What are your considerations as a licensed healthcare professional when practicing telehealth therapy across state lines?
First, if you are working with a U.S. citizen through videoconference, email, text message, telephone, apps, remote patient monitoring or any other communication technology across state lines, the licensing board in the patient’s location has jurisdiction, and you, therefore, must be in compliance with all their rules and regulations. Your documentation then must reflect that compliance, including your informed consent process. Licensure requirements reside with the patient at the time of the contact. This is contrary to popular belief that licensure requirements reside with the patient’s state of residence. The rationale is that if you committed a crime in Connecticut, the Connecticut board wants to know where you are.
Telehealth Therapy Across State Lines Question #1: Your patient Sally is a 74-year-old who lives in Wyoming. She is in Connecticut to enjoy the month of June with her family. Where do you need to be licensed when you use technology of any type to communicate with her in Connecticut?
Answer #1: Connecticut.
Telehealth Therapy Across State Lines Question #2: You’ve been legally treating Sally when she is in Wyoming because you are a licensed healthcare professional in Wyoming, but you have established residency in Nebraska. Sally goes to Connecticut for the month of June. Can you legally treat her through the communication technology of your choice?
Answer #2: No, you cannot treat Sally in Connecticut because you are not licensed in Connecticut. Where you live is not relevant. Licensing boards seek to protect the citizens within their borders. Just as you would be responsible to the Connecticut Motor Vehicle Department if you had an auto accident in Connecticut, you are responsible to the Connecticut licensing board for your profession when you enter Connecticut to treat Sally. This is true even if the only way to treated Sally was to read a report sent to you by her remote patent monitoring app.
Telehealth Therapy Across State Lines Question #3: You’ve been legally treating Sally when she is in Wyoming because you are a licensed healthcare professional in Wyoming, but you live in Nebraska. Sally stays in Wyoming but you go Connecticut for the month of June. Can you legally treat her through the communication technology of your choice?
Answer #3: Yes, you are licensed to treat Sally because you are licensed to treat the citizens of Wyoming no matter where you are in geographic space. (Some boards such as Florida and Alaska differ on this point for a variety of reasons. Just send a quick email to all relevant board(s) of licensure to be sure. Get their response(s) in writing before you travel anywhere if you plan to continue your practice while away from your states of licensure.)
Telehealth Therapy Across State Lines Question #4: Is there any hope for these outdated rules to change in our professional lifetimes?
Answer #4: Along with your own state, the location of the client/patient at the time of the contact is most often the regulatory board that may prosecute if something is amiss. Thus, you can most often choose to move to Timbuktu for all that anyone cares as long as you are licensed in Ohio to work with Ohioans. Then again, some states run contrary to this general principle, so check with your licensing board and that of the state.
As for getting into trouble, first, you have to get caught (or a patient or someone has to complain or sue, which certainly can happen). Second, the state or provincial board that deals with licensure for your discipline has to do something about it.
In the United States, various regulatory boards for behavioral health disciplines have already begun looking at their state laws related to interjurisdictional issues related to telebehavioral health. Some are very active in this regard and have made progress toward requiring professional training for all licensees who deliver any form of telehealth, including telephone work.
Many states have not yet made their efforts visible to the public or to their licensees. Funds, staff, and time are often too limited, and if they have to choose between the cost of a hearing for a practitioner who committed a heinous crime vs. practicing over state lines. Well, the perpetrator of the heinous crime usually gets the attention.
If you treat an existing patient who is temporarily in another state, the state board will probably never know, unless your legal infraction surfaced in another way, such as someone bringing a complaint against you for billing. However, most of us do not go into practice to evade the law in any way, so being in full compliance with all state and federal laws is the best route. Also, your malpractice insurance is likely to not cover the cost of your legal defense in the case of a lawsuit if it is determined that you were practicing illegally over state lines.
What if the client/patient is in a foreign state/country when they contact you?
If a patient moves to another state and takes up a residency in that state, the best policy in this regard is to ask for a formal opinion. Almost invariably, the state board will respond saying it’s “OK” in any specific case, at least temporarily. A letter to that effect markedly reduces the risk stemming from telehealth-related licensure complaints. You may also want to check with your lawyer and your malpractice company if you are uncertain about any particular situation.
Secondly, opening every session with a question about the client’s/patient’s geographic location is “de rigeur” and therefore expected in all aspects of telehealth. Much more information about such “opening protocols” is available to you here at TBHI through the telemental health and telebehavioral health professional training courses offered.
What if I want to travel and be licensed over state lines?
If you are the one traveling, you must be appropriately licensed to serve whomever you are treating. It’s always important to remember that licensing requirements follow the patient. Let’s say that you are licensed in Washington state. If you go to Florida, for example, and want to treat Washinton clients/patients, your Washington board may approve. However, because you’ve chosen Florida as your destination, you are likely to run into a brick wall if you haven’t contacted the Florida licensing board for your discipline. Florida happens to be one of the states that are likely to require that you take their jurisprudence exam to demonstrate your competence in understanding their state-specific laws. Many other states are more lax but officially need you to register with their board.
And lastly, always contact your own board to gain clarity about working with your clients when they travel.