different states, should they exist? It is often the case that one will find them in the section on administrative rules of the board that oversees the respective profession in each selected state. One could alternatively look in the more general rules of the telehealth laws of that licensing board. Here is a process to find the temporary practice provisions recommended by Person Center Tech:
The complexity created by conflict of positions, regulations and laws between states is made only worse by these conflicts appearing also within the same state between different professional boards. Take for example the State of Georgia. In 2015 the Georgia Composite Board for the state’s Counselors, Social Workers and Marriage and Family Therapists voted to pass their Telemental Health Rule requiring professional training of a minimum of 6 hours to practice telehealth. At the same time, local Psychologists are not required to take any professional training in telehealth in Georgia. The result is often misinformation and confusion, which could lead to potential illegal or unprofessional behavior.
As a result of this kind of complexity and confusion, most mental-health practitioners who practice a form of telehealth, such as calling one’s client, are guessing about what is required of them and if practicing across state lines, and at times they are not following the proper regulations. The average professional’s knowledge and understanding of telehealth issues is still quite limited. A study from 2018 involving psychologists who were asked about their attitude toward online services revealed that 42 percent of participants either believed that practicing online is not regulated by their licensing boards or they didn’t know if it was (For information about the survey click here.)
Obviously, as noted in this paper, there are a variety of issues that mental health professionals need to understand to properly and legally practice in other jurisdictions, such as: what are the regulations and laws of each state regarding the practice of telemental health and where can one find them? Which states are more open to cross-jurisdictional practice? How does one get a temporary license in other states? How should a mental health practitioner document their practice to meet different requirements in different states? What types of documentation are required for behavioral practice in different states? How a practitioner’s malpractice insurance carrier protects them if the case involves illegal practice?
It is important that professionals know that it is absolutely legal for mental health professional to practice in other states and other jurisdictions but only if they are licensed or registered properly in the other state and if they are following all the regulations and laws of the other state.
It is highly suggested that mental health professionals consult their own licensure boards for guidance for practicing outside their state as well as contact other jurisdictions’ licensing boards (where the client resides) regarding the possible need for a temporary license and to understand the laws and regulations addressing these issues.
There is a difference between practicing in other states within the US and practicing in other countries. In most general terms psychotherapists can treat clients in other countries if these countries do not regulate “counseling”, “psychotherapy”, “marriage and family therapy”, etc. Some argue that even if a foreign country regulates the practice of psychology but not of Marriage and Family Therapy”, MFTs can treat people remotely in this country. If this is true, as a result of this lack of regulations, LPCCs and MFTs have far more leeway when practicing with clients in other countries for the reason that they are not violating those countries’ laws because they have no laws governing the practice of LPC or MFT. This argument is similar to the argument used, so far successfully, by coaches all over the world.
PSYPACT Officially Open for Applications
The PSYPACT, which allows for interstate practice of telepsychology throughout its member states, opened for applications from qualifying psychologists on July 1st, 2020. https://psypact.org/
The Psychology Interjurisdictional Compact (PSYPACT) is an interstate compact designed to facilitate the practice of telepsychology and the temporary in-person, face-to-face practice of psychology across state boundaries. The compact is officially operational. Current states that signed into the compact include: Arizona, Utah, Nevada, Colorado, Nebraska, Missouri, Georgia, Illinois, Delaware, New Hampshire, Oklahoma, Texas, and Utah. See most recent legislative updates: https://www.asppb.net/mpage/legislative.
CA Licensing Board (BBS) issued a warning regarding therapy with patients who travel out of state. By Richard Lesley, in Avoiding Liability Bulletin, September 2016. In the warning BBS requires that if a therapist (MFT, LCSW, LPC, LEP, etc.), treats in the state s/he is licensed in, and the client goes on vacation or business trip to another state, the therapist has an obligation to check with the state where the client is temporarily in to see if conducting phone or video-conferencing therapy is allowed.
This notice is essentially a travel warning to all current patients and to all California consumers seeking or receiving counseling or psychotherapy from any of these practitioners. The Board notifies California consumers that if they are traveling to another state and wish to engage in psychotherapy or counseling via the telephone (or the internet) with their California-licensed therapist while they are away, their therapist needs to check with the state that the patient is temporarily located in to see if this is permitted. The State of California, through one of its many regulatory boards, is thus suggesting to patients who are already in treatment with their California-licensed practitioners that they may not be able to get continuing and necessary treatment from their therapists via telephone if they temporarily cross the borders of California!
Richard Lesley, JD, Sep. 2016
Exciting new development in Massachusetts: In a move that could revolutionize the delivery, access and cost of primary healthcare in Massachusetts, the House of Representatives approved a plan to allow doctors licensed anywhere in the United States to consult, diagnose and treat Massachusetts residents by internet video examinations. More information
In the Dec/2011 “NATIONAL DEFENSE AUTHORIZATION ACT FOR FISCAL YEAR 2012 CONFERENCE REPORT (House Report 112-329)” changed language regarding location of services to “any location” rather than only in the states where the practitioner is licensed. That means that the practitioners, under this report, can treat patients, as defined by this report, cross state lines. The report is available here. For now the precedence or breakthrough is applied only to patients as defined in these regulations, but not to the general public. Needless to say, this is a first step in the right direction. This new law is applied to “member of the armed forces, civilian employee of the Department of Defense, personal services contractor under section 1091 of this title, or other health-care professional credentialed and privileged at a Federal health care institution or location specially designated by the Secretary for this purpose”.
SEC. 713. EXPANSION OF STATE LICENSURE EXCEPTION FOR CERTAIN HEALTH CARE PROFESSIONALS.
(a) EXPANSION. – Section 1094(d) of title 10, United States Code, is amended(1) in paragraph (1)
(A) by inserting “at any location” before “in any State”; and
(B) by striking “regardless” and all that follows through the period at the end and inserting “regardless of where such health-care professional or the patient are located, so long as the practice is within the scope of the authorized Federal duties.”; and
(2) in paragraph (2), by striking “member of the armed forces” and inserting “member of the armed forces, civilian employee of the Department of Defense, personal services contractor under section 1091 of this title, or other health-care professional credentialed and privileged at a Federal health care institution or location specially designated by the Secretary for this purpose”.