Mental Health Counseling Online & State Licenses

When it comes to the issue of counseling across state lines the real concern is about protecting the public.

That’s why professional registrations exist.

No one wants cousin Eddie to decide one day after years of pig farming he wants to make a career change to become a brain surgeon. Then, without any actual training or meeting any qualifications, buy a white coat and stethoscope, hang his shingle on an office door and tell the unknowing public he is open for business as brain surgeon, ready to take your money and cut into your head.

We all want and NEED there to be some standard and accountability for what certain labels or titles mean. When we’re at the grocery store and pickup a carton of white liquid with the words “milk” on the side, we want to know that somebody made them verify that came from a cow and meets certain minimum safety standards.

So we have what are called protected titles. That is a list of titles you can only apply to yourself if you meet minimum requirements set forth by a committee at a state level. If you want to identify yourself to the public as a professional of a certain title, like barber or brain surgeon, you to prove to the board you meet the requirements. Then you pay a fee and you will be listed (registered) on a long list along side others who have done the same in your state.

This allows you, Joe or Jane Public, to check and see if cousin Eddie is actually a brain surgeon or if he’s just calling himself one, before they let him slice into their noggin.

It also means that if he tries to swap your brain with a pig brain or do anything else that violates the agreed upon standards of care for that profession, you can go to the board/committee and report him. They’ll look into it and if it turns out that he’s deceiving the public by saying he meets the standards when he doesn’t, is practicing without a license (meeting the standards but not registering) or practicing contrary to the standards of the field, they’ll take action to stop him.

This is GREAT thing for everyone!

The major questions are:

1. Are you communicating to the public that you hold a protected title?
2. Do you meet the requirements for that title?
3. Have you registered with the state you are physically in verifying you meet the standards and claiming the right to use the protected title?

Sounds straight forward enough right?

Well, it was until the digital age.

Before the digital age, if I wanted to receive a professional service from someone with a protected title I would have to travel to his or place of business in the state they worked in to receive those services.

But now, I don’t have to do that. I can pick-up the phone and call them or go online and connect with them digitally.

Which state am I receiving services in? The state I’m physically in when I make the call or the state the service provider is in who is taking the call?

This would be a moot point if the standards between the state were the same. But they’re not.

Every state defines they’re own criteria for what titles are protected and what the standards are for each.

How do I know what standards the person I’m reaching out to meets?

The answer is: It’s the responsibility of the one providing the service to inform you.

We call this “Informed Consent”. It means you have the right to be informed about important matters, including but not limited to, the nature of a professional’s licensure (state registration). This allows you to research the standards of that state, if you so desire, and make an informed decision about whether or not you feel comfortable receiving services from that professional.

Federal law protects your right to receive services or purchase goods from any professional or business you like regardless of what state that professional or business is in. It’s called the Sherman Act and it was instituted in 1890 by congress to prevent restraints on competition, like restricting people’s options to only businesses in a given state.

You can shop where you want to shop and receive services from whom you want to receive services. It’s one of the many great freedoms our laws provide us.

In recent years, thanks to the evolution of technology, there’s been an increasing trend for individuals to seek out professional services from providers outside their state. Technology has made that more accessible than ever. This is great news for you the consumer because it means your options increase exponentially making it easier to connect with the right service provider for your needs.

If you live in an area with limited access to the professionals you could benefit from, now you can connect with them from the convenience of your home no matter how far away they are from you.

That’s great news!

Where’s the rub?

It lies with the states rights and interest in protecting their public (people living in their state). States rightfully take seriously their responsibility to protect their residents, which is why they have professional registrations. As a result, some states have taken the stance that “If you’re going to provide services to people who are physically in our state, we want you to meet our standards.”

Under this line of thinking, every business or service provider, regardless of where they physically reside and operate, would need to meet the requirements and register in every state from which people had an interest in purchasing their goods or services.

The problem with this is that the burden of doing so is not feasible for most small businesses and service providers. The requirement effectively results in states denying their residents from accessing the goods and services they want if their provider is based out of another state. This is the sort of restraint on competition the Sherman Act was passed at the federal level to prevent.

What’s the alternative?

There are a few initiatives underway attempting to align and standardize, at least in mental health, the requirements for licensure across all 50 states. This is a long and extremely slow legislative process, since there are lots of differing opinions as to what those standards should be and it literally takes an act of each states congress to get it done. You can imagine how well that’s going.

But there is another alternative that meets the intent of professional registration, protecting the public, while not saddling service providers with an impossible burden or unnecessarily limiting the public’s options and freedom to choose amongst those options.

It lies in the principle of informed consent.

So long as a professional is registered in A state, they can inform those knocking on their door (literally or figuratively through the internet) seeking their services, of the nature of their licensure (where they are licensed) so the consumer can determine whether or not they are comfortable receiving services that meet that standard (but maybe not the standards of the state they are physically present in).

This protects the public with A standard, and makes clear to the public (no deception) what that standard is, and whom to complain to if that standard isn’t met.

It does so without unnecessarily limiting their options to receive services from the provider of their choice.

This is the sort of model suggested by the US Department of Veteran Affairs final ruling in 2018 allowing any licensed mental health professional, regardless of the state of licensure, to provide services to veterans online regardless of the location of the veteran. The department stated their ruling was in the interest of not limiting access to care for the people they are pledge to serve.

The US Federal Trade Commission (FTC), responsible for things like the enforcement of the Sherman Act, issued an official statement supporting the ruling and urging federal and state governments and agencies to follow the example in their own policies. In a 2018 report published by Economic Liberty Task Force established by the Federal Trade Commission (Policy Perspectives Options to Enhance Occupational License Portability) stated:

There is little justification for the burdensome, costly, and redundant licensing processes that many states impose on qualified, licensed, out-of-state applicants. Such requirements likely inhibit multistate practice and delay or even prevent licensees from working in their occupations upon relocation to a new state. Indeed, for occupations that have not implemented any form of license portability, the harm to competition from suppressed mobility may far outweigh any plausible consumer protection benefit from the failure to provide for license portability.

In light of the trends in federal rulings, our convictions about informed consent, consumer freedom, and access to care:

At MyCounselor our policy is to allow consumers requesting our services online to receive services from our state licensed providers regardless of where the provider is licensed or where the consumer resides.

We inform our clients as to the nature of their chosen counselors’ licensure in writing through the clinician bios on our website and verbally at the beginning of our first online session with the client.

We believe this policy honors the intent of professional registration, protecting the public, and serves the public by not limiting access to care.

On the ethics of providing mental health services “across state lines”

The core ethical principles that are foundational for all practical and applied ethics corpuses, such as specific codes of ethics drafted by trade organizations like the APA, include: Autonomy, Nonmaleficience, Beneficence, Justice, Fidelity, and Veracity

Autonomy – foster the right for clients to control the direction of their own life.

Nonmaleficience – avoid actions that cause harm.

Beneficence – work towards the good of the individual and society. More good than harm.

Justice – treat individuals equitably and foster fairness and equality.

Fidelity – honor commitments and promises – including fulfilling your professional responsibility to the client.

Veracity – deal truthfully

We find no violation of ethics, and to the contrary strong support of ethical principles, in our policy of providing services to those who request them online regardless of where they live or the state their chosen provider is licensed in.

Please feel free to direct any questions you may have about this policy to our Founder and Director, Josh Spurlock, 720-306-8992