Telephonic counseling and state licensing laws: state laws differ on the need for EA professionals to be licensed if they provide telephone-based services to clients in other states.
EAP assessment and counseling by telephone have been quietly gaining acceptance and are now viewed as viable alternatives to face-to-face assessment and counseling for numerous reasons, including the following:
* They are less stigmatizing than visiting an office waiting room;
* They can be used with clients who have difficulty traveling to a counselor's office;
* Some clients will disclose more information over the telephone because they find comfort in its anonymity;
* Some clients will reject a face-to-face meeting but will accept a telephone session;
* The telephone provides greater flexibility in scheduling and eliminates travel time; and
* Telephonic assessment and counseling services are less expensive for the EAP vendor than paying an affiliate counselor an hourly rate.
It now seems that EAP providers are increasingly using the telephone to replace in-person clinical interventions rather than supplement them. The emergence of telephone counseling in EAPs raises compelling and complex questions related to its far-reaching value and its potential for liability. This article will provide an overview of the current state of legal issues surrounding the use of telecounseling in EAPs.
All states require mental health professionals, including counselors, social workers, psychologists, and marriage and family therapists, to be licensed in the state(s) where they practice. Before the advent of telecounseling, the client and counselor were, by necessity, in the same location. Now the client and counselor may be in two different cities or even two different states.
What legal issues are raised if, for example, a counselor is licensed in California but provides telecounseling to a client in Illinois? Is the counseling considered to have taken place where the client resides or where the counselor resides (or somewhere else)? Given the trend in employee assistance to "centralize" intake and telecounseling services at a single call center in a particular state, these are pertinent questions.
Since the law often lags behind practice trends and technological changes, there is a dearth of published case law that defines which state should license the counselor when the counselor and client live in different states. Many states have specific laws regarding "telemedicine" that fall under applicable state medical practice acts, but these statutes and their corresponding regulations usually apply only to physicians and not necessarily to non-psychiatrist mental health professionals such as social workers or counselors. California, for example, requires full licensure in California for physicians in call centers who have "ultimate authority" over the primary diagnosis and care of a California patient, unless the out-of-state physician is in actual consultation with a California-licensed physician.
In addition, some states either require or "recommend" that a counselor be licensed in the state where the client resides. For example, Arkansas requires an Arkansas license for any "technology-assisted distance counseling" service that occurs within the state, whether delivered by an Arkansas-based counselor or an out-of-state counselor. Any telecounseling that is provided in Arkansas is deemed to have occurred in Arkansas, even if provided by an out-of-state counselor licensed in another state. In Massachusetts, mental health professionals who are licensed elsewhere and who provide services to clients within Massachusetts are considered "unlicensed" by the Massachusetts Board of Registration. The Louisiana State Board of Social Work Examiners requires state licensure for social workers who provide "distance therapy" to Louisiana consumers. These states probably represent only the tip of the iceberg--there are many other states whose specific laws and regulations the authors have not yet investigated.
Given the lack of clear guidance in some states and the hodgepodge of laws governing telemedicine in others, providing telecounseling services across state lines may well pose a legal or compliance risk management issue, since it is unclear which state--the client's or the counselor's--has ultimate legal control. Because there is no agreement regarding standards for interstate counseling, the safe approach is to ensure that your program uses counselors who are licensed in the state(s) where their clients reside.
Using this approach, counseling should be considered, for legal purposes, to have taken place in the state where the client is located. Furthermore, using telemedicine law as a guide, if a counselor provides telecounseling to clients within a particular state, the counselor generally would be considered to fall under the jurisdiction of that state regardless of where she or he is located.
This approach is probably the safest way to comply with legal obligations that are controlled by individual state laws. These obligations include the following:
* Determining required elements of informed consent;
* Complying with mandated reporting and duty-to-warn statutes;
* Determining the impact of subpoena power;
* Maintaining and storing client files;
* Complying with business registration requirements;
* Verifying the age and identity of clients; and
* Maintaining client confidentiality.
Oddly, some professional associations, such as the American Psychological Association, have chosen not to address telecounseling or teletherapy directly in their ethics codes; others, including the Employee Assistance Professionals Association, have only vaguely broached the subject. By this omission, these groups seem to be admitting they are not yet able to develop agreed-upon ethics rules to govern the practice of telecounseling.
What about EAPs that characterize telephone intervention as "consultation" or "coaching" and not as "counseling" or "therapy"? Has a line been drawn, using statutes, regulations, or case law, between providing clients with support, case management, or coaching versus counseling or therapy?
In short, there is no case law or set of legal opinions that makes such a distinction. This is probably because telecounseling is not yet heavily regulated. Perhaps the most instructive distinction is to examine state-specific definitions of counseling and psychotherapy to determine if there is an intent to carve out a specialized service.
Although many states do not draw a clear distinction between counseling and coaching or consultation, most do have a descriptive definition of counseling. For instance, a few states, such as Colorado, carve out "coaching" as an exemption from mental health licensure. This means individuals who are "coaches" and who serve clients specifically as a professional coach are exempt from the requirements of maintaining mental health licensure.
NUDGING TELECOUNSELING FORWARD
As a rule of thumb, if a telephone worker in your EAP call center applies "mental health, psychological, or human development principles through cognitive, affective, behavioral, or systemic intervention techniques" to address personal problems and issues, she or he is probably providing counseling and not coaching. If the case is counted in your EAP utilization or activity report and not separated out as "coaching" or "supportive services," then the service is also likely "counseling" and not something else. In other words, if it looks like a duck, walks like a duck, and quacks like a duck, it must be a duck.
The authors anticipate that more legislation and policy guidance will emerge over time. In the meantime, employers, EAP providers, and consultants who advise them should examine applicable state "telehealth" or "telemedicine" laws and consider the legal implications for interstate counseling. Only if we collectively confront these questions and support more rigorous evaluation of the legal implications will we start nudging the telecounseling movement forward in a constructive way.
by David A. Sharar, Ph.D., Renee Popovits, J.D., and Elizabeth Donohue, J.D.
David A. Sharar is managing director of Chestnut Global Partners, an international EAP and behavioral health firm, and a scientist with Chestnut's Research Institute, where he focuses on EAP effectiveness, outcomes, and consumer issues. He can be reached at firstname.lastname@example.org.
Renee M. Popovits, founder of Popovits & Robinson, P.C., has been a practicing behavioral health care attorney since 1989, representing addiction treatment providers and other behavioral health care organizations. She can be reached at email@example.com.
Elizabeth Donohue, managing attorney, has been with Popovits & Robinson since 1997. She specializes in the areas of regulatory, corporate, contract, fraud and abuse, tax-exemption and behavioral health care law. She can be reached at firstname.lastname@example.org.