Can I Practice TeleHealth Across State Lines?

lpc lcsw practice-across-state-lines

Delivering Teletherapy Across State Lines During COVID-19

**Update: 10/22/20, Novel Coronavirus COVID-19 Outbreak and Telehealth Changes** Some states’ emergency executive orders and policies have expired. How states will handle this expiration is largely unknown. The core issue of delivering telemental health across state lines is whether a state has legal power over out-of-state licensees. This information is subject to change.**

Proliferation of Telemental Health

Counselors nationwide are trying to figure out how to legally deliver telemental health across state lines. It is potentially lucrative. The revolution of electronic communication pervades our lives including how psychotherapy is delivered. Also, the novel coronavirus outbreak of 2019/2020 triggered sudden state of emergency licensing policies and telehealth. Some states made these COVID-19 rule changes permanent.

Online counseling proliferates. Many insurance companies now reimburse online therapy. Many online third party providers have entered the game. Their model is they provide the platform, referrals and pay the counselor. The counselor delivers the services and assumes full responsibility for all aspects of mental health treatment.

COVID-19: Federal government and waiving out of state licensing requirements

First, I receive this question from mental health professionals nationwide. “Has the federal government passed a law or ploicy that allows anyone with an unrestricted license to practice telemental health across state lines during COVID?”

There have been mandates, but they are gestures. The legality of out-of-state practice by the federal government is a suggestion. 

It is true that the U.S. Department of Health and Human Services (HHS) has asked that states be more flexible with practice across state lines in the interest of addressing the COVID-19 novel coronavirus pandemic. The federal government has jurisdiction over their law. States have jurisdiction over state law. Sometimes legal cases are appealed at the federal courts level, but the laws are still states’ rights. As much as any other law if not more, states control healthcare professional licensing law. 

The federal government’s Center for Medicare and Medicaid Services (CMS) has implemented emergency policies that expand the delivery of telehealth across state lines, but again– federal program, federal law.

+ More: The Difference Between Reciprocity and Endorsement

What is Telemental Health

The definition of Telemental Health varies from state to state. It is also referred to as online counseling, electronically assisted psychotherapy, teletherapy and others. Georgia’s Composite board rules use the term Telemental Health. The gist of it is that it’s counseling delivered to a client in a different physical location and does not mean in-person counseling.

*Disclaimer: This information is not to be construed as legal advice. For legal advice, seek counsel. This information is based upon experience enforcing Georgia practice law for Professional Counselors, Social Workers and Marriage and Family Therapists. It only suggests how Georgia’s Composite Board has enforced rules in the past.*

State Licensing and Jurisdiction

Jurisdiction means having the authority to make formal legal judgement. This legal right may be dictated by geography. Jurisdiction can also be determined by whether a licensing board has authority to make legal judgments on state law that is separate from practice law.

I am a Georgia Licensed Professional Counselor. Client confidentiality is addressed in the title of Georgia law, “Evidence”. Whereas the composite board addresses confidentiality in it’s code of ethics, it does not have jurisdiction over the confidentiality law.

COVID-19: Telehealth Practice Across State Lines

The policies of states’ to allow interstate practice varies widely:

1) In response to COVID-19, some states have determined it’s not legal and they consider it unlicensed practice to deliver telehealth to their residents. Period and end of the story. No COVID-19 emergency policies.

2) Other states’ policy is that they intend to address this as soon as possible as they are aware of the public health threat of the virus.

3) Yet other states have rapidly implemented legalization of out-of-state licensees practicing in their state.

4) Despite governor executive order, some boards do not allow out of state mental health professionals to deliver services in their states.

Georgia Boards and Telehealth Emergency Policies

Composite Board of Professional Counselors Social Workers and Marriage and Family Therapists

No emergency action has been taken to waive out of state licensees delivering telehealth to Georgia residents. Nothing stated or implied. The board enforces this as unlicensed practice.

+More: NBCC Code of Ethics for Distance Counseling

Conflicting Policies Within States

North Carolina Board of Licensed Clinical Mental Health Counselors

Very important: In several other posts, I discuss board discretion. It means the board has flexibility in enforcing licensing law and rules. The following is an example of a counseling board choosing to not implement a governor’s executive.

North Carolina governor Roy Cooper signed an executive order temporarily waiving certain practice requirements for telehealth delivered by healthcare professionals. The order was set to expire 6/7/20. As of this writing a superceding executive order has not been issued by the governor.

The North Carolina Board of Licensed Professional Counselors has chosen to not allow any practice of telemental health in the state. If you are treating North Carolina residents from out of state, you are engaging in unlicensed practice. This email from North Carolina’s board:

“Eric. Thank you for your email. At this moment there is no waiver in North Carolina that allows out of state counselors to provide telehealth services to anyone that is in the state. Per our regulations you will need to be licensed here to provide those services…the executive order which only gave the ability to the board to allow or extend the waiver if they wish. Only the board [decides] to waive or not the requirements and allow extensions as it was provided previously.” 

States With Aggressive Waivers of Their Licensing Laws

New York Office of Professions, Mental Health Practitioners

NY Governor Andrew Cuomo has taken swift action to expand access to healthcare for NY residents. The executive orders are sweeping and include mental health professionals. This message received from the board Executive Secretary:

“On April 9, 2020, the Governor issued an executive order that provides a temporary suspension and modification of Education Law and Regulations of the Commissioner of Education to the extent necessary to allow mental health counselors, marriage and family therapists, creative arts therapists and psychoanalysts licensed and in current good standing in any state in the United States to practice in New York State without civil or criminal penalty related to lack of licensure. No application is required; the State Board will not review an out-of-state licensee’s qualifications. However, it should be noted that EO 202.15 does not temporarily suspend or modify a licensee’s responsibility to practice his/her profession in accordance with New York law, including the restrictions on practice and definitions of unprofessional conduct.”

Missouri Committee for Professional Counselors

Missouri is also a great example of a fast and streamlined suspension of licensing law. Missouri governer Mike Parson signed a COVID-19 executive order on 3/13/20 waiving telehealth and telemental health laws which prohibit out -of-state licensees from practicing in MO. “Dear Eric…boards only have the authority given to them in statute and regulation and can only regulate Missouri licensees. In normal circumstances without the governor’s executive order, if licensees of other states are practicing here without a license, most boards can do two things – seek an injunction to stop the unlicensed practice or refer the person to their own state. During COVID-19, if a licensee of another state does telehealth services for a client who is in Missouri, the waivers would preclude taking any action.” – MO Attorney General’s Office.

In effect, Governor Parson used executive privilege to prevent licensing boards from taking action against out of state licensees. This order waives for psychotherapists and psychologists, nurses, physicians and many other healthcare professionals. Read on for an explanation of these two options boards’ have for handling unlicensed practice of telemental health in their state.

Pre-COVID-19, the following conditions of practice across state lines prevailed and in many states still do:

1) Who has jurisdiction over the license– the state in which the client resides or the state in which the therapist resides?2) If a client travels for business or leisure outside of the licensees state, is it legal to provide services during the client’s travels?3) Which state board takes disciplinary action?

Unlicensed Practice Or Refer To Home State

Many states have telehealth laws that apply to medical providers such as physicians, nurses and physicians assistants. However, most states do not have telemental health laws.

1) Most state boards including Georgia’s Composite Board of PC, SW and MFT are charged by law with protecting it’s citizens and not necessarily the citizens of other states.

2) If the therapist was licensed out-of-state, the client would file the complaint with that state board.

3) If you are licensed in Georgia, you are under the jurisdiction of the Georgia Composite Board.

4) For example, if a Georgia LPC received a complaint of unlicensed practice by a patient residing in Arizona does the LPC respond to the Arizona Board or the Georgia Board?

Theoretically, they are accountable to both states. Arizona can issue a cease and desist order. Georgia can take disciplinary action since it holds the license. What if you are licensed in both states?

Special Circumstances of Unlicensed Practice

The California Board of behavioral Sciences has determined marriage and family therapist licensees delivering telemental health services outside of the state must meet board requirements to practice in that state. Under that law, CA has the legal right to take action against a California licensee if they are delivering services to a client in Georgia if the MFT is not licensed in Georgia. California has also suggested this includes travel out of state. This raises questions about the practicality of enforcement of this law.

In 2014, the state of Pennsylvania sued a psychologist licensed in Israel for unlicensed practice. The Pennsylvania state court determined because the psychologist listed a Pennsylvania address and maintained citizenship, civil action could be taken against the psychologist. Some counselors resolve this dilemma by obtaining licensure in multiple states which is the best solution legally and ethically. However, you usually need to apply as a new licensee or seek licensure by endorsement.

Telemental Health Training in Georgia

In order to deliver telemental health, Georgia Composite board rules require 6 (six) telemental health continuing education hours approved by an eligible professional association. Telemental health training hours are required once. You do not need to obtain the hours prior to each the biennial license renewal period. Minor provisions have been made for COVID-19 that allow you to practice for six weeks with minimum training.

Required Telemental Health Supervisor Training

In order to deliver telemental health supervision, Georgia Composite board rules require 6 (six) telemental health continuing education hours plus 3 (three) hours of supervising telemental health therapy approved by an eligible professional association such as LPCA or NBCC. Again, the hours are required one time. You do not need to obtain the hours prior to expiration of each biennial license renewal period.

There are important factors in selecting an LPC supervisor for telemental health supervision. The same applies to social workers, marriage and family therapists and psychologists.

What is critical is they –and you– understand:

1) Ethical delivery of telemental health.

2) The risks of providing telemental health 

3) Find a telemental health supervisor who is properly trained.

4) Understanding what NOT to do will help you understand what TO do.

You may want to send supervisors/supervisees to this page. I believe it is the most accurate and reliable information available that is specific to Georgia licensees.

Telemental Health Ethics and Protecting Your License

Research and The Effectiveness of Telemental Health

Quality research of online psychotherapy is sparse. Just as psychiatric medication research often does not control for psychotherapy, online psychotherapy research often does not control for face to face therapy. Therefore, it is difficult to evaluate the effectiveness of telepsychotherapy.

Obtain the NBCC DCC, BC-TMH or other distance counseling credential and obtain frequent telemental health continuing education training because it will help you establish that a standard of care was met. Telemental health is emerging and many states’ rules have not been tested. At minimum be prepared to defend your counseling with ‘most well- trained telemental health counselors are also doing it like this’.

Appropriate Online Therapies

You can still provide effective online psychotherapy. For example, by connecting a client with a psychiatrist for a medication evaluation you are serving an important role in treating the client’s depression–the client became less depressed because you connected them with a psychiatrist. It is a direct intervention with a measurable outcome.

Screening, referral and case management are great telemental health interventions. On the other hand, therapies that prompt your client to explore sexual or other trauma in-depth can be hazardous partly because messages can be taken out of context, what do do when a patient becomes suicidal, and other concerns.

Can I Call it Coaching?

If you wish to bypass Georgia composite board rules by naming your services “coaching”, you are still responsible for your license even if you don’t advertise you are licensed. If you’re licensed and violate board rules while coaching, action can still be taken against your license. If you surrender or don’t renew your license, you can only coach since you are no longer licensed.You can only have it one way. You can’t have it both ways.

Security Issues and HIPAA

How often have you heard, ‘”…but is it HIPAA compliant?” We can be trained to be HIPAA compliant, but it is not possible to completely protect electronic communications because too many others have access to the data.

Telemental health data resides on a server. In other words, someone else’ computer. It may be on your web hosting company’s server. The data may be on third party servers such as a web-based online counseling company you have contracted with or an insurance company. You may think their information is only on one server, but your cable company, Google and others have it on their servers.

When you accept an app’s privacy policy, you may be granting access to your patients’ information. Further, when you are sent updated privacy policies, it often translates to ‘less privacy’. Determine whether you are comfortable with third party access to your patients’ PHI. Read below to learn ways to restrict communication you have with them.  

Whenever Possible Perform an Initial Face to Face Evaluation.

Know your client by confirming their identity. Obtain a copy of official identification with a Georgia address. Add to your intake paperwork an attestation that to the best of their knowledge all information they provided is truthful and accurate. Now you have double-covered yourself that you are not delivering telemental health across state lines. In addition, the informed consent should specifically address telemental health. If you choose to deliver the first session online, still obtain the same intake information.

Most Frequently Overlooked Risks of Telemental Health

Another risk that transcends HIPAA is that your work can be taken out of context through a single screenshot, email or video recording. For example, if you are working as a counselor in a STD clinic you are required to ask detailed questions about sexual behavior. However if providing online psychotherapy to a survivor of molestation, these questions can be misinterpreted and taken out of context. This risk can be reduced by carefully considering each communication and utterance. If you provide a service that compensates you per word of therapy, review messages carefully before you click send.

Anonymity. Do you believe that effective counseling requires a psychotherapeutic relationship? If so, understand the limitations of an online relationship. We are aware of the limitations of online relationships since we regularly express this to our clients who are online dating. Some believe there are advantages to anonymity particularly with counseling teens. On the other hand, you’ve taken responsibility and liability for a patient you don’t know and can’t locate.Let’s chat. We all know we can get casual and ‘chatty’ when expressing ourselves online. It is inherent in the medium. As such, it can be difficult to manage boundaries.

Can telemental health equal face to face counseling? Probably not. Just as face-to-face psychotherapy cannot equal teletherapy. Teletherapy should stand on it’s own as a therapy model. Telemental health continuing education often teaches a  controversial model that attempts to replicate a face to face experience.

Take advantage of the aspects of telemental health that cannot be rivaled by face to face therapy– convenient and efficient rapid screening, referral and coordination of care with other medical professionals.

Distance Counseling Supervision in Georgia

Ethics Demystified: Distance Counseling Supervision Georgia

Providing LPC Distance Telesupervision

There is hardly a rural LAPC, SW or MFT who hasn’t lamented the shortage of local counseling supervision and difficulty finding a distance counseling supervisor. The same applies for distance counseling supervision in Georgia. Some of the problems are:

• Often there are simply no CPCS supervisors locally.
• Supervisors sometimes engage in damaging dual relationships. You both live in a small community and they sometimes don’t properly manage boundaries. Your supervisor refuses to sign the supervision verification form E. Up to three years of license eligible experience down the tubes? Not good.

On September 11th 2015, the Composite Board of Professional Counselors, Social Workers and Marriage and Family Therapists voted to adopt a rule allowing distance counseling supervision in Georgia.

It is formally named “Telemental Health Supervision”. Read the actual board meeting minutes adopting the rule chapter 135-11-.01.

My Unique Approach to Supervision

Whether face to face or distance supervision, my goal as a LPC clinical supervisor is to help you become licensed. My goal is your goal. Period. Navigating the licensing process is difficult. It was a challenge even for me.

A Customized Interview

I receive many requests for supervision. I screen thoroughly and often decline applicants.

+ More: Is Practice Across State Lines Illegal?

Every licensee situation is different so yours is also unique! Your supervision will be custom designed just for you. You will complete my form my form fillable PDF application for supervision. We will talk briefly on the phone and schedule an appointment.

When we agree to meet, I require a comprehensive face-to-face interview. I will also ask that you bring transcripts, your license application, past/current jobs and supervisors, contract affidavit and so on. We will discuss your role and my role in your clinical supervision training for LPC. If you pass the interview, we will determine together if we are a good match.

I supervise decisively, confidently and with conviction. You will quickly build self-confidence.

A Licensing Review

As a former composite board member, I processed over 7000 APC/LPC applications. I will apply the same meticulous process to a review of your unique licensing situation and you also receive this thorough evaluation if you are interested in face-to-face supervision. If you decide you are not interested in my supervision or decide not to proceed with telemental health supervision, you will still leave the interview with a clear understanding of what you need to obtain your license.

You will find this licensing review invaluable because you can bring it to any supervisor you choose and ask they make it part of their supervision plan.

Details of My Distance Supervision

We will meet face to face a minimum of every five supervision sessions. These sessions will usually be in my Atlanta office and two hours in duration. If travel takes me to your part of the state, it is sometimes possible to meet in your area. Note: This policy may differ for local metro Atlanta residents.

The face to face meetings ensure other functions of supervision are met such as countertransference, boundary management and other confidential therapist development issues. The in-person sessions are also necessary as I need to review paperwork, samples of your clinical notes and to help keep you on track with meeting LPC licensing requirements.

The remainder of the sessions can be distance/remote supervision. I have strict parameters for online supervision. When we meet, I will explain what business can and cannot be conducted via electronic or synchronous communication and how we will protect patient information. Online supervision sessions are limited to one hour.

Termination The Way You Like It

When supervision is complete or either of us decide to not continue working together, we will wrap up all paperwork and I will provide you the completed Form E, “Supervision” in a signed sealed envelope. This minimizes future problems with what you need to submit to the board. The aim is an ideal scenario:

1) We successfully complete our supervisor/supervisee relationship.

2) You know in advance I have recommended you to the board to be issued a license.

3) If the board asks you to furnish contemporaneous records of supervision you will have what they need.

4) Your stress and worry is minimized.

Prefer to do all of your supervision face-to-face? You enjoy all of the above benefits as well.

+ More: 10 Tips: Choosing Your Clinical Supervisor

My Cost and Fees for Supervision

My fees are determined on a case-by-case basis. They range from $80-$120 per hour and this is largely dependent upon your practice activities, directed experience setting, and potential for boundary issues at your site.

What is Telemental Health Supervision

​​​Telemental health supervision in GA is defined as, “…the delivery of supervision via technology-assisted media by a supervisor at one site while the supervisee is located at a distant site”.

In short, distance counseling supervision is a mode of delivering clinical supervision that is not face-to-face. Forms of telemental health supervision include but are not limited to telephone and video and chat.

For example, you live in Macon and your LPC clinical supervisor is in Atlanta GA. You meet via phone or video to meet the required 35 supervision hours per year. Your responsibilities as supervisee and supervisor are still subject to all other board rules. That’s it in a nutshell.

Training Requirements for Telemental Health Supervisors

In order to deliver telemental health supervision, Georgia Composite board rules require 6 (six) telemental health continuing education hours plus 3 (three) hours of supervising telemental health therapy approved by an eligible professional association such as lpcaga or nbcc.

The hours are required one time. You do not need to obtain the hours prior to expiration of each biennial license renewal period.

Advantages of Telemental Health Supervision

Besides convenience, there are additional advantages to remote telemental health supervision:

1) Choices, choices, choices. For distance supervision, your choices are probably greatest with a supervisor in metro Atlanta since it has the highest concentration of eligible supervisors.

2) You can find an LPC supervisor experienced in your clinical specialty or population you work with. For example, if you work with spectrum disorder children, you can find a supervisor experienced in that. If you work with alzheimers and the elderly, you can find that.

3) Information on rules and licensing often reaches rural areas later than urban areas of Georgia. You will have better access to the pipeline of breaking news on Composite Board law and rules and other information you need to know as a counseling professional.

Differences Between Telemental Supervision and Telemental Health

They are actually completely different.

Confidentiality

Telemental Health in the treatment of patients provided by psychologists, social workers, marriage and family therapists (and several others professional and non-professional) is privileged under GA Code § 24-5-501, “Evidence”.

It provides for limitations on admissibility of certain communications as evidence in civil and other legal proceedings. I won’t elaborate on the law other than it is the same privilege as face to face psychotherapy.

Clinical Supervision Not Legally Confidential

In Georgia, the only information that is legally confidential between supervisor and supervisee is patient information (attorneys who specialize in administrative law can tell you more about this). In other words, what a supervisee discloses about themselves could be used as evidence. Some supervisors can- and do- disclose supervision information to employers and the licensing board and even use it against supervisees.

Fundamental Differences in the Relationship

With Telemental Health, you are practicing psychotherapy. With Telemental Health Supervision, you are providing services to a peer.

Disadvantages of Telemental Health Supervision

This article on safely providing telemental health and confirming identity is also applicable to telemental health supervision. With telemental health supervision it can be difficult to know well your supervisee’s work situation, level of employer oversight, licensing history and other important factors.

What can you do to minimize this risk? Have the applicant complete a comprehensive supervision application. Know their identity in advance. A proper supervision application aids in the interview and screening process.