You know what’s still a big issue 6 years after I first wrote about it? Cross-state telemental health practice. Shocker of shockers, clients still travel about the country and clinicians still want to keep up with them.
During the COVID emergency, the rules for cross-state practice have gotten even more complex than usual. You can discover details about it using our emergency cross-state practice rules lookup tool here.
It’s a vexing truth that when clients travel to states where we’re not licensed, we lose that strong assurance around permission to practice that comes from holding a state license. Whether we’re out of luck or not, however, is a more complex question. In some cases, we might well be. In others, there may be legal provisions that make the situation more tenable.
I like to explain it by describing three basic rules:
Roy’s Three Basic Rules of Cross-State Telemental Health Practice
First Rule: The first purpose of a licensing board is to protect the public
In exploring the issue of cross-state practice, we’ve discovered that clinicians are often unsure about the primary purpose of licensing boards. It is certainly true that some boards will spend time on advocating for the profession they regulate. Their first priority, though, is to protect the public.
Our clients entrust something very sensitive and important to us — their mental health care. Licensing boards are there to make sure the public is protected from those of us who violate or exploit that trust for unethical or illegal purposes.
Each state has its own particular interest in how it governs itself, and each state has its own licensing board which maintains its right to enforce its own rules within its own borders. While reasonable people can argue that this arrangement has become a net detriment to the health of Americans, it is still how things work here.
During the COVID emergency, quite a few states have created temporary allowances for practice from out-of-state licensed clinicians. These emergency rules are temporary, however, and are still made with the goal in mind of protecting the public.
Second Rule: Licensing boards have jurisdiction when a client is physically in their state
There has long been confusion about “residence vs presence.” For example, there has been a lot of theorizing that a client has to take up residence in a foreign state in order for that state’s licensing board to have jurisdiction over the clinical relationship.
The reality, however, is that once a client sets foot in a particular state, that state’s licensing board takes on responsibility for their protection. In other words, that state’s board gets to decide if you are in compliance with their laws and rules when you work with a person who is inside their borders.
There are a number of very convincing arguments for why this is not a healthy or reasonable thing. There are probably also a number of good arguments for situations which may merit performing telemental health work with such a client despite their temporary presence in a state where their therapist is not licensed, such as if the client is in a suicidal crisis.
However, that foreign state will ultimately be in a position to pass judgement.
Third Rule: The foreign state’s licensing board might still allow you to practice there (temporarily)
Quite a few licensing boards have provisions for licensees of other states to practice temporarily with clients in their state, especially during the COVID emergency. Each board which has such provisions handles them differently, and many don’t have these provisions at all.
If you need to work with a client while they’re in a foreign state, it would be wise to first confirm the temporary practice rules (or lack thereof) of that state’s board which regulates your profession. So let’s look at how one can go about doing that.
What the Attorney Says:
For some additional context, we got a contribution to this article from mental health attorney/mental health counselor, Eric Strom, JD LMHC:
One of the most significant issues relating to distance counseling that I see in my practice is the that of cross-jurisdictional clinical work. When a client is physically located in a state other than the state in which the clinician is physically located, both states have jurisdiction over the counseling relationship. In such situations, it is essential for clinicians to understand how counseling is regulated by their own state as well as how it is regulated by the state in which their client is physically located.
The challenge here is the variability in state law. With regard to telehealth provided by a clinician licensed outside of their borders, some states allow it, some states prohibit it, and some states specifically regulate it.
My advice generally is this: “Provide distance counseling to clients located in either states where you are licensed or located in states where you have investigated the regulations and can document that your services are allowed by that state’s laws.”
How Do I Look Up Temporary Practice Rules?
For mental health professionals such as counselors, psychologists, MFTs, and social workers, temporary practice rules will usually be in the administrative rules of the licensing board which regulates that profession. They could also, potentially, be in some general telehealth or telemedicine law. They usually are in the board’s administrative rules, though.
At Person Centered Tech, we’ve compiled a lookup tool to help you find both the emergency and the regular rules for interstate practice in each US state:
If there are temporary practice rules in that state for you, they can often be a bit confusing. E.g. if they allow temporary practice for 30 days, are those 30 nonconsecutive days? This difference is very important. This is why it’s good to get clarification from that board, if you can.
Working with clients who move between states is a sticky prospect. Sometimes it works out just fine, and other times it appears to be impossible. Do remember that multi-state licensure is an option, if it comes down to that.
This state of affairs won’t be permanent — all of our national associations are working on some kind of project for making cross-state practice more doable. And Psychologists in several states can take advantage of the PSYPACT. In the meantime, however, we just have to breathe through the growing pains and do our best.