Legal Corner: Can psychologists see patients who are in other locations?

The Practice Organization provides guidance on some of the rules governing interstate psychology and telehealth practices.

Typically, when providing health care services, a psychologist sees his or her patients in a private office or other clinical setting. The assumption is that the psychologist is licensed in the state or jurisdiction where he or she practices and therefore, is permitted by law to provide those services.

What happens when the patient is somewhere else? Perhaps the patient is moving out of state or headed to college in another state. Maybe the patient has a temporary out-of-state job placement or is taking care of a family member elsewhere. What if the patient wants to continue therapy from a new location, either by phone, video conferencing or other digital means?

In most cases, the psychologist who has an established therapeutic relationship with the patient would like to honor the patient’s request. Yet, what if the psychologist is not licensed in the state or jurisdiction where the patient will be?

The psychologist’s license to practice does not grant the authority to provide services to patients wherever the patient may be. A psychology license is not like a driver’s license, where an eligible driver obtains a license in his or her state of residence and is permitted to drive anywhere throughout the U.S. using that license. To the contrary, the psychology license only permits the psychologist to practice in the state or jurisdiction that issued the license.

Rules vary from state to state

Licensing boards, charged with the mission of protecting the public health and safety, take the position that the delivery of health services occurs where the patient is, rather than where the provider is. Licensing boards expect health care professionals like psychologists, who provide services to consumers or patients in their states, to be licensed in the consumer or patient’s state. That rule is straightforward when the patient comes to the psychologist’s office for an in-person visit. It is far more complicated when the patient is in another jurisdiction and technology makes the ability to connect with the patient very simple.

For now, there is no clear-cut legal means for practicing across state lines. In some states, the psychology practice act includes a temporary practice exception allowing psychologists licensed in good standing to provide psychological services in that state without obtaining licensure. However, there is a lot of variability across states in how psychologists may engage in temporary practice. Some states require psychologists to notify the licensing board and obtain board approval first. Other states do not require advance approval. A few states, like Louisiana and Massachusetts, require that the out-of-state psychologist formally consult with a licensed in-state psychologist.

States also vary on how many days a psychologist may practice temporarily, ranging from six days up to 60 days in a calendar year. New York, for example, limits this temporary practice exemption as a one-time opportunity.

Furthermore, it is not entirely clear whether this temporary practice exception is intended for in-person services or whether it includes services provided by phone, videoconferencing or other means. So it is important for psychologists to understand what each state’s policies are and to consult with their professional liability company for risk management advice.

Pending telehealth changes

Currently, there is an effort underway to create a lawful and ethical means for licensed psychologists to provide services across state lines. The Association of State and Provincial Psychology Boards has developed the Psychology Interjurisdictional Compact (PSYPACT) which would allow qualified licensed psychologists to practice temporarily across state lines, or to practice using telecommunications technology. In order for the PSYPACT to take effect, legislatures in at least seven states must approve the model language (PDF, 138KB) without modification. Arizona was the first state to enact PSYPACT in May 2016. The Practice Organization anticipates that once PSYPACT is enacted in at least seven states, licensed psychologists in good standing from a state participating in PSYPACT would be able to practice in-person temporarily, or virtually, in all other states that are parties to the compact.

In the meantime, psychologists must carefully consider all of the potential issues in providing services to a patient in another jurisdiction.

Practice Organization members who have questions about telehealth practices can contact the Office of Legal and Regulatory Affairs by email or by phone at (202) 336-5886.

Note: The Practice Organization cannot give members legal opinions or legal advice. Those seeking legal advice should retain a licensed attorney in their state with appropriate experience.