Update 9/15 10:51 a.m.: This article has been updated. It originally misspelled a name. The article has been updated with the correct spelling.
The need for widely available mental health resources has never been greater. Already before the pandemic, suicide was the second leading cause of death for people between the ages of 15 and 34, according to the CDC. In the last few months, experts have seen depression and anxiety rates rise considerably compared to previous years, at least in part due to the COVID-19 pandemic.
But at this time when students need psychological resources the most, LMU’s Student Psychological Services (SPS) is facing an unprecedented issue. They cannot directly serve students currently residing out of state.
Dr. Kristin Linden, director of SPS, explained the situation: “In most, if not all states, mental health professionals are licensed in the state that they are providing service. Licensing boards set standards for treatment and mental health professions are required to have knowledge of state laws as it pertains to a variety of situations.”
In short, California-licensed therapists cannot offer services to students living in different states due to state-to-state differences in legislation pertaining to matters like confidentiality. For example, in California, a therapist is allowed to break patient-psychotherapist confidentiality if the therapist “has reasonable cause to believe that the patient is in such mental or emotional condition as to be dangerous to himself or to the person or property of another and that disclosure of the communication is necessary to prevent the threatened danger” (Evidence Code 1024).
These types of laws, known as “duty to warn” laws, are becoming increasingly common across the nation, but have still not been implemented in states such as Nevada, North Dakota, North Carolina, and Maine as of 2018.
However, during this global pandemic, it is becoming increasingly evident that allowing each state to have its own legal code is not practical for the modern United States.
The reason why states can each have their own sets of laws is due to the fact that the United States has a federalist system of government. As LMU political science professor and director of the Global Policy Institute Michael Genovese explained, “Federalism is the result of compromises made at the Constitutional Convention as smaller states, and southern states, feared the rise of a distant and powerful central government. And felt that their true loyalties were not to a federal but to their state governments, which were closer to the people. In order to guarantee the ratification of the new Constitution, the states were granted certain rights. Ergo, Federalism.”
A federalist system has its benefits. According to Genovese, it gives states the ability to check the power of the presidency, “as Texas did during the Obama years by filing numerous lawsuits against the administration, and as California is doing today by filing over 100 lawsuits against the Trump administration.”
Justin Levitt, a constitutional law professor at Loyola Law School, added that federalism also gives power to localized communities to determine the best laws for themselves. This way, he argues, “the regulatory environment can be better responsive to local conditions and presumably more in line with what the local community wants.” If everything was left up to Congress, Levitt argued, it would be much more difficult to reach a solution that a large majority of Americans agreed to.
But even if some state-to-state differences can be beneficial, there are numerous others that seem trivial if not actively counterproductive. In addition to psychological services, states regulate who can practice law, who can teach, how voting should be conducted and how to get a driver’s license. It seems implausible that there is something inherent about California and its people that should make its roads and traffic light rules different from those of Nevada.
In the case of driver’s licenses, state-by-state legal variations might pose a small inconvenience to someone deciding to move across the country, but in the case of voting laws, even minor differences in legal codes can have significant repercussions. As Genovese explains, “federalism has also allowed states (especially Southern states) to impose sharp restrictions of voting (especially for minority citizens), and deny rights to minorities and voters.”
Luckily, the current system does not have to be the final one. Levitt proposed two options through which services, such as therapy, could be made more accessible to people living anywhere in the country.
On one hand, states could take this matter into their own hands. A state, such as California, could come to a reciprocal agreement with another state, say New Jersey, to accept each other’s licensed therapists in their own states. New York already implemented a similar policy in April, allowing physicians licensed in other states to come to New York in an effort to fight the COVID-19 pandemic.
The biggest barrier to this process is not actually directly political, but rather economic. As Levitt points out, rules barring out-of-state professionals from practicing in a given state are often “about preserving employment systems, preserving paychecks. That’s true for the legal system too. There are barriers to entry to becoming a lawyer that have nothing to do with how good a lawyer you are and everything to do with how much money you pay to the state.”
However, it is this very fact that should motivate the federal government to take action. If it weren't for these barriers, workers around the country would have the opportunity to take new jobs that might be currently inaccessible to them due to the overpopulation and high living cost of states like California. Allowing professionals from any state to telework into any job in the U.S. is an important first step in promoting equal access and opportunities to all Americans no matter where they were born or reside, and would promote the healthy kind of competition that is crucial for innovation.
The good news is that change can be enacted on a federal level. The single most powerful tool that Congress has, according to Levitt, is the ability to "regulate interstate commerce." With this, Congress can regulate all monetary transactions between states and all intrastate monetary transactions that have an interstate effect, including our original example of psychological services.
The truth, which has been made so much more evident by this pandemic, is that the 21st century United States is far too interconnected for each state to act as though it is only out for itself. If we want to embrace the possibilities offered by advances in technology, communication and transportation, our legal codes must reflect them.
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This is the opinion of Veronica Backer-Peral, a junior film and television production, history and computer science triple major from Pasadena, CA. Tweet comments @LALoyolan or email email@example.com.