Talking to a Client in the Wrong Location Makes This Counselor a Criminal

Elizabeth Brokamp is a professional counselor who just wants to help people at a time when many Americans need it more than ever. But if the Virginia resident tries to talk with clients just miles away in D.C., she will cited and fined for making a Zoom call. In today’s show, we talk about what she’s doing to fight back, and why her case is a crucial part of the fight to protect free speech.
Host: Melanie Hildreth
Guests: IJ Senior Attorneys Bob McNamara and Robert Johnson
More podcasts: ij.org/podcast...
Hear about the cases, issues, and tactics advancing IJ’s fight for freedom-directly from the people on the front lines. Deep Dive with the Institute for Justice explores the legal theories, strategies, and methods IJ uses to bring about real world change, expanding individual liberty and ending abuses of government power. Each episode gives listeners an in-depth, inside look at how-and why-we do what we do.
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[@InstituteForJustice]

iTunes: podcasts.apple.com/us/podcast/deep-dive-with-the-institute-for-justice/id1480726134 Spotify: open.spotify.com/show/35xKoi0948xMAEW45Wzga7 Google: www.google.com/podcasts?feed=aHR0cHM6Ly9pai5vcmcvZmVlZC9kZWVwLWRpdmUv Sticher: www.stitcher.com/podcast/institute-for-justice-2/deep-dive-with-the-institute-for-justice?refid=stpr

[@derek7713]

For anyone that tells me that the USA is the "land of the free" I just laugh in their face.

[@jimda4910]

So she's been my therapist for years and I move across the border and now it's illegal for her to talk to me?!. Can somebody please tell me what school you go to so your brain gets bent and this stuff makes sense? Who teaches this logic to the people we hire?. I want to know who the very first person that came up with this idea is. What person looked across the table at another person and said, we need to twist this s*** around like this and like that because then it will be better.

[@samjordan8800]

You ask what person came up with this? Probably a bored lawyer!

[@jimda4910]

@@samjordan8800 so I heard a new one recently. A person would have to strain every muscle in their brain to get that stupid.

[@willyfromthehillies]

It's obviously other therapists that don't want competition from virtual therapists from out the area. Lots of US laws only exists to protect the profit and antiquated business models of entrenched businesses.

[@joshuaghan9279]

I'm a mental health professional (bachelor's degree working on master's degree). I got my BSW in California and moved to Idaho right after I graduated. There are different rules in different states. For example, in California, I would not be able to even discuss trans issues except to be affirmative of trans issues regardless of what the client desires. In Idaho, those rules don't exist. If I tried to do work with someone from New Mexico, I don't know what the rules are for that state. While I agree that there should be a national standard, there isn't and it creates a lot of problems because there isn't. There needs to be some sort of standardization to fix this. P N - it's not where the recipient lives, it's where the recipient is located. If your client goes on vacation to another state, you can't help them until they come back even though they are a regular client and you're their regular therapist.

[@alastermyst]

What will really throw you for a loop is that fundamentally this is an issue of "where is the phone call happening?" Same for skype, zoom, etc. Now understanding that that is the main issue here, know this: Same issue but pertaining to wiretapping (aka recording) laws, the courts have ruled that as long as the recording is happening in a state that allows it, then it is legal. So if that same logic was applied here, as long as the therapist that is giving out therapy, just like as long as the recorder is making a recording, where they are legally allowed to, then it doesn't matter where the other person(s) on the call is. But no, they invert that logic here. Welcome to the clusterfuck of insanity and whims that is the US court system.

[@RaspingPompano2]

I remember talking to my doctor and she was going to send a prescription in and I told her I was just about to drive over the Ohio line into PA because we own a Commercial Cleaning Business and she said to stop and wait because she can't practice in Pennsylvania and it would be illegal for her to talk to me or send in a prescription.

[@xzqzq]

Former Hawaii Governor Ben Cayatano once said that government employees generally fall into two categories: facilitators, who attempt to aid the public in coping with government bureaucracy, and gate-keepers, who view their role as blocking the public from public services if at all possible.

[@leftykeys6944]

Too many things criminalized in this society that hurt no one.

[@gregoryignatius4282]

My licensed PhD therapist in Illinois told me that after I left the state (having been hounded out of my condo association because of my Parkinson’s) that he could no longer have sessions with me. He made it sound more like there was a Medicare payment issue. He said that he could be outside of Illinois and call me, but I could not be outside of Illinois as he was licensed in Illinois. I thought the issue was that it was illegal for him to bill Medicare for someone who was outside the state even temporarily that he was licensed in. He could do a session if I was in Illinois and he was out of state. I frequently talked with one of my medical doctors when they would be out of state or even out of the country. I have no idea if they billed anyone for that. They would also talk to me when I was out of state. I could continue with the same MDs that I was seeing in Illinois but I could not talk with this therapist. To be clear he specialized in medical Neuro-psychotherapy due to brain related illnesses. Piles of testing and records had been created over years that he had access to that an out of state provider would not. It was very strange as I was in this situation where I most needed him and the exact professional counsel he could provide, and I was not able to continue to have sessions with him.

[@bbkr7910]

Not surprising given that this comes from the cess pool of DC. Good luck with this case.

[@aennaenn7468]

But she's not in DC. She's in Virginia. Who are they to declare that she's in a different place from where she is? Sounds like DC is trying to regulate interstate commerce.

[@jimda4910]

DC is a separate country. Non-constitutional. Have you ever wondered why the seat of your government is not in your country?

[@sunnyday5621]

They see it at the end location of a person receiving goods or services, not origination point. That is how they required by law, for Amazon to collect sales taxes according to the delivery location. Too much government, too many ways to regulate and tax citizens.

[@aennaenn7468]

@Oh Wait I know.

[@KidCity1985]

Dr's asking if there is a gun in the home is clearly to be used to violate our second amendment.

[@stanburton6224]

And what if the client calls from out of town while on a business trip? Or calls while she is on vacation in Maui?

[@GoCoyote]

This is why you never speak to a law enforcement investigator without your lawyer present. You and your therapist may have accidentally violated the law if you did so.

[@sebastianeastcoast2275]

If only we had more government telling us what to do everyday. The interaction between the two doesn't matter at all because when somebody has a mental health crisis government can show up to serve and protect this shit out of you no matter what the cost is even if it means somebody's life

[@WighTShadoW]

Is there an organization I can report a therapist to? A therapist for adults, testified that she had my 9 year old daughter as a client for 3 months and stated she was not qualified to treat my daughter. All without my knowledge. The therapist wrote that statement about not being qualified to see my daughter in her letter to the courts. There should be some way to report her. My daughter's mother groomed my daughter into psychiatric care using her own personal psychiatrist. Ty for any input.

[@dr.challis808]

Too many absurd laws in America now. This country has the highest criminalization and incarceration rate in the world. I hope we get back to a better place

[@jameschu8376]

Given how much money the USA makes off the legalised slavery that is the prison system is it any wonder?

[@terryhayward7905]

The only way it will ever get to a decent state is to have a meeting of minds between law makers and the general population ( excluding the 1% ) to scrap all laws as they stand, and to work to rewrite the constitution AND the laws in a way that is not ambiguous, so that they make sense and can be understood by everyone. This will never happen because it will take away power from the government and the 1%, and put a lot of lawyers, and judges out of business.

[@charleskayser4646]

They make good arguments. They should be lawyers or something

[@sunnyday5621]

They are.

[@agisler87]

😂😂

[@grannygear1001]

Government helping the free enterprise system. (NOT). Who makes these so called ‘rules’ up? Sending you a donation!

[@didyasaysomethin2me]

So wouldn't she also be in "violation" of the law if someone from outside Virginia phoned her at her office and she discussed anything related to their care/case with them? According to the government's logic, wouldn't that also be "practicing" someplace where she's not licensed? By that same logic it sounds like they could prosecute her if she was recording a call in a state where it's legal between herself and another party in a state where single party consent is not recognized. How is the "practice" of therapy not occurring where she herself is physically located, under the laws in that area, regardless of where the person calling/video calling her are located? No matter how you look at it, she is where she is. She did not literally leave the area where she is licensed and literally go to them just because they can hear or maybe also see her. And what if she were a doctor in Virginia whose patients in surrounding states had medications she prescribed delivered through a mail order pharmacy service to their home address in their state? According to the government's theory, wouldn't she also be practicing medicine in states where she is not licensed? The mental gymnastics at work here are just nauseating. We're talking about a local professional providing a needed service in her local area, not some offshore hack fishing for random clients throughout the country to spring XYZ scam on them.

[@brucenadeau2172]

sorry she was consuling with people outside where she is licensed

[@didyasaysomethin2me]

@@brucenadeau2172 licensed ≠ qualified Licensure is basically just a pseudonym for censorship in many regards. There are many examples of it being arbitrary. It is also far from unheard of for it to be used punitively.

[@gerradfoster8777]

Thank you Conant v. Walters!

[@thomasdowe5274]

My guess is that the Supreme Court will not limit the powers of government, and that it is up to the legislature to 'fix' this problem...

[@checkmate058]

Well lawers have this solved already. They say "I'm not your lawyer this isn't professional advice. Here's my opinion," why can't we do that but with everything else? Hello I'm a certified therapist in this state but I'm not your therapist, we are just talking to each other across state lines heres some friendly advice you are paying me to chat like an erotic phone hotline but non erotic.

[@duddude321]

Well that's dumb. I'd have my lawyer tell them that the location of my clients doesn't matter because *I* am practicing Virginia practice in Virginia where I'm licensed, and if they don't like that they may bring a complaint to the Virginia state courts to determine if forces outside of the state of Virginia have the right to dictate how Virginia practitioners in the State of Virginia may conduct their practice.

[@skylermcbride9428]

When the law has become an incoherent mass it is impossible to not be a criminal.

[@2Truth4Liberty]

This sounds like a manner restriction on protected speech for which strict scrutiny would apply since prohibition on certain topics is a content-based restriction on speech. Separately, if treating people's speech differently based on classifications of "having a license" versus "not having a license" would also fall under strict scrutiny (equal protection) for classifications of speakers. That the district does not enforce it evenhandedly raises a separate arbitrary enforcement issue under due process. If it the compelling interest is to ensure counseling is beneficial instead of harmful, there would still have to be narrow tailoring and not allowing those out of state persons who have a similar license in that other state would not seem to be adequate. i.e., the law should allow reciprocity especially given the "full faith and credit" principle. Even if "full faith and credit" does not specifically apply to licenses, the existing reciprocity for other licenses (driver's, etc) would weigh against finding the necessary narrow tailoring.

[@havenbastion]

Academic qualifications prove compliance, indicate knowledge, and say nothing of understanding.

[@mojopare8954]

Professional and occupational licensing agencies are established under the guise of protecting the public but the secondary clandestine function is limiting entry into the occupation and in essence limiting competition.

[@flufffycow]

Cash and keeping former criminals from jobs.

[@squidcat11]

it's to do with the same reason that some medical doctors, who leave the professional group's offices and standard therapies to practice 'holistic medicine' but soon find themselves being sued constantly but never knowing why... well, it turns out that those common terms and medical jargon like: 'cancer treatment', 'pain and swelling', 'arthritis', 'prescription', 'medicine', etc... Yep, ALL of the Professional Occupations requiring licenses and certifications are Registered Trademarks, Brands and Trade names so, anyone using the lingo, uniforms, equipment and procedures will run afoul of the Authoritarian Authority's Intellectual Properties.

[@breadfan1071]

If Minnesota can't stop "Imports" then she should be able to practice her craft, we need an alternative to "license laws", if she is properly trained and her customers are satisfied who would care

[@GorTesK]

Nonsense. If someone lives in DC and decides to fly or drive to Virginia for a councelling session, then that's legal. If someone calls from DC to Virginia for a councelling session, then this is the same. She, the councellor, is in Virginia and practicing her occupation in Virginia. Doesn't matter where the client is. Pretty open and shut case.

[@rick73only]

These people are creeps

[@MissLibertarian]

I can’t call my doctor from out of state? That’s a violation of the commerce clause. The feds are charged with keeping commerce regular across state lines. These states are jealous about their power, but equal inalienable rights don’t change by geography or regulation and our governments are supposed to defend them. If I want to consult a doctor in another country, it’s their job to protect that right.

[@rick73only]

Ot crosses the line when these counselors start to talk during your intimate moments because of hidden smart speakers in my apartment unit.

[@merlepatterson]

The problem with online counseling is that it places a third party (the internet) between the counselor and the client, which could present legal issues for both parties should the counseling session get hacked and published without consent of either party.

[@brucenadeau2172]

she is giving medical advice to someone out of state that is a crime

[@AlabasterClay]

Does IJ argue that a person living in state A should be able to pick up the phone and buy car insurance from an agent in state B? I think that would be very similar to this case with Elizabeth.

[@FatihKarakurt]

Not sure about this case. They are regulating the commerce side. I'm sure if the therapist doesn't charge for her services she can talk all she wants.

[@razor3151]

Not a lawyer. If she is in Virginia talking to someone in D.C. She is in Virginia not D.C., so she can talk to whomever. Using a phone or FaceTime on a computer she is still in Virginia.

[@danstewart2770]

The first mistake was contacting the district's regulator to ask permission.

[@shewolf2671]

Curious question. Why would a doctor need to ask patients if they are gun owners? If my doctor asked me that, I would ask them what the hell that had to do with what ever medical reason I was being seen for. Just sounds like an odd question for a doctor to ask.

[@Noone-rt6pw]

Well a patient/client of medical/psych therapist has the responsibility to maintain the confidentiality of their patients by law. This would include those they hire and staff who are still just as responsible. Which if they knowingly allow or are aware of others eavesdropping, they're still responsible and more so. Which there are guvuhment agents that can articulate a law as just cause to acquire an illegal warrant, which would also implicate the judge who signs off on it. Where it would boil down to false pretenses, regardless of how just cause is articulated. Which guvuhment agents are pretty notorious for reading a law to.how they desire it to be read, in opposition to how legislators intended it, which is a felony offence against We the people of the United States of America. Which the legislators who signed off on the law can express the intention of the law. If not, they can be voted out of office. Which letting the news expose such, many would agree to vote them out.

[@brianjacobsen5762]

It's about $ she paid the licensing fees. They say no problem.

[@rick73only]

This should be a crime. These counselors harass me every day making my life hell. I hate them from maricopa county

[@terryhayward7905]

It seems that the intention of the laws was good, but the way they were written was completely ambiguous. The laws need to be rewritten as they were intended.

[@David_Mash]

How does this relate to the fact that architecture had once been an extremely difficult field to study but now due to computer technology is much easier to learn without formal education and anyone with a few hundred hours of practice on the computer could do fine artistic work compared to an architect who has had years and years of education. An engineer is still required so why would a practiced artist need formal hand drafting education when the practice is hardly used. The AIA just lobbies to stay elite.

[@alexandergregorov9694]

Homeland Security need to get in control of the information I'm putting out there.

[@59z2]

My gracious, people are doing business everywhere on the internet. How about Amazon? I don't think Amazon has a business license in my city to do business here. What if the person had a VPN service, the ability to mask their internet connection or change to different States and Countries. This is a mess.

[@AlabasterClay]

It seems that the IJ is not acknowledging that Elizabeth doesn't just want to talk to someone.....she wants to contract with that person as a professional licensed counselor and collect payment through insurance policies etc in order to dispense her wisdom, which is really quite different. Even if she receives payment for her advice, but not as a professional and not from health insurance money, I bet it would be ok. At least it would be ok if she weren't advertising herself as a professional in that area. The state wants (and deserves) to be able to set criteria for the medical professionals who treat the people in their state. She should not be able to hold herself out as an adequate professional based on some other set of criteria.

[@notabannedaccount8362]

She should’ve followed the law.

[@melodyhart1331]

We may no longer even be under admiralty law !

[@richardcadreau1433]

It's all about the money and the fees

[@stanburton6224]

And the same can be said for non-lawyers giving legal advice, no?

[@stanburton6224]

Irrelevant. First amendment allows you to speak on any subject. It is a violation that you must hold a lisence in order to speak on a subject.

[@KingKatura]

I think this case might work, smart... I wonder how many people know what licenses are? As they are essentially permission paid for to commit a crime, But it still makes it a crime they just get permission, so i mean it kind of feels hinky from the get go. But wouldn't those regulations forcing people into a monopoly of licensing be illegal in some manor and could be fought? i mean license's tend to be excessive and burdensome to begin with, attempting to make sure that people like myself never make it into one of those positions. Perhaps our country didn't have as great of laws as we were lied to about in school as children?..

[@Warrentheo]

The connection gets routed by her ISP without her knowledge such that the packets go from her to Denmark, then China, then to her patient, is she required to get licensed in Denmark and China because her ISP routes the call through there? Just do what every other business does, and put a disclaimer at the beginning saying "This call is regulated where the doctor is at" and then forget it...

[@christenawalker2944]

So personal trainers and bar tenders need a license?

[@justmytwosense1144]

Just one more very good reason as to why people need to get off of that padded backside of theirs and actually go out and talk to someone face to face, it actually does good. There's more than just talking when communicating with someone..

[@driverjeff1498]

But if I call best buy im talking to a guy in india. No problem.

[@craigslist04]

DC, District of Criminals

[@RyanK-100]

Hmm. The first time I disagree with IJ. This is a jurisdiction issue unless they are claiming that the constitution prohibits licensing. And this isn't a free speech issue - the law applies when professional services are rendered. AND PAID FOR. Not when the good doctor is discussing the weather or cooking.

[@wanefelicia8779]

Tyrannical NIGHTMARE! Go get em

[@jetrocunningham530]

Wow that's government here to help

[@wazzup3270]

The Institute is not on our side then! The Rights to help one another their not aloud to take away 😇👍

[@da-n-ny1742]

I think I am going to offer up human consulting services to DC just out of spite.

[@tonycastro6154]

its all about the monopoly.........

[@avsystem3142]

The arguments in this video are somewhat disingenuous. The therapist is charging money for providing counseling, that is the crux of the matter and why she must be licensed. If she were giving advice for free the government indeed could not prohibit her from counseling anyone anywhere.

[@williamhague2768]

I wish this was not such a contentious issue. Brilliant common sense on IJ’s part and self serving, totalitarian BS on the other🤦🏻

[@tomcordes1768]

She is the wrong skin color.

[@germanespichan114]

She is not physically in dc she is not bound to the regulations.

[@dr.garyhatcher8364]

You are ignoring a major fact. Talk all you want. It is charging money for it that the law controls as well as what you call yourself (holding out laws).

[@sherrycambridge1531]

she looks just like mrs betty bowers

[@daskritterhaus5491]

that 'stuff' in the bible predicting, correction, PROPHESIZING the end times . . . . .

[@robertaleman1]

🥰

[@Benjicmm]

*turns on nordvpn*

[@bashisobsolete.pythonismyn6321]

one nation under god?

[@normyousaf]

And....... you call this the land of the free ???? Pfffffff .... the whole worlds laughing at you. Ahem, (sorry for my behaviour, I had to let some steam out) Simply put this is called Over-Regulation.

[@tskjesusfreak]

4th