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Is It Legal to Practice Across State Lines with Online Therapy, Telemental Health & Telebehavioral Health?

state licensing laws

Is it OK for licensed clinicians to go over state lines for a few clients/patients? What if the treatment is just for a few sessions? What if the client/patient is just visiting out-of-state family for a few days?

Onlookers scratch their heads and wonder why licensed professionals simply can’t practice everywhere with their professional licenses. The disconcerting fact is that an act of Congress would be needed to override our current state-based system for health care professionals to practice nationally. (Given the current political climate, such an act is not likely.) 

This article will outline the basics related to interjurisdictional practice (practicing over state and international borders) before answering the question of whether it is legal to practice over state lines.

State Licensing Boards Intentionally Operate Independently

Licensing laws in the United States have traditionally been based on the authority of individual states. They frequently defined the scope of practice for their discipline differently. They then regulated how professionals could qualify for professional practice based on specific requirements for training, reporting, and documentation. Licensing laws for most healthcare disciplines were not only written differently across states but being written in the 1950s. They often still reflect the world prior to the dramatic rise of interstate travel or the rapid advancement of communication technologies. The primary concern of regulators was the protection of their citizens.

Bad Apples and Interjurisdictional Practice

State licensing boards faced local issues with keeping “bad apples” out of practice in their states. Now, with the advent of technology, states have even more reason to be concerned that a “bad apple” will harm their citizens. In fact, with a few simple clicks of a mouse, a “bad apple” from anywhere on the planet may:

  • Practice outside the accepted and legally defined scope of their respective specialties
  • Provide services for which they are ill-trained or in which they cannot exhibit clinical competence
  • Give their respective professions a bad reputation
  • Present an intentional danger to harm the public

Clinicians Are Too Often Unaware of the Rules Related to Practicing over State Lines

However, not all clinicians practicing over state lines are “bad apples.” Many well-intentioned clinicians are unknowingly practicing over state lines without being aware of their requirements. These issues only recently became relevant, leaving many professionals at a deficit if educated prior to just recently. In fact, the vast majority of graduate and medical schools do not yet offer dedicated classes to telehealth. (I and my writing team are now writing the first interprofessional textbook for graduate students to cover telebehavioral health competencies. To review a chapter, send a note here: contact@telehealth.org).

Problems with the average professional’s lack of knowledge related to telehealth are still prevalent. In a recent study of psychologists who responded to a survey regarding their online services and related attitudes, only 80 percent thought that it is ethical to practice online.  Twenty percent either were not sure or thought that it is unethical to practice online. On the flip side, only 58 percent of respondents reported that current state laws have bearing on their online activities. In other words, 42 percent either didn’t know or thought that practicing online is unregulated by their respective licensing boards (Glueckauf, Maheu, Drude, Nelson, 2018).1

Turf Wars

Protecting turf was another strong motivator for licensing boards to develop state-specific laws. Initially, some sparsely-populated states do not want to be over-run with professionals from other states, depriving local practitioners of their livelihoods. This factor is still prevalent in some states, where state laws require a foreign practitioner to be physically located in the state where a client/patient is being served. In different states, the opposite can also be true. For example, in one state, a non-resident, out-of-state professional visiting for the winter is not allowed to deliver care to their “home state” where they are licensed to practice without passing the “visited” state’s licensing exam.

Licensing Laws Differ Within States, Too

Unfortunately, turf wars still exist not only across states but also between disciplines. Professional groups within a state can include addiction, behavior analysts, behavioral nurse practitioners, counseling, marriage and family therapists, psychiatrists, psychiatric nurses, psychologists, and social workers. Even today, laws for different professional disciplines can differ within states because they are ruled by groups of professionals from different disciplines.  Regulators from these disciplines then are tasked to decide rules for their own disciplines. The regulations developed by one regulatory board may differ sharply from another board’s regulations within the same state.

The Problem is Conflicting Board Positions Regarding Basic, Non-Technology Mediated Practice 

The issue is not just whether or not telehealth is allowed. The conflict of basic definitions and regulations within a single state creates confusion and misinformation for within-state as well as out-of-state professionals involved in education, training, and practice. For example, in 2015, the composite board in Georgia required social workers, marriage and family therapists, and counselors to take a minimum of 6 hours of professional training to practice any form of telehealth, including telephone service delivery. Psychologists in the same state are not required to take any specialized training in telehealth.

A psychologist then may very well be uninformed of the basic rules required as practitioners of telehealth, as reflected in the above-cited survey by Glueckauf. If that psychologist is working in a value-based model, his or her expectations of colleagues from other disciplines are likely to be uninformed. The same is true to a psychologist supervisor working with a social work supervisee.

Issues in question are not only related to interjurisdictional practice but other issues regulated differently by different boards, such as informed consent; privacy and security; screening and triage; documentation including intakes and intake forms, progress notes, termination processes and notes, mandated reporting, and referrals; and managing fees, continuity of care, and handling emergencies. Involvement with the client’s/patient’s local community resources is also required by many states. Of course, HIPAA requirements for staff training, risk analyses, and written policies including business associate agreements also should be in place when trying to comply with different state requirements. 

Clinical Issues Are Also Important in Legal Telepractice

Clinical issues also may need careful consideration and ample documentation, such as hygiene checks, mental status exams, and gait analyses when conducted online through the telephone, video, text messaging, or other devices that claim to invite the clinician to operate in a platform that is the “digital equivalent for in-person care.” Consumer welfare of the most vulnerable people who seek behavioral care ultimately must be considered. Choosing one’s client/patient population wisely and knowing how to compensate for the lack of physcial presence are the key.

More Than Meets the Eye… Interjurisdictional Telehealth Model Acts

Critics argue that this current system is archaic, contradictory, and confusing. They complain that licensing laws have not yet evolved to reflect 21st Century practice. However, an obvious truth is that many very bright and capable professionals serve regulatory boards. They are not asleep at the wheel. They understand that their licensees want to expand their practices over state lines, keep down their overhead costs, and enjoy the many benefits of working from home.

Rather than coming up with a national law to allow professionals to practice over state lines, several professional groups have developed “model acts” for individual states to consider for their respective regulations. Adoption of such models acts is now currently underway in a number of professions, including medicine, nursing, and psychology

Most Clinicians Practicing Over State Lines Are Practicing Illegally

The disturbing fact is that many professionals are simply guessing at their telepractice requirements. Most clinicians practicing over state lines are practicing illegally if not properly licensed or registered in the client’s/patient’s location at the time of the contact (not the client/patient’s state of residence). These clinicians may very well be good practitioners. They probably are not considering their ethics classes, where they probably learned that practice in a new area requires professional training, not guesswork. As untrained professionals, they not only are practicing unethically, but they may be unaware of the many ways in which they can harm consumers. They also are not aware of how they themselves can be harmed by what they don’t know. Other practitioners may be needlessly staying away from telepractice altogether.

What to do?

The real problem is that most professionals practicing over state lines do not know how to get appropriately licensed or registered, which states are more or less receptive than others, and how to document their telepractices to meet different state requirements. They haven’t thought about:

  • How the definition of the therapeutic relationship differs from state-to-state, potentially making disengagement from an unsuitable client/patients “abandonment”
  • How to handle emergencies such as suicide or homicide threats, child or elder abuse
  • How to handle the client/patient who presents with an issue such as intoxication that prohibits the delivery of legitimate treatment, or psychosis, or mania
  • How to be in compliance with myriad state requirements 
  • How different states require different types of documentation for behavioral practice
  • How federal laws can conflict with state laws, and which to choose
  • How their malpractice insurance carrier might refuse to protect them for problems that arise with their illegal practices
  • How to give appropriate local referrals for seriously disordered individuals who do not comply with treatment 
  • How to find and recruit local community support for complex cases
  • How many online employers leave the licensed professional holding 100 percent of the liability 

To make matters worse, many clinicians don’t know whom to ask, whom to believe, or where to get verifiable facts. They have followed their errant colleagues, who too, are very excited about telepractice, but who haven’t gotten the basic training needed to know how to comply with all mandates.

Unbeknownst to most clinicians whose state boards are still mute on the topic is the fact that telepractice is legal everywhere if the clinician knows how to comply with all federal and local laws. Furthermore, it is 100 percent legal to practice over state lines when the professional is properly licensed or registered in the foreign state (or country) and in full compliance with all laws. Professional training is often needed to understand how to comply. 

State Lines WebinarLegally Practicing Over State Lines

For specific information about legally practicing over state lines, register for the Telebehavioral Health Institute’s upcoming webinar, How to Legally Practice Over State Lines with Telebehavioral Health and Telemental Health.  This quick, 1-hour event will give you the information you need to practice both legally and ethically over state lines. Moreover, it will point you to the appropriate resources to give you the peace of mind to grow your practice online and sleep comfortably at night.

Meanwhile, please feel free to post your questions below. Answers to the most frequently asked questions will be included in the webinar!

1 Glueckauf, Robert L.; Maheu, Marlene M.; Drude, Kenneth P.; Wells, Brittny A.; Wang, Yuxia; Gustafson, David J.; Nelson, Eve-Lynn . Survey of psychologists’ telebehavioral health practices: Technology use, ethical issues, and training needs. Professional Psychology: Research and Practice, Vol 49(3), Jun 2018, 205-219

 

 

 

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8 comments on “Is It Legal to Practice Across State Lines with Online Therapy, Telemental Health & Telebehavioral Health?

  1. Is it really worth the effort to find out and comply with the rules, laws and ethics of each state you may be working with, the insurance carrier, the particluar requirments and documentation etc. if you are only going to possibly work with a few clients ?

    • Yes, even most regulators would agree that it takes effort to develop a legal telepractice, but just like with in-person practice, the number of clients with whom you violate the law isn’t the issue in their eyes. Your practices are either legal or illegal according to state statute and regulatory code.
      We at TBHI encourage you to get the facts before you decide to comply or not. Participating in a webinar is easy enough. We at TBHI make all webinars available on-demand after the fact, so you can listen to them anytime, anywhere, with any device. See our past webinars here for yet more telepractice-related topics.

  2. If a client has legal residence in my state and I work with that person, in person, in my office for six months, then goes to school in another state (but still has residence in my state), is it legal to continue working with him with video counseling, using a HIPAA-compliant platform (VSee)?

    • Steve,

      Disappointingly, no, a licensed professional cannot legally treat a student who is going to school in a different state without engaging with a few simple but costly and time-intensive activities first. These will be outlined in the upcoming webinar for professionals who want to know how to be compliant with the legal, ethical and malpractice risk management issues involved. It makes no sense in the big picture, but such is the case nonetheless. This is the webinar link.

  3. It seems all states need to get together to discuss solutions to collaboratively define the problems and come up with solutions. It’s a process that has to begin in order to open legal access to existing and prospective clients.

    • Ginny,

      I agree – and some disciplines have regulatory associations that have done this. Others are in the process, and yet others haven’t even begun.
      Marlene

  4. Hi, thank you (from the patient’s perspective) for helping to move this conversation forward. I wonder if you know of patient resources for people who are trying to work with a therapist remotely – in my case, I am actually trying to see a therapist with another person while we live in different states (family/relationship counseling). That is, one of us would go in person and the other would participate remotely. We could establish care while both in-person, potentially, then continue while in different states.

    • KA,

      You are asking a very important question. This SAMHSA-sponsored webinar recording might be helpful to you as a telehealth client/patient: https://telehealth.org/blog/tbhi-samhsa-telebehavioral-health-consumer-webinar/

      As for the legalities of the arrangement you proposed, your clinician may need to be careful about treating you as a couple if one of you travels over state lines. Establishing care in-person is most likely not to be relevant once one of you travels over state lines. Unless your couple’s therapist is licensed wherever you travel, a legal violation may very well be occurring.

      The situation may be manageable but private consultation is warranted for your therapist to make sure this arrangement is being properly arranged, notated and coded if you are getting insurance reimbursement. Several factors are involved and discussing them in a public blog is not appropriate. Such private clinician telehealth consultation is available here at TBHI.

      Lastly, I commend you for seeking relevant information as a consumer! Finding and implementing more relevant information can only maximize the chances of success.

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