Can On-Line Therapy Cross State Lines and Remain HIPAA-Compliant?

Suppose a licensed therapist whose office is in Ironwood, Michigan, has a client, referred by the patient’s insurance company, who drives twice a week to her office from his home across the Montreal River and 20 miles down Highway 51 in Saxon, Wisconsin. She is the nearest therapist to his home. No problem getting paid or reimbursed, right?

But what if she wants to save her client two 40-mile round trips each week, and conduct her sessions via, while her client remains in his home in Wisconsin? Would she be paid or reimbursed? The answer may depend upon whether she is also licensed in Wisconsin, although under certain very limited circumstances, licencees from adjoining states may practice in facilities where an office is customarily provided for them.

Historically, under Article X of the United States Constitution, each state has the authority to regulate activities that affect the health, safety and welfare of its citizens, including the practice of the healing arts within its borders. Laws governing individual health care providers are enacted by state legislatures, with authority to implement the practice acts delegated to the respective state licensing boards. A practitioner must be licensed, or follow state reciprocity rules, in order to work in a state. In light of the increasing popularity of telemedicine, licensure requirements can be complicated. A practitioner has been deemed to be “practicing” in a state when he or she is interacting with a patient who is physically present in that state, while at the same time also “practicing” in the state in which the practitioner is located. Before employing video-conferencing in the practice of any of the healing arts, the practitioner needs to ensure that his or her activity is legally sanctioned and protected.

According to Telehealth Resource Centers®, if a licensed health care provider electronically interacts with a patient in another state, the provider must be licensed or registered (but verify State-specific regulations) in each state in which he or she electronically practices. Practicing telepsychology, or for that matter any of the healing arts, without the appropriate license in the State in which one is electronically practicing may incur civil and/or criminal penalties. As noted above, under certain circumstances, such as emergencies, an exception may be made to the requirements for state licensure.

It seems clear that if our hypothetical therapist using is licensed in both Michigan and Wisconsin, she can be reimbursed and/or paid under the Rules of both Medicare and Medicaid. The Veterans Administration has different rules, however, so that, generally, if a practitioner is performing his or her duties in the course of Federal service, he or she is only required to be licensed in one state, no matter where he or she practices.

But, as noted above, due to the increasing popularity of telemedicine, “special purpose” or “limited” licenses may allow health care professionals the option of licensure for the delivery of specific health care services under particular circumstances in addition to holding a full license in the state where they primarily practice. To date, approximately 10 states have adopted some version of a special purpose license for telepsychology practice.

Bottom line? If you are considering on-line therapy, or any of the healing arts, and you anticipate using fully-HIPAA-compliant when dealing with clients who reside in a state different from that in which you hold your license, you should check in with your attorney and/or your licensing authority before undertaking such a delivery of services.

Stephen C. Taylor
General Counsel