Cross-border Practice Online: Worth Re-considering?

Cross-borderYou may have heard colleagues and perhaps even “ethics” speakers condone the delivery of healthcare over state and national cross-border without first getting licensed in those foreign areas. The rationale? It boils down to “nobody is watching” or the belief that you won’t “get caught.” Our colleagues claim that licensing boards are not enforcing existing law or that it’s highly unlikely that the consumer in other states or countries will come to your state to prosecute you. They are probably right on both counts, but is their stance practical, wise or dare I say, “ethical?”

My thoughts:

  1. From a purely practical point of view, the first issue to consider is that most malpractice insurance companies won’t honor our benefits if we are deemed to be practicing “illegally” as licensed professionals. Those policies usually contain a clause about being nullified when we engage in “illegal activity” as a professional. If we practice over state lines, either from one state to another, or from one country to another (international practice), by definition, according to most state law, we are practicing “illegally.” Currently, chances are, we won’t get caught. Nonetheless, our licensing board colleagues are working diligently to rectify current problems with enforcement. They are focused on this issue, not only in the U.S., but in many other countries, including the European Union and in Australia. Let’s stop and think a bit further. When the authorities lower the boom on this illegal practice, who will get “caught?” Won’t world wide web pages that blatantly advertise illegal, over-the-border practices make some practitioners the most obvious targets? Beyond that, if any of us get into trouble for any other reason in our online practices, won’t such a flagrant violation weigh against us in court? I’m not an attorney, but caution seems in order.
  2. If a clinician is involved in a lawsuit for any other reason, the “illegal” nature of his or her over-the-border activities is likely to surface in court, and not bode well in the judge or jury’s opinion.
  3. Won’t such a clinician’s patients start to wonder about the clinician’s own boundaries when they learn the truth about over-the-border practice? If you recall, buying medication online without visiting with a prescribing doctor was the rage last decade. Now that the FDA has clamped down on such practice, many patients look back at these same ventures and see them for exactly what they were: money-making schemes running ahead of the law. The wheels of justice may grind slowly, but they continuing grinding.
    Do we want our psychotherapy patients asking themselves why they took us seriously when we asked them to have better boundaries? Is it hypocritical for us to preach “boundaries” when we ourselves can’t maintain obvious boundaries, such as state lines or international borders with our own licensed practice?
  4. Aside from practicalities and clinical repercussions, the ethical issue to consider is that ethics are supposed to encourage us to think at a level above the law — to help us think through potential conflicts, given our patient needs. More basically, they demand that we adhere to the law. It is correct that many laws do not yet mention the word “Internet,” but we are supposed to be educated enough to ask for help if we are struggling to think through all the issues ourselves. Ethics also require that we be mindful of how our individual actions impact our professions, all of our colleagues, as well as our patients and clients. Ethics certainly do not condone the sidestepping of the law.
  5. A careful reading of any healthcare discipline’s ethics code addresses many of these problems, if we take the time to think about it carefully. For the sake of expediency, I will only paste 2 of the relevant code sections from the American Psychological Association ethics code (2002), but most mental health ethics codes are the same across disciplines. If you are not a psychologist, you may want to look up your own code. Most professional codes are easily accessible online, and a few minutes of reading should satisfy much doubt. A foundational understanding is that we are to follow the law, and not intentionally, willfully sidestep it.  See  the APA website at this address. I have bolded some of the applicable text:
    Principle B: Fidelity and Responsibility

    Psychologists establish relationships of trust with those with whom they work. They are aware of their professional and scientific responsibilities to society and to the specific communities in which they work. Psychologists uphold professional standards of conduct, clarify their professional roles and obligations, accept appropriate responsibility for their behavior, and seek to manage conflicts of interest that could lead to exploitation or harm…

    Principle C: Integrity

    Psychologists seek to promote accuracy, honesty, and truthfulness in the science, teaching, and practice of psychology. In these activities psychologists do not steal, cheat, or engage in fraud, subterfuge…

    Several APA ethics code Standards are also in question with this issue, including multicultural training, remote assessment and testing, confidentiality, fee setting, etc

But the law is outdated…

Clearly, the law needs to change. We are in that process, but regulatory change does not occur overnight. It’s not even a 2 or 5 year process most of the time. Laws are the distillation of centuries of our leaders carefully weighing important decisions. Especially state, national and international laws are the result of countless conflicts, cases, lives and authorities settling on a path of action. Are our colleagues suggesting we throw all that aside, because the law isn’t keeping up with technology?

Should we just jump on the Internet and do whatever we want, because our legal systems aren’t fast enough? Can we be sure that we individually “won’t hurt anybody?” How do we know who or how we might be hurting people online? Where’s that data? Should the lack of 50, or 100, or 1000 documented licensure convictions be our litmus test? We are professionals. We often work with vulnerable clients who need us to be responsible. If we as professionals don’t understand our governing licensing laws, or they don’t make sense to us, isn’t it our duty to contact the licensing boards for guidance in this (or any) gray area? One thing is clear — it’s inappropriate for any professional to disregard state or national boundaries in the secret hope he or she won’t get caught.

Frankly, I think it’s also our duty to help our lawmakers, our professions and our disciplines move us forward, and particularly now. Why?  We are  at a pivotal time in history, with technology outstripping our ability to keep up with change. Our leaders need our help and support. We are a family in many ways. We need to educate each other as best we can, while our duly elected and appointed authorities make the law for us all. Now is not the time to encourage each other to sneak around with consumers worldwide.

What’s a reasonable course of action?

We can practice telehealth without breaking the law. We can deliver services online, make substantial profits, uphold the values and ethics of our respective professions, and render very needed assistance to consumers. It’s time to take this seriously. Online service delivery will only escalate rapidly in the next decade. In fact, I predicted it will be a predominate mode of mental health service worldwide by 2020. Let’s just do it responsibly.

To hear more information about the pivotal issues in building an online practice, attend our FREE TMHI webinars. Our next one is July 11, entitled:

7 Essential Facts about Licensure for Practice Across State or International Borders

We will discuss these issues and an action plan to consider: http://telehealth.org/webinars

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