Counseling board floats opt-out rule

Lawmakers hold off to study plan

Lawmakers on Tuesday delayed acting on a proposed change to state ethics rules for counselors that would allow counselors to refer away a client to whom they have religious objections.




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The Joint Budget Committee's Administrative Rule and Regulation Review Subcommittee was reviewing a change to ethics regulations proposed by the Board of Examiners in Counseling. The change would add a "conscience clause" and procedure for counselors who have personal objections to those seeking therapy.

The board's head, Michael Loos, told lawmakers that the board was trying to be "proactive" in amending the state's rules for counselors. The board is trying to avoid a "significant controversy" he described as happening next door in Tennessee.

Tennessee lawmakers passed House Bill 1840, which waived counselors from following a nationwide industry ethical standard. The Tennessee bill would protect counselors from any criminal or civil repercussions for refusing to provide service if it conflicted "with a sincerely held religious belief." That bill is on the governor's desk awaiting action.

Loos said the bill in Tennessee -- which is opposed by gay-rights activists and the American Counseling Association -- has created havoc like other legislation recently passed in North Carolina and Mississippi.

The situation in those states "is really heinous. Businesses pulling out of the state, entertainers refusing to go to the state because of their anti-gay, lesbian and transgender policies and laws," Loos said. "I don't think Arkansas wants to join in that melee right now."

"I'd stick to the rule if I were you," the committee chairman, Rep. Andy Davis, R-Little Rock, said, urging Loos to focus on the proposal. "Let's not pontificate on this."

Loos said the proposal would require a counselor to seek counseling if he has a personal bias or objection, prior to refusing service and referring away a client. He said it would also prohibit counselors from refusing service when there is no alternative counselor for a potential client.

When asked why lawmakers delayed consideration of the rule, both Davis and the legislator who asked for the delay, Rep. Jon Eubanks, R-Paris, said they weren't familiar with the issue and wanted to examine it.

Licensed counselors in the state follow rules consistent with the Code of Ethics set by the American Counseling Association, which prohibits counselors from referring away clients "based solely" on a counselor's "personally held values, attitudes, beliefs, and behaviors."

The national standard also says counselors should seek "training" when a counselor's "values are inconsistent with the client's goals or are discriminatory in nature."

By requiring counselors averse to taking on a particular client to talk to fellow counselors about their objection, Loos said it creates a "check and balance" for practicing counselors, one that doesn't run over their "personal" values but also respects those of a client.

"We're not advocating for either position. We're not supporting what Tennessee has done, to alter mental health practices ... by saying it's OK to deny services based on your beliefs," Loos said. "On the same token, we don't want to disregard the needs of practitioners who really do have core values or beliefs that would interfere with an effective therapeutic relationship. We had to find language in this conscience clause that accommodates all of the above without offending any of the above."

The director of the governmental affairs for the American Counseling Association, Art Terrazas, said Tuesday via telephone that his group's national ethics standards already spell out a process for when counselors should refer clients.

"We're perplexed and concerned [by the Arkansas proposal] and are going to want to review it," Terrazas said.

Terrazas' group has openly advocated against bills like the one in Tennessee because it could have a "deleterious effect on countless people who seek mental and physical health services." He said counselors are compelled to "put aside" their own values for a client's needs.

"It's such a broad swath it can cover," Terrazas said of the Tennessee bill. "If you believe that African-American people shouldn't get counseling, or hold a certain position in society, you can [refuse counseling]. If you don't like women or you don't like men for that matter, those are personally held beliefs."

Added Terrazas: "It sets a dangerous precedent."

The legislation in Tennessee was backed by that state's chapter of the American Family Council.

The head of Arkansas' chapter, Jerry Cox, said he hadn't had any discussions with lawmakers about any similar legislation, but said the issue over the divide between a person's "beliefs" and their "duties" is not new terrain in Arkansas.

At the end of the 2015 legislative session, Gov. Asa Hutchinson signed the Religious Freedom Restoration Act into law, which gave people an affirmative defense against government action that unduly burdens their right to religious exercise.

Proponents of the law said it was necessary to protect individual liberty, while some opponents said the law was discriminatory, particularly against the gay community.

Cox said the regulation proposed by Loos is "in line with the spirit" of the state's religious freedom law.

"It would not guarantee the counselor would win [a legal] case but it would provide them a tool, as it were, to defend their right of conscience," Cox said. "What we have to do is find some kind of middle ground so we don't trample on a people's right of conscience but we still have a functioning society."

Metro on 04/27/2016

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