Nebraska gender care law causes confusion among mental health providers

Editor’s note: This article has been updated to include additional context from the Nebraska Department of Health and Human Services.

LINCOLN — Nebraska’s new gender care restrictions are causing confusion among mental health providers as the law first affects therapy sessions.

The state law took effect Oct. 1 prohibiting transition surgeries and requiring state regulation of puberty blockers and cross-sex hormones prescribed before the age of 19. However, the law is having a chilling effect on therapy sessions before any medications are dispensed.

Camie Nitzel, a licensed psychologist and founder of Kindred Psychology in Lincoln, wrote a Nov. 1 letter to Dr. Timothy Tesmer, the state’s chief medical officer, saying that the temporary rules currently in place force providers to violate state law regarding unprofessional conduct by psychologists.

Nitzel, who has a Ph.D. in counseling psychology, told the Nebraska Examiner the regulations could run counter to a professional view that therapy be fluid, flexible and client-centered, three traits that are the “hallmark” of a good psychologist. 

“The language as it currently stands leaves mental health providers in a personal and professional quandary for how to practice both legally and ethically in the State of Nebraska,” Nitzel wrote Tesmer, who created the regulations.

Unprofessional conduct by psychologists is defined as behavior that deviates from accepted standards in the profession and could jeopardize the health, safety and welfare of patients.

‘Gender-identity-focused’ therapy

Tesmer and Gov. Jim Pillen approved 90-day temporary regulations Oct. 1 mandating that prior to any medications being prescribed, patients must have at least 40 hours of “gender-identity-focused” therapy.

That therapy is required to be “clinically neutral and not in a gender-affirming or conversion context.” The temporary regulations will expire Dec. 30 but can be extended once more for another 90 days.

Final proposed regulations, released Oct. 17, would instead require the therapy to:

• “Be clinically objective and non-biased.”
• “Assess factors contributing to the patient’s presenting emotions, actions and beliefs.”
• “Not merely affirm the patient’s beliefs.”

State Sen. Ben Hansen of Blair, a chiropractor and chair of the Health and Human Services Committee, authored the final amendment to the eventual law that included the “gender-identity-focused” requirement. He did not respond to multiple requests for comment about providers’ concerns or the legislative intent of “gender-identity-focused” therapy.

DHHS, in response to questions from the Examiner, said in a Tuesday statement that “gender-identity-focused” therapeutic hours are where the primary focus is assessing, diagnosing or treating a patient’s gender dysphoria or gender-nonconformity-related concerns.

Therapists must evaluate, address, and treat possible co-occurring conditions, such as anxiety or depression, that could be impacting a child’s gender identity, the department said. This could count as part of the 40 hours, DHHS said, but the “expectation” is that the primary emphasis of those sessions remains related to a patient’s gender identity.

“In most therapy, it is nearly impossible to entirely separate out a specific symptom or illness from the rest of the concerns that are presented to the clinician in therapy,” the statement reads.

Therapists would need to decide “based upon their expertise and actual experience with the youth” during therapy whether session time is “reasonably related” to a patient’s gender identity.

DHHS seeks public input

The proposed permanent regulations will be the subject of a 12-hour public hearing Nov. 28 in Lincoln. Tesmer will later forward permanent regulations to Nebraska Attorney General Mike Hilgers and Pillen for approval. More information on the hearing is available here.

Written comments on the gender care regulations must be received no later than the end of day Nov. 28 and can be emailed to [email protected], faxed to DHHS Legal Services at 402-742-2382 or mailed to DHHS Legal Services.

DHHS anticipates completing the review process before the second 90-day period runs out at the end of March. It’s unknown what effects a lapse in regulations could cause on the continuation of patient care.

‘Whole picture of the child’

Dr. Joan Daughton, a child and adolescent psychiatrist in Omaha, echoed Nitzel’s concerns, saying that the therapy guidelines seem “very arbitrary” and that no professional literature discusses a requirement for a certain number of therapeutic hours. 

DHHS says the 40-hour requirement provides “sufficient” time to develop a thorough understanding of a patient’s needs. This includes assessing co-occurring mental health conditions and whether the patient understands the long-term effects of the medications.

Daughton said the temporary regulations contain redundancies because the standard professional approach already is to be neutral and supportive of where a child and family are at.

With the regulations, the patient-therapist relationship could change, Daughton said, to be focused on an end goal of medications rather than exploring a patient’s needs and safety at each session. By contrast, she said, psychiatrists are under no similar restrictions prior to making a decision about whether to prescribe antidepressants.

“You’re changing goals and focus areas throughout the whole time and, honestly, gender identity shouldn’t be the focus all the time,” Daughton said. “You should be looking at the whole picture of the child.”

Nitzel said the regulations further reduce transgender people to their gender identity and push them to seek care outside Nebraska.

“I think to legislators that likely sounds like an overreaction that some language in a bill is going to make you think you need to leave the country,” Nitzel said. “But that’s the reality of living as a trans person — always having to be thinking five steps ahead to make sure you’re safe.”

Requirements ‘just not possible’

The regulations prohibit youths from banking more than two hours of therapy in a given week, excluding an initial assessment, pushing therapy to at least 20 weeks, or five months.

Before the law took effect in October, therapy was not required for every patient seeking puberty blockers or cross-sex hormones, Daughton said. Some patients could be approved for such medications after a few sessions.

Daughton said she usually tells patients that if there isn’t a lot of progress after about three months or 12 sessions, it might not be a right fit or something else could be in the way. This also brings practical concerns.

For example, a child might be seeking gender-identity-focused therapy but also struggling with anxiety in a math class, Daughton said. How could a therapist respond to those concerns?

“I’m sorry, we can’t talk about your anxiety, we can only talk about your gender,” Daughton said as a hypothetical.

Nitzel pointed out that providers are human, and the line between determining what is “affirming” is unclear, including with the use of a child’s chosen name and pronouns, the physical decorations in a therapist’s office or a provider’s body language during a session.

“If you take out someone’s tonsils and adenoids, it’s a pretty neutral act,” Nitzel said of Tesmer, an ear, nose and throat doctor. “But therapy is not. I think what we are being asked to do is just not possible.”

Exacerbated health care shortages

Requiring more therapy for one population — in this case, transgender and gender diverse youths — could also reduce mental health services generally, particularly in rural areas, Daughton cautioned.

“The state needs to understand, anybody interacting with these children has their best interest at heart,” she said.

State Sens. John Fredrickson and Mike McDonnell, both of Omaha, are looking into this shortage of health care professionals beyond the context of the gender care law.

Nitzel and Daughton said providers have also become less available due to public backlash and personal threats. Nitzel said some providers are referring patients to Kindred Psychology instead.

“That is a really important demarcation to recognize that providers are now saying, ‘Oh, putting my name on something for a trans person is too dangerous. So I won’t do it,’” Nitzel said.

This echoes previous calls by State Sen. Megan Hunt of Omaha that some patients had been denied prescription medications even though the patients had been “grandfathered in” before the law took effect. The proposed permanent regulations include a detailed list of requirements for pharmacists that were absent in the temporary requirements.

First steps need to be right

Nitzel said hypervigilance among providers continues but said that takes away time they can use to support themselves, whittle down waiting lists and directly take care of patients. 

“While there’s hopefulness — because it’s the nature of who we are — there’s an underlying fatigue that doesn’t serve any of us well,” Nitzel said.

Daughton said she is happy there is not a blanket ban on gender-related treatment for youths and that the regulations keep the conversation moving. However, improving therapy is critical to all other care, she added.

“Getting this part right means that outcomes down the road for these children, their families, our state, will be affected by how we decide these first steps are going to be mandated,” Daughton said.