March 31, 2014

Virginia Establishes Standards for Genetic Counselor Licensing, Allows Conscience Clause Exemption

Genetic counseling services have proliferated in the age of molecular medicine, as health care practitioners increasingly make use of genetic information as a basis for determining risk, diagnosis, treatment and prognosis. The professional field of genetic counseling now encounters the trend of state licensure standards for professional practice. To date, about 15 states mandate licensing for genetic counselors. Licensing is endorsed by the National Society of Genetic Counselors, which publishes model licensing standards and practice guidelines. Virginia has now passed a genetic counselor licensing statute, defining genetic counseling: 
"Practice of genetic counseling" means (i) obtaining and evaluating individual and family medical histories to assess the risk of genetic medical conditions and diseases in a patient, his offspring, and other family members; (ii) discussing the features, history, diagnosis, environmental factors, and risk management of genetic medical conditions and diseases; (iii) ordering genetic laboratory tests and other diagnostic studies necessary for genetic assessment; (iv) integrating the results with personal and family medical history to assess and communicate risk factors for genetic medical conditions and diseases; (v) evaluating the patient's and family's responses to the medical condition or risk of recurrence and providing client-centered counseling and anticipatory guidance; (vi) identifying and utilizing community resources that provide medical, educational, financial, and psychosocial support and advocacy; and (vii) providing written documentation of medical, genetic, and counseling information for families and health care professionals.
Virginia is now the first state to incorporate a conscience clause into the licensure of genetic counselors: 
Nothing in this chapter shall be construed to require any genetic counselor to participate in counseling that conflicts with their deeply-held moral or religious beliefs, nor shall licensing of any genetic counselor be contingent upon participation in such counseling. Refusal to participate in counseling that conflicts with the counselor's deeply-held moral or religious beliefs shall not form the basis for any claim of damages or for any disciplinary or recriminatory action against the genetic counselor, provided the genetic counselor informs the patient that he will not participate in such counseling and offers to direct the patient to the online directory of licensed genetic counselors maintained by the Board. 
Conscience clauses have been added into licensing or accreditation laws since the Roe v. Wade decision in 1973. Such clauses were initially written so that health care professionals or institutions with moral or religious objections to the offering of abortion services were not compelled to do so. In the decades since Roe, conscience clauses have proliferated in both federal and state laws, largely aimed at the delivery of reproductive-related services, including abortion, contraception and sterilization (thus affecting not only direct health care professionals, but pharmacists as well).The rationale for the inclusion of the Virginia statutory provision has not been made explicit, but commentary suggests that the intent is to allow genetic counselors to refuse services to same-sex couples or unmarried persons who seek genetic counseling for reproductive purposes, or to clients who may consider abortion if genetic testing reveals serious genetic disease. It’s not clear when in the sequence of service delivery the counselor may decide to withdraw from the provision of services. The clause includes a provision that removes liability for the counselor for any consequences of denying service or withdrawing from services. What is clear, however, is that this clause would authorize the denying of particular services (the more typical conscience clause) but it would also allow denial of all services to particular individuals or groups, effectively discriminating against certain individuals who seek professional care. That possibility potentially raises the specter of an equal protection challenge as services are denied to classes of individuals based on their identity or status (similar to the recent Arizona legislation that would have allowed frank discrimination by business owners against gay people; it was vetoed by Gov. Brewer). Virginia has already opened the door to denial of professional services to classes of individuals, as it enacted a conscience clause limitation for adoption agencies in 2012 (North Dakota has also done so).Thus, claims of the exercise of religious liberty in the delivery of professional services potentially conflict with established anti-discrimination laws and guarantees of reproductive autonomy. Similar overtones of the clash between claims of religious liberty and legal guarantees of equal access have surfaced in the recent Affordable Care Act litigation over mandates for the coverage of contraception, Sebelius v. Hobby Lobby Stores, Inc. (argued last week at the Supreme Court).

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