First, let’s start with a disclaimer. While we are experts in the laws surrounding online therapy and we’ve been working with online therapists since 2010, the following article is not intended to be legal advice. If you have any legal questions, we advise you to seek qualified legal representation from a professional attorney with experience in these issues.
That being said, the internet is not the expert when it comes to telehealth across state lines. There is so much misinformation about online counseling, state lines, licensing boards, state and federal laws that it can be dizzying! The purpose of this article is not to be the definitive, final word on interstate commerce and telehealth, but merely to serve as an introduction to the arguments as well as a springboard for an informed discussion. This post will be controversial and it will definitely challenge strongly-held beliefs, however believing something to be true and it actually being true are two different things. We’re going to be mentioning relevant laws, court cases as well as logical arguments. You are encouraged to follow the links and dive deeper yourself and use your own judgment as a guide for your therapy practice. This article is focused on psychologists and other non-MD mental health practitioners, however, this analysis should still hold for medical doctors as well, because the arguments are identical.
Can I practice across state lines?
This is the million dollar question, isn’t it? Before we answer that, let’s look into the US Constitution and what it has to say.
Article I, Section 8, Clause 3
[The Congress shall have Power] To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes.
In Gonzales v. Raich, 545 U.S. 1 (2005), the Supreme Court opinion stated:
…the primary use of the Clause was to preclude the kind of discriminatory state legislation that had once been permissible.
Which means that the Commerce Clause was designed to prohibit a state passing laws that discriminated against other states in terms of interstate commerce.
The Sherman Antitrust Act, which was enacted to prevent monopolies, says this:
Every contract, combination in the form of trust or otherwise, or conspiracy, in restraint of trade or commerce among the several States, or with foreign nations, is declared to be illegal.
Telehealth and the Commerce Clause
What does that mean to you? The Sherman Antitrust Act clearly establishes that to restrict trade or commerce between the states is illegal. Which, in plain language means that California can’t restrict the therapy practice of someone in Montana. The licensing boards can’t enact barriers that restrict trade between the states. No matter how much they might wish it to be so, in fact, any “ban” on cross-state practice is a violation of Sherman and it should go without saying, the Commerce Clause as well.
Aren’t “learned professions” exempt from the Sherman Antitrust Act?
There have been cases that suggest that the “learned professions” such as law or medicine were exempt from the Sherman Act, however, in Goldfarb v. Virginia State Bar, 421 U.S. 773, 792 (1975), the Supreme Court specifically reversed the lower court decision that stated that the “learned professions” were exempt from Sherman. In fact, the Supreme Court specifically stated that Congress did not intend any sweeping “learned profession” exclusion from the Sherman Act. What does that mean for therapists? A state licensing board can’t regulate trade between the states. They can only regulate trade within their borders. In fact, Article X of the Constitution allows states to regulate the professions within their borders, however, they can not regulate trade across their borders.
Is health care interstate commerce?
Health care across state lines is considered interstate commerce. Arizona v. Maricopa County Medical Soc’y., 457 U.S. 332 (1982) established that health care is covered by federal antitrust law and by extension, covered under the Commerce Clause. The Maricopa County case was concerned with price fixing, however, the implication of that case provides the precedent that a medical board is subject to the same antitrust laws as any other industry, which means, they can’t restrict interstate commerce.
Maine v. Taylor, however, does cast a bit of uncertainty because the Supreme Court decided that discriminatory laws may be upheld only if they serve “legitimate local purposes that could not adequately be served by available nondiscriminatory alternatives.” What that means is that interstate trade can be restricted if those goods are particularly likely to harm the health and safety of the state’s citizens. The Taylor case was specific to a type of fish that carried a parasite that could have potentially harmed local waters. However, it would be highly improbable to establish that a Montana therapist’s qualifications were such that they could “significantly harm” a person living in Oregon. The state licensing requirements in the United States are all rigorous. It would be a very difficult legal argument to prove the potential for “significant” harm.
What about federal law?
There are no federal laws prohibiting cross-state online therapy. There are no federal laws prohibiting telehealth across state lines. California does not have jurisdiction in Texas. The state licensing board of North Carolina can’t prohibit someone living in North Carolina from seeing a practitioner in Georgia. A Georgia practitioner can’t be prosecuted or punished for seeing a patient from North Carolina unless the practitioner is physically present within the borders of North Carolina. However, let’s explore this concept more deeply.
Physical presence and interstate online therapy
There was a case in Pennsylvania (Abraham v. Bureau of Professional and Occupational Affairs, Board of Psychology) where an Israel-based therapist was prosecuted by the Pennsylvania courts because he was offering services in Pennsylvania without being licensed there. However, this case is interesting because the legal argument against him wasn’t the issue of transnational therapy. It was the fact that the doctor in question had a physical presence in Pennsylvania. In fact, he listed a Pennsylvania address and phone number. The court ruled that this physical presence made him subject to Pennsylvania licensing laws; he was considered a resident of Pennsylvania by the courts. Here’s an article about that case. The entire basis of that case was the Pennsylvania residency, not that he was foreign licensed. Had he not had a physical presence within the state, he would not have been in violation of the law.
Quill Corp. v. North Dakota, 504 U.S. 298 (1992) is one of the most important cases that are especially relevant to the online therapist. In this case, the Supreme Court ruled that a business must have a physical nexus in a state in order to be subject to sales taxes by that state. This case established that a business that has no physical presence in the state is not subject to the jurisdiction of that state. What does this mean to the therapist? A therapist is not subject to the state laws of a state in which they have no physical presence. Another earlier case, National Bellas Hess v. Department of Revenue, 386 U.S. 753, 87 S.Ct. 1389 (1967) established that a mail order company not located within a state is not “physically present” in that state, despite doing business with people in that state. In our internet connected era, a “mail order” company is analogous to an “internet” company. The key point is that a therapist who isn’t in a state isn’t subject to regulation by that state no matter how badly that state may wish it to be so.
The bottom line
You should make your own decisions about cross-state practice, however, make those decisions based on the law and the relevant court decisions. In terms of ethics, at iCouch, we recommend that your informed consent make it clear to your client that you are licensed in “State X” and practice under the laws of “State X.” If you make it clear to the client and never misrepresent your qualifications or jurisdiction, then everybody wins. Your client can get the online counseling they need and they’re fully informed as to the “product” they are receiving. That’s really what it comes down to: letting the client decide what’s best for them. State lines should never be a barrier to finding the perfect therapist. Practice your profession transparently, with full the full consent and knowledge of your patients.
A note on medication
If you’re a psychiatrist prescribing medication, we recommend an abundance of caution. Our official position on medication is that it should require an in-person visit before medication is ever prescribed — regardless of what the law may or may not allow. We strongly feel that it’s inappropriate to prescribe medication without an in person consultation. However, follow-on appointments could certainly be appropriate for online consultations. Our opinion in this regard is ethical more than legal and we certainly are not promoting or encouraging an online consultation when it’s not in the best interest of the patient. Follow the law of course, but remember, the higher “law” of the health professions is to always think of what’s best for the patient first and foremost. First, do no harm!
What about Skype therapy?
It’s interesting when some US-based therapists refuse cross-state clients, yet use Skype or Google Hangouts to conduct therapy sessions. The irony is that cross-state practice is not illegal, while using Skype for mental health consultations is illegal. Read our article about Skype and HIPAA compliance to learn more about why therapists should never use Skype. If you are interested in learning how to legally add online counseling to your therapy practice, read our our post about it here.