Two Attacks on Exemption Die in Committee

In Oregon’s 2017 legislative session, there were two attacks on exempt practitioners. Both were killed in committee.

  • House Bill 2361 died in the House Committee on Health Care. This was the bill that the Licensure Exemption Workgroup wasted so much time on, as discussed in earlier posts.
  • In the Senate Committee on Health Care, Senator Steiner Hayward tried to attach an amendment to House Bill 2303 to require, apparently, anyone with a pulse to register with the Oregon Health Authority as an “alternative behavioral health practitioner.” The committee passed the original bill without the amendment.

HB 2361: A Failed Attempt to Eliminate the Counseling Exemption

The first bill, HB 2361, was just another Psychology Board overreach. This time, they thought they were being sneaky by recruiting a couple of other boards to act as their puppets. The idea was that three boards with zero credibility would carry three times as much weight with the legislature as just one board. And they do! Three times zero equals zero.

All this was just the usual nonsense: the boards live in a bubble where they take for granted everything that other people consider absurd, and vice versa. They have no ability to take the other person’s point of view or find common ground, so their ability to compromise, or even to explain their own position, is impaired.

The House Committee on Health Care did the boards the kindness of allowing the bill to die, rather than killing it outright. What’s the difference? There’s a deadline in the legislative calendar. Any bill that hasn’t been approved by its committee by the deadline simply dies a silent death.

HB 2303: Register Everyone With a Pulse

Senator Steiner Hayward’s proposed amendment to HB 2303 was different. She wanted to force every “alternative behavioral health provider” to register with the Oregon Health Authority. The OHA, in its lofty wisdom, would go through the applications and reject the ones they didn’t like. This would put the rejected applicants out of business.

In the real world, taking someone’s livelihood away requires an injunction, and the defendant has the usual rights we learned about in high school civics class: innocent until proven guilty, right to a public trial with an impartial jury, etc.

With this amendment, all that is swept away, and people’s livelihood would be taken away by a bureaucratic action. Guilty until proven innocent, no public trial, no jury, no nothing.

This bill defined anyone performing hypnotherapy, life coaching, parent coaching, etc. as “alternative behavioral health providers.” There was no pastoral exemption, so anyone providing church-based services would have to register. No tribal exemption, either.

And it gets worse, which I’ll talk about in the next section.

For reasons I do not understand (and which she did not articulate) Senator Steiner Hayward felt this was a good thing for exempt practitioners.

At the public hearing, in spite of having less than 24 hours warning about this amendment (which was attached as a sort of poison pill to a bill about something else), a lot of us showed up and testified. We did a good job! Different people addressed the issues from different angles. It was very compelling.

And even more of us showed up for the working session that happened a few days later. There, we were informed by the chair of the Senate Committee on Health Care that the amendment was not even going to be voted on, and the bill would pass out of the committee in its original form.

What if the Bills Had Passed?

Both attempts to remove the exemption were so ill-considered that they were unlikely to hold up in Federal court. Federal anti-trust law has strict guidelines when it comes to taking people’s livelihood away, especially when the people doing the taking are industry insiders who stand to profit from eliminating their own competition. (See my discussion here.)

In addition, the measures are playing with fire because of the sloppy way that terms like “counseling” are defined in Oregon law. The definition of “counseling” is incredibly broad, meaning, in essence, “any kind of emotional support or problem-solving whatever.” And “life coaching” is even broader, meaning, in essence, “coaching or counseling or brainstorming—or whatever—for your personal goals or business goals or relationship goals or whatever.” And so on for the other categories.

Because of this, both measures would have made it illegal for one human being to give helpful advice to another human being, unless they had been anointed in advance by the state. (Ditto for unhelpful advice, I suppose.)

Now, in practice, I don’t think the OHA would have swooped in and prosecuted everyone. No, they’d swoop in and prosecute people they disapprove of. It’s a recipe for the capricious and arbitrary abuse of power.

Feel the Power!

But there was little likelihood that either measure would pass. Not just because the measures were ill-conceived, but because the alternative practitioners have more political clout than their licensed competition. And we demonstrated this. Several people who work in the Capitol told us that our instantaneous, sizable, articulate, and surprisingly polite response to Senator Steiner Hayward’s amendment was impressive! Instead of the usual cut-and-paste form-letter responses, everyone sent in their own, from their own point of view.

In addition, HB 2361 had plenty of organized opposition from the licensees themselves. COPACT, the lobbying arm of the Oregon Counseling Association and the Oregon Association of Marriage and Family Therapy, is in favor of the exemption. They also want to see more due process: their licensees get whipsawed by this whole “no jury, no public trial, no due process” nonsense far more than we exempt practitioners do.

Personally, I’ve found Oregon’s state legislators (and their staffers) to be easy to work with: bright, polite, and genuinely interested in finding a good outcome for constituents. Also,they’re skilled at conversing with constituents who are too upset to put their best foot forward!

You’d think that licensed therapists would have these same skills, allowing them to use their Super Therapist Powers(TM) to wrap legislators around their little fingers. Yet the opposite is true. I don’t know why that is.

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