Nevada Legislation – #ACHE

Dear Friends

Love Hypnosis Nevada LogoThis year, some hypnotherapists working in Nevada received “cease and desist” letters from the Nevada Board of Psychological Examiners (NBPE), requiring them to stop their hypnotherapy practice immediately, or to face penalties. Some of these hypnotherapists were ACHE members, many of them had been working as hypnotherapists for many years, with good reputations and very satisfied clients.

There had been no recent publicity about hypnotherapy, no relevant new laws passed, and no warning that reputable citizens were suddenly to be required to stop helping their clients, and making their living. The shock and distress caused by these letters, as you can imagine, was very great. Therapists cancelled client sessions, trainers cancelled classes.

Efforts obviously began, to communicate with the NBPE, and discover how this situation had come about and what could be done to reverse it. What has emerged is that by a long series of legislative and legal twists and turns, the NBPE was advised by the Nevadan Deputy Attorney General that it was their legal obligation to issue these letters, as they had in the years leading up to this acquired enforcement powers over what is considered to be the practice of psychology.

The story starts in 1995, when “hypnosis” and “biofeedback” were added to the list of items that a licensed psychologist could practice in Nevada. This did not receive much publicity at the time, as these additions were treated as minor matters among other amendments that were then being made to the Statutes governing the licensed practice of psychology in Nevada. Few people within hypnotherapy realised that measures were being proposed that could affect their work, however at the public hearing where the amendments were debated certain assurances were given to the anxious hypnotherapists who had found out about the meeting and managed to attend.

Here are some extracts from the minutes of this meeting – these are public documents but are not online, as far as I am aware, as they date from so long ago.

“Chairman Spitler indicated Ms. Miller had brought up a good point in regard to noticing and said all bills were publicly noticed meetings with five day lead times. It was difficult to inform all those impacted by legislation and he was glad she had the opportunity to testify. …

Ms. Manes indicated the bill said “an act relating to psychologists”, and, in fact, it related far more to other professions in an indirect way. People may not have been aware of it…

Mr. Flip Priszner, from the Habit Control Institute in Reno, Nevada, had practiced for 17 years and expressed the same concerns as the others in opposition to the bill. He concurred with the line 18 and line 29 proposed amendments. In lines 7 and 8, for example, hypnotherapy dealt with motivation and people’s desire to make changes in their lives. The bill conceived to limit motivation or the utilization of training for motivational purposes. He respectfully submitted the word “motivation” be excluded in lines 8 and 9. Chairman Spitler indicated it was an existing law and asked him if it had put him out of business? Mr. Priszner answered, no it had not. In that event he concurred with the esteemed counsel.”

The Chairman’s comment that “it was an existing law” might seem confusing, given that the addition of hypnosis and biofeedback to the list of items in psychological practice had not, in fact, been existing law. But this section of the proposed amendments was reassuringly introduced as follows

“SECTION 7   DEFINITION OF PSYCHOLOGY

This is a revamp of the definition of psychology. Although the scope of practice remains the same, the expanded definition clarifies what was expressly covered. Given the expansion of work in this field (Marriage and Family Therapists, professional counsellors, motivation speakers etc.), it is especially critical for the Board and the public understand the scope of Psychology. This definition is based on the Model Act f or Licensure of Psychologists but modified by LCB to fit our statute.”

The critical question here is one of overlap. Prior to the updates of 1995, the previous statutes had described psychological practice as follows

ê1985 Statutes of Nevada, Page 1906 (Chapter 610, SB 163)ê

  6.       Sec.“Practice of psychology” means the application of established principles and methods to understand, predict and influence human behavior including, but not limited to:

Principles of learning, perception and motivation.        1.

Methods of interviewing, counseling, psychotherapy and modification of behavior.        2.

Procedures for the construction, administration and interpretation of tests of mental ability, aptitude, attitude, personality and motivation.        3.

The diagnosis, treatment, amelioration and prevention of emotional and mental disorders.        4.

Clearly, many of these items, such as interviewing and counseling, are practiced in other settings than psychology, and so there needs to be more than just listing an item to establish that it cannot be practiced other than by a licensed psychologist. Prior to 1995, there was no restriction on hypnotherapists practicing in Nevada and as indicated by those attending the meeting, hypnotherapists had practiced legally in the state for many decades.   Few licensed psychologists, if any, in Nevada either offered hypnotherapy to their clients or had any training in hypnosis. If, as stated, “the scope of practice remains the same”, then these amendments did not provide a basis for assuming that only a licensed psychologist could practice hypnotherapy in Nevada.

And indeed, this seemed to be generally accepted and understood, as since 1995, there had been no attempt to restrict hypnotherapists from practicing, until now, 19 years later. So what happened? Well, it seems that in 2005, a schoolboy in a Nevada school pushed another schoolboy into a teacher. What happened next was disputed in a series of court actions which eventually reached the Nevada Supreme Court in 2009. The Court issued its judgment on the disputed items, one of which was a claim for fees paid by the boy’s parents to a biofeedback practitioner to treat him for the distress caused to him by the incident. The practitioner was a licensed Drug and Alcohol counsellor in the state of Nevada, but the Court took the view that the inclusion of biofeedback in the statutory definition of psychology, but not in the definition of Drug and Alcohol counselling, indicated that he had been practising psychology without a license, and his fees were not claimable in the court. [The text of this part of the judgment, and also a link to the full judgment, are available at the end of this letter.]

In the five years since this judgment was issued, the NBPE has acquired greater enforcement powers, and was advised in the beginning of this year by the Nevadan Deputy Attorney General, who works with them on legislative issues, that they were obligated to send “cease and desist” letters not only to non-licensed hypnotherapists and biofeedback practitioners in the state, but also to members of the other licensed professions, such as medicine, dentistry, chiropractors, osteopaths, marital and family therapists etc, warning them that if they offered hypnotherapy or biofeedback to their clients, they should cease to do so.

Since very few psychology trainings include any teaching of the practice of hypnosis or biofeedback in their curriculum, and very few psychologists offer either service, enforcing this ruling would mean that hardly anybody in Nevada could access either hypnosis or biofeedback if they wanted these services.

Responses

Currently, the Nevada Attorney General is considering the situation and will be giving her opinion in due course.   The principal question would be whether the Nevada Supreme Court’s judgment leaves any possibility for interpreting the current statutes in a way that allows non-psychologists to practice hypnosis and biofeedback in the state. It may be that new legislation will be required in order to adjust the situation. This might be in the form of a “freedom to practice” bill allowing non-licensed practitioners to work legally, provided they do not claim to be providing licensed services. Similar legislation has been enacted in other states, for instance, in California.

There has been a vigorous response to the situation, and work is still continuing on this. There was a meeting of the NBPE at the beginning of August, which was attended by representatives from hypnotherapy and biofeedback. Rev. Bud James, an ACHE-certified hypnotherapist who received a “cease and desist” letter, attended this meeting and reported to us that the discussion had been amicable and productive.

Our aims are to obtain a withdrawal of the “cease and desist” letters until either an opinion is obtained from the Attorney General which allows legal practice of hypnotherapy in the state, or new legislation is enacted. We are collaborating with others of common interest and have been in contact with Local Union 472 and with other bodies campaigning for freedom to practice. In particular, Local Union 472 has engaged the services of an attorney who specialises in practice law in Nevada, and his opinions and advice have been available to us, together with other legal input, in directing our campaigning efforts. It is very encouraging to find such a cooperative spirit among the great majority of the individuals and organisations involved. This has brought strength to our campaign for public and professional support and we believe that this will be of great value in achieving the goal of freedom to practice. ACHE, through the efforts of Gil Boyne, other activists from ACHE and input from hypnotherapists of other organisations has a long tradition of genuine success in helping to defeat unfair, restrictive legislation against hypnotherapists (as well as hypnotists or other names they practice under).

I have initiated a petition site to gather support for the campaign and to bring to the attention of the Attorney General and to the legislature that this is an issue that affects the citizens of Nevada, and to make their voices heard. If you have a Nevadan zip code, please sign the petition. If you know someone who has a Nevadan zip code, please ask them to sign it. If you can tweet, facebook, email or otherwise share the link, please pass it on. The link is

http://lovehypnosisnevada.wordpress.com/

This situation has brought into focus a debate which has been ongoing for some time, and which is about the boundaries of citizens’ rights and freedoms on the one hand, and safety on the other. For clarity, I set out below the position which has always been held by the ACHE, and has been the basis for the many campaigns on this topic which were fought by Gil Boyne in past decades, and are still continuing today. Gil was always emphatic that hypnotherapists were not providers of medical, but of human, services. He chose to call his graduates “people-helpers”, and always said that there could be no more desirable title, in his opinion.

What we are asking

We ask the Attorney General and the legislature to make clear that Nevadans are free to make a choice to seek hypnotherapy if they wish.

The word “therapy” comes from a Greek word with two broad levels of meaning. One is to heal and cure; the other is to “minister”. Ministering in this sense is care and attention given by one person to another in such a way that the person ministered to experiences a benefit through the ministering exchange. It is based in fundamental principles of human nature, and ministering skills have been developed by people in communities throughout human history. Ministering therapies work within the range of human life skills, personal development and personal belief systems chosen by individuals for themselves. They are not concerned with specialized medical treatments or specialized methods particular to academically and clinically trained licensed psychologists, therefore they do not require restrictive regulation and licensing. There are many thousands of hypnotherapists in the USA, providing accessible and affordable therapy to many more thousands of clients. There has been no proven risk to public health and safety and there are many, many satisfied clients.

We ask for recognition that hypnotherapy is a valid therapeutic method, which as a ministering therapy does not and should not require the same degree of licensing and regulation as the licensed professions. Some colleagues working in the field of applied hypnosis or hypnotherapy have attempted to preserve their right to work by claiming that what they do is not “therapy”.   However, it is certainly the case that hypnotherapists provide a ministering service to their clients. We ask that the law allows this, and does not force hypnotherapists to tie themselves in knots, claiming that they do not provide therapy, because they do not provide healing and curing through methods requiring licensing.

We will keep you updated on the situation, which is important to all hypnotherapists as restrictions in one state can be used as a basis for advocating restriction in others. We hope to bring you good news, for Nevadans and enthusiasts for hypnotherapy everywhere.

With my best wishes to you all

Dr. John Butler
President
ACHE

Appendix – the Nevada Supreme Court Ruling

Addressing Webb’s argument that the status of Hopper’s license is inapplicable because “Dr. Hopper is a licensed drug and alcohol counselor,” we conclude that Hopper’s license for drug and alcohol counseling is not determinative as to whether the psychological services he rendered should be recoverable as a matter of law. Although Webb is correct in arguing that NRS Chapter 641, which governs psychologists, is inapplicable to drug and alcohol abuse counselors, see NRS 641.029(7), NRS 641.029′s limitation does not permit drug and alcohol abuse counselors to practice psychology without a psychology license.

NRS 641C.065 defines what constitutes the “[c]linical practice of counseling alcohol and drug abusers” and expressly states that the term does not include “[t]he diagnosis or treatment of a psychotic disorder; or … [t]he use of a psychological or psychometric assessment test to determine intelligence, personality, aptitude and interests.” NRS 641C.065(2)(a)-(b). Nothing in NRS Chapter 641C permits a drug and alcohol abuse counselor to engage in psychological *1247 treatment, hold himself or herself out as a psychologist, or accept remuneration for unlicensed psychological services rendered. NRS 641.390(1)-(2). If an unlicensed person practices psychology or represents that he or she is a licensed psychologist, or uses any title or description that implies that he or she is a psychologist, he or she is guilty of a gross misdemeanor. NRS 641.440(4)-(5). Based on the plain reading of these statutes, we reject Webb’s argument.[3]

http://law.justia.com/cases/nevada/supreme-court/2009/51170-2.html

Nevada Legislation

#ACHE

 

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