Nebraska psychologists fight to protect practice standards

The Nebraska Catholic Conference (NCC) has challenged ethics language that requires practitioners to provide assistance "without discrimination..."

by Legal and Regulatory Staff

October 28, 2009 — The Nebraska Board of Psychologists is fighting a protracted battle against a group's effort to change state regulations surrounding the referral of clients and potential clients.

Since 2007, the Nebraska Catholic Conference (NCC) has challenged ethics language that requires practitioners to provide assistance "without discrimination on the basis of race, age, ethnicity, socioeconomic status, disability, gender, health status, religion, national origin or sexual orientation."

The NCC seeks insertion of language in the state's regulations governing the practice of mental health groups that would allow mental health professionals to refuse to make service referrals due to religious or moral convictions, so long as they identify this position in their informed consent. These changes would conflict with the long-practiced ethical standards of Nebraska psychologists, which are those of the American Psychological Association (APA).

Specifically, the NCC has asked that "sexual orientation" be removed from regulations or, alternately, that a compromise be inserted that would allow counselors to claim an exemption based on their moral or religious convictions.

The group's proposal "focuses primarily on excluding gay clients from receiving behavioral health services," says James K. Cole, PhD, a member of the Nebraska Psychological Association Board of Directors, who testified before that board after consulting with the APA in the development of his testimony.

According to APA Ethics Office Director Stephen Behnke, JD, PhD, the APA Ethics Code does not require psychologists to provide services for which they have grave moral concerns and thus would not likely not be competent to provide services (Ethical Standard 2.01). In such a situation, it would not be in the client's best interest for psychologist to attempt to provide services.

"It would not be consistent with the Ethics Code, however, to decline to refer to another provider on the basis of sexual orientation," says Behnke, "As age, race, and religion (among others), sexual orientation is an impermissible basis for discrimination," as set forth in Ethical Standard 3.01.

The Nebraska Catholic Conference has made multiple appeals to Nebraska's health licensing boards: The Board of Mental Health Practice (the licensing board for mental health practitioners who are not licensed as psychologists) first voted in March 2009 to accept the NCC's proposal, but in July reversed their position. The Board of Psychology (the licensing board for PhD psychologists) has repeatedly voted unanimously against the NCC's proposal.

The Nebraska Psychological Association, a nongovernmental entity representing psychologists in the state, has also voted unanimously against the proposal.

In an August 2009 letter to the Lincoln Journal Star, Dan Ullman, PhD, President of the Nebraska Psychological Association, described the NPA's Code of Ethics as "protect[ing] the rights, welfare and safety of all clients, not just those who belong to any particular personal orientation...Under the current Code of Ethics, if a mental health provider is unable to provide services, the provider must refer services in the terms of behavioral health needs of clients, not the needs or prejudices of a provider."

As he wrote in a May 13, 2009 letter to the licensure unit of the state's Department of Health and Human Services (DHHS), James R. Cunningham, Executive Director of the NCC explained, "Our concerns focus particularly, but not necessarily exclusively, on the categories of religion, sexual orientation and gender identity" and proposes revisions to the regulations governing psychology by which, "it shall not be unprofessional conduct for a psychologist to decline to provide or make a referral for services due to a religious or moral conviction" as long as he or she "identifies such services in the informed consent."

(The Nebraska DHHS is responsible for organizing licensing board meetings and a state's attorney and a DHHS staff member attend each meeting to monitor state rules governing board actions. However, all licensing regulations are determined by the boards.)

Despite the lack of support for their proposal, the NCC continues its appeal, and the Lincoln Journal Star reports that a state agency reporting directly to the governor is "forcing" boards to compromise with the NCC ("Allegation of Politics in Licensing Controversy," July 19, 2009).

"As of today, no time has been set to advance other regulation proposals critically needed by the Board of Psychologists," says Cole.