A new headache for mental health patients

Late last month Tennessee Governor Bill Haslam signed legislation allowing counselors and therapists to use their "sincerely held personal beliefs" as a basis for rejecting patients, the first law of its kind.

Opposition to the bill before and after the Republican governor signed it was far-reaching and loud. Chris Sanders, executive director of the Tennessee Equality Project, said this law will result in discrimination of LGBT patients and may make it difficult for them to seek treatment, especially in rural areas.

The American Counseling Association -- which some say started the groundswell for this legislation as a backlash after it changed its code of ethics in 2014 to help eliminate discrimination of people in need of counseling -- announced it would not hold its 2017 conference in Nashville as previously planned.

In a statement and video, ACA CEO Richard Yep said: "Tennessee became the latest state to introduce a discriminatory religious freedom law, which targets gay, lesbian, bisexual and transgender Americans -- and then went further by expanding the allowed discriminatory practice to even more American citizens."

Yep is referring to a last-minute amendment to the law that changed the wording from religious beliefs to personal beliefs, in effect, broadening the instances in which mental health professionals may decline patients. The law does not apply in circumstances in which individuals seeking or undergoing counseling are in imminent danger of harming themselves or others.

Even devout Christians spoke out against the law. As quoted in a Christian newspaper, Chris O'Rear, president of the Tennessee Association of Pastoral Therapists, said his organization takes no official position on the law. But O'Rear he said he doesn't personally support the bill, adding that it could be particularly problematic for those living in rural areas with limited access to mental health help.

Supporters argue it protects the First Amendment rights of faith-based counselors and prevents them from having to offer counseling that they could not in good conscience provide. It also protects counselors from sanctions that could result from not following the ACA's new code of ethics.

One group that hasn't been very vocal, however, are the insurance companies. Insurers contract with mental health professionals of all types to become part of their provider networks. Insurers will need to balance the new law with state and federal rules that require them to have providers in their networks that can deliver the benefits promised under the various health plans offered through employers, privately or through the Affordable Care Act exchanges.

Whether insurers will keep counselors and therapists in their networks who decline patients based on personal beliefs is a big question.

Mary Danielson, spokeswoman for BlueCross Blue Shield of Tennessee said, "Our contracts with providers do contain nondiscriminatory language, but also direct us to follow applicable state and federal laws. So we will comply with the law as we do in all instances."

Media contacts at Cigna (CI), United Health (UNH) and Humana (HUM) -- all insurers with a presence in Tennessee -- didn't respond to emails and calls asking for comment. A spokesperson at the Centers for Medicare and Medicaid services said the agency couldn't comment on the specifics of the Tennessee law. (Tennessee's health care exchange is run by the federal government.)

Some experts are betting the law is more about politics than practicalities. "What we hope will happen is that not many licensed counselors will subscribe to this point of view," said Sita Diehl, director of state policy for the National Alliance on Mental Illness. "They know insurers may not want to have them in their networks if they aren't going to treat all patients."

But even if insurers decide to pick and choose among providers, they may still have trouble in rural areas where mental health professionals can be scarce and are often conservative. A key provision of the law, and one of the reasons Gov. Haslam said he decided to sign it, requires that a counselor or therapist who feels he cannot serve a client must coordinate a referral to another counselor or therapist who will.

Sanders of the Tennessee Equality Project, worries that in certain parts of the state no appropriate counselors or therapists will be available for referral. Even before the law, said Sanders, some LGBT patients in these areas felt intimidated.

He tells of one woman who sought counseling after a devastating breakup with her partner. The woman, fearful she wouldn't be accepted by the counselor and worried that no one else was available, avoided using first names and feminine pronouns throughout her sessions so as not to give away the fact that she's a lesbian.

On the question of access, Blue Cross BlueShield's Danielson said, "From what we can discern, there isn't an apparent impact on access issues for our members," from the new law. "We have experienced past instances where patients and providers fail to establish a professional rapport. And in those cases, we've always helped the member find another provider (medical or behavioral) to meet their health care needs."

How insurers will react to the law may become clearer in coming weeks and months as they continue to prepare for the 2017 open-enrollment season. "Until then," said Sanders, "we'll just have to wonder why an insurer would pay a counselor that won't work with an entire class of people."