The nine-year dispute over updating the state psychology regulations has jumped into the realm of the state Legislature.
Sen. Patty Pansing Brooks introduced a bill Monday that would put into law that psychologists would be required to conform to the code of conduct of the profession and not discriminate against a client or patient on the basis of age, gender, gender identity, race, ethnicity, culture, national origin, religion, sexual orientation, disability or socioeconomic status.
With the bill, the Department of Health and Human Services could not adopt any rules and regulations or implement or enforce any policies, practices or protocols that contradict or violate the code of conduct.
In Nebraska, the administrations of two governors, Dave Heineman and Pete Ricketts, have refused to approve licensing rules for psychologists and other counselors that include discrimination protection for sexual orientation and gender identity.
The dispute over the regulations has gone on since 2008, when the state Board of Psychology revised its regulations and the state Department of Health and Human Services sent the revisions to the Nebraska Catholic Conference for its review.
Will Spaulding, a psychology professor and member of the Nebraska Psychological Association, said the Catholic conference after its review insisted the regulations include a conscience clause that would allow licensed psychologists to deny services or even an appropriate referral for patients with problems related to sexual orientation.
Spaulding said that clause would violate the American Psychological Association ethics code already in Nebraska regulations.
Discussions and attempts at compromise over the ensuing years were unsuccessful. In September 2016, the HHS terminated the revised regulations, with CEO Courtney Phillips saying it was because of the failure of stakeholders to reach agreement on controversial issues.
In February 2017, Spaulding said a draft of the regulations was sent to the Board of Psychology with anti-discrimination language removed. He said the draft was "deceptively" marked to conceal the omission, and that Phillips said the draft was intended to restart trying to resolve previous disputes.
Pansing Brooks said if psychologists have such fervently held, particularly tender beliefs that they couldn't possibly refer a person to another psychologist, maybe they should not be practicing in that area.
"Denial is just a further stigma, further rejection and further action by the state to deny the humanity of a person, and the needs of a person," she said.
She is looking at whether the conscience clause and denial of referrals, per the Catholic conference, would violate the first amendment or state law, Pansing Brooks said.
Without bringing the dispute to a head, it's possible nothing will happen, she said.
"We have to force public discussion of this," she said.
HHS spokesman Matt Litt said the agency is reviewing the bill. "We are committed to a new regulation through the board process."
On the issue of the conscience clause, Nebraska Catholic Conference executive director Tom Venzor said faith-based counselors would serve anybody with mental illness or psychological disorders regardless of gender identity or sexual orientation. But some would choose not to do marriage counseling for same-sex couples or counseling for someone seeking help in transitioning from one gender to another, for example.
The conference has also argued for a conscience clause that gives the ability to make general referrals. A faith-based psychologist would have a problem referring a client to a specific psychologist for an issue they find morally objectionable, Venzor said.
"If you're forcing that, that becomes a problem of conscience and religious liberty for that provider because you're directing them to refer for the very thing that they won't service," he said.
In other states, Spaulding said, sexual orientation is included either directly in state licensing rules for psychologists or by reference to a national association’s ethics rules.
David Carver, a psychologist who previously served on the state Board of Psychology, has said one role of the rules is to protect the vulnerable public, not harm a segment of that population.
Alex Siegel, director of professional affairs at the Association of State and Provincial Psychology Boards, told the Journal Star in April that 33 states put the American Psychological Association ethics code in their rules, which identifies sexual orientation and gender identity as specific classes protected from discrimination. And it appears there are no other states that don't include similar language in their regulations.
Spaulding said the licensing board is moving ahead with developing a new set of regulations, which have to be renewed every six to eight years, to update issues including clinical experience and electronic records that were in the version from 2008 that was never approved.