Lawsuit Challenges Washington DC’s Telehealth Licensure Restrictions

December 10, 2020 - Telehealth advocates have long argued that one of the biggest barriers to expansion are state and federal laws that prohibit practicing medicine across state lines. Now a Virginia-based counselor is challenging that issue in court.

Virginia-based psychologist Elizabeth Brokamp is suing the District of Columbia for the right to use telehealth to treat patients in Washington DC. Together with the Institute for Justice, she’s arguing that she has freedom under the Constitution’s First Amendment to counsel people in other states.

“Counselors use words - they talk to people about their emotions and help them feel better,” Rob Johnson, a senior attorney with the Arlington, VA-based Libertarian law firm, said in a press release. “Literally all Elizabeth wants to do in DC is talk over the internet. And under the First Amendment, the government cannot prohibit unauthorized talking.”

States generally limit who can practice medicine within their boundaries by requiring providers to be licensed by that state’s medical board. 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.

The connected health industry sees this is a critical barrier to the adoption of telehealth, and has been lobbying for years for new licensure laws. Some support 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. Some have even suggested one license to cover the entire nation.

READ MORE: HHS Expands COVID-19 Telehealth Capabilities in PREP Act Amendment

Arrayed against these arguments are state lawmakers and others who feel state medical boards should be able to control and regulate who practices medicine in their states.

According to the law suit, Brokamp sees as many as 20 clients each week through a telemental health platform. She’d provided services for several years in Alexandria, VA under the business name Alexandria’s Women Counseling, and earlier this year had planned to open an office in Burke, VA, under the business name of Nova Terra Therapy. But with the coronavirus pandemic sharply restricting in-person care, she gave up the lease and shifted her business online.

Because of the pandemic, several states and the federal government have relaxed the rules to allow license portability, but those freedoms will end when the public health emergency is over.

This will force Brokamp to stop seeing patients she’s been seeing in DC.

“It is painful for me to have to tell people in DC that I am not allowed to help them right now,” she said in the press release. “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.”

READ MORE: New Telehealth Bill Would Penalize States Who Don’t Join Licensure Compact

“Elizabeth’s legal claim is simple: Counselors talk to people about how to deal with problems in their lives, and, under the First Amendment, the government cannot cite counselors for talking,” the institute argues in the release. “The District’s licensing law requires a professional counseling license for anyone who speaks with another person to ‘achieve long-term effective mental, emotional, physical, spiritual, social, educational, or career development and adjustment.’ That law is staggeringly broad; read literally, it would sweep up friends, family members, pastors, self-help gurus and life coaches.”

“In practice, only professionals like Elizabeth are subject to the restriction on their speech,” it continues.  “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 the District bars her from talking. The District 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.”

According to the lawsuit, Brokamp intends to continue her teletherapy practice after the pandemic ends, and wants to advertise her services online, including through websites that offer counseling referral services. This would open her business up to anyone online, regardless of which state they call home.

The institute isn’t new to arguing in favor of telehealth. Four years ago it filed a lawsuit in South Carolina on behalf of the ocular telehealth company Opternative (now called Visibly), arguing that the state’s ban on issuing prescriptions based on online eye exams is unconstitutional. That suit was dismissed by the court in 2018.

Just this month, the firm received a positive ruling in Texas, where it has been arguing that a veterinarian in that state has a right to use telehealth to offer healthcare advice for pets.

READ MORE: Connected Care Alliance Seeks Support for New Telehealth Licensure Rules

Andrew Wimer, an assistant communications director for the institute, says the organization is encouraging states to expand telehealth as part of its 2021 Initiative.

“As a public interest law firm, our first priority is to set good precedent through strategic litigation,” he said in an e-mail. “DC’s restriction provides an opportunity to establish broader First Amendment protections for occupational speech, which has long been a priority for IJ.”