Elizabeth Brokamp is a professional counselor, meaning she uses talk therapy to help people feel better. During the COVID-19 pandemic, online teletherapy has allowed her to continue providing aid in difficult times. Even when one of her clients relocated to New York, Elizabeth was able to continue speaking with her client over internet video. But now Elizabeth and her client face a looming deadline: When the pandemic ends, it will be illegal to continue their conversations.
Licensing for professional counselors is a state patchwork. Elizabeth is located (and licensed) in Virginia. But, ordinarily, New York requires anyone providing teletherapy to New York residents to be licensed in New York—a burdensome process that largely duplicates the licensure process that Elizabeth has already gone through in Virginia. And of course those burdens aren’t limited to New York: To talk to clients just across the river in DC, Elizabeth needs a DC license, and many other states impose similar restrictions as well.
Thankfully, New York has waived its licensing requirement for out-of-state counselors during the pandemic. But that waiver is only renewed month-to-month. At any time, Elizabeth could be forced to stop talking to her client in New York. And, because Elizabeth does not believe it would be fair to start a new relationship if she would have to cut it off in a few months, Elizabeth also had to turn away another potential client in New York—even though she would have gladly helped that person if not for New York’s licensing laws.
All of this raises the question: If New York can waive its licensing requirements during the pandemic, why are those requirements necessary in the first place? Professional counselors and their clients should not need a pandemic to take advantage of the benefits of teletherapy.
These restrictions on teletherapy violate the First Amendment. Professional counselors talk to their clients; they listen to their clients’ concerns, ask questions, and provide advice and guidance. Elizabeth does not prescribe medication, perform medical procedures, or do anything other than talk. And, under the First Amendment, the government cannot prohibit unauthorized talking.
So, Elizabeth has teamed up with the Institute for Justice to challenge New York’s restrictions on teletherapy. This lawsuit follows another lawsuit that Elizabeth and IJ filed in Washington, D.C., in December 2020. If this new lawsuit is successful, Elizabeth will be able to provide her services to New York residents even after the pandemic is over. And victory in both lawsuits will set a precedent that can be used to challenge restrictions on teletherapy nationwide.
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Order Granting Motion to Dismiss
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Elizabeth Brokamp, Experienced Counselor
Elizabeth Brokamp has worked as a professional counselor for over 20 years, and she holds a master’s degree in Counseling Psychology from Columbia University. Her job is to use words to help people: She offers talk therapy to individuals who are going through difficult times, who are struggling with mental health or who simply want to live a better life. While she serves a broad variety of clients, she has developed a particular focus helping women who have had trouble getting pregnant or who have had complicated pre- and post-partum experiences.
Elizabeth has been a proponent of teletherapy for years—even before internet video made it more feasible. Among other things, teletherapy provides a means for busy clients to more easily schedule therapy; allows clients to attend therapy without leaving home or having to find a babysitter; allows clients to stay in touch with their therapist while temporarily out of town; and allows clients to maintain their relationship with their therapist even after a long-distance move. Teletherapy also helps people who live in underserved areas to find therapists in other regions who can meet their needs.
But these potential benefits have been stymied by arbitrary and unnecessary licensing. Elizabeth is licensed as a professional counselor in Virginia, where she is located. But in many states, as well as in New York, it is generally unlawful to provide teletherapy to individuals located in the jurisdiction without a license from that jurisdiction. Licensing requirements vary state-to-state, and it would be impractical for a therapist to obtain a license in each state just to make phone and video calls.
Teletherapy and the Pandemic
Regulatory restrictions on teletherapy have become an even greater problem during the pandemic. Elizabeth has stopped seeing clients in person; in fact, she gave up her plans to open a new office for her counseling practice. She sees all her clients online, wherever they are located. All of her therapy is teletherapy.
Many jurisdictions—including New York—have waived at least some restrictions on teletherapy during the pandemic. Under New York’s temporary waiver, a professional counselor who is licensed in another jurisdiction can speak with a New York resident.
New York’s waiver has been repeatedly extended, but typically only for a few weeks at a time. Additionally, the state board that regulates teletherapy has explicitly confirmed that Elizabeth’s cross border teletherapy will be illegal once the waiver expires. Because her cross-border conversations will soon be illegal, Elizabeth had to turn away a potential client located in New York who specially sought her out and asked for her help. If New York’s waiver were permanent, Elizabeth would have taken that potential client, and she would also use referral websites to advertise to other New York residents.
The fact that New York has waived licensure requirements for out-of-state therapists during the pandemic illustrates how unnecessary these restrictions are. If licensed, out-of-state therapists were actually dangerous to New Yorkers, it wouldn’t make any sense to waive New York’s licensure requirement—regardless of whether there is a pandemic happening.
To the contrary, the pandemic has shown the value of teletherapy. Teletherapy allows Elizabeth to continue relationships with clients who move across state lines for school, for a new job or for other personal reasons. And teletherapy allows Elizabeth to provide her services to clients who seek out her specialized expertise, regardless of where those clients are located. There is no reason why those benefits should go away when the pandemic ends.
Government Cannot Require a License to Talk Over Internet Video
Elizabeth has joined with the Institute for Justice to challenge New York’s arbitrary and unnecessary restrictions on cross-border teletherapy. The claim is simple: Counselors like Elizabeth talk to people about how to deal with problems in their lives, and, under the First Amendment, the government cannot prohibit unauthorized talking.
New York’s licensing law requires a mental health counseling license for anyone who speaks with another person to “ameliorat[e]” any “problem[s] or disorder[s] or behavior, character, development, emotion, personality or relationships by the use of verbal … methods.” N.Y. Educ. Law § 8402(1)(a). That statutory language is staggeringly broad; read literally, it would sweep up friends, family members, pastors, self-help gurus and life coaches. That cannot be constitutional: New York cannot require a license to talk to people about their feelings.
New York attempts to solve this problem with a number of equally broad exemptions to the licensing law. In particular, the law says that a license is not required for “individuals” to “provid[e] instruction, advice, support, encouragement, or information to individuals, families, and relational groups.” N.Y. Educ. Law § 8410(5). This language encompasses literally everything that licensed mental health counselors do.
The breadth of the licensing requirement and its exemption work together to give the New York government broad discretion to decide who needs a license and who doesn’t. As it turns out, New York only applies its licensing requirement to people like Elizabeth who have specialized training and expertise. If Elizabeth had no training, she could provide her services as an unlicensed “life coach.” But, because Elizabeth has specialized training and expertise, she cannot talk to clients in New York over internet video without risking prosecution for unlicensed practice.
In other words, it’s precisely because of Elizabeth’s qualifications and experience—the very reasons clients want her help—that New York bars her from talking. That is completely backwards: The government cannot limit your speech just because you’re qualified to talk. New York cannot constitutionally prohibit all unlicensed counseling, as such a restriction would sweep too broadly, and it cannot constitutionally prohibit Elizabeth’s speech just because she is effective at her job.
The Broader Context—Occupational Speech
This case is part of IJ’s broader initiative to protect occupational speech. IJ successfully challenged D.C.’s licensing requirement for tour guides as a violation of the First Amendment, and IJ successfully represented a psychologist who was prosecuted by Kentucky’s psychology licensing board for distributing a newspaper advice column in the state without a license. IJ is also currently challenging a Texas law forbidding licensed veterinarians from giving online advice, as well as Arizona’s attempt to prohibit a trained engineer from truthfully describing himself as an “engineer.” And IJ is also currently litigating in D.C. to protect Elizabeth’s right to conduct cross-border teletherapy.
All these cases advance the principle that the First Amendment fully applies to speech that people use to earn a living. Nobody questions that the First Amendment protects the occupational speech of journalists, actors, authors, artists or professors. But some courts have advanced the idea that speech by so-called “professionals” somehow falls outside the First Amendment. IJ’s occupational speech cases push back against that idea: Speech is speech, and the First Amendment protects your right to speak regardless of your chosen career. Or, as the Supreme Court recently explained: “Speech is not unprotected merely because it is uttered by ‘professionals.’”
Victory in this case will ensure that Elizabeth can speak with New York residents over internet video during the pandemic and when it is over. It also will set a precedent that will expand the use of teletherapy by Elizabeth and other professional counselors nationwide; ensuring that unnecessary and arbitrary government regulation does not stand in the way of individuals seeking greater access to counseling and advice.
The Litigation Team
The case is being litigated by IJ Attorney Jeffrey Redfern and Senior Attorney Rob Johnson.
About the Institute for Justice
Founded in 1991, the Institute for Justice defends the free flow of information, whether it deals with politics or commerce. IJ litigates in the courts of law and in the court of public opinion to defend free speech, property rights, economic liberty and educational choice. In Virginia, IJ is fighting on behalf of a small publisher being forced to provide free books to the U.S. Copyright Office. IJ helped dairy farmers in Florida and Maryland eliminate regulations that forced them to publish dishonest labels. And in North Dakota, IJ helped defend a bar that was being threatened with fines for an “illegal” mural.
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