Ruth Lipschutz, LCSW, ACSW
Practicing across state or national lines has been a challenging and confusing area for many social workers. Unlike psychologists and physicians, social workers do not have an interstate compact. In 2021, the US Department of Defense (DOD), as part of an initiative to promote licensure portability for military spouses, awarded NASW a $500,000 grant for the development of an interstate licensure compact for social workers.
A compact is a legal agreement between states that will allow licensed social workers to practice in those states participating in the compact. The grant will be provided to the Council of State Governments (CSG), which will oversee the development of the compact. The Association of Social Work Boards (ASWB) will lead the efforts in association with the National Association of Social Workers (NASW) and the Clinical Social Work Association (CSWA). The compact legislation must then be enacted in each state that wishes to participate. NASW chapters will play a key role in advocacy efforts to enact compact legislation in each participating state.
Information on the social work compact and opportunities to be involved is available at: https://www.socialworkers.org/Advocacy/Social-Justice/Interstate-Licensure-Compact-for-Social-Work.
This article addresses current legal, technological, and clinical considerations for ethical out-of-state telehealth practice. Licensure is one component of the legal protocols that must be in place for the ethical practice of telehealth. The NASW, ASWB, CSWE, & CSWA Standards for Technology in Social Work Practice state that social workers need to follow all applicable laws of both the jurisdiction where the client is located and where the social worker is located. Service takes place in the location of the client at the time of service, independent of the client’s state of residence. Unless there is a licensing board waiver active in the state, social workers need to be licensed in the client’s location and, in many states—including Illinois—the location they are located. It is important to establish the client’s location at every point in providing services as clearly outlined in standards 2.02, 2.03, and the interpretation.
Standard 2.02: Services Requiring Licensure or Other Forms of Accreditation
Social workers who provide electronic social work services shall comply with the laws and regulations that govern electronic social work services within both the jurisdiction in which the social worker is located and in which the client is located.
Standard 2.03: Laws That Govern Provision of Social Work Services
Social workers who provide social work services using technology shall understand, comply, and stay current with any and all laws that govern the provision of social work services and inform clients of the social worker’s legal obligations, just as they would when providing services in person.
Interpretation
Most jurisdictions have adopted the position that electronic social work practice takes place in both the jurisdiction where the client is receiving such services (irrespective of the location of the practitioner) and in the jurisdiction where the social worker is licensed and located at the time of providing such electronic services (irrespective of the location of the client). If the client and social worker are in different jurisdictions, the social worker should be aware of and comply with the laws in both the jurisdiction where the social worker is located and where the client is located.
Many states offer temporary or emergency licensing options. It is important to document if the temporary time allotted can be used for multiple clients. It is crucial to check with the state licensing board for the current regulations. Read the language carefully as some states use “healthcare provider” and others use “physician”. It is important to clarify if social workers are included in any waiver. Many states have dropped or made changes to their initial COVID-19 waivers. Practitioners need to both check and document the current jurisdictional regulations—although there are multiple sources with listings of state regulations, they are not substitutes for checking with the state licensing board.
Social workers should also check their professional liability coverage. Unlicensed practice in a state is unlikely to be covered by professional liability insurance.
Licensing is a separate issue from insurance coverage, and insurance coverage depends on the specifics of the client’s policy. Some states—like Illinois with the passage of House Bill 3308—have insurance regulations that specify telehealth regulations for insurance providers. It can be confusing and difficult for clients to clearly understand the details of their coverage, so it is recommended that practitioners learn and document the telehealth policies themselves rather than simply relying on information from the client.
Florida is the first state to implement the ability to register in their state as a telemental health (TMH) practitioner. The application link can be found in the resource section.
With regard to international practice, all the same social work codes and standards apply. Practitioners need to be aware of all applicable laws and regulations, authenticate client identity and location, assess and document appropriateness for services, create a safety plan, confirm scheduling availability with time differences, and check with liability insurance provider for coverage. Best practice is to also complete the following:
Contact the US embassy or consulate for information
Contact an English-speaking therapist in that country and ask for help:– https://internationaltherapistdirectory.com/
Check the Online Therapists Facebook Group
Document knowledge of applicable laws and regulations.
The lack of a compact has resulted in social workers being frequently faced with serious ethical dilemmas in providing consistent services to current clients. Both social workers and clients move out of state and travel for work, academic, or personal reasons. Moves out of state and academic schedules may allow us planning time, but many situations arise spontaneously, including emergencies. Social workers are then faced with multiple competing obligations. In addition to following all applicable laws, the NASW Code of Ethics includes commitment to clients and non-abandonment, non-discrimination, compliance with employer’s policies and other standards that may conflict with licensure coverage in many situations.
A social workers’ primary responsibility in these circumstances is to recognize that there is a dilemma and to apply appropriate critical thinking skills. Questions for consideration include:
What would be consistent with the standard of care, the way a “reasonable and prudent” colleague would respond in a similar situation?
What are the competing values, and why should one outrank the other?
If a client contacts us in a crisis from a location where we are not licensed, applying the standard of care would lead us to respond to the client’s current need. It is important that social workers document the reasons informing their choices.
Many states also have specific requirements for the practice of telehealth including requiring certification, types of documentation, informed consent guidelines, and provider/client identification/authentication.
Providing services to new clients out of state requires an additional set of clinical skills. Proper documentation confirming authentication of client identity and locations are required from the start of the treatment relationship. It is important to know that the person one is communicating with at any given time is the same person with whom an informed consent was obtained and with whom the treatment relationship has been established.
The creation of a safety and emergency plan is critical for both new and continuing clients. Issues of suicide, homicide, other emergencies, and false identity and contact information have proven both clinically and legally devastating for clients and practitioners. A safety plan should include information about the client’s location including ways to access emergency services, a release from the client for an emergency contact, knowledge of local emergency mental health resources, and a release from the client’s primary care provider and/or psychiatrist.
In addition to licensing provisions, other applicable laws include the HIPAA requirement for a risk analysis assessment which states that covered entities must “conduct an accurate and thorough assessment of the potential risks and vulnerabilities to the confidentiality, integrity, and availability of electronic protected health information held by the covered entity.” The HIPAA regulation is consistent with the NASW Code of Ethics and Standards for Technology in Social Work Practice that direct social workers to take every available step to secure the confidentiality and privacy of client information.
Standard 1.07, Privacy and Confidentiality
(m) Social workers should take reasonable steps to protect the confidentiality of electronic communications, including information provided to clients or third parties. Social workers should use applicable safeguards (such as encryption, firewalls, and passwords) when using electronic communications such as e-mail, online posts, online chat sessions, mobile communication, and text messages.
A risk assessment includes an analysis of any security vulnerabilities for all components used to receive, send, and maintain personal health information (PHI) including:
All devices (computer, laptop, phone, tablet, etc.)
Connections (e-mail, cloud, security, accounting, and other contracted services, etc.)
Communication with clients, colleagues, business associates, providers, backup services
Documentation system (electronic and non-electronic)
Work environment (access, security, personnel, etc.)
For a successful risk assessment, one’s IT department and staff will have critical roles; for practitioners without IT/staff support, this resource can be helpful: personcenteredtech.com.
HIPAA also requires separate documents for telehealth. These documents should include telehealth-specific references for informed consent, release of information, fee policy, technology and social media policy, and contracts with associates including for billing, legal, supervision, or consultation.
Competence in mental health services is not the same as competence in telehealth. Telehealth requires all the same skills involved with face-to-face clinical practice and adds an additional set of technical, clinical, and legal considerations. In addition to licensing considerations, social workers need proper training, appropriate ongoing supervision or consultation, specific telehealth authentication, assessment and diagnostic skills, compatible equipment, a plan for technology interruptions, safety plans and emergency contacts documented, knowledge of all applicable laws (federal, state, county, etc.), telehealth-specific forms, and a commitment to ongoing HIPAA risk assessment to protect PHI.
Ethical practice is ultimately about security, safety, and stewardship:
Security of all information on every device including: computers, laptops, hard drives, external hard drives, discs, flash/thumb drives, other storage devices, cloud services, tablets, phones, faxes, printers, etc.
Security of all information with all associates providing services including: billing, scheduling, accounting, data storage, legal, professional consultation, etc.
Safety of clients: appropriate assessment and treatment, accurate diagnosis, adequate emergency and crisis plans, etc.
Stewardship: Ethical practice, commitment to clients, appropriate informed consent, competency, fulfilling fiduciary duty and ongoing learning and risk assessment
These best practices protect client’s social workers, the community, and the profession.
Resources
Social Work Licensing Compact: https://www.socialworkers.org/Advocacy/Social-Justice/Interstate-Licensure-Compact-for-Social-Work
NASW Code of Ethics: https://www.socialworkers.org/About/Ethics/Code-of-Ethics/Code-of-Ethics-English
NASW, ASWB, CSWE and CSWA Technology Standards: https://www.socialworkers.org/includes/newincludes/homepage/PRA-BRO-33617.TechStandards_FINAL_POSTING.pdf
Illinois House Bill 3308: https://www.ilga.gov/legislation/fulltext.asp?DocName=&SessionId=110&GA=102&DocTypeId=HB&DocNum=3308&GAID=16&LegID=&SpecSess=&Session=
Florida Telemental Health Practitioner Application: http://www.flhealthsource.gov/telehealth/files/application-telehealthprovider-registration.pdf
International Therapists Directory: https://internationaltherapistdirectory.com/