Mental health care has a problem. A big problem. And, it’s self-inflicted. It needs to change right now. What is that problem? State licensing boards. Well-meaning, but ultimately self-serving leaders that promote the status quo in the name of “protecting patients” yet, in fact, actually cause harm. This will be a long post, but stay with me, this is important and it goes to the heart of what it means to be in the caring professions.
Cross-state practice is not illegal
Show me the federal law that makes cross-state practice illegal. You can’t do it, because such a law doesn’t exist. Some of you might be citing state laws that make cross-state practice illegal, but you know what? States have no jurisdiction over interstate commerce. In fact, Article I, Section 8, Clause 3 of the United States Constitution makes it crystal clear:
The United States Congress shall have power:
“To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes;”
Only the United States Congress can pass a law prohibiting cross-state practice. And, Congress has done no such thing.
That really should be the end of the story right there, but unfortunately it is not. This power has been repeatedly tested over the years and repeatedly, this power has been upheld, despite states having virtual temper tantrums over it. Let’s quickly review some case law and some statute law..
- Gonzales v. Raich, 545 U.S. 1 (2005) — states can not pass laws that discriminate against other states.
- Sherman Antitrust Act — Every contract, combination in the form of trust or otherwise, or conspiracy, in the restraint of trade or commerce among the several States, or with foreign nations, is declared to be illegal.
- Goldfarb v. Virginia State Bar, 421 U.S. 773, 792 (1975) — this established that the “learned professions” such as doctors were not exempt from the Sherman Antitrust Act.
- Arizona v. Maricopa County Medical Soc’y., 457 U.S. 332 (1982) — this established that health care is covered by antitrust law, including the Sherman Antitrust Act as well as the Commerce Clause.
- Quill Corp. v. North Dakota, 504 U.S. 298 (1992) — established that a business without a physical presence in a state is not subject to the laws of that state.
- National Bellas Hess v. Department of Revenue, 386 U.S. 753, 87 S.Ct. 1389 (1967) — an earlier version of the Quill case — a mail order company doing business with people in a state is not physically present in that state.
A state has no right to make laws restricting the practice of professionals in another state.
What this means is that California can’t tell a Nevada therapist what to do, even if the therapist is conducting business with a California resident. There is absolutely no legal basis to suggest that California has jurisdiction over a Nevada therapist ever — unless that Nevada therapist is physically in California.
What about cross-state online therapy?
When I call your office, am I physically in your office? Serious question.
Is it possible to be in two places at once? It’s impossible. I can’t be in two places at once. If that were the case, if a Ukraine citizen called the United States, they’d need a visa to visit the United States right? This is all absurd, yet there are online therapy “experts” that jump up and down claiming that a Texas therapist seeing a California patient is subject to California law So, if that were true, would the therapist not be subject to Texas law?
In fact, the therapist is subject to the law of their actual physical location. You can’t be in two places at once. I’ve tried, it’s impossible. But let’s extend this example, could Texas ban a Texas therapist from conducting online therapy with a patient in California? The could but it would be illegal because, as we’re already established, the United States Congress shall have power to regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes. Nowhere in that clause does it say, “except for online therapy.” A Texas therapist conducting commerce with a California resident is engaging in interstate commerce.
The California Board of Behavioral Sciences doesn’t know what they’re talking about. This is directly from an information page for the Department of Consumer Affairs (paragraph 3):
Licensing requirements vary by state. If you are traveling to another state and wish to engage in psychotherapy or counseling via telehealth, with your California-licensed therapist while you are away, your therapist needs to check with the state you are in to see if this is permitted.
Really? Unless your California-licensed therapist is traveling with you, the laws of other states have absolutely zero effect. (The exception would be if the therapist has a physical presence, i.e. owns property in the other state.) Have these people ever read the Constitution? Ever? What if a patient is in New York but tells their therapist they’re in New Jersey? What if the patient is on the PATH train from the Newark airport having an online session as they cross into New York? What if the patient is on a road trip across the United States? Must the therapist check with every state? What if the patient is in Japan for a business trip. Under that ridiculousness from the California Board of Behavioral Health, the therapist would need to consult with the government of Japan. Quick, get me the phone number to the Japanese ambassador!
Does anyone see the absurdity of this? Under California rules they would rather a patient not receive care if that meant violating a law in a state the therapist in which the therapist isn’t even located. First do no harm. Does the Hippocratic Oath apply to mental health practitioners? Because California is essentially saying: deny care to your patient if you don’t get permission from the government wherever that patient might be traveling. The Board claims that not doing this would be “unprofessional conduct.” Unprofessional conduct is denying care to a client due to a Board of Behavioral Sciences not understanding how the internet works.
Let’s clearly state two indisputable facts:
- You can’t be in two places at once.
- Doing business across a state line is interstate commerce.
If you agree with those two, simple ideas, then it follows that it is impossible for cross-state online therapy to be prohibited by a state law. Only federal law can enact such a restriction — and they haven’t.
What about state licensing boards?
State licensing boards serve two purposes:
- To protect the welfare of citizens seeking care from practitioners within that state
- To protect the interests of mental health professionals within that state
The first point is indisputable. That’s the reason professionals consent to licensing in the first place — they want to ensure that the public is protected against nefarious actors. I think we can universally agree that licensing does serve a purpose — it serves to ensure a minimum level of competency and experience. Good stuff.
However, the second point is going to me much more controversial. Under the second point, state licensing boards work not unlike a cartel. In fact, they are a cartel.
Cartel: An association of suppliers with the purpose of maintaining prices at a high level and restricting competition.
When a state licensing board makes a rule that a California practitioner can’t see a Nevada patient. Who’s interests are they serving? Are they attempting to protect the Nevada patient or the California therapist? Are they worried about legal exposure faced by the therapist in Nevada? That can’t be it because a California therapist is not subject to Nevada law as we’ve already established (remember, that Constitution thing.) Are they worried about the welfare of the Nevada patient? If so, doesn’t that exceed their mandate to protect the citizens of California? How is a California therapist seeing a Nevada patient presenting a potential harm to California residents? It’s not.
One might argue that since a patient is in Nevada that it would be unethical due to geographic distance for a California provider to see a Nevada client because of possible concerns of an emergency in which the provider is too far away to provide help. Ok, let’s think about that.
Los Angeles to San Francisco is 381 miles.
Los Angeles to Las Vegas is 269 miles.
There goes that theory.
Some might argue that a practitioner would have better familiarity of the local resources available to a patient if they were in the same state. Ask yourself this, can you name a single mental health emergency facility in El Paso? Houston? Albany? Or, in any city other than the city you’re in? Probably not. What’s the nearest facility for a patient in crisis in Mammoth Lakes? I’d bet money that a San Diego therapist has no clue of where the nearest crisis facility is for a patient in Eureka, California.
My point is that if the California licensing board were actually concerned about a crisis that occurs during an online therapy session, then they’d lobby for a state law that restricted online therapy to your specific county. But, they haven’t done that have they? No, they’ve used the state line as the delimiter.
So we still don’t know why California would support a law to prevent cross-state practice. Let’s think about this in economic terms.
The average session rate for a San Francisco therapist is $150 per hour.
The average session rate for a therapist in San Antonio, Texas is $85 per hour.
Now what do you think the reasoning is?
California has a tradition of being a leader when it comes to passing laws that influence or attempt to influence the rest of the United States. If California makes a rule against cross-state practice, other licensing boards and legislatures in other states will follow. If other state boards pass similar rules, then that protects the economic interests of more expensive California therapists under the guise of “protecting” patients.
Why do we at iCouch care about cross-state mental health?
As a provider of mental health practice management, communications, billing and scheduling tools for professionals, we really shouldn’t care what California or some other state chooses to do. Practitioners can use our system however they see fit. We don’t tell practitioners who to see nor how to run their behavioral health business. We make our money from providing our software to therapists. We don’t make money from the clients they see. Whether a practitioner sees 100 clients or 10, our revenue is exactly the same. We could simply sit back and not care about this issue and still be just as successful as we are now.
However, where we really care about this is how it affects the availability of mental health care. Our mission is to make mental health care work better for the people that need it. That means empowering practitioners to actually be able to deliver that care.
There is a profound unmet need for mental health professionals
The darker the county, the greater the shortage of mental health practitioners. Just look at all that unmet need right there on the California/Nevada border. Look at the shortages in the central and western part of the country. Almost the entire state of Nevada, Montana, North and South Dakota, much of Colorado, large portions of Texas and scattered counties across the southern United States. California only has a nominal shortage in just a few isolated areas, yet their neighbors are in pretty bad shape. Imagine if some of that oversupply of practitioners in California could serve some of that unmet need across the country. How much better would the country be?
First do no harm?
California (and other states with similar rules) are doing incredible harm by preventing qualified, experienced professionals from serving those that need it the most. Organizations such as the American Counseling Association ought to be screaming about this from the rooftops. But, they remain silent. They talk about helping and improving mental health, yet one concrete way they could do something is by immediately calling for a complete rejection of state boards and state laws that attempt to prevent cross-state practice. Professional organizations are exacerbating the problem by supporting the status quo.
The American Counseling Association expended significant energy fighting the Tennessee law (HB 1840) that permits a counselor from refusing to treat a person if they disagreed with their lifestyle choices or religious beliefs. Yet has the ACA ever once fought against state laws and licensing boards that allow discrimination based on residence? Has the ACA or any other professional organization thought about the millions of Americans that can’t get care because of ridiculous policies prohibiting cross-state practice? No, in fact these organizations seem to tacitly endorse such rules. Their policies are directly contributing to patients not being able to get mental health care.
We have the technology to make this work. We have practitioners willing to make this work. I get a dozen emails a day about this. Rather than coming up with all the reasons to say no, we should be working together to create policies that support cross-state practice. Perhaps there are legitimate concerns about cross-state practice. However, why can’t we work to mitigate those concerns? Why can’t we err towards providing more care rather than thinking of all the reasons why we shouldn’t?
I understand that informed consent absolutely must be obtained. Patients seeking cross-state care should be fully informed as to what that entails. But that conversation ought to be between the practitioner and the patient. Some groups get very vocal when the government attempts to pass laws that interfere with the private medical decisions of a patient, however where are those groups when state boards want to promote laws that do the exact same thing with mental health providers and their patients?
If a patient is a suicide risk in Bozeman, Montana, they’re going to be even more of a suicide risk without access to an online therapist. The idea that we shouldn’t provide care because you aren’t in close proximity to a person is ridiculous. If you’re dying from a heart attack in the mountains and you call a doctor on the phone, should that doctor decline to provide you with potentially lifesaving instructions simply because the doctor can’t actually be there with you? Sure, in-person care is going to be better than care over the phone or internet. But care over the phone or internet is better than no care at all. The person dying in the mountain would sure think so. Yet, that’s EXACTLY what we’re doing with mental health.
The United States has enough mental health professionals. The problem is that they are unequally distributed. It’s really fancy to be ensconced in a nice Mission District office in San Francisco claiming that cross-state practice is “bad,” yet if you’re unwilling to actually travel to the shortage areas and provide care — who are you to say that a person in need ought not get care simply on the basis that they live in rural Alabama and not San Mateo?
We need to change this attitude in the mental health profession. State lines ought not be more important than providing care to those who need it.