[Transcript] Episode 512: Teletherapy Cross-Jurisdictional Myths: Dispelling Dangerous Loopholes

 

Evan Dumas 

You’re listening to Group Practice Tech, a podcast by Person Centered Tech, where we help mental health group practice owners ethically and effectively leverage tech to improve their practices. I’m your co-host, Evan Dumas.

 

Liath Dalton 

And I’m Liath Dalton, and we are Person Centered Tech.

 

Liath Dalton 

This episode is brought to you by Therapy Notes. Therapy Notes is a robust online practice management and electronic health record system to support you in growing your thriving practice. Therapy Notes is a complete practice management system with all the functionality you need to manage client records, meet with clients remotely, create rich documentation, schedule appointments and bill insurance all right at your fingertips. To get two free months of Therapy Notes as a new Therapy Notes user go to therapynotes.com and use promo code PCT.

 

Evan Dumas 

Hello and welcome to Episode 512: Teletherapy Cross-Jurisdictional Myths: Dispelling Dangerous Loopholes.

 

Liath Dalton 

Yes. The reason we are having this discussion is because we just recently did the live presentation of our annual continuing education training on legal, ethical, cross jurisdictional practice. This year’s edition was Navigating Legal, Ethical, Cross- Jurisdictional Teletherapy Practice in 2025: A Guide for Mental Health Professionals.

 

Liath Dalton 

And in it, we explored some of, well, of the continuum of myths related to cross jurisdictional practice and what can circumvent the legal prohibition on practicing in another jurisdiction. And of course, some of those myths are: I’m calling it coaching instead of therapy; or the client’s just there on a trip, they still get their mail in the state where I’m licensed; or that’s where their residency is established; and so on.

 

Liath Dalton 

But there are a couple that we haven’t addressed in podcast episodes to date explicitly, and which we’re seeing kind of increasingly arising. Because I think we’re getting to a point where maybe we’ve talked so much about the coaching versus therapy and the it’s based on where the client’s feet are at the time of session that is the primary jurisdictional authority, that these other loopholes are, or perceived loopholes, are becoming more prevalent. And we really want to dispel them, because the implications are so significant for what the risks of unpermitted practice are.

 

Liath Dalton 

So one of the things that my co presenter for the training, Eric Strom, who is a HIPAA and teletherapy attorney, as well as a member of the American Mental Health Counseling Association Ethics Committee and practicing clinician, one of the things that he really emphasized from his attorney perspective in the training regarding the risks of unpermitted practice is the nightmare scenario in which a therapist conducts unpermitted practice, meaning they are providing teletherapy to a client located in a jurisdiction where they don’t have legal permission to practice, whether that be through Compact privileges or temporary practice permissions. And the worst happens, the client self harms or harms another, and then the therapist is sued.

 

Evan Dumas 

Yeah.

 

Liath Dalton 

And because they were practicing without permission, they are then held liable for that self harm or harm to other. And then what makes this even more of a nightmare scenario is that in the event of practicing without legal permission, aka illegal practice, which is what it really is, malpractice insurance will not provide coverage.

 

Evan Dumas 

Nope.

 

Liath Dalton 

Their coverage extends so long as you were practicing legally. And so not only is liability found in in such an instance, but you don’t have the coverage of your malpractice insurance for it. That is a terrible situation, and one that everyone understandably wants to avoid.

 

Liath Dalton 

So we want to emphasize that when we’re talking about the risks of unpermitted practice, they are not inconsequential. They’re actually massively consequential. Yeah, so when we’re talking about loopholes to jurisdictional restrictions. It needs to be considered with the really serious and impactful consequences in mind.

 

Evan Dumas 

Yeah.

 

Liath Dalton 

So now that we’ve kind of set the scene for why this matters so much, two myths around how, what is sort of a permissible loophole for practicing without permission exist that, that need to be addressed. And those are risk and abandonment.

 

Liath Dalton 

So risk in the context of client acuity and client being in crisis. And now, of course, there is the ethical responsibility to protect your clients’ well being and prevent them from harming themselves or someone else. What that looks like, though, is a client being in active suicidal ideation or homicidal ideation. Not just a I’m really stressed out or having a hard time, and I need to talk to you.

 

Evan Dumas 

No.

 

Liath Dalton 

And conducting a normal therapy session. The threshold that we talk about in the context of yes, client risk and threat of self harm or harm to others, in this very limited instance defensively, defensively, and reasonably, and appropriately defensively, trumps the jurisdictional restrictions is only in that very limited instance of active suicidal ideation or homicidal ideation.

 

Evan Dumas 

Mhm, yep.

 

Liath Dalton 

And so following that, your actions need to reflect the actual acuity of crisis. And those actions look like staying on the phone with a client until emergency services arrive, or until they can get to a hospital, or until you have connected them with a local crisis hotline. It does not look like conducting right, a regular session, and certainly not multiple regular sessions. And so, this is just so important to understand.

 

Liath Dalton 

And for those of you that are group practice leaders, to also emphasize with your clinicians. Because too often we will hear of instances in which regular sessions have been conducted because the client is experiencing a time of high stress.

 

Evan Dumas 

Yeah.

 

Liath Dalton 

Because they’re traveling, or moving, or transitioning somewhere else. And yes, those are certainly circumstances that merit clinical support. But unfortunately, they are not circumstances that circumvent the jurisdictional restrictions in which you can reasonably defend yourself against breaking those jurisdictional prohibitions for.

 

Evan Dumas 

Yeah.

 

Liath Dalton 

So that is of huge importance to to understand and to follow in practice. And to also convey to clients, right? We don’t want to be giving clients a sense that if they’re in crisis, that isn’t the sort of crisis that actually meets this kind of standard of care and ethical standard, that jurisdictional restrictions don’t matter, and that a session can occur anyway if they just say that they’re in crisis but it’s not, kind of the right kind of crisis. Evan, what is our other big loophole myth that we need to dispel, that’s been coming up increasingly?

 

Evan Dumas 

Yeah, and this is somewhat akin to it, because, you know, times of crisis you’re worried about jurisdictional like appropriateness. But people may come back with saying, hey, but what about my abandonment? I don’t want to abandon clients, therefore ethically,I can practice then wherever.

 

Liath Dalton 

Exactly. And of course, just like taking care of clients in times of crisis is an ethical and standard of care responsibility, so too is the ethical responsibility not to abandon clients.

 

Liath Dalton 

But ceasing to work with a client because they are no longer in a jurisdiction within which you have authorization to practice does not, in and of itself, constitute abandonment. Your ethical responsibilities, and this was something that Eric really emphasized, are to transfer care in the event that you aren’t able to obtain authorization to practice and continue providing care to the client directly. Your ethical responsibility is to transfer care.

 

Evan Dumas 

Mhm.

 

Liath Dalton 

And that is something that should be planned for ahead of time, ahead of a client relocating to a jurisdiction within which you do not have or cannot get authorization to practice.

 

Liath Dalton 

Now, I know we’ve had sort of follow up questions, and what about, how about in the instance that a client had to move really abruptly, or they’re relocating abruptly for a long period of time due to some sort of emergent family need, right? And so in those abrupt relocation instances, there was not time to plan ahead for a transfer of care.

 

Evan Dumas 

Yeah, yeah.

 

Liath Dalton 

And that is a really legitimate question and consideration. Now in those instances, the best guidance is to reach out directly to the licensure board of your profession type in that jurisdiction and explain the circumstances related to the client’s relocation, and ask for a temporary practice permission that is sufficient to allow you to manage that transfer of care, and termination of your episode of care with that client appropriately.

 

Liath Dalton 

And when you are framing it in the context of meeting ethical responsibilities, not seeking unended permission to practice within a jurisdiction without going through the normal or required processes, we have seen a number of instances in which boards that don’t have any temporary practice provision officially on the books will grant that limited permission to practice.

 

Evan Dumas 

Mhm.

 

Liath Dalton 

But it is really essential that you be reaching out to attempt to obtain that and not just assuming that it will be granted. And to be documenting all of this as well, to be documenting those, those efforts.

 

Liath Dalton 

So again, in the context of all the different myths about what can circumvent jurisdictional restrictions on teletherapy practice, really be mindful of the two related to the clients in crisis, or I’m practicing illegally because I don’t want to abandon my client. Always have to be mindful of both the ethical and legal requirements of practice and providing for meeting both. And in any instance in which one of those is broken in some way, it has to be reasonable and defensible.

 

Liath Dalton 

And when we’re talking about reasonable and defensible, that’s in the event that you are having to defend to the licensure board, to the jurisdictional authority whose rules you have broken, and make it an argument that they are going to understand and that will kind of hold up under scrutiny, or in the event of a civil or criminal case or lawsuit, right? In that worst case scenario that we started out talking about,

 

Evan Dumas 

Yeah.

 

Liath Dalton 

So, for more exploration of all of the nuances and vicissitudes of legal, ethical, cross jurisdictional practice, check out this year’s CE training on the topic, and we will put a link to that in the show notes.

 

Evan Dumas 

Uh-huh.

 

Liath Dalton 

But we hope that this discussion has has been helpful. So thanks for joining us, and we’ll talk to you next week.

 

Evan Dumas 

Yeah, talk to you next week everybody.

 

Liath Dalton 

This has been Group Practice Tech. You can find us at personcenteredtech.com. For more podcast episodes, you can go to personcenteredtech.com/podcast, or click podcast on the menu bar.