TeleMental Health Services Across State Lines
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. It also covers issues of 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.
It is obvious to almost all practitioners and experts alike that some state licensing laws are archaic and do not match 21st century digital realities. While some attempts have been made to allow licensure mobility for psychologists and other professions, this allowance is far from the change that needs to take place. Regretfully, national licensure laws or easy reciprocity across jurisdictions are not likely to become reality anytime soon. While most states address telehealth issues, all states have addressed the issue of cross-border licensing. The question then becomes how to apply telehealth issues and practicing over state lines to the existing traditional regulations.
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 short article will first discuss some of the ethical and legal issues that deal with practicing across state lines within the US. In the most general terms, the state in which the client is physically present is the one that is more likely to be concerned about whether its laws were violated by a therapist who is not licensed in that state. For example, if a psychotherapist is licensed in state A and treats a client who is present in state B (also known as the forum or host state), s/he probably does not violate state A’s licensing laws but may violate state B’s licensing laws (if they have laws that are relevant to the issue). The primary issue here, is it legal or ethical to do it? The next or 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 thousands of dollars to try to extradite a therapist from state A so it can bring him/her to justice in state B (and spend more money in court costs).
Another common question that practitioners bring up is what are the considerations with continuing to provide mental health services to a client who travels to other states or is temporary in another jurisdiction, where the therapist in not licensed. Such travel can be part of 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 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 of where the client is at to find out if they can treat the client who is physically located, even for a short time, in a state where they are not licensed in.
A similar and 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. 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 during summer, winter or other breaks from college, of course the therapist can see the client, if it is clinically appropriate, in their home state.
Some states have temporary licensing provisions; some have reciprocity arrangements for psychologists via CPQ. 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. 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. More information on “The Nurse Licensure Compact Explained,” an excellent video. 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.
It is highly suggested that mental health professionals consult their own licensure boards for guidance and to contact other jurisdictions’ licensing boards (where the client is at) regarding the need for a temporary license and to see if they even have any laws or 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 regulate the practice of psychology but not of Marriage and Family Therapy”, MFT can practice 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.
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. See most recent updates: https://www.asppb.net/mpage/micrositehp
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”.