State Beat: Association and board at odds with state over anti-discrimination issue

The Nebraska Psychological Association continues its nine-year fight to uphold ethics code and pass stalled regulations.

By Hannah Calkins

After nearly a decade of conflict and deadlock between psychologists and a religious lobbying group, Nebraska may become the only state whose ethical code for psychologists excludes anti-discrimination protections for LGBTQ people, the Lincoln Journal Star reported on April 15.

Since 2009, state officials in Nebraska have blocked the approval of updated psychology regulations without the inclusion of a so-called “conscience clause” that would allow psychologists to deny professional services — including referrals — for patient problems relating to sexual orientation.

The demand for the addition of a conscience clause comes from the Nebraska Catholic Conference (NCC), an organization which appears to have significant influence with the state government, says William Spaulding, PhD, who is co-chair of state government affairs at the Nebraska Psychological Association (NPA).

“The purpose of psychology regulations, as required by the state constitution, is to protect the public — not to endorse the personal beliefs of licensed psychologists,” he says.

Prohibition of discrimination based on sexual orientation has been included in psychology licensing regulations since 1992. However, the NCC is now arguing that state licensing boards don’t have the authority to “add new protected classes” to their regulations — and Nebraska's anti-discrimination laws do not include language about sexual orientation or gender identity.

The history of the conflict

The acknowledgment of this legal strategy by the NCC marks a new development in a conflict that began nearly nine years ago. 

In the fall of 2008, the Nebraska Board of Psychology completed a comprehensive revision of licensing regulations. Some of the regulations had been updated in 2004, but others were last revised in 1992.

In early 2009, the Nebraska Department of Health and Human Services (NDHHS) informed the board that the revised regulations would not be approved because the NCC insisted on the addition of the conscience clause, Spaulding says.

Since that time, the revised regulations have been frozen. Two successive gubernatorial administrations — via NDHHS — have asked the board to accommodate the NCC and reach a “compromise.” 

But the board, Spaulding and his colleagues at NPA have vigorously opposed any kind of compromise, arguing that that the NCC’s demand is in conflict with Nebraska’s code of ethics for psychologists (PDF, 73KB) (as well as APA’s).

Last September, NDHHS abruptly — and inappropriately, according to Spaulding — terminated the revisions the board made in 2008 and submitted their own draft of regulations for the board to consider.

NDHHS’s new director, Courtney Phillips, told the Lincoln Journal Star that this “fresh” draft was intended restart the process of resolving the conflict.

But, Spaulding says, NDHHS’s draft quietly omitted the anti-discrimination language that has been included in Nebraska psychology regulations since 1992.

New attacks on anti-discrimination language

At a meeting of the Board of Psychology on March 31, Spaulding says NPA leadership called upon the board to reject NDHHS’s draft. The board passed a motion to request further explanation from Phillips regarding the termination of the revised regulations, as well as the omission of the anti-discrimination language.

According to Spaulding, the omission is in step with the NCC’s newest tactics.

He says the NCC’s targets in the conflict have shifted over the years. At first, their concern was that psychologists would be forced to provide marital therapy to same-sex couples. When NPA and the board explained that psychologists are free to decline to treat people as long as they provide an appropriate referral, NCC focused on the nature of the referral.

Recently, “their focus has shifted again to eliminating anti-discrimination language altogether, and that’s what the issue is now,” Spaulding explains.

NPA, which has been engaged in a persistent advocacy effort from the beginning of the conflict, remains committed to opposing the NCC’s agenda. That effort has recently been made public in several articles and op-eds in the Omaha World Herald and Lincoln Journal Star, and they have garnered significant support from Nebraska State Senator Adam Morfeld (D-46).

But as the conflict grinds on, Nebraska’s psychology regulations — some now 25 years old — are growing very outdated. The stalled 2008 revision included many important updates, such as: clarified distinctions between consultation and supervision; a more detailed explanation of psychological testing; new record-keeping requirements; an extension of the timeframe for completing postdoctoral requirements; and the adoption of APA’s current code of ethics.

“The NCC’s proposed change protects nobody — not the public, not our patients, and not even psychologists, who have never been disciplined for conscience-related complaints in Nebraska,” Spaulding says.

In this case, he continues, the NCC’s interventions “serve no purpose other than to assert their agenda of promoting discrimination against people of diverse sexual orientation. It is a gross politicization of health care regulation.”

The writer is the daughter of Anne Talbot, PsyD, who is president and former executive director of the Nebraska Psychological Association.