Back when Al Gore invented the Internet, he must have been thinking about what a great tool it would become to bring people together for love, business, and pictures of cats. What he probably didn’t realize was how it would help therapists achieve a big goal: bringing therapy to the whole world…
…maybe! Telemental health in the US is already fraught with jurisdictional issues. Going beyond our national borders can, on occasion, remove key legal barriers (e.g. licensure restrictions.) But despite that, it always makes things more complex. Here we will survey some of the issues that arise when working internationally as a telemental health therapist.
What’s the law?
There’s a common, and damaging, error we see people make when thinking about work across jurisdictions. Often clinicians will try to find that single legal authority that determines the rules under which they work. Part of the reason that telehealth is so rough when you get inter-jurisdictional is that you become subject to the laws of all the jurisdictions involved in your work.
Let’s take a quick survey of the different authorities that could be involved in international telemental health. We’re assuming that you work as an independent private practitioner and not as part of an organization with a multinational presence, such as the US Department of Defense. We can’t be exact unless we know which specific jurisdictions you wish to work in, but this should be a solid start:
- The rules of all boards under which you are licensed/registered/certified. Here’s a commonly stumbled-upon pitfall in conceptualizing what rules apply to our work. Remember that all your licenses and certifications can apply whenever you do work that is covered by them, no matter where you or your client are located. This is part of why it can be very difficult to simply “call it coaching” and skip the inter-jurisdictional issues (see our article here for more details on that.) Your licenses are your licenses all the time. Make sure you know the telehealth rules for all boards under which you are licensed/registered. This would also go for certification boards (e.g. NBCC or ABPP) and professional codes of ethics.
- The laws of all states where you hold a license, as well as the laws of the state or nation you are physically present in when doing sessions. Licensing boards ain’t the only ones with rules. Most of the time, the board sets the majority of rules we need to follow (possibly all of them!) Sometimes, state and national legislatures will have applicable rules, as well.
- Relevant licensing/certifying board(s), or certifying professional organizations, in the state or nation where the client is physically located. Another common error is in believing that jurisdiction is based on where the client resides. That is not generally the case — it’s where the client is located at the time of the session. If a client is on a trip and passing through, the local authorities may choose not to apply their authority. However, that is based on their choice (and available resources), and not necessarily on their lack of jurisdictional power.
- Relevant law in the state or nation where the client is located.
All applicable laws from all relevant authorities will apply to your work when you cross jurisdictions. You should be able to start seeing how the complexity sets in here.
I hope you also can see that facing complexity is not the same thing as being banned from doing the work. It simply means you have more due diligence to do and maintain throughout your practice. It also means you may not be able to do the work in all the ways you want, but I assure you it is worth the research to find out!
What do your state and licensing board say about it?
Many states and licensing boards are adopting rules for telehealth in general, or for telemental health in particular. There are some common elements to these laws, but they are far from uniform. Each state has its own way of dealing with the stresses of managing the potential free-for-all that comes from opening up their borders to foreign online therapists, or for allowing their own therapists to work outside the state.
For example, the Counseling board for my own state of Oregon has its own rule on working across jurisdictions and it’s somewhat simple (as of June, 2016): obey the laws of the jurisdiction where your client is. It’s pretty simple. Note, however, that this gives those other jurisdictions the teeth to punish me if I violate their laws. A complaint to my board that I broke a foreign law might be sufficient to ensure that I face some prosecution for the violation. I see this as a good thing for me and my clients, and I made sure to know that it is there before working clients in foreign countries.
Other state laws may not keep it so simple. Make sure you know your board’s rules.
But the country I want to work with doesn’t even regulate therapy!
Time for my story.
I lived in Japan from 2007-2010, and worked pro bono with English speakers in Sapporo during that time. When I started the work to get set up, I knew there was no way the Japanese government would ever accept a foreign professional degree. So you can imagine how excited I was to learn that psychotherapy/counseling was unregulated in Japan. Before I formed any naive ideas, however, a very helpful American psychiatrist in Tokyo set me straight.
He pointed out that working without regulation as a health care provider carries its own risks. For example:
- What would happen if a client suicided? Would the family ignore the fact that a foreigner had been working with him using an unregulated and unsupervised health care method that Japanese generally find strange already? The family certainly could sue.
- How would I manage a client that is suicidal? Japanese police do not intervene to protect people from self-harm (unless it is in the moment when harm is taking place or about to take place — they can rescue people who are about to be hurt.) What if I didn’t know that Japanese police don’t really do the “in loco parentis” thing before I started practicing there?! What if I hadn’t come up with a plan for managing suicidality before creating my informed consent paperwork?
- What if a client needed hospitalization or I needed to discuss the case with the client’s doctors? Can I speak medical Japanese? Will they even listen to a foreign practitioner of an unregulated discipline?
The astute reader will notice that all those risks can be both managed and accepted, and I did so.
Without clear licensing or certification requirements, however, the task of determining what policies and procedures I needed in my practice became something I had to discover through a thorough due diligence process. That will be true for every jurisdiction we decide to work in that doesn’t regulate our practices, or that simply doesn’t provide clear rules for what we are required to do.
*Because many will be curious: yes, I still work with people in Japan via telemental health. The practice is closed to new clients, however.
Does HIPAA Apply?
We could probably do a whole series on the complexities of this question, but it’s best to work under the assumption of an emphatic “yes!” And I’m not simply being conservative. If you’re a HIPAA covered entity (not sure what that is? See our article here), then HIPAA applies to your entire practice regardless of the clients you work with.
Local Systems, Culture and Language
As was hinted to in the above section on Japan, every place has its own way of doing things. In US mental health, we have a lot of assumptions about systems that we can rely on while our clients are here.
We rely on police and emergency services to work a certain way.
We rely on knowing that hospitals will usually have psychiatric staff, or that medical staff will have psychiatric training.
We rely on colleagues speaking the language we speak — both literally and figuratively.
In other nations, we may need to set up networks that provide some of the resources we expect to have when doing mental health work. For example, Befrienders Worldwide is an organization that provides support for people in suicidal risk around the world. There are also many regional mental health professional organizations that have an international focus. It would be wise to find the organizations in the regions where you intend to work.
It is also wise to have professional contacts in the places where you work with clients. That way you have people who can help when you need it, or who simply can keep you updated on what’s happening there on the ground.
Once again, it is completely within the realm of reasonable possibility to cover all these issues. The danger is in proceeding with your practice before they’re covered.
Are you covered?
Will your liability insurance cover your international work? Some will and some won’t. You’ll need to ask.
And if they do cover it, what are the limits of the coverage? Imagine if an aggrieved party in a foreign country sued you in that nation’s courts. Would your insurance fund your defense? This is a situation where your lack of presence in that nation could create a serious complication, and is another one where you may have to accept a certain amount of unmitigated risk.
A Long Gap to For Your Tech to Bridge
When working across oceans, the Internet gets a bit strained. It’s a mighty powerful beast, but the farther it has to carry a message, the more prone it is to error. And video calls are some big, onerous messages to carry.
Make sure you and all your clients are doing good pre-session Internet hygiene! Be diligent about following the tips in this article: When Online Therapy Video Sessions Go Glitchy: Some Tips.