If you are a licensed healthcare professional wanting to counsel on the Internet, you are subject to the same laws that regulate the practice of telehealth and telemedicine. Until there is a substantial change of legislation, those laws are very clear in most states that the all healthcare practitioners must be licensed in the state of residence of the patient.
There seems to be some ambiguity, or perhaps wishful thinking on the part of practitioners who hope that state reciprocity laws might get them off the hook of needing to be licensed in a foreign state if they “only work with the patient for a few hours.” The truth is that such reciprocity might exist, but the practitioner would need to contact the state licensing board of the patient and ask for specific permission to work with that specific patient.
Another commonly ignored truth is that most professionals practicing on the Internet have no idea whether clients or patients are located. Some websites require the patient to identify where they live and some don’t, but the law makes it clear that it is the job of the licensed professional to know the state of residence for every patient. When hiring a group of licensed professionals, Website owners then are “off the hook ” because it is the duty of the professional to know the limits of their own licensure.
In a private practice setting professionals don’t typically ask patients to prove their state of residence because it is understood that patient typically lives wherever they visit a professional. The issue then rarely comes up, except for practitioners who work in border towns. For them establishing residency of patients is a common intake procedure.
In telehealth settings where technology is used to connect a healthcare practitioner with a remote client or patient, the state of residence of the patient is verified as a matter of standard protocol before a patient is treated.
The same verification process is required by state licensing boards if licensed professionals want to practice online, by telephone, or any other equipment. Practice is practice, no matter what communication technology used to deliver voice or video.
For more information regarding these issues, you may want to consider these resources:
- The American Telemedicine Association. This is the largest group of healthcare professionals working with telemedicine anywhere in the world. Their website is a wealth of information. Of particular note is their special interest group for telemental health, and more specifically two “Best Practices” papers they published just recently.
- Your malpractice carrier. Your malpractice insurance is intricately intertwined with stay licensure because if you lose you stay licensure (for infractions such as practicing outside of the bounds of your state licensure), your malpractice insurance will typically not cover you. Many malpractice carriers have attorneys who are available for consultation if you have questions related to stay licensure or malpractice coverage.
Be careful to get whatever an insurance carrier says in writing, though. I’ve had the experience of consulting with several people who were informed by their malpractice carriers that they were “covered” or “fine” to practice on the Internet, but when they took my advice and got their carrier to send them a letter outlining their coverage, the letter never has said anything beyond, “we’ll cover you for whatever you do on the Internet that is the same as what you do in your office.” Now I don’t know about you, but for most people, the experience of practicing on the Internet is distinctly different from what happens in an office when the patient is seated a few feet away from you.
- Your state licensing board. They are the ultimate judge and jury of what’s right and what’s wrong. Read their website, call and ask all the questions you need answered. Do it anonymously if you need to. While some attorneys will suggest that you write to your licensing board, tell them what you plan to do and ask them to give you permission to do it, I’ve seen other attorneys suggest that you stay away from putting anything in writing when seeking advice from a licensing board.
- Your professional association. Most associations have several resources for members. One typically includes time with an attorney. The problem with attorneys that work for professional associations is that they tend to have expertise in issues related to general practice, such as: renting office space, Tarasov, suicide, and a host of issues that have nothing to do with the Internet. When consulting for legal advice related to something as cutting-edge as the Internet or telehealth and telemedicine, they may well be out of their league and not know it. The fact is that many people do not know how much they do not know. How could they?
The same is true for typical association ethical boards. For most issues, ethical boards are quite helpful in helping practitioners think through issues. However, many professional associations have not addressed issues related to the use of telecommunication technologies. Our best bet then, is to go to associations that specialize in these practices and take our direction from them. The membership fee the American Association of Telemedicine is about $250 a year for individuals.