First Amendment

Therapist Elizabeth Brokamp Fights for the Right To See Patients Virtually

"I hope my case can start removing senseless boundaries to teletherapy," said Brokamp, who is suing in federal court on First Amendment grounds.

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Is Zoom therapy a First Amendment issue? Yes, according to a new Institute for Justice (I.J.) lawsuit, which argues that rules banning cross-border video counseling are violations of free speech.

I.J. is representing Elizabeth Brokamp, a therapist who saw patients from her Northern Virginia office before the pandemic hit. These days, Brokamp—who holds a master's degree in Counseling Psychology and is licensed as a professional counselor by the state of Virginia—exclusively practices teletherapy.

Brokamp doesn't prescribe drugs or provide clinical diagnoses. She largely offers talk therapy, on topics such as "anxiety, relationships, and mindfulness," says her lawsuit. Her specialty is "assisting women who are facing issues relating to infertility and postpartum depression."

Brokamp would like to keep talking to patients who relocate out of Virginia and to accept new clients who live across the river in Washington, D.C. But occupational licensing rules in D.C. and elsewhere make this illegal.

"It is painful for me to have to tell people in D.C. that I am not allowed to help them right now," said Brokamp in a statement. "People should be able to engage with the counselor who can best meet their needs wherever they live and continue seeing that counselor if they move across the country. I hope my case can start removing senseless boundaries to teletherapy."

Brokamp's federal lawsuit takes aim at a District of Columbia rule banning "professional counseling" to people in D.C. by out-of-state counselors except in narrow circumstances.

"D.C.'s licensing laws restrict Elizabeth's ability to speak with D.C. residents about their professional, educational, personal, or spiritual development—topics one might discuss with a life coach, mentor, self-help guru, religious leader, or close friend," states the suit, calling D.C.'s rules both "overbroad" and "underinclusive, as D.C. generally does not enforce its laws against speakers without professional training and expertise."

"If Elizabeth were less qualified, she could in practice offer her services as an unlicensed 'life coach,' but, paradoxically, Elizabeth's training and expertise restrict her ability to talk to D.C. residents without a license," it says. "This topsy-turvy regime cannot survive First Amendment scrutiny."

D.C. did temporarily waive licensing requirements during the pandemic for out-of-state care providers with "an existing relationship with a patient who has returned to the District of Columbia" or a connection to a licensed D.C.-based business. Neither situation applies to Brokamp. But her suit argues that the pandemic waiver "highlights the unnecessary and arbitrary nature of D.C.'s general restrictions on cross-border teletherapy."

"D.C. cannot articulate any reason why the speech permitted by the waiver would pose a danger to public health or should be prohibited," it says. "Yet, when the waiver expires, that speech will be prohibited once again."

The issue ultimately goes way beyond Brokamp and her patients, striking at the heart of how to handle telemedicine during the pandemic and beyond. It's a point of major contention between powerful political groups.

"States generally limit who can practice medicine within their boundaries by requiring providers to be licensed by that state's medical board," notes Eric Wicklund at mHealth Intelligence. "This poses a problem for providers treating patients in more than one state as well as those with telehealth platforms designed to reach patients no matter where they're living."

Some health care providers want "license portability rules that allow states to recognize the licenses of providers from other states, while others favor interstate licensure compacts that offer an expedited path for providers to apply for and receive licenses in multiple states," writes Wicklund. "Some have even suggested one license to cover the entire nation." But up against them "are state lawmakers and others who feel state medical boards should be able to control and regulate who practices medicine in their states."

Temporary loosening of occupational licensing rules during the pandemic does provide some hope that change is possible. "Red tape that served only to pad established practitioners' bank accounts in good times became obstructionist menaces when a crisis hit," notes Reason's J.D. Tuccille, pointing out that occupational licensing reform is a rare issue on which libertarians, Republicans, and Democrats (including Joe Biden) find agreement.

I.J. has been taking on cases that involve occupational licensing rules that it believes run afoul of the First Amendment. This has included cases involving tour guides, advice columns, and now virtual counseling visits.

"Counselors use words—they talk to people about their emotions and help them feel better," said I.J. Senior Attorney Rob Johnson in a statement. "Literally all Elizabeth wants to do in D.C. is talk over the internet. And under the First Amendment, the government cannot prohibit unauthorized talking."

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  2. She just needs a DC license. If she is seeing patients in DC by telemedicine she is practicing in DC.

    It is a pain but true for any practitioner. Really the states should have reciprocity so if you have one license you can quickly get one in another.

    1. She also will need a license in every state where any servers involved in the call are located.

      1. Yes. That is why telemedicine groups hire people or companies to do the licensing work. I guess if it is only one state she could take care of it herself.

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      2. Oh I missed your joke.

        Anywhere she sees patients she would need a license.

    2. Why? This isn’t a consumer protection law that affords right based on the residency of the purchaser. This is a supplier side law that restricts who can provide a service.

      Consider that she saw DC residents before the pandemic in her VA-based office with only a VA-issued license. DC regulators did not require her to be licensed by them before she could take on a DC-resident patient.
      She continues to deliver her services from the same VA-based office. As far as I know, she still has her VA-issued license. On what basis does DC have the right to restrict who she can take as patients?

      DC could, theoretically, pass a law barring DC residents from seeing doctors in other states. It would be stupid but jurisdictionally defensible. They have not done so.

      This whole mess is based on the fiction that “services” are provided based on the recipient’s location rather than the provider’s. That’s just nuts. If DC (or CA or anyone else) want to bind their own citizens and businesses, that’s their choice – and if it’s a stupid idea, their own voters can fix it. They should not be allowed to extraterritorialize their own insanity, though.

    3. That will never happen. The main purpose of licenses is licensing fees, which generate revenue. Why would states reduce their revenue?

      1. License reciprocity also opens up other unsavory cans of worms…

      2. Easy they make you file a reciprocity fee for the same rate as the filing fee. But that won’t offset all the other training/testing programs that are forced on applicants by Big Training (not so much doctors but tradesman). Its why you have 2000 hour training requirements for hair washing. Lobbyist from Big Training pay off the politicians to make little people pay a 3rd party in order to to make a living.

  3. She can give me all the therapy she wants.

    1. Have you found her onlyfans yet?

    2. Dr. Fiona Wallace was doing this years ago.

    3. Are you having infertility issues, or is it the postpartum depression that’s getting you?

      1. He drinks way too much and then shitposts at Reason.

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  5. Well, after all she only has a master’s degree.
    I am not sure she should be licensed anywhere. We all must defer to the science in these issues, and only our political betters know the true science.
    Perhaps if she had a few more thousands of student debt, she could be qualified.

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  8. Does it apply in cases where she doesn’t charge for her service? If not, then she can form a not-for-profit corporation that provides the service across state lines gratis, and raises money to pay her salary.

    1. Darn, the statute says “with or without compensation”. But there’s probably a loophole in here somewhere:

      “Practice of professional counseling” means engaging in counseling or psychotherapy activities, including cognitive behavioral therapy or other modality, with or without compensation, to facilitate human development and to identify and remediate mental, emotional, or behavioral conditions and associated difficulties that interfere with mental health and wellness. The practice of professional counseling includes:

      (A) The processes of conducting interviews, tests, and other forms of assessment for the purpose of diagnosing individuals, families, and groups, as outlined in the Diagnostic and Statistical Manual of Disorders or other appropriate classification schemes, and determining treatment goals and objectives; and

      (B) Assisting individuals, families, and groups through a professional relationship to achieve long-term effective mental, emotional, physical, spiritual, social, educational, or career development and adjustment.

      I’m guessing that with a suitable disclaimer, what she does could be clearly couched (heh) as not any of that stuff. Like for instance if she says she’s doing it as research for a book, especially one of fiction. Or if she incorporates astrologic or other “non-professional” techniques.

      1. After all these years of maintaining my amature counciling so I can council in the Olympics, a compleate waste!

  9. Wait a minute! Let DC fine her all they want; how are they ever going to collect when she’s across the Potomac? So they pull her license in DC — which she doesn’t have anyway!

    1. just like the California wealth tax on expats. What is California going to do, send the CHP to my house in Tennessee? Do they think I’ll keep my funds in a bank that lets California steal from me?

  10. Good luck on the case. I hope that more telemedicine is one outcome of the Covid-19 pandemic. Ms. Brokamp is certainly a case expanding the opportunity to access care. I for one believe that telemedicine for talk therapy or simple office visits will both expand access to care and reduce costs.

  11. This is a story where I want tk know how she voted. If she voted for progressives she deserves the Gov fucking she gets

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