A licensed therapist in Virginia has sued officials in New York for the right to teleconference with her client.
The situation has arisen because of various COVID lockdowns and other provisions, including one that allows – temporarily – therapists from outside of New York to talk to their clients in the state.
However, that option could be ended at any time, according to a lawsuit by the Institute for Justice on behalf of Elizabeth Brokamp.
“New York could do tremendous damage to the mental health of New Yorkers by suddenly ending the relationships they have built with counselors online,” said IJ Attorney Jeffrey Redfern. “During the pandemic, New York wisely suspended barriers to online therapy without a state license, but only on a month-to-month basis. But restrictions on talking over the internet are not constitutional to begin with, and Elizabeth Brokamp has a First Amendment right to continue seeing her client.”
The reason for the case:
IJ said more than a third of New Yorkers reported “poor” mental health in 2020, three times what it was before the pandemic.
Brokamp lives in the Virginia suburbs outside of Washington and runs a counseling service that is entirely online.
Recently, one of her clients moved to New York, and they are able to continue meeting under the temporary permissions.
“When that waiver expires, Elizabeth will be forced to end therapy with her client,” IJ said.
The organization said Brokamp has worked as a counselor for decades, with a master’s degree in counseling psychology from Columbia.
The organization said the demand for such therapy has grown dramatically over the last year.
Just a few months ago, she brought a similar action against the District of Columbia over restrictions that prevent her from taking on new clients who are in the district.
“Continuity of care is critical in counseling, yet when the pandemic ends New York could end client relationships across the state,” she said. “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 that my lawsuit can remove senseless barriers to teletherapy, in New York and across the United States.”
Her claim is that under the First Amendment, the government cannot cite counselors for talking.
In the latest case, the complaint explains New York’s licensing law requires a mental health counseling license for anyone who speaks with another person to “ameliorate” any “problems or disorders or behavior, character, development, emotion, personality or relationships by the use of verbal … methods.”
But IJ said that could be read to literally demand “friends, family members, pastors, self-help gurus and life coaches” get state licenses.
“If Elizabeth had no training, she could provide her services as an unlicensed ‘life coach.’ It is precisely because of Elizabeth’s qualifications and experience—the very reasons clients want her help—that New York bars her from talking. New York cannot constitutionally require a license to talk to people about their feelings, as such a restriction would sweep far too broadly, and it cannot constitutionally prohibit Elizabeth’s speech just because she is effective at that type of speech,” IJ said.
“This doesn’t make sense and it is unconstitutional. The government cannot restrict someone’s speech just because they have specialized training while allowing others to do the exact same thing. Unfortunately, there are similar restrictions across the U.S., and they stand as a barrier to many people getting the counseling they seek,” IJ lawyer Rob Johnson said.
The case seeks a judicial declaration that the licensing requirements and speech limits violate the Constitution and an injunction against its enforcement.
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