D.C. teletherapy ban silences Virginia counselor

People seek out Elizabeth Brokamp to talk, but she has to be careful about the topic when Washington, D.C., residents contact her. As a licensed professional counselor in Virginia, Brokamp has limited freedom of speech in the nation’s capital.

She can discuss news, sports and weather. But she risks expensive fines if she enquires about feelings or relationships.

Teachers, tutors, coaches, mentors, spiritual guides, motivational speakers and consultants can ask, “How are you?” Yet Brokamp must steer clear of probing questions in the District of Columbia.

She faces restrictions even if she stays home in Fairfax Station and speaks remotely with potential D.C. clients. They can come to her, but she cannot go to them or use video calling.

The D.C. Board of Professional Counseling warned Brokamp in October – months into the COVID-19 pandemic – that providing teletherapy services for D.C. residents would be illegal because Brokamp does not have an occupational license in the jurisdiction. Nothing would change even if Brokamp informed new clients that she is licensed only in Virginia, and even if she described herself as a “counselor” rather than a “licensed professional counselor.”

The concern is not that Brokamp lacks qualifications, but the opposite. Regulators restrict her speech precisely because she knows her stuff. Her master’s degree in counseling psychology and more than 20 years of experience actually work against her.

If Brokamp were just a life coach or self-proclaimed guru, D.C. regulators would leave her alone and let her earn an honest living on their turf. When it comes to credentials, the oversight board somehow views less as more.

The bias against expertise not only defies logic, but violates the First Amendment. Brokamp does not prescribe medicine or conduct medical procedures. She communicates for a living. “For counselors our currency is words,” she says. “We use talking. We use being present with people. And we use language to help people feel heard and seen and validated.”

Brokamp should not lose her right to telework across political boundaries merely because she speaks with more authority than most people or because she gets paid to speak. The U.S. Supreme Court already confirmed the principle in a 2018 California case.

“Speech is not unprotected merely because it is uttered by professionals,” and the government cannot claim “unfettered power to reduce a group’s First Amendment rights by simply imposing a licensing requirement,” the majority ruled in National Institute of Family & Life Advocates v. Becerra.

Unfortunately, D.C. regulators missed the memo. Rather than stay silent, Brokamp has partnered with the nonprofit Institute for Justice and fought back in court. Her First Amendment challenge, filed in the U.S. District Court for the District of Columbia, would tear down the virtual wall between counselors and clients who happen to live on opposite sides of the Potomac River. A similar lawsuit, filed April 6 in the U.S. District Court for the Northern District of New York, would allow Brokamp to continue talking with a client who moved to New York during the COVID-19 pandemic.

Such barriers do damage even during normal times. Teletherapy restrictions create counseling deserts in hard-to-reach places like rural and inner-city communities. Caretakers who cannot easily leave home also get left behind. Hindering video calls makes even less sense during a pandemic, when social distancing guidelines encourage remote transactions whenever possible.

“Everything has gone virtual during the pandemic, which has been an incredible lifesaver in terms of counseling because the needs are so great,” Brokamp says.

Professions built around speech are especially well-suited for telework platforms, where distance does not matter. A call works just as well if participants are in the same building or on opposite coasts.

Brokamp enjoys the benefits as a PhD candidate at the University of the Cumberlands in Kentucky. Her professors talk, and she listens and asks questions from 500 miles away. When she switches roles and works as a counselor, she does something similar with clients from all over Virginia.

Yet, thanks to the D.C. licensing laws, people who live 20 miles east remain off limits. Brokamp has a right to speak with them too. Online video works across state lines, and so does the First Amendment.

This article was originally posted on D.C. teletherapy ban silences Virginia counselor