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).
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
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.
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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