Source: hillside7/Pixabay

The licensing process in the United States for different healthcare disciplines is a bewildering mix of state-specific rules that vary across different disciplines. Exceptions exist and are often the rule, making it extremely difficult to express overall opinions or statements, let alone solutions.

Overall, healthcare licensing in the United States operates based on patient location: regardless of what state the patient is physically located in, an treating clinician must be licensed in that state. Health care licensing boards regulate health care practices to protect people in their states from unethical or harmful practices by unqualified individuals.

These systems were developed long before modern travel and communication technologies. During the COVID-19 pandemic, students have returned home to their families’ homes, often in other states, for isolated vacations. education. As students attempted to continue seeing therapists through their student health programs, therapists encountered complex and varying regulations depending on the different conditions of their many student patients. Similar problems exist for specialist clinics offering “second opinion” consultations. In some national expert health centers, they offer remote consultations online by expert clinicians, after reviewing records and consulting remotely with patients in other states. Unfortunately for some interested patients, due to differing definitions of what constitutes telehealth and/or healthcare, clinics may refuse to offer such services to individuals in certain states.

Different strategies to meet these challenges

There are currently a number of disparate strategies in motion that could impact the future ability of licensed health care practitioners to practice in other states. Currently, there is no clear winner or overall organization in these different strategies.

Interstate compacts: There are many discipline-specific interstate “compacts.” As an example, under PSYPACT, different states agree to allow psychologists licensed in other states to practice remotely in their state, in accordance with the agreed-upon PSYPACT rules. These compact rules can be as complex as the rules for individual permits and may result in additional complexities. For example, under PSYPACT, the remote practicing psychologist must be physically located in the state of their “home” licensure while providing remote services, so they cannot practice remotely while on vacation, unless you are licensed in your vacationing state. Similar contracts exist for nursing, medical services, counseling and social work. Unfortunately, none of these compacts are universal in the United States, and each compact requires different systems, rules, and practices for each health care discipline. In my home state of New Mexico, these compacts have been generally rejected by the state legislature due to financial and legal concerns about the implications of these agreements. A recent New Mexico legislative hearing provides good insight into the lawmaker’s concerns.

State-specific rules: Different states and regulatory agencies have different rules for different disciplines, sometimes offering processes such as expedited licensure and/or reciprocity agreements for practitioners licensed in other states. In some states, they allow limited temporary practice in their state (including remotely) for clinicians with unrestricted licenses in other states. Of course, each state’s rules and practices vary, and careful regulatory analysis may be necessary to identify and meet these requirements.

Freedom of expression litigation: During the COVID-19 pandemic, a licensed therapist in Virginia has been prohibited from offering remote therapy to people living in Washington, DC, even though this clinician saw these people in her office when they traveled a few miles to see her in Virginia. A lawsuit on his behalf argued that “therapy it’s speech” and that the government cannot restrict such speech or prohibit licensed clinicians from speaking to their patients remotely, regardless of the patient’s location. District Trial and Appeal Hearings governed that the Washington DC boards would not be able to regulate a clinician’s speech in another state, although there is no clarity yet on how the Washington DC boards will approach this problem in their policies and rules. However, this same therapist filed a similar lawsuit against the State of New York, which was dismissed by several courts because the therapist had access to procedures such as applying for temporary licensure in New York and that the The state had a reasonable requirement to regulate and protect health care. the public. The United States Supreme Court denied to examine this case, we therefore do not have a national decision on the question of freedom of expression.

Interstate Commercial Dispute: A New Jersey lawsuit was filed by a minor who sought to pursue specialized cancer medical care from expert physicians in other states. Due to New Jersey’s licensure restrictions on remote practice in their state, clinicians were prohibited from offering their services remotely. The lawsuit includes the aforementioned First Amendment issues, but the weight of the lawsuit focuses on prohibitions in the United States Constitution that prevent state governments from restricting interstate commerce without significant local benefits. Since the practice of providing expert health care remotely is a paid professional service, it is argued that this falls under the Commerce Clause of Article I of the Constitution and states cannot prohibit this commercial exchange . This case is still in the preliminary stage; therefore we cannot expect rapid and far-reaching implications or results.

National legislation: Many clinicians talk about the need for national health care licensure, but this seems unlikely because state legislatures are unwilling to give up the ability to regulate practices in their state. During the pandemic, Texas Senator Ted Cruz introduced federal legislation to enable remote practice across the country, for any licensed clinician in any state, but this was ultimately not adopted and was limited to the impact of the COVID-19 pandemic. Federal action may ultimately have an impact in this area, but it will need to address and integrate the hodgepodge of state and national licensing infrastructures.

Source: Gerd Altmann/Pixabay

Practice across state lines: Some clinicians simply do their best, providing support and services to the people they treat, with less concern about where the person is at any given time. This may or may not be ethical, may or may not be illegal, and may or may not expose the clinician or patient to risk depending on the circumstances. It is generally unlikely that such services could be billed to third-party payers. Some clinicians whose patients travel to another state and experience a mental health crisis face a dilemma. This scenario requires the clinician to weigh their ethical requirement to provide care without abandoning the patient, against the question of where their patient is physically located at the time they seek help from the clinician in a crisis.

If the clinician is not licensed in the patient’s state and the patient receives substandard care and complains to their state’s licensing board, that board can issue the clinician a “cease and desist” order. abstain” or even threaten legal or financial sanctions. They can attempt to file charges locally for practicing in their state without a license, if the issues warrant it. Such fees may or may not impact that remote clinician. The patient may file a complaint with the clinician’s local state board. But because that state’s board exists to regulate the practice of health care within its own state, it is unclear whether that board will have jurisdiction to regulate that clinician’s practice outside its borders.

Training: Some clinicians attempt to separate their practice in other states where they are not licensed, designating it as coaching rather than clinical practice. Coaching is an unregulated activity and coaches’ clients often have nowhere to complain about poor or unethical service. This strategy has not been fully legally tested, but may impact the clinician’s liability insurance coverage. Providing coaching rather than clinical care may still subject them to a licensing board declaring that their coaching practice is still “an unlicensed practice.”

In my work as a national consultant, I regularly receive questions about licensing and practicing in multiple states from clinicians and people seeking care. Given the extraordinary cradle of regulations, rules, and practices, I don’t expect this complicated situation to resolve any time soon. Just as I do here, I refer people with these questions to their local council regulations and the legal areas above, and encourage them to educate themselves on these complex issues. Serving the many people in our country who seek health care, it is in all of our interests to find integrated and cohesive solutions.

Disclosure: I served on the New Mexico Board of Psychological Examiners for several years. My opinions here are solely my own and do not reflect the opinions or decisions of NMBOPE or any other entity. My comments here do not represent legal or regulatory advice which should be based on local regulations and a specific case or clinical practice.