On June 24, 2026, a federal court made a decision that holds the power to reshape how Mental Health Counselors navigate state licensing requirements. In Brokamp v. District of Columbia, the U.S. District Court for the District of Columbia ruled that the District violated Elizabeth Brokamp’s First Amendment rights by requiring her, a Virginia-licensed counselor, to obtain a D.C. license before providing telemental health counseling to District residents from her Virginia-based office.
Background: Chiles v. Salazar and the First Amendment
States and jurisdictions have long held the power to establish licensing requirements for professionals providing health care services to individuals residing in the state or locality, including requirements for Mental Health Counselors. The Supreme Court’s decision in Chiles v. Salazar referred to counseling as “talk therapy” and established that talk therapy constitutes protected speech under the First Amendment.
Critically, the Supreme Court rejected the argument that professional licensing eliminates constitutional protections, concluding that talk within the context of a Counselor’s professional work does not lose free-speech protections simply because it occurs in the context of a regulated professional relationship. This decision raised important questions about how courts should balance states’ regulatory and licensing authority with clinicians’ constitutional rights.
The Court’s application of First Amendment protections to talk therapy as protected speech risks obscuring the professional complexity underlying clinical counseling practice. Mental Health Counseling constitutes regulated professional conduct and professional service—not mere conversation—grounded in specialized graduate education, supervised clinical experience requirements, licensure standards, ethical codes, clinical assessment competencies, diagnostic expertise, and systematic treatment planning. Judicial emphasis on speech protections may inadequately account for the training, credentials, and professional judgment distinguishing licensed practice from ordinary interpersonal communication.
The groundbreaking ruling in Chiles v. Salazar influenced the outcome and rationale in Brokamp v. District of Columbia.
Brokamp: Applying Chiles to Interstate Telehealth
Elizabeth Brokamp, a Virginia-licensed Professional Counselor with over 20 years of experience, sought to provide teletherapy to D.C. residents from her Virginia-based office without obtaining a D.C. license. A D.C. law prohibits Counselors from other jurisdictions from providing online teletherapy to District residents without holding a D.C. license.
In June 2026, U.S. District Judge Timothy J. Kelly ruled that D.C.’s licensing requirement violated the First Amendment, specifically as applied to Brokamp. The court held that because counseling practice consists entirely of talking with clients, the District’s licensing laws restricting these conversations act as direct restrictions on speech in violation of Brokamp’s First Amendment rights. Notably, D.C. failed to provide evidence that out-of-state Counselors not licensed in D.C. provide low-quality care or harm District residents.
Critical Distinction: Narrow, not Universal
The Brokamp decision is legally narrow. It does not strike down state licensing laws, eliminate professional licensure requirements, or create an automatic nationwide right to practice across state lines. The ruling applies specifically to Brokamp and her First Amendment rights. Mental Health Counselors should not assume they can now practice across state lines without verifying local jurisdiction requirements.
Implications for Mental Health Counselors
Reduced Public Protections: Brokamp provides a potential First Amendment basis for challenging restrictions on cross-border telehealth. Occupational licensure boards have traditionally been able to regulate professional conduct, even when those services are delivered via telehealth modalities. The Brokamp decision presents risk that occupational licensure boards may not be able to apply and enforce certain requirements surrounding providers of telemental health services. Additionally, clients served by non-licensed Counselors may have reduced pathways for filing complaints and legal recourse. Further, services provided by Counselors who are not licensed in-state may not be covered by major medical health insurance plans.
Practical Limitations: In response to Brokamp, states may develop new licensing frameworks or develop rules or laws to distinguish their regulations from D.C.’s approach. Counselors should continue complying with all applicable state licensing laws until courts provide broader clarity.
Brokamp’s Relationship to the Counseling Compact
The Counseling Compact represents an alternative regulatory pathway for interstate practice—an interstate administrative agreement requiring formal entry, applications, fees, and registration in participating states. The Compact does not grant automatic nationwide rights; it requires state-by-state participation and compliance, and it offers a process for licensed Counselors in states participating in the Compact to access privileges to practice.
Brokamp establishes a First Amendment defense, upheld by one District Court, as applied to professional speech restrictions, independent of formal interstate agreements.
Counseling Compact: The Compact provides administrative portability and includes key protections through established interstate agreements and legislation. The public is protected and Professional Counselors have efficient access to privileges to serve clients in many states through telehealth modalities and other direct service opportunities.
Strategic Implications: Counselors may increasingly challenge state licensing requirements through similar First Amendment arguments rather than waiting for Compact implementation. However, the Compact remains the more administratively straightforward pathway for states committed to interstate portability.
Future Landscape: Both mechanisms may evolve independently. As more Counselors challenge licensing restrictions based on the Chiles and Brokamp
The convergence of constitutional protections and interstate compacts creates emerging opportunities for telehealth expansion, but Counselors must remain informed about jurisdiction-specific requirements and ongoing legal developments.
Conclusion
NBCC remains dedicated to supporting and sustaining professional regulation for Counselors through occupational licensure. State/jurisdiction-level regulation provides clients, taxpayers, and citizens in each state with access to qualified professionals who are accountable for providing services in ethical and legal ways. Additionally, licensure ensures that clients who are harmed by licensed professionals have a pathway for filing a complaint and pursuing legal action.
Though the Brokamp decision applies only to Brokamp’s First Amendment rights, the case presents significant risk to the legal oversight of Professional Counseling practice by states and jurisdictions. Occupational licensure extends public protections into professional healthcare, and healthcare providers delivering services through telehealth means should be held accountable to state laws just as healthcare providers providing services in physical offices.
NBCC will continue to provide Counselors with prompt, substantive communication regarding evolving legal developments impacting Professional Counseling practice and emerging regulatory, legislative, and judicial issues affecting the profession.