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State differences in license requirements are small and serve no meaningful purpose. Considering mental health care as interstate commerce would improve access to care for those in need.

Marriage and family therapy students and interns today see similar steps on their career path no matter where they live in the US. Most states require a masters degree based on COAMFTE requirements, roughly 3,000 hours of supervised experience, and a passing score on the National MFT Exam to be licensed. The rules from state to state are not identical, though: As just a quick sampling, Delaware requires 3,200 hours. New Jersey separates out requirements for general counseling experience and MFT experience. And California doesn’t recognize the national exam. (It’s now a few years out of date, but go to page 258 of this PDF for a very well-done table of 2007 state MFT licensure requirements around the country, put together by California’s Board of Behavioral Sciences.)

There is no real need for these differences. In theory, having states determine their own licensure standards should ensure that each state is preparing professionals to meet the unique needs of that state’s population; in practice, though, that isn’t what happens. The development and refining of licensure laws has been about balancing national standards with political compromise. Neither the public nor the professions are demonstrably better-served by an MFT who passed the California exams as opposed to the National MFT Exam (or by 3,200 hours of experience versus 3,000, or any of the other minute differences between states). The state differences in mental health licensing do little more than create headaches for those professionals trying to move from one state to another.

The time has come for national licensing laws, for family therapists as well as the rest of the mental health professions.

The professions understand that license portability is a problem. Each of the national mental health organizations has a model licensure law that they use as an ideal example for state legislatures around the country. (The American Psychological Association recently amended theirs to allow states to forgo a postdoctoral internship requirement.) These model acts promote the standardization of requirements from one state to the next, easing license portability for professionals and helping ensure to the public that the meaning of a professional title will not dramatically change when one crosses a state line. Those are both worthy aims. Unfortunately, they have not been especially successful.

National licensure has not been pursued in mental health because of concerns about the U.S. Constitution, which leaves to the states any powers not expressly given to the federal government. Since the licensing of professions is not a federal power in the Constitution, the states have needed to take it on themselves. The result has been our patchwork of state laws for each profession.

Two things have changed in the past decade to create the right conditions for national licensure to emerge. One has been the completion of a nation of licensure for MFTs and LPCs. The other has been the rapid growth of telemedicine.

A nation of licensure. In 2009, Montana became the 50th state to license MFTs and my great state of California became the 50th state to license counselors. This fact alone does not justify a single, national standard for licensure, but it is vital to the context of the discussion.
Growth of telemedicine. The internet has hastened the development of remote services, but did not create it. Therapists have been working with clients by phone since the early days of psychotherapy. Today, through secure videoconference connections, a therapist in his or her office in a major city could easily work with clients anywhere in the world where the technological means exist for such a connection. The American Counseling Association’s Code of Ethics has outlined clear and specific guidelines for therapists providing services by phone or internet. While there is limited data on the effectiveness of technology-assisted therapy, for many people who are in rural communities, have specific language needs, or simply lack the means to go to a therapist’s office, the alternative to phone- or internet-based treatment is no treatment at all. This point is where the Constitutional argument would seem to shift: The internet can make psychotherapy a form of interstate commerce. Regulating interstate commerce is squarely within the federal government’s powers under the Commerce Clause.

It has been repeatedly well-documented that rural areas face a severe shortage of mental health providers. At the same time, early-career practitioners in mental health — often living in urban areas — regularly fret about whether they can make a living in their chosen fields. A national licensure standard would go a great distance toward easing both concerns.

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Of course, I am a family therapist, not a constitutional lawyer. So I could be way, way off-base here in my reasoning when it comes to the law. If so, please say so in the comments! As the old quotation goes, I never learned anything from anyone who agreed with me. So send your disagreeable emails to ben[at]bencaldwell[dot]com, post in the comments below, or be pithy with a message to my Twitter feed.

Some therapists are willing to take the risk, though. And not just for the money. (See update below.)

If you are in California, and your client is in Texas, can you meet with that client by phone or internet?

I’m no lawyer, but the answer seems to be no. Licensure laws in all the mental health professions are state-specific. A California license in marriage and family therapy only enables you to work as an MFT within California.

In a mobile society, where many clients travel and videoconferencing technology is rapidly improving, it is common for therapists to do some sessions by phone or videoconference with clients who cannot come in to the office. (Indeed, such technology has the potential to dramatically improve access to quality mental health care.) But the technology raises an interesting question: If you and your client are in different places, where exactly is the therapy taking place? There are three possible answers to that question:

Where the client is. Hopefully the change process that results from therapy is with the client’s thoughts, behavior, and relationships, and so that change is taking place wherever the client is located.
Where the therapist is. The person performing specific interventions — the therapist — is the one doing the therapy, so it makes some sense to argue that the service takes place wherever the therapist is located. However, adopting this answer would mean that a therapist licensed in any state could legally serve clients in every state. While state licensure standards do not differ all that much, they do have some meaningful differences (particularly in California).
Either, both, or someplace else (like where the server is). Adopting any of these as the answer to where the service takes place would lead to chaos. If you are in California, and your client is in Texas, but your Skype server is in Pennsylvania, would you need to be licensed in Pennsylvania to treat them via Skype? I would hope not.

It makes the most sense to me to say that therapy takes place where the client is located. State licensing boards certainly seem to see it that way. Colorado psychiatrist Christian Hageseth was sentenced in 2009 to nine months in prison for practicing medicine in California without a license after he precribed Prozac to a patient located in California through an internet pharmacy.

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CAMFT added the following piece to their Code of Ethics a few years ago, that makes their view of the issue clear:

3.11 ELECTRONIC SERVICES: Marriage and family therapists provide services by Internet or other electronic media to patients located only in jurisdictions where the therapist may lawfully provide such services.

Note the key word “located.” Not “residing,” which would give MFTs some leeway if they wanted to provide therapy to a California resident who was temporarily out of the state. As I read it, “located” refers to the client’s physical location at the time the service is being provided. By this standard, marriage and family therapists absolutely cannot perform therapy across state lines by phone or internet (unless the MFT is also licensed in the state where the client is).

Except that life happens. Clients sometimes choose to leave the state abruptly, or are forced to by work transfer, military deployment, or other circumstances beyond their control. If your client is in the middle of an intensive therapy process, what happens? Does the therapist simply say they will no longer treat the client, and refer them to a local therapist who will need to do their own assessment and perhaps change the course of therapy?

Some therapists willingly arrange for a few sessions with clients moving out of state (temporarily or permanently) to ease the transition to a new location and a new therapist, or to allow for strong continuity of care. Those who provide such sessions by phone or video across state lines argue that they are supported by another portion of the ethics code (emphasis mine):

1.3.2 ABANDONMENT: Marriage and family therapists do not abandon or neglect patients in treatment. If a therapist is unable or unwilling to continue to provide professional services, the therapist will assist the patient in making clinically appropriate arrangements for continuation of treatment.

It would seem the safest thing for a therapist to do when a client is outside of state lines is to not treat them, but to arrange for services local to the client. Legal requirements trump ethical standards, and the law allows you only to practice where you are licensed. But when therapists argue that their ethical requirement of non-abandonment not only allows, but actually compels, them to ensure that a client leaving the state is receiving adequate care until they can be connected with local services, in my mind they make an awfully strong case.

Update 7-19-2012: Some states have started adopting laws and regulations that either specifically allow, or additionally restrict, the provision of mental health services via telephone or internet. California’s Board of Behavioral Sciences has gathered current regulations from a number of other states here: State regulations for phone and internet therapy [starting on page 38].

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Just to reiterate, I’m not a lawyer. Real lawyers do important lawyerly things, like going to law school. I’m just a family therapist with a really strong interest in policy issues. I’ll make a case — in a later post — that the time has come for a national licensure standard.