Delivering Teletherapy Across State Lines During COVID-19
**Update: 2/2/21, 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
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.
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.
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:
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. 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.
Teletherapy Across State Lines During COVID
Considerations and Tips for Safe Telemental Health Practice
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. These types of client issues should only be addressed via telehealth if one is fully trained and experienced.
Consider carefully depth work with trauma via teletherapy.
Can I Call it Coaching?
If you name your services “coaching”, you are still responsible for your license even if you don’t advertise you are licensed. Even if you aren’t doing psychotherapy. 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.
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.
If you are delivering teletherapy across state lines during COVID, it may not be possible to perform a face-to-face evaluation.
Know your client by confirming their identity. Obtain a copy of an official photo ID.
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. Use the diagram below as a guide:
Safety and Ethics Tips
1) Develop a thorough written telehealth informed consent.
2) Phone screening should include history of suicidality and suicide attempts, psychiatric and medication history, social support and family involvement, likelihood for stability, state of residence.
3) Intake paperwork should include a reliable emergency contact and copy of photo I.D. Obtain upfront release of information for all parties involved in client’s treatment. Clarify that you usually would not need to share the content of sessions and that the main purpose is to be able to cause action to be taken in case of emergency.