Respond to the following in a minimum of 175 words:
Review this week’s course materials and learning activities, and reflect on your learning so far this week. Respond to one or more of the following prompts in one to two paragraphs:
- Provide citation and reference to the material(s) you discuss. Describe what you found interesting regarding this topic, and why.
- Describe how you will apply that learning in your daily life, including your work life.
- Describe what may be unclear to you, and what you would like to learn.
Case Study Seven Worksheet
Respond to the following questions in 1,250 to 1,500 words.
1. Why is this an ethical dilemma? Which APA Ethical Principles help frame the nature of the dilemma?
2. To what extent, if any, should Dr. Vaji consider Leo’s ethnicity in his deliberations? Would the dilemma be addressed differently if Leo self-identified as non-Hispanic White, Hispanic, on non-Hispanic Black?
3. How are APA Ethical Standards 1.08, 3.04, 3.05, 3.09, 7.04, 7.05, and 17.05 relevant to this case? Which other standards might apply?
4. What are Dr. Vaji’s ethical alternatives for resolving this dilemma? Which alternative best reflects the Ethics Code aspirational principle and enforceable standard, as well as legal standards and obligations to stakeholders?
5. What steps should Dr. Vaji take to ethically implement his decision and monitor its effects?
C. B. (2013). Decoding the ethics code: A practical guide for psychologists. Thousand Oaks, CA: Sage.
PART3-Develop an 2-slide Microsoft® PowerPoint® presentation with detailed speaker notes on the selection process of a culture-neutral assessment. Include examples of when culture-biased assessments have been problematic.
Use a minimum of 2 peer reviewed (scholarly journal articles) sources.
(I WILL ADD MORE DETAILS FOR PART 3 BY TUESDAY)
Chapter 12 Standards on Assessment 9. Assessment
9.01 Bases for Assessments
Psychological assessment serves the public good by providing information to guide decisions affecting the well-being of individuals, families, groups, organizations, and institutions. Psychologists who base their conclusions about information and techniques on the scientific and professional knowledge of the discipline are uniquely qualified to interpret the results of psychological assessments in ways that merit the public trust. However, the public and the profession are harmed when psychologists provide opinions unsubstantiated by information obtained or drawn from data gathered through improper assessment techniques (Principle A: Beneficence and Nonmaleficence; Principle B: Fidelity and Responsibility). Standard 9.01a of the APA Ethics Code (APA, 2010b) prohibits psychologists from providing written or oral opinions that cannot be sufficiently substantiated by the information obtained or the techniques employed.
The standard is broadly worded to apply to all written and oral professional opinions, irrespective of information recipient, setting, or type of assessment.
The standard prohibits unfounded professional opinions offered to, among others, (a) individual clients/patients or their representatives; (b) other professionals; (c) third-party payors; (d) administrative and professional staff at schools, hospitals, and other institutions; (e) businesses, agencies, and other organizations; (f) the courts; (g) the military or other governing legal authorities; and (h) callers to talk radio programs or those interacting with psychologists via the Internet or through other media.
Need to Know: Assessment in Child Protection Matters
Forensic examiners retained in response to an accusation of child abuse and neglect need to obtain competencies relevant to the intersecting interests of the child, the parents, and the state, including laws on parental termination and the role of kinship and policies favoring child placement with extended family members in favor of foster care (Standard 2.01f, Competence; APA, 2013b). The primary purpose of the assessment is to help government agencies and courts determine whether a child’s health and welfare may have been and/or may be harmed. Consequently, in addition to the broader parent–child “fit” considerations typical of custody evaluations, psychologists need to select assessment techniques sufficient to address the particular vulnerabilities and risks of maltreatment associated with specific child characteristics (e.g., children with developmental disabilities or other medical needs) and the need for and likelihood of success of clinical interventions for problems associated with abuse, maltreatment, or neglect. This may include familiarity with techniques for assessing the role of specific cultural patterns of parenting, impact of familial separation, and foster and kinship-based alternative care. In interpreting results, psychologists must also refrain from assuming a child advocacy role and gather information impartially based on reliable methods established in the field (Standard 2.04, Bases for Scientific and Professional Judgments).
Standard 9.01a applies to (a) diagnostic opinions offered orally in the office of a private practitioner; (b) written reports provided to clients/patients, other practitioners, or third-party payors through the mail, the Internet, or other forms of electronic transmission; (c) testimony provided in the courts; and (d) opinions about an individual’s mental health offered over the Internet, radio, television, or other electronic media.
Types of Assessment
The standard pertains to all unfounded opinions claiming to be based on any form of evaluation, including but not limited to (a) standardized psychological, educational, or neuropsychological tests; (b) diagnostic information gained through clinical interviews; (c) collateral data obtained through discussions with family members, teachers, employee supervisors, or other informants; (d) observational techniques; or (e) brief discussion or correspondence with an individual via radio, television, telephone, or the Internet.
Violations of this standard are often related to failure to comply with other standards, including Standards 2.04, Bases for Scientific and Professional Judgments; 9.01b, Bases for Assessments; and 9.02b, Use of Assessments. For example, psychologists should not use test scores as sole indicators for diagnostic or special program placement but instead use multiple sources of information and, when appropriate, provide alternative explanations for test performance (AERA, APA, & NCME, 2014). The following are examples of opinions based on insufficient information or techniques that would be considered violations under this standard:
Psychologists who knowingly provide unsubstantiated opinions in forensic, school, or insurance reports fail to live up to the ideals of Principle C: Integrity and may also find themselves in violation of Standard 5.01, Avoidance of False or Deceptive Statements (see Hot Topic “Avoiding False and Deceptive Statements in Scientific and Clinical Expert Testimony,” Chapter 8). However, psychologists should also be alert to personal and professional biases that may affect their choice and interpretation of instruments. For example, in a survey of forensic experts testifying in cases of child sexual abuse allegations, Everson and Sandoval (2011) found that evaluator disagreements could be explained, in part, by individual differences in three forensic decision-making attitudes: (1) emphasis on sensitivity, (2) emphasis on specificity, and (3) skepticism toward child reports of abuse.
Standard 9.01b specifically addresses the importance of in-person evaluations of individuals about whom psychologists will offer a professional opinion. Under this standard, with few exceptions, psychologists must conduct individual examinations sufficient to obtain personal verification of information on which to base their professional opinions and refrain from providing opinions about the psychological characteristics of an individual if they themselves have not conducted an examination of the individual adequate to support their statements or conclusions. As video conferencing and other electronically mediated sources of video communication become increasingly common, appropriately conducted assessments via these media may meet the requirements of this standard if the psychologist has had the appropriate preparatory training and the validity of the video methods of assessment has been scientifically and clinically established for use with members of the population tested (Standards 2.01e, Boundaries of Competence; 2.04, Bases for Scientific and Professional Judgment; 9.02, Use of Assessments).
Standard 9.01b also recognizes that in some cases, a personal examination may not be possible. For example, an individual involved in a child custody suit, a disability claim, or performance evaluation may refuse or, because of relocation or other reasons, be unavailable for a personal examination. The standard requires that psychologists make “reasonable efforts” to conduct a personal examination. Efforts that would not be considered reasonable in the prevailing professional judgment of psychologists engaged in similar activities would be considered a violation of this standard. Consider the following two examples of potential violations:
When, despite reasonable efforts, a personal interview is not feasible, under Standard 9.01b psychologists in their written or oral opinions must document and explain the results of their efforts, clarify the probable impact that the failure to personally examine an individual may have on the reliability and validity of their opinions, and appropriately limit their conclusions or recommendations to information they can personally verify. Psychologists may report relevant consistencies or inconsistencies of information found in documents they were asked to review (see Standard 9.01c below). However, they should avoid offering opinions regarding the personal credibility or truthfulness of individuals they have not examined or when basic facts contested have not been resolved through assessments (APA, 2013b).
This standard applies to those assessment-related activities for which an individual examination is not warranted or necessary for the psychological opinion. Such activities include record or file reviews where psychologists are called on to review preexisting records and reports to assist or evaluate decisions made by schools, courts, health insurance companies, organizations, or other psychologists they supervise or with whom they consult. Record reviews can be performed to (a) determine whether a previously conducted assessment was appropriate or sufficient; (b) evaluate the appropriateness of treatment, placement, employment, or continuation of benefits based on the previously gathered information and reports; (c) adjudicate a disability or professional liability claim based on existing records; or (d) resolve conflicts over the applicability of records to interpretations of federal and state laws in administrative law or due process hearings (Bartol & Bartol, 2014; Hadjistavropoulos & Bieling, 2001).
Reviewers provide a monitoring function for the court or a function of forensic quality control so the court will not be misled by expert testimony of evaluators that is based on flawed data collection and/or analysis (Austin, Kirkpatrick, & Flens, 2011). According to Standard 9.01c, psychologists who provide such services must clarify to the appropriate parties the source of the information on which the opinion is based and why an individual interview conducted by the psychologist is not necessary for the opinion.
Simply complying with this standard may not be sufficient for psychologists who are in supervisory roles that carry legal responsibility for the conduct of assessments by unlicensed supervisees or employees. In many of those instances, psychologists may be directly responsible for ensuring that individuals are qualified to conduct the assessments and do so competently (see Standard 2.05, Delegation of Work to Others).
- ☒ Testifying on the validity of a child abuse allegation based on the results of an idiosyncratic, improperly constructed parent checklist of child behaviors
- ☒ Diagnosing an adult with impaired decisional capacity as developmentally disabled without taking a developmental history
- ☒ Providing preemployment recommendations on the basis of a personality test with no proven relationship to job performance
- ☒ Submitting a diagnosis of neurological impairment to a health insurance company based solely on information derived during therapy sessions
- ☒ Informing parents that their preschooler is autistic on the basis of a single observational session
- ☒ Recommending a child for special education placement solely on the basis of scores on a standardized intelligence test
- ☒ Offering a diagnosis of PTSD based on a 5-minute discussion with a listener who calls in to a radio program hosted by the psychologist
- ☒ Offering a diagnosis of bipolar disorder based on an individual’s comments on the psychologist’s blog
- ☒ Submitting for health insurance reimbursement a diagnosis of dementia in an elderly patient complaining of memory lapses, without conducting a neuropsychological assessment
Digital Ethics: Use of Mobile Phones for Treatment Adherence Monitoring
For some mental health disorders such as anorexia nervosa, borderline personality disorder, and substance dependency, downloadable mobile phone applications (mHealth) for client/patient self-monitoring can be a valuable adjunct to in-person psychotherapy, as they can reduce vulnerabilities of memory and help clients/patients reflect critically on their thoughts and behaviors (Aardoom Dingemans, Spinhoven, & Van Furth, 2013; Ambwani, Cardi, & Treasure, 2014; Dimeff, Rizvi, Contreras, Skutch, & Carroll, 2011; Dombo et al., 2014). When deciding whether mHealth is clinically indicated for a specific client/patient, psychologists should consider (a) whether the client/patient can effectively use the technology without supervision, based on diagnostic assessment as well as conducting an in-office assessment of the client’s/patient’s ability to utilize the technology, and (b) the likelihood that clients/patients will become overdependent on the mobile technology in ways that jeopardize their ability to implement behavior management skills independent of the technology (Ambwani et al., 2014; Standards 2.04, Bases for Scientific and Professional Judgments, and 3.04, Avoiding Harm). To ensure appropriate confidentiality protections, psychologists should (a) assess risks to confidentiality that may be inherent in the client’s/patient’s home, work, and other treatment management–related environments; (b) utilize behavior management mobile applications and/or Internet sites with adequate security protections; and (c) provide clients/patients with instruction on how to protect their privacy and confidentiality (Standards 4.01, Maintaining Confidentiality; 4.02, Discussing the Limits of Confidentiality).
- ☒ A psychologist testified about a parent’s psychological fitness for visitation rights, drawing his opinion solely from comments made by the child and divorced spouse in the absence of an individual examination of the parent.
- ☒ A psychologist contracted by an insurance company to evaluate an individual’s mental health as part of a current disability claim provided an opinion based solely on job performance evaluations written by the insured’s immediate supervisors and diagnostic information collected by another psychologist prior to the incident cited in the claim.
- ☒ A psychologist working in a correctional facility who was asked to recommend whether a prison guard’s mental status was a risk to prisoner protections did not personally examine the guard but instead gave an opinion based on reports by facility administrators, staff, and prisoners.
- ☒ A psychologist was contracted by a prison to evaluate the job potential of guards hired for a probationary period. Without conducting an individual interview, the psychologist wrote a report concluding that emotional instability of one job candidate made him ineligible for full-time employment. The psychologist justified the lack of a personal examination on the fact that several coworkers had claimed the guard was too dangerous to interview.
- ☒ A psychologist hired by the attorney of a husband engaged in a custody suit provided court testimony on the wife’s parenting inadequacies without having interviewed her personally. The psychologist claimed that the wife had not responded to the psychologist’s letter requesting the interview. On cross-examination, it was revealed that the letter written by the psychologist included the following language seemingly designed to discourage agreement to be examined: “I have reason to believe from interviews with your spouse and an examination of your children that you are responsible for the children’s current mental health problems and would like to conduct an examination to confirm or dispute these assumptions.”
- ☑ A court-appointed psychologist attempted to contact the biological parent of a child currently in foster care to make recommendations regarding parental visitation. The parent was no longer at the last known residence and had not left a forwarding address. In testimony, the psychologist described the current mental health status of the child, the child’s statements regarding the biological parent, and the observed relationship between the child and foster parents. In referring to the biological parent, the psychologist informed the court of efforts to contact the parent, described how failure to interview the parent limited any conclusions that could be drawn regarding the parent’s psychological characteristics and parenting competence, and clarified that recommendations regarding visitation were based on the child’s attitudes, mental health, and foster care arrangements.
Review of Data From Surreptitious Investigative Recording
There are instances when forensic psychologists may be asked to evaluate past mental states from audio or video recordings of a defendant’s behavior at the time of the alleged offense or surreptitious recordings of a plaintiff’s behavior in a personal injury, insurance disability, or divorce case (Denney & Wynkoop, 2000). Before agreeing to review such recordings, psychologists should make sure that the surveillance information was obtained legally at the time it was recorded, that the party requesting the psychologist’s evaluation has the legal right to share such information, and that inadmissibility of such information will not compromise the psychologist’s findings. Psychologists should also take reasonable steps to ascertain that they have been provided with all legally available recordings and other available information relevant to the forensic opinion. The psychologist’s oral testimony or written report should clarify the source of the information and why an individual examination is not warranted or necessary for the type of evaluation requested.
9.02 Use of Assessments
The appropriate use of psychological assessments can benefit individuals, families, organizations, and society by providing information on which educational placements, mental health treatments, health insurance coverage, employee selection, job placement, workers’ compensation, program development, legal decisions, and government policies can be based. The inappropriate use of assessments can lead to harmful diagnostic, educational, institutional, legal, and social policy decisions based on inaccurate and misleading information.
Standard 9.02a is concerned with the proper selection, interpretation, scoring, and administration of assessments. It refers to the full range of assessment techniques used by psychologists, including interviews and standardized tests administered in person, through the Internet, or through other media. According to this standard, ethical justification for the use of assessments is determined by research on or evidence supporting the purpose for which the test is administered, the method of administration, and interpretation of scores (AERA, APA, & NCME, 2014). To comply with the standard, psychologists should be familiar with and be able to evaluate the data and other information provided in test manuals detailing (a) the theoretical and empirical support for test use for specific purposes and populations, (b) the test’s psychometric validity, (c) administration procedures, and (d) how test scores are to be calculated and interpreted. Psychologists should also keep themselves apprised of ongoing research or evidence of a test’s usefulness or obsolescence over time (see also Standards 2.03, Maintaining Competence; 2.04, Bases for Scientific and Professional Judgments; 9.08b, Obsolete Tests and Outdated Test Results). The standard also requires that psychologists adhere to standardized test administration protocols to ensure that test scores reflect the construct(s) being assessed and avoid undue influence of idiosyncrasies in the testing process (AERA, APA, & NCME, 2014).
Violations of Standard 9.02a occur when psychologists use assessments in a manner or for a purpose that is not supported by evidence in the field (see also this chapter’s Hot Topic “The Use of Assessments in Expert Testimony: Implications of Case Law and the Federal Rules of Evidence”).
Modifications for Individuals With Disabilities
Test administration for individuals with disabilities may require modifications and adaptations in testing administration to minimize the effect of test taker characteristics incidental to the purpose of the assessment. Standard 9.02a permits departure from a standard administration protocol if the method of test adaptation can be justified by research or other evidence. For example, converting a written test to Braille for an individual who is legally blind, physically assisting a client with cerebral palsy to circle items on a written test, or providing breaks for an individual with a disability associated with frequent fatigue is acceptable if the particular disability is not associated with the construct to be measured by the test and there are professional or scientific reasons to assume that such modifications will not affect the validity of the test (AERA, APA, & NCME, 2014). However, such accommodations are not appropriate if the disability is directly related to the abilities or characteristics that the test is designed to measure. Any modifications to testing and potential limitations in interpretation must be documented. Federal regulations relevant to the assessment of individuals with disabilities include IDEA (http://idea.ed.gov), Section 504 of the Rehabilitation Act of 1973, revised 2006 (http://www.hhs.gov/civil-rights/for-individuals/disability/index.html), and ADA (http://www.ada.gov).
Digital Ethics: Internet-Mediated Assessments
Psychologists administering assessments via the Internet need to remain up-to-date on research demonstrating the assessments’ validity or lack thereof for use in this medium (Montalto, 2014; Standard 2.03, Maintaining Competence). Verification of the examinee’s age, gender, and honesty of disclosures is important to the assessment’s validity and reliability (Alleman, 2002). Some assessments developed for in-person administration require verbal, auditory, or kinesthetic clues for accurate diagnosis (Barak & English, 2002). When assessments have not been validated for use via the Internet, psychologists should make every effort to conduct an in-person evaluation. When this is not possible, psychologists should select instruments that research or other evidence indicates are most appropriate for this medium, implement when possible information-gathering techniques that can best approximate in-person settings (e.g., video and auditory interactive technology), and acknowledge limitations of the assessment in interpretations of the data (Standard 9.06, Interpreting Assessment Results). Technology-based testing is also related to concerns regarding standardized administration and construct validation. Psychologists need to be aware of limitations in administration and interpretation for examinees who may not have access to or are unfamiliar with the use of new technologies or will be using older computers or devices with slower processing speed (AERA, APA, & NCME, 2014; Standard 3.01, Unfair Discrimination).
- ☒ A psychologist contracted to conduct employment testing for an organization administered a series of personality inventories with little or no validity evidence supporting the link between scores on the inventories and actual job performance.
- ☒ A counseling psychologist working with an isolated rural community administered a series of tests over the Internet without previously establishing whether the Internet-mediated scores measured the same construct as scores from the paper-and-pencil version (Buchanan, 2002).
- ☒ A school psychologist working under pressure to meet the school system’s quotas for weekly testing gave the same battery of tests to all students irrespective of their grade level or presenting problem.
- ☒ A neuropsychologist conducted a forensic examination of a prisoner in a room occupied by other prisoners, thereby compromising the validity of score interpretation based on norms established under standardized distraction-free testing environments.
Need to Know: Assessment of Dementia
The APA Guidelines for the Evaluation of Dementia and Age-Related Cognitive Change (APA, 2012d) stress the importance of using age-normed standardized psychological and neurological tests, being aware of the limitations of brief mental status examinations, and estimating premorbid abilities. The Guidelines also describe the following key elements that should be obtained to ensure accurate diagnosis of conditions associated with cognitive decline (p. 5):
- The onset and course of changes in cognitive functioning
- Preexisting disabilities
- Educational and cultural background that could affect testing variability
- General medical and psychiatric history
- Past neurological history, including prior head injuries or other central nervous system insults (strokes, tumors, infections, etc.)
- Current psychiatric symptoms and significant life stressors
- Current prescription and over-the-counter medication use
- Current and past use and abuse of alcohol and drugs
- Family history of dementia
Presence of Third Parties to Assessments
Standard 9.02a requires that psychologists administer tests in a manner consistent with procedures and testing contexts used in the development and validation of the instruments. Many psychological assessment instruments and procedures are validated under administration conditions limited to the presence of the psychologist and testee. In rare instances, psychologists may judge it necessary to include third parties to control the behavior of difficult examinees (e.g., parents of young children, hospital staff for psychiatric patients with a recent history of violence). In such situations, psychologists should select assessment instruments that are least likely to lend themselves to distortion based on the presence of a third party and include in their interpretations of test results the implications of such violations of standardized testing conditions.
Psychologists providing expert forensic consultations in relation to a criminal case, tort litigation, insurance benefits, or workers’ compensation claims may find that the assessment validity of tests is compromised when third parties are present as mandated by state law, institutional policy, or a judge’s ruling. For example, in neuropsychological assessments related to workers’ compensation cases, the presence of the plaintiff’s legal counsel, family members, or company representatives may distort the testing process or render test scores and interpretations invalid if the third party influences the test taker’s motivation or behavior or the psychologist–testee rapport (American Academy of Clinical Neuropsychology, 2001). The use of data from such assessments may be unfair to individuals if it leads to invalid test administration or misleading interpretations of the testee’s responses (Principle D: Justice and Standards 1.01, Misuse of Psychologists’ Work; 1.02, Conflicts Between Ethics and Law, Regulations, or Other Governing Legal Authority; and 9.06, Interpreting Assessment Results). When there is no legal flexibility to deny third-party presence during an assessment, psychologists should select those tests and procedures found to be least susceptible to distortion under such conditions and ensure that their written reports highlight the unique circumstances of the assessment and the limitations in interpretation.
Trainees and Interpreters as Third Parties
Third parties may observe evaluations for training purposes or serve as interpreters when translation is necessary to ensure accuracy and fairness of assessments (Standard 9.02c, Use of Assessments). In such instances, psychologists must select procedures that research or other evidence has demonstrated can be applied appropriately under these circumstances, ensure that trainees and interpreters are trained adequately to minimize threats to the proper test administration, and include in their reports any limitations on conclusions due to the presence of the third parties (Standards 2.05, Delegation of Work to Others; 9.06, Interpreting Assessment Results).
The central idea of fairness in psychological and educational testing is to identify and remove construct-irrelevant barriers to maximal performance and allow for comparable and valid interpretation of test scores for all examinees (AERA, APA, & NCME, 2014). The proper use of tests can further principles of fairness and justice by ensuring that all persons benefit from equal quality of assessment measures, procedures, and interpretation (Principle D: Justice; Standard 3.01, Unfair Discrimination). Fair applicability of test results rests on assumptions that the validity and reliability of a test are equivalent for different populations tested. Validity refers to the extent to which empirical evidence and psychological theory support the interpretation of test data, that is, whether the test measures the psychological construct it purports to measure. Reliability refers to the consistency of test scores when a test is repeated for an individual or for a given population (see AERA, APA, & NCME, 2014).
A test that is a valid and reliable measure of a psychological construct in one population may not adequately measure the same construct in members of a different population, especially if members of the population of interest were represented inadequately in the normative sample or if test validity has not been established specifically for that group. Standard 9.02b requires psychologists to select assessment instruments whose validity and reliability have been established for use with members of the population tested. This standard applies to psychological assessment of any population, including clients/patients, students, job candidates, legal defendants, and research participants.
To comply with this standard, psychologists, when selecting a test, must be familiar with the specific populations included in the standardization sample and the test’s validity and reliability estimates. At minimum, psychologists should determine the applicability of a test to an individual of a given age group, ethnicity/culture, language, and gender and, where applicable, disability or other population characteristic when scientific or professional evidence suggests that test scores may not be psychometrically, functionally, or theoretically comparable to scores for the reference groups on which the test was normed (Landwher & Llorente, 2012).
Psychologists should also be familiar with relevant federal laws on the selection and administration of nondiscriminatory assessment and evaluation procedures (e.g., IDEA, 34 CFR 300.30[c][i]).
The dynamic and evolving nature of this country’s cultural, political, and economic landscape creates situations in which population-valid and reliable tests of a psychological construct may not be available for the individual or group tested. Psychologists asked to evaluate individuals from such groups should select tests validated on other populations with caution because they may produce results that do not adequately assess the qualities or competencies intended to be measured (AERA, APA, & NCME, 2014). Recommendations based on these assessments in turn may lead to unfair denial of educational or employment opportunities, health coverage, legal rights, or necessary services (Principle D: Justice). According to Standard 9.02b, psychologists who use tests without established norms for the individual or population assessed must describe in their reports the strengths of using the specific test results as well as the limitations the use of such tests places on psychologists’ interpretations and recommendations.
Psychologists conducting evaluations with members of racial/ethnic minority or immigrant groups must be particularly sensitive to the lack of cultural consideration inherent in the most popularly used mental health diagnostic and classification tools: the Diagnostic and Statistical Manual of Mental Disorders (DSM-5) and the International Classification of Diseases (ICD-11). To avoid errors that may be associated with applying these tools, Johnson (2013) recommended that psychologists (a) apply culturally competent skills to understand attitudes toward mental health that may affect the client’s general response to testing; (b) establish an initial trusting relationship with clients; (c) consider including a measure of acculturation; (d) become familiar with cultural conditions that can impact the sharing of personal history information and the presentation of symptoms; and (e), when appropriate, draw on the appendices in the DSM-5 and ICD-11 to proactively use culture as a factor in the diagnostic process.
- ☒ A school psychologist was asked to evaluate a bilingual child whose family had recently moved to New York from Puerto Rico. The psychologist used the English version of a well-known intelligence test without considering whether the standardized Spanish version of the test was or was not more appropriate for the child.
- ☒ A psychologist working in a nursing home always used the Beck Depression Inventory (Beck, Steer, & Brown, 1996) to assess patient depression without considering the appropriateness of other measures specifically standardized on elderly populations or populations with chronic illnesses.
- ☒ A consulting psychologist was hired to evaluate the job performance of a factory supervisor who had a visual disability. The psychologist limited her assessment to oral administration of tests that were validated on individuals without vision impairment and neglected to assess unique ways in which the supervisor might successfully compensate for his disability.
- ☑ A forensic psychologist was asked to evaluate the competence to stand trial of a prisoner who had recently immigrated to the United States from Botswana. The prisoner’s English was poor, but there were no tests for competence standardized for individuals from the prisoner’s cultural or language group. The psychologist selected the best culturally sensitive techniques and assessments available and in written conclusions to the court explained the limitations of the tests used.
Selection of “Culture-Free” Tests
School psychologists and neuropsychologists conducting assessments of intellectual, educational, and cognitive abilities may attempt to be culturally sensitive by “stacking” their test batteries with nonverbal visuoperceptual and motor tests when assessing patients who speak languages in which more traditional language-based tests are not available. The use of such tests requires ethical caution since nonverbal tests of cognitive ability can be just as culturally biased as verbal tests (Wong, Strickland, Fletcher-Janzen, Ardila, & Reynolds, 2000).
Language differences are part of the cultural diversity, rich immigration history, and individual differences in hearing and other linguistically relevant disabilities that make up the demographic mosaic of the United States. The validity and applicability of assessment data can be severely compromised when testing is conducted in a language the testee is relatively unfamiliar with or uncomfortable using. Under Standard 9.02c, psychologists should select tests in the language that is most relevant and appropriate to the test purpose (AERA, APA, & NCME, 2014).
Whereas the inappropriateness of English-only-based psychological testing is obvious when testees speak little or no English, the hazards of English-only testing for bilingual persons or oral-language-only assessment of persons with hearing disabilities who can read lips and communicate in sign language are often overlooked. The linguistic competencies of individuals who are bilingual often vary with the mode of communication (e.g., oral vs. written language), language function (e.g., social, educational, or job related), and topical domain (e.g., science, mathematics, interpersonal relationships, self-evaluations). In addition, individuals’ language preferences do not always reflect their language competence. Individuals may be embarrassed to reveal that their English, hearing, or oral language is poor; believe non-English or nonhearing testing will negatively affect their evaluations; or misjudge their language proficiency. The following steps are recommended to help psychologists comply with Standard 9.02c (see also AERA, APA, & NCME, 2014):
- Psychologists can use language tests that assess multiple language domains to determine language dominance and proficiency relevant to different modes of assessment (e.g., written, oral) and topics (e.g., academic, interpersonal).
- Whenever possible, psychologists should use test translations that have been developed according to accepted methods of test construction (see Standard 9.05, Test Construction).
- When a test is translated or adapted, test developers and test users must describe the adequacy of theory, evidence, and methods used to establish the validity of test score interpretations for intended use (see Standard 2.04, Bases for Scientific and Professional Judgments).
- Additional testing or observation may be necessary to determine whether what appears to be eccentric behavior (e.g., short phrases or reticence in response to test questions) reflects differences in cultural communication styles or an individual characteristic.
- To the extent feasible, psychologists must ensure the language competence of the test administrator (see also Standards 2.05, Delegation of Work to Others; 9.03c, Informed Consent in Assessments).
- When interpreting assessment results, test norms for native speakers of English should not be used for individuals for whom English is a second language or should be understood in part as reflecting a level of English proficiency.
- ☒ A neuropsychologist was hired by an insurance company to assess a recent Nigerian immigrant who claimed he had suffered brain damage from falling on the premises of a store insured by the company. Because the man had such limited English skills and no test was available in his primary language, the neuropsychologist decided that the most culturally sensitive approach would be to assess the man’s cognitive capacity with an assessment battery composed entirely of visuospatial, perceptual, and motor tasks. The psychologist’s report did not describe the limitations of test results based on the absence of language-based assessments of reasoning and other cognitive abilities, nor did the report acknowledge the absence of preinjury cognitive tests necessary to determine whether behavioral and cognitive functioning had declined after the fall (adapted from Wong, 2000).
When English or Other Language Proficiency Is Essential
There are instances when proficiency in English or another language is essential to the goal of the assessment. For example, the ability to communicate with English-speaking employees may be a necessary qualification for a successful applicant for a personnel position. Evaluating a student’s English proficiency may be necessary to determine appropriate educational placement. The ability to read and speak English may be important to certain service positions responsible for protecting public health, safety, and welfare. Inclusion of the phrase unless the use of an alternative language is relevant to the assessment issues indicates that Standard 9.02c permits psychologists to use tests in a language in which the testee may not be proficient, if effective job performance, school placement, or another goal of assessment requires the ability to communicate in that language.
9.03 Informed Consent in Assessments
To comply with this standard, psychologists must obtain and document, with few exceptions, written or oral consent in the manner set forth in Standard 3.10, Informed Consent. Psychologists must provide individuals who will be assessed and, when appropriate, their legal representative a clear explanation of the nature and purpose of the assessment, fees, involvement of third parties, and limits of confidentiality. Psychologists should also be attuned to consent vulnerabilities related to transient disorders, such as depression (Ghormley, Basso, Candlis, & Combs, 2011) and develop appropriate measures to ensure consent comprehension.
Core Elements of Informed Consent in Assessment
Nature of the Assessment
The nature of an assessment refers to (a) the general category of the assessment (e.g., personality, psychopathology, competency, parenting skills, neuropsychological abilities and deficits, employment skills, developmental disabilities), (b) procedures and testing format (e.g., oral interviews, written self-report checklists, behavioral observation, skills assessment), and (c) duration of the assessment (e.g., hours or multiple assessments).
Purpose of the Assessment
The purpose of the assessment refers to its potential use, for example, in employment decisions, school placement, custody decisions, disability benefits, treatment decisions, and plans for or evaluation of rehabilitation of criminal offenders.
Discussion of fees must include the cost of the assessment and payment schedule and should be consistent with requirements of Standard 6.04, Fees and Financial Arrangements. When applicable and to the extent feasible, psychologists must also discuss with relevant parties the extent to which their services will be covered by the individual’s health plan, school district, employer, or others (see Standard 6.04a and 6.04d, Fees and Financial Arrangements).
Involvement of third parties refers to other individuals (e.g., legal guardians), HMOs, employers, organizations, or legal or other governing authorities that have requested the assessment and to whom the results of the assessments will be provided. Psychologists should be familiar with ethical standards, state law, and federal regulations relevant to the appropriate role of third parties and the release and documentation of release of such information to others (see Standard 4.05, Disclosures). Psychologists asked to evaluate a child by one parent should clarify custody issues to determine whether another parent must give permission.
Informed consent to assessments must provide a clear explanation of the extent and limits of confidentiality, including (a) when the psychologist must comply with reporting requirements such as mandated child abuse reporting or duty-to-warn laws and (b) in the case of assessments involving minors, guardian access to records (see discussion of parental access involving HIPAA, FERPA, and other regulations in Standards 3.10, Informed Consent; 4.01, Maintaining Confidentiality; and 4.02, Discussing the Limits of Confidentiality). Psychologists who administer assessments over the Internet must inform clients/patients, research participants, or others about the procedures that will be used to protect confidentiality and the threats to confidentiality unique to this form of electronic transmission of information (see also Standard 4.02c, Discussing the Limits of Confidentiality).
Implications of HIPAA for Confidentiality-Relevant Information
The HIPAA regulation most relevant to informed consent in assessments is the Notice of Privacy Practices. At the beginning of the professional relationship, covered entities must provide clients/patients a written document detailing routine uses and disclosures of PHI and the individual’s rights and the covered entities’ legal duties with respect to PHI. Psychologists conducting assessments should also be familiar with HIPAA-compliant authorization forms for use and release of PHI and HIPAA requirements for Accounting of Disclosures. These regulations are described in greater detail in the section “A Word About HIPAA” in the preface of this book and in discussions of Standard 3.10, Informed Consent, in Chapter 6; Standards 4.01, Maintaining Confidentiality, and 4.05, Disclosures, in Chapter 7; Standard 6.01, Documentation of Professional and Scientific Work and Maintenance of Records, in Chapter 9; and Standard 9.04, Release of Test Data, in this chapter.
Dispensing With Informed Consent
Under Standard 9.03a, informed consent may be waived when consent is implied because testing is conducted as (a) a routine educational activity, such as end-of-term reading or math achievement testing in elementary and high schools; (b) regular institutional activities, such as student and teaching evaluations in academic institutions or consumer satisfaction questionnaires in hospitals or social service agencies; or (c) organizational activity, such as when individuals voluntarily agree to preemployment testing when applying for a job.
Standard 9.03a also permits psychologists to dispense with informed consent in assessment when testing is mandated by law or other governing legal authority or when one purpose of testing is to determine the capacity of the individual to give consent. For example, during an initial consultation, neuropsychologists may also need to determine whether a client/patient with suspected dementia or brain injury has the capacity to independently consent to a full cognitive and neuropsychological assessment. Forensic psychologists conducting civil capacity assessments of older adults must select appropriate assessment techniques for determining whether clients/patients meet the legal standards of diminished capacity, testamentary capacity, and other abilities relevant to decisional capacity as defined by law (Moye, Marson, & Edelstein, 2013). Ethical steps that must be taken in these contexts are discussed next under Standard 9.03b.
Under Standards 3.10b, Informed Consent, and 9.03a, Informed Consent in Assessments, informed consent in assessment is not required when an individual has been determined to be legally incapable of giving informed consent, when testing is mandated by law or other governing legal authority, or when one purpose of testing is to determine consent capacity. These waivers reflect the fact that the term consent refers to a person’s legal status to make autonomous decisions based on age, mental capacity, or the legal decision under consideration. Consistent with the moral value of respect for the dignity and worth of all persons articulated in Principle E: Respect for People’s Rights and Dignity, under Standard 9.03c, psychologists must provide all individuals, irrespective of their legal status, appropriate explanations of the nature and purpose of the proposed assessment. Readers may also refer to the Hot Topic in Chapter 6, “Goodness-of-Fit Ethics for Informed Consent Involving Adults With Impaired Decisional Capacity.”
Standard 9.03a often applies in situations where assessment is requested by parents of children younger than age 18 years or family members of adults with suspected cognitive impairments. In some contexts, the affirmative agreement of the testee is not required. In these situations, the psychologist must provide information in a language and at a language level that is reasonably understandable to the child or adult being assessed. When both the permission of the guardian and the assent of the child or cognitively impaired adult are sought, psychologists working with populations for whom English is not a first language should be alert to situations in which prospective clients/patients and their legal guardians may have different language preferences and proficiencies.
Need to Know: Informed Consent for Forensic Assessments Requested by an Examinee’s Attorney
When testing is requested by an examinee’s attorney, informed consent should help the examinee understand the difference between forensic and other psychological services. To accomplish this Younggren, Bennett, and Harris (https://www.trustinsurance.com/resources/download-documents/) recommended that forensic informed consent contracts include the following:
- The evaluation is not being conducted for the purposes of counseling or treatment. The results may or may not be personally helpful to you but will provide your attorney with information on how you function psychologically.
- Your participation in the assessment is voluntary, and you have the right to stop the evaluation at any time. However, there may be legal consequences to stopping that should be discussed with your attorney.
- If you consent to the assessment, the report will be sent to the retaining party (e.g., the examinee’s attorney), who will have complete authority over the results.
- When the evaluation is completed, with permission from your attorney, I may be able to meet with you to explain the results.
- Although the forensic report is normally protected by attorney–client privilege, if used for legal proceedings, the report may be admissible into evidence, and the extent of other confidentiality protections will be determined by the rules of that legal system.
The term informed consent is applied when individuals are legally permitted to make their own decisions about undergoing a psychological assessment and whether and to whom the results of testing are disclosed. The term does not apply when testing is mandated through a court order or other governing authority. Psychologists conducting forensic, military, or other assessments that have been legally mandated should provide the examinee with a notification of purpose that explains the nature and purpose of the testing, who has requested the testing, and who will receive copies of the report. If the examinee is unwilling to proceed following a thorough explanation, the forensic practitioner may attempt to conduct the examination, postpone the examination, advise the examinee to contact his or her attorney, or notify the retaining attorney of the examinee’s unwillingness to proceed (APA, 2013a).
Defendants who are entering a plea of insanity may not be able to act on their Fifth Amendment right to silence and avoidance of self-incrimination. To avoid compromising the admissibility of a comprehensive forensic evaluation, Bush et al. (2006) suggested that psychologists first assess competency, then sanity, and separate the reports given to the court to provide the court the opportunity to first determine the competence question.
Informed Consent for the Assessment of Malingering
Malingering refers to the intentional production of false symptoms to attain an identifiable external benefit (Butcher, Hass, Greene, & Nelson, 2015; Iverson, 2006; National Academy of Neuropsychology Policy and Planning Committee, 2000). Tests of symptom validity, exaggeration, and malingering have become integral components of neuropsychological evaluations for traumatic brain injury and other suspected neurological disorders. Some have argued that assessment of malingering is the number one priority of forensic assessment, preceding any professional conclusions in forensic evaluations (Brodsky & Galloway, 2003; Kocsis, 2011). Malingering can be manifested through intentional under- or overperformance during psychological assessment. Accurate assessment of malingering is ethically important because errors in diagnosis can impede justice when undetected in forensic procedures or obscure adequate treatment for psychopathology (Principle A: Beneficence and Nonmaleficence; Kocsis, 2011).
Some have questioned whether describing the purposes of tests for malingering during informed consent compromises the validity of the assessment or whether failing to include such information during informed consent violates testees’ autonomy rights (Principle E: Respect for People’s Rights and Dignity; Standard 9.03, Informed Consent in Assessments). Current standards of practice support communicating to testees prior to and during informed consent or notification of purpose that measures will be used to assess the examinee’s honesty and efforts to do well, without describing the particularities of the tests that will be used to measure exaggeration or other elements of malingering (Carone, Bush, & Iverson, 2013). Individuals undergoing evaluation for Social Security Disability benefits or compensation for work-, sport-, or military-related injuries may be wary of practitioners and feel the need to prove that they are neurologically compromised. In such contexts, psychologists should take extra steps to develop rapport and a trusting relationship and to craft language and procedures that ensure testees understand that honesty and effort are required; in some cases, this may involve reading the informed consent material to clients/patients (Carone et al., 2013; Chafetz, 2010). Carone et al. (2013) also provided guidance for how to include the results of effort, exaggeration, and other tests during feedback sessions with clients/patients (Standard 9.10, Explaining Assessment Results).
Research on Coached Malingering
A practical concern in the forensic assessment of defendants or plaintiffs is whether existing tests of malingering can detect over- or underexaggeration of symptoms when the examinee has been coached by individuals familiar with the tests (Butcher et al., 2015; Jelicic, Cuenen, Peters, & Merckelbach, 2011). When researchers attempt to study the extent to which commonly used tests are vulnerable to coached faking, there is a risk that the information provided to research participants or disseminated through publication will be used to improve the success of coached malingerers (Berry, Lamb, Wetter, Baier, & Widiger, 1994). Ben-Porath (1994) suggested that to protect against these risks, investigators can (a) coach research participants on items similar but not identical to those on the test under investigation, (b) provide only a brief synopsis of coaching instructions in published articles, and (c) release information on verbatim instructions only to those bound by the APA Ethics Code to protect the integrity of tests (see also Standard 9.11, Maintaining Test Security).
Compliance with the consent requirements outlined in Standard 3.10 obligates psychologists to provide information in a language and at a language level that is reasonably understandable to the client/patient and, where applicable, his or her legally authorized representative. Psychologists may use the services of an interpreter when they do not possess the skills to obtain consent in the language in which the client/patient is proficient.
When delegating informed consent responsibilities to an interpreter, psychologists must ensure not only that the interpreter is competent in the consent-relevant language (see Standard 2.05, Delegation of Work to Others) but that the interpreter also understands and complies with procedures necessary to protect the confidentiality of test results and test security. An interpreter who revealed the identity of a client/patient or the nature of specific test items used during the assessment would place the psychologist who hired the interpreter in potential violation of this standard. Because test validity and reliability may be vulnerable to errors in interpretation, Standard 9.03c also requires that the involvement of the interpreter and any related limitations on the data obtained be clearly indicated and discussed in any assessment-based report, recommendation, diagnostic or evaluative statement, or forensic testimony.
9.04 Release of Test Data
Definition of Test Data
In Standard 9.04a, the term test data refers to the client’s/patient’s actual responses to test items, the raw or scaled scores such responses receive, and a psychologist’s written notes or recordings of the client’s/patient’s specific responses or behaviors during the testing. The term notes in this standard is limited to the assessment context and does not include psychotherapy (or process) notes documenting or analyzing the contents of conversation during a private counseling session.
Test Data and Test Materials
Recognizing that availability of test questions and scoring criteria may compromise the validity of a test for future use with a client/patient or other individuals exposed to the information, Standard 9.04a distinguishes test data, which under most circumstances must be provided upon a client/patient release, from test materials, which under most circumstances should not (see Standard 9.11, Maintaining Test Security). The definition of test data does not include test manuals, protocols for administering or scoring responses, or test items unless these materials include the client’s/patient’s responses or scores or the psychologist’s contemporaneous notes on the client’s/patient’s testing responses or behaviors. If testing protocols allow, it is good practice for psychologists to record client/patient responses on a form separated from the test items themselves to ensure that upon client/patient request, only the test data and not the test material itself need be released.
The Affirmative Duty to Provide Test Data to Clients/Patients and Others Identified in a Client’s/Patient’s Release
Release to Clients/Patients
Under Standard 9.04a, psychologists have an affirmative duty to provide test data as defined above to the client/patient or other persons identified in a client/patient release. The obligation set forth by Standard 9.04a to respect clients’/patients’ right to their test data is consistent with legal trends toward greater patient autonomy and the self-determination rights of clients/patients as set forth in Principle E: Respect for People’s Rights and Dignity. Although not explicitly stated in the standard, it is always good practice for psychologists to have a signed release or authorization from the client/patient even if the data are to be given directly to the client/patient. This standard does not preclude psychologists from discussing with a client/patient the potential for misuse of the information by individuals unqualified to interpret it.
Digital Ethics: Client/Patient Requests for Electronic Records
The 2013 HIPAA Omnibus Rule permits patients to receive a copy of their health record in an electronic form. Covered entities are permitted to charge for the costs of supplies if the client/patient requires data to be provided on a USB flash drive, compact disc, or other electronic media and for the costs of having to hire technically trained staff to recover PHI (see Standard 6.04, Fees and Financial Arrangements).
Release to Others
A fundamental tension exists between the desire of psychologists to respect clients’/patients’ right to determine who will have access to their assessment results and the desire to ensure that the data are not reviewed by unqualified individuals who might misinterpret or misuse the data or violate contractual agreements designed to protect a test publisher’s proprietary interests (Principle A: Beneficence and Nonmaleficence; Principle D: Justice; Principle E: Respect for People’s Rights and Dignity). The language of Standard 9.04 reflects this tension by providing exceptions to the release of test data under conditions in which the release might lead to substantial harm or misuse of the test.
There are several reasons why the standard supports release of test data to clients/patients and those whom they authorize to receive the data. First, whether a person designated by the client/patient is qualified to use test data is determined by the context of the proposed use. For example, restricting release of test data to individuals with advanced degrees or licensure in professional psychology would preclude other qualified health care professionals from using the information. Broadening but limiting the definition of qualified person to health professionals might jeopardize appropriate judicial scrutiny of psychological tests and a client’s/patient’s right to the discovery process to challenge their use in court. Second, even if a consensus around the definition of a “qualified” person could be achieved, requiring a psychologist to confirm the education, training, degrees, or certifications of other professionals would pose a burden that might not be feasible to meet. Third, as described below, with few exceptions, HIPAA regulations require that covered entities provide clients/patients and their personal representatives access to PHI.
Withholding Test Data
Standard 9.04a permits psychologists to withhold test data to protect the client/patient or another individual from substantial harm. The standard also permits withholding test data to protect misuse or misrepresentation of the data or the test. Before refusing to release test data under this clause, psychologists should carefully consider the proviso in the standard that such decisions may be regulated by law. For example, when refusing a client’s/patient’s request to release test data based on the psychologist’s judgment that the data will be misused, psychologists should document in each specific case their rationale for assuming that the data will be misused and refrain from behaviors that may be in violation of other standards (e.g., Standard 6.03, Withholding Records for Nonpayment).
Need to Know: Access to Forensic Records
According to the Specialty Guidelines for Forensic Psychology (APA, 2013e), forensic psychologists should provide attorneys and others who retain their services access to and explanation of all information in their records relevant to the legal matter at hand, consistent with relevant law and applicable professional standards, institutional rules, and regulations. Forensic examinees are not provided access to their assessment data or records unless the retaining party provides written consent for their release (see Standard 9.03b, Informed Consent in Assessment).
Implications of HIPAA
Requiring psychologists to release test data to the client/patient or others pursuant to a client/patient release reflects a sea change in the legal landscape from paternalistic to autonomy-based rules governing access to health records. In particular, HIPAA establishes the right of access of individuals to inspect and receive copies of medical and billing records maintained and used by the provider for decisions about the client/patient. This requirement does not include psychotherapy notes or information compiled in reasonable anticipation of or use in civil, criminal, or administrative actions or proceedings. In addition, psychologists who are covered entities under HIPAA must provide such access to a client’s/patient’s personal representative.
HIPAA limits the ability of covered entities to use professional judgment to determine the appropriateness of releasing test data to clients/patients and their personal representatives. For example, the right of clients/patients to obtain their own test data under HIPAA regulations means in practice that they can pass it on to other individuals of their choice.
Under HIPAA, psychologists who are covered entities can deny client/patient access to test data if granting access is reasonably likely to endanger the life or physical safety of the individual or another person or, in some cases, likely to cause equally substantial harm (Principle A: Beneficence and Nonmaleficence). In addition, psychologists must allow clients/patients the right to have the denial reviewed by a designated licensed health care professional. HIPAA regulations thus limit psychologists’ ability to independently exercise their professional judgment as to what constitutes substantial harm to clients/patients.
Misuse or Misrepresentation of the Test
Release of “test data” that include client/patient responses recorded on the test protocol itself can raise issues of copyright protection and fair use by test development companies (Principle B: Fidelity and Responsibility). If testing protocols allow, psychologists may wish to record client/patient responses on a form separated from the test items themselves to comply with contractual agreements with test developers and to maintain test security (Standard 9.11, Maintaining Test Security). When test data cannot be separated from test materials that are protected by copyright law, psychologists’ decision to withhold release of test data would be consistent with HIPAA regulations and Standard 9.04a.
- ☒ To protect against the misuse of test data in possible instances when they would be released to clients/patients or another identified person, a psychologist used an idiosyncratic code to record testees’ responses. When a client/patient requested the test data be released to another licensed practitioner, it was clear that the test data were undecipherable to others, and the psychologist refused to provide the code. The psychologist was in violation of Standard 9.04a and HIPAA regulations, because in this particular case there was no reason to assume misuse of test data. The psychologist’s failure to appropriately create and store records also violated Standard 6.01, Documentation of Professional and Scientific Work and Maintenance of Records.
Withholding Data in Anticipation of Their Use for Legal Purposes
There are instances, however, when HIPAA constraints are not at issue. For example, HIPAA does not require release of PHI to clients in situations in which information is compiled in reasonable anticipation of, or for use in, civil, criminal, or administrative actions or proceedings. In other instances, such as certain educational evaluations, test data may not come under the PHI classification, and thus the HIPAA Privacy Rule would not apply (see Standard 4.01, Maintaining Confidentiality).
Organizations, Courts, and Government Agencies
The use of the term client/patient in this standard refers to the individual testee and not to an organizational client. This standard does not require industrial–organizational or consulting psychologists to release test data to either an organizational client or an employee when testing is conducted to evaluate job candidacy or employee or organization effectiveness and does not assess factors directly related to medical or mental health conditions or services. Psychologists working in these contexts would not be required to provide the test data to the employees themselves under this standard because the organization, not the employee, is the client (see also Standards 3.07, Third-Party Requests for Services; 3.11, Psychological Services Delivered To or Through Organizations; 9.03, Informed Consent in Assessments). Similarly, forensic psychologists, military psychologists, and others working under governing legal authority are permitted by the Ethics Code to withhold release of test data from a testee when the client is an attorney, the court, or other governing legal authority. Finally, all psychologists are permitted by the Ethics Code to withhold release of test data when required by law (Standard 1.02, Conflicts Between Ethics and Law, Regulations, or Other Governing Legal Authority).
Standard 9.04b recognizes the clients’/patients’ right to expect that in the absence of their release or authorization, psychologists will protect the confidentiality of test data. The standard does permit psychologists to disclose test data without the consent of the client/patient in response to a court order (including subpoenas that are court ordered) or in other situations required by law (e.g., an order from an administrative tribunal). In such instances, psychologists are wise to seek legal counsel to determine their legal responsibility to respond to the request (see also Standard 4.05b, Disclosures). Psychologists may also ask the court or other legal authority for a protective order to prevent the inappropriate disclosure of confidential information or suggest that the information be submitted to another psychologist for qualified review (see also Standard 1.02, Conflicts Between Ethics and Law, Regulations, and Other Governing Legal Authority).
Implications of HIPAA
Standard 9.04b provides stricter protection of confidential test data than does HIPAA. Under the HIPAA Privacy Rule, PHI may be disclosed in response to a subpoena, discovery request, or other lawful process that is not accompanied by an order of a court or administrative tribunal, if the covered entity receives satisfactory assurance from the party seeking the information either that reasonable efforts have been made to ensure that the client/patient has been notified of the request or reasonable efforts have been made to secure a qualified protective order. Psychologists who disclosed information in such an instance would be in violation of 9.04b. The greater protection provided by 9.04b is consistent with most states’ more stringent psychotherapist–patient privilege communication statutes.
9.05 Test Construction
Test development is the foundation of good psychological assessment. Psychologists who construct assessment techniques must be familiar with and apply psychometric methods for establishing the validity and reliability of tests, developing standardized administration instructions, selecting items that reduce or eliminate bias, and drawing on current scientific or professional knowledge for recommendations about the use of test results (see also Standard 2.01, Boundaries of Competence; Turchik, Karpenko, Hammers, & McNamara, 2007). Test developers and publishers who claim their test can be used with examinees from specific subgroups must provide the necessary documentation to support appropriate score interpretation for examinees from these groups and make explicit any cautions against foreseeable misuse of test results (AERA, APA, & NCME, 2014; see Principle D: Justice and Standards 2.04, Bases for Scientific and Professional Judgments; 3.01, Unfair Discrimination; 9.09, Test Scoring and Interpretation Services).
Standard 9.05 applies to all test development activities, not just those implemented in professional testing services or research settings. Psychologists who develop tests or other assessment techniques to serve private practice clients/patients, organizational clients, or the courts can violate this standard if they fail to use proper psychometric methods for test construction.
To be in compliance with Standard 9.05, psychologists must be familiar with and competent to implement appropriate psychometric procedures to establish the usefulness of the test (Standard 2.01, Boundaries of Competence). The following are brief definitions of psychometric procedures presented in greater detail in the Standards for Educational and Psychological Testing (AERA, APA, & NCME, 2014).
Validity, Reliability, and Standardization
Validity is the degree to which theory and empirical evidence support specific interpretations of test scores. Methods for establishing test validity include content, concurrent, construct, and predictive validity as well as evidence-based response processes, the internal structure of a test, and the consequences of testing. Reliability is the degree to which test scores for a group of test takers are consistent over repeated administrations of a test or for items within a test. Methods for establishing test reliability include internal consistency coefficients, analysis of the standard error of measure, test–retest, split-half, or alternative form comparisons. Standardization refers to the establishment of scoring norms based on the test performance of a representative sample of individuals from populations for which the test is intended.
Validity and reliability must be assessed appropriately for each total score, subscore, or combination of scores that will be interpreted. Where relevant, descriptions of the test to users, school personnel, organizational clients, and the courts should include a description of the psychometric procedures used during test development.
- ☒ An industrial–organizational psychologist was hired by a firm to develop a selection system for promotion of line workers to supervisors. The psychologists used appropriate sampling and validation procedures to construct a 20-item measure. When he presented the final measure to the firm’s board of trustees, the board president expressed concern that items on attitudes toward the firm were not included. The psychologist agreed to add a few of these to the test without further validation (see Lowman, 2006, Case 3).
- ☒ Over the years, a school psychologist had observed that students who had been removed from their homes because of child abuse or neglect frequently gave a set of common and unique narrative responses to items on the Wechsler Intelligence Scale for Children Comprehension subtest (WISC; Wechsler, 1991). Cognizant of school psychologists’ legal duty to report suspected child abuse, she constructed a test composed of 10 narrative statements that she believed were typical of abused and neglected children. She developed a scoring system where 0 to 1 indicated that the child was probably not abused or neglected, 2 to 3 suggested that the child should be further observed, and 4 to 10 supported a suspicion of child abuse or neglect that should be reported to child protective services. She began to use the scale to decide whether to make a report of child abuse. When she became district supervisor of psychological and social services, she required all school psychologists and social workers to administer the scale to children with whom they worked despite the lack of evidence of its reliability or validity.
Reduction or Elimination of Test Bias
Test bias may refer to systematic errors in test scoring. The term is associated more frequently with test fairness and refers to assessment norms applied to persons from different populations that fail to establish measurement equivalence: the degree to which reliability and validity coefficients associated with a measure are similar across populations. Depending on the purpose and nature of testing, failure to determine item, functional, scalar, or predictive measurement equivalence when developing a test can lead to over- or underdiagnosis, faulty personnel recommendations, inappropriate educational placements, and misinformation to the courts (Principle D: Justice; Standard 3.01, Unfair Discrimination).
Threats to fair and valid interpretations of test scores also arise from construct-irrelevant content that differentially favors the experiences of individuals from some subgroups over others or a combination of test content and context that promotes differential engagement, motivation, or discomfort. Group-specific variance in test item response biases (e.g., social desirability), familiarity with test response formats (e.g., multiple-choice), and differences in the opportunity to learn (i.e., the extent to which examinees have been exposed to the content or skills targeted by the test) can also contribute to test bias. (See Standards for Educational and Psychological Testing for a detailed explanation of these concepts and steps to reduce test bias [AERA, APA, & NCME, 2014].)
- ☒ An industrial–organizational psychologist developed a prescreening employment test for a large personnel department. After demonstrating high levels of interitem and test–retest reliability, the scale was touted as a culture-free measure of employment preparedness. However, the psychologist did not examine whether the factor structure, predictive validity of the test for job performance, or other psychometric factors were equivalent across members of major ethnic/cultural groups in the city who applied for positions in the company.
Recommendations for Use
In their recommendations for use, test developers must provide adequate guidance to allow users to administer tests in a standardized fashion and score and interpret responses according to established criteria. Psychologists who develop tests or assessment techniques must provide explanations of the meaning and intended interpretation of reported scores by users, school personnel, organizational clients, the courts, and others as appropriate. For example, a test manual might explain how score interpretation can be facilitated through norm- or criterion-referenced scoring, scaling, or cut scores.
Psychologists’ validity reports should accurately reflect the soundness of the test validation research supporting the use of an assessment procedure. Psychologists should include in their reports methodological or statistical weaknesses that would limit the usefulness of the test.
- ☒ A psychologist working for a test company was responsible for developing a test for premorbid speech and language predictors of childhood-onset schizophrenia. Child inpatients who had already been diagnosed with schizophrenia were the only population available for test development. The test yielded good test–retest reliability and was validated on correlations with practitioner diagnoses of childhood schizophrenia. In writing the test manual, the psychologist described the test as useful for identifying children at risk for the disorder. The manual did not indicate that test norms were applicable only to inpatients who had already manifested the disorder.
- ☒ A psychologist was hired by a company to develop a work climate questionnaire to help in its restructuring plans. In her lengthy validity report to the company, the psychologist buried information that indicated problems with sample representativeness and low validity coefficients, and she failed to include this information in the executive summary (see Lowman, 2006, Case 8; Principle C: Integrity).
Once tests have been developed, test developers are responsible for monitoring conditions that might warrant test revision, modifications in recommendations for test interpretation, or limitations on or withdrawal of test use. According to the Standards for Educational and Psychological Testing, tests should be amended or revised when new research data, significant changes in the domain represented, or newly recommended conditions of test use may lower the validity of test score interpretations, and any substantial modifications to the test must be included in the test documentation. (AERA, APA, & NCME, 2014). The scope of test revision will depend on the conditions warranting change and may include revisions in test stimuli, administration procedures, scales or units of measure, norms or psychometric features, or applications (Butcher, 2000). Bersoff et al. (2012) emphasized psychologists’ responsibility to keep up-to-date on society-wide improvements or shifts in test performance, known as the Flynn effect (Flynn, 1984).
- ☒ A test company sold a popular test to help determine cognitive decline in newly admitted nursing home patients. The test had been used for more than 15 years. During the past 5 years, the psychologist directing the geropsychological test department of the company had been getting complaints that patients were being underdiagnosed. The psychologist reasoned that the test norms established 15 years ago might not be applicable to a better-educated cohort of elderly persons. However, the company’s current 5-year plan focused on the development of new depression inventories and had no budget for revisions of current tests. The psychologist decided not to rock the boat and to wait for the next 5-year plan to recommend a revision of the test (see also Standard 1.03, Conflicts Between Ethics and Organizational Demands).
9.06 Interpreting Assessment Results
Accurate interpretations of assessment results are critical to ensure that appropriate decisions are made regarding an individual’s diagnosis, treatment plan, legal status, educational placement, or employment and promotion opportunities. It is ethically imperative that when providing interpretations, psychologists take into account the purpose of the test and testee characteristics and indicate any significant limitations of their interpretations.
The Purpose of the Test
As required by Standard 9.06, the purpose of the assessment must be considered carefully in the interpretation of test scores. At the same time, psychologists must resist allowing test interpretations to be biased by pressure from school personnel, parents, employers, attorneys, managed care companies, or others with a vested interest in a particular interpretation (Standard 3.06, Conflict of Interest).
When offering recommendations, drawing conclusions, or making predictions from test scores, psychologists should refer to test manuals prepared by the test developer as well as relevant research to understand the extent to which tests, in isolation or within the context of other tests, are directly related to the purpose of testing.
Test Factors and Examinee Characteristics
With the exception of perhaps some employment-related screenings, interpretations should never be based solely on test scores. Standard 9.06 requires psychologists to consider factors associated with the testing context, the examinee’s test-taking abilities, and other characteristics that may affect or inappropriately bias interpretations. When relevant, psychologists should take into account observations of test-taking styles, fatigue, perceptual and motor impairments, illness, limited fluency in the language of the test, or lack of cultural familiarity with test items that would introduce construct-irrelevant variability into a test score (AERA, APA, & NCME, 2014).
In addition to familiarity with the test itself, psychologists should have the specialized knowledge necessary to formulate professional judgments about the meaning of test scores as they relate to the individual examinee (see Standard 2.01b and 2.01c, Boundaries of Competence).
Test takers’ scores should not be interpreted in isolation from other information about the characteristics of the person being assessed. Such information may be gained from interviews; additional testing; or collateral information from teachers, employers, supervisors, parents, or school or employment records. Such information may lead to alternative explanations for examinees’ test performance.
- ☒ A neuropsychologist was hired by an insurance claims company to evaluate whether an individual insured by the company had sustained neurological damage following a car accident or whether the individual was feigning symptoms. Following administration of a battery of tests, the psychologist determined that the individual’s test scores were at the lower boundaries of normal functioning. Although the psychologist made no effort to obtain information regarding the patient’s neurological functioning before the accident, he concluded in his report that there was no evidence to support an injury claim.
- ☒ A psychologist conducting employment assessment for law enforcement personnel interpreted candidates’ scores using norms from a broad range of reference groups rather than police-normative data (Gallo & Halgin, 2011).
- ☒ An inpatient at a psychiatric hospital had a Monday appointment with a psychologist to help determine whether he was well enough to go home for the weekend. When he arrived for the appointment, he was obviously distressed and told the psychologist that the patient he shared his room with had threatened to kill him. The psychologist confirmed this story with one of the orderlies. Rather than reschedule the appointment, the psychologist decided to conduct the required standardized assessment and clinical interview. In his report, the psychologist noted that the patient had high scores on the Minnesota Multiphasic Personality Inventory (MMPI; Butcher, Dahlstrom, Graham, Tellegen, & Kaemmer, 2002), indicating paranoid tendencies and high levels of stress that might be interpreted as a lack of readiness to go home. The psychologist’s report did not address how the events surrounding the roommate’s threats might have influenced MMPI scores and responses to interview questions.
- ☑ An industrial–organizational psychologist was responsible for administering and interpreting standardized group tests for employee promotion. During one testing session, two employees got into a shouting match that threatened but did not become a physical fight. In his reporting of the test results to managers, the psychologist mentioned there had been a disturbance that could have had a significant detrimental effect on testees’ performance and recommended that those who requested should be permitted to retake the tests.
Need to Know: Sexual and Gender Minority (SGM) Parents and Determination of Child Custody
Psychologists conducting child custody assessments involving lesbian, gay, bisexual, transgender, or gender-nonconforming parents need to keep updated on evolving law and empirical data on parenting relevant to this area (Standard 2.03, Maintaining Competence). For example, contrary to public debates surrounding the relative parenting competencies of heterosexual and SGM parents, research indicates no differences in parenting practices or child outcomes related to children’s psychological adjustment, sexual identity, or peer harassment (Cheng & Powell, 2015; Patterson, 2006). In a comprehensive summary of this issue, Haney-Caron and Heilbrun (2014) recommended several considerations for custody assessments. First, custody evaluations procedures should ensure that no assumptions are made that sexual orientation or gender identity favorably or unfavorably impacts parenting effectiveness (Standard 3.01, Unfair Discrimination). Second, given the potential for social bias and judicial preconceptions regarding SGM parenting, psychologists should consider providing the court with empirical and other sources of information to address any misconceptions held by the judge. This is particularly relevant in states that rely on a “nexus” or “adverse impact” test that courts have used to conclude that a child of a sexual- or gender-minority parent will be exposed to social stigma, an “immoral” lifestyle, or “become” gay. Third, in jurisdictions in which the rights of SGM parents are significantly limited, psychologists’ reports should consider the impact of separation from or loss of a caretaking relationship with a person who may not be a child’s legal parent.
Under Standard 9.06, psychologists must indicate any significant limitations of their interpretations. In general, interpretive remarks that are not supported by validity and reliability information should be presented as hypotheses. When test batteries are used, interpretations of patterns of relationships among different test scores should be based on identifiable evidence. If none is available, this fact must be stated in the report. Interpretations of test results often include recommendations for placement, treatment, employment, or legal status based on validity evidence and professional experience. Psychologists should refrain from implying that empirical relationships exist between test results and recommendations when they do not, as well as distinguish between recommendations based on empirical evidence and those based on professional judgment.
Computer-generated interpretations are based on accumulated empirical data and expert judgment but cannot take into account the special characteristics of the examinee. Automated reports are not a substitute for the clinical judgment of a psychologist who has worked directly with the examinee or for the integration of other information, including other test results, behavioral observation, or interviews (AERA, APA, & NCME, 2014). Psychologists should use interpretations provided by automated and other types of services with caution and indicate their relevant limitations.
9.07 Assessment by Unqualified Persons
Psychologists’ professional and scientific responsibilities to society and those with whom they work (Principle B: Fidelity and Responsibility) include helping ensure that the administration, scoring, interpretation, and use of psychological tests are conducted only by those who are competent to do so by virtue of their education, training, or experience. Standard 9.07 prohibits psychologists from promoting the use of psychological assessment techniques by unqualified persons. For example, psychologists should not employ persons who have not received formal graduate-level training in psychological assessments to administer, score, or interpret psychological tests that will be used to determine an individual’s educational placement, psychological characteristics for employment or promotion, competence to stand trial, parenting skills relevant to child custody, mental health status or diagnosis, or treatment plan.
Psychological Assessments Conducted by Trainees
Standard 9.07 does not prohibit psychologists from supervising trainees in the administration, scoring, and interpretation of tests. However, (a) the trainees must be qualified on the basis of their enrollment in a graduate or postdoctoral psychology program or externship or internship and (b) supervision must be appropriate to their level of training. For example, psychologists teaching a first-year graduate-level personality assessment course that requires students to submit scored protocols of individuals they have independently assessed must ensure that (a) the course adequately prepares students for initial testing situations and (b) students inform persons tested or their legal guardians that the testing is for training purposes only and not for individual assessment.
When students registered in advanced practica, externships, or internships have had a sequence of courses in an assessment program, faculty and site supervisors must nonetheless provide a level of supervision appropriate to the trainees’ previous education and experience and see that trainees administer, score, and interpret tests competently (see also Standard 2.05, Delegation of Work to Others).
- ☒ A group practice of consulting psychologists was hired to conduct psychological assessments of applicants for promotion to management positions in a large national company. After a month, the managing psychologists realized they had not negotiated a contractual fee large enough to employ the number of advanced-degree psychologists required to conduct all of the assessments. To stay within budget, they set up an internship program for business school seniors and trained them to administer the tests.
- ☑ A psychologist served as an on-site supervisor for externships of third-year school psychology graduate students in a large school district. All students had taken a series of advanced courses in educational assessment. In addition to reviewing their transcripts, during the first weeks of the externship, the psychologist observed each student administer tests and carefully reviewed and provided feedback on their scoring and interpretation of the standard battery of tests they were expected to use. She held weekly supervision meetings with the students and continued to review their reports throughout the year.
- ☒ Members of a group practice composed of educational, school, and clinical psychologists specializing in learning disabilities and school-related disorders were finding it difficult to keep up with the hours required to provide individualized treatment, family therapy, and psychological assessment. To meet their needs and keep costs down, they decided to hire and train recent college graduates who had majored in psychology or education to independently administer some of the assessments.
9.08 Obsolete Tests and Outdated Test Results
Standard 9.08a prohibits psychologists from making evaluative, intervention, or treatment decisions or recommendations based on outdated data or test results, unless such information is specifically relevant to the diagnostic or placement decision. The standard applies to psychologists who administer, score, and interpret the test as well as to psychologists who use test results for intervention decisions or recommendations. Whether test data or results are outdated for the current purpose may be determined by whether the test from which scores were derived is itself obsolete (see Standard 9.08b, below).
Standard 9.08a is addressed to the use of test scores that may have been derived from currently used tests but are obsolete for the purposes of the evaluation. Previous scores derived from an up-to-date version of a test may be obsolete if individuals might be expected to score differently or require a different test based on (a) the amount of time between the previous administration and the current need for assessment, (b) maturational and other developmental changes, (c) educational advancement, (d) job training or employment experiences, (e) change in health status, (f) new symptomatology, (g) change in work or family status, or (h) an accident or traumatic experience.
In some instances, it may be appropriate to use outdated test scores as a basis of comparison with new test results to evaluate the long-term effectiveness of an educational program or intervention or to help identify cognitive decline or a sudden change in mental health or adaptive functioning relevant to treatment, placement in an appropriate educational or health care environment, disability claims, competency hearings, or custody suits. When outdated data or results are used, psychologists’ reports and recommendations should include explanations for their use and their limitations (see Standard 9.06, Interpreting Assessment Results).
Psychologists should resist pressures to use obsolete test results from schools, health care delivery systems, or other agencies or organizations that seek to cut expenses by using outdated test results for employment, promotion, educational placement, or services (see Standard 1.03, Conflicts Between Ethics and Organizational Demands).
Test developers often construct new versions of a test to reflect significant (a) advances in the theoretical constructs underlying the psychological characteristic assessed; (b) transformations in cultural, educational, linguistic, or societal influences that challenge the extent to which current test items validly reflect content domains; or (c) changes in the demographic characteristics of the population to be tested affecting the interpretations that can be drawn from standardized scores. Standard 9.08b prohibits psychologists from using outdated versions of tests for assessment or intervention decisions when interpretations drawn from the test are of questionable validity or otherwise not useful for the purpose of testing.
The expense of purchasing the most up-to-date version of a test is not an ethical justification for using obsolete tests when the validity of interpretations drawn from such tests is compromised. Psychologists working with schools, businesses, government agencies, courts, HMOs, and health care delivery systems that resist purchasing updated tests because of costs or ease of record keeping should clarify the nature of the problem; urge organizational reconsideration; and, if such recommendations are not heeded, strive to the extent feasible to limit harms that will arise from misapplication of the test results, ensuring that their actions do not justify or defend violating testees’ human rights (see Standards 1.02, Conflicts Between Ethics and Law, Regulations, or Other Governing Legal Authority; 1.03, Conflicts Between Ethics and Organizational Demands).
The standard does permit psychologists to use obsolete versions of a test when there is a valid purpose for doing so. In most cases, the purpose will be to compare past and current test performance. When use of an obsolete test is appropriate to the purpose of assessment, psychologists should clarify to schools, courts, or others that will use the test results which version of the test was used, why that version was selected, and the test norms used to interpret the results.
- ☑ A neuropsychologist was asked to evaluate cognitive and personality factors that might be responsible for a sudden change in adaptive functioning of an 80-year-old nursing home resident. The resident had been given a battery of intelligence and personality tests 5 years previously upon admission to the nursing home. Advances in geropsychology in the past 5 years had resulted in more developmentally appropriate and sensitive assessment instruments for this age group. The psychologist conducted a new evaluation using the more valid instruments. In her summary, she compared the results of the assessment with the results of the earlier evaluation, accompanied by a discussion of the limitations of comparing current performance with the older test results.
- ☑ A psychologist asked to evaluate an employee’s claim that an industrial accident was responsible for a current disabling psychological disorder learned that the employee had been administered a battery of cognitive and personality tests several years earlier during preemployment screening. The psychologist decided it would be useful and appropriate to compare the complainant’s current performance with his performance on test scores obtained prior to the accident. One of the previous scores was derived from an older version of a test that had been updated and revised recently. The psychologist decided to administer the older version of the test to better determine whether functioning had been affected by the accident. The psychologist’s report included a rationale for the use of the older version of the test.
Need to Know: When to Use Obsolete Tests
The Ethics Code does not prescribe a specific time period in which psychologists should adopt a new version of a test. Such decisions depend on which version is best suited for an examinee within the context of the specific purpose of testing. Psychologists should be cautious about adopting a test publisher’s recommendations for when they should purchase and transition to a revision, since such recommendations do not have legal standing and test developers have a financial stake in encouraging the purchase of new versions (Bush, 2010). Bush (2010) recommended that psychologists should be guided by whether independent research on the new or revised measure supports its use for a particular purpose or patient population; use of the prior version of the test may be preferable, and the rationale for selecting a specific edition should be included in the written assessment report.
9.09 Test Scoring and Interpretation Services
Standard 9.09 applies to psychologists who develop or sell computerized, automated, web-linked, or other test-scoring and interpretation services to other professionals. Psychologists offering these services must provide in manuals, instructions, brochures, and advertisements accurate statements about the purpose, basis, and method of scoring; validity and reliability of scores derived from the service; professional contexts in which the scores can be applied; and any special user qualifications necessary to competently use the service.
When test interpretations, in addition to scores, will be provided to users of the services, psychologists providing the services must document the sources, theoretical rationale, and psychometric evidence for the validity and reliability of the particular interpretation method employed. Psychologists providing scoring services must include a summary of the evidence supporting the interpretations that includes the nature, rationale, and formulas for cutoff scores or configural scoring rules (rules for scoring test items or subtests that depend on a pattern of responses). If a discussion of the algorithms or other rules for scoring would jeopardize proprietary interests, copyrights, or other intellectual property rights issues, owners of the intellectual property are nevertheless responsible for documenting in some way evidence in support of the validity of score interpretations (AERA, APA, & NCME, 2014).
Descriptions of the application of test-scoring and interpretation procedures must include a discussion of their limitations. For example, computer-generated or automated systems may not be able to take into account specific features of the examinee that are relevant to test interpretation such as medical history, gender, age, ethnicity, employment history, education, or competence in the language of the test; motor problems that might interfere with test taking; current life stressors; or special conditions of the testing environment.
Standard 9.09b applies to psychologists who use computerized, automated, web-linked, or other test scoring and interpretation services developed by other professionals or test vendors. Psychologists should select only test scoring and interpretation services that provide evidence of the validity of the program and procedures for the types of evaluation or treatment decisions that are to be informed by the assessment and that are appropriate for the individual case under consideration. Psychologists should not use scoring and interpretation services if the psychometric information provided by the test-scoring or interpretation services is inadequate or fails to support the applicability of the scoring and interpretation methods to the goals of the particular assessment.
Implications of HIPAA
When the test data to be scored and interpreted by the service come under the HIPAA definition of PHI, the Notice of Privacy Practices must list the name of the service or the psychologist must obtain a valid authorization from the client/patient to transmit the information to the service (see more detailed discussion on core requirements for valid HIPAA authorizations under Standard 4.05a, Disclosures). Psychologists must also ensure that the service receives, stores, transmits, and discloses client/patient information in a manner that is HIPAA compliant. In most instances, psychologists will enter into a business associate agreement with the testing service. As part of the HIPAA-required business associate contract, the service must provide assurances to the psychologist that information will be safeguarded appropriately. If a psychologist discovers that the service has violated HIPAA regulations in some way, the psychologist must correct the error or terminate the business associate contract.
Irrespective of whether psychologists use a service or score and interpret test data themselves, the psychologist is ultimately responsible for the appropriate selection, administration, scoring, interpretation, and use of the test. Under Standard 9.09c, psychologists must acknowledge this responsibility and take appropriate steps to ensure that tests were properly scored and interpreted.
To be in compliance with this Standard, psychologists must avoid simplified interpretations of test scores that can lead to misdiagnosis, inadequate or iatrogenic treatment plans, or unfair or invalid personnel decisions or that can mislead the trier of fact in judicial and government hearings. Psychologists must also possess the following competencies (AERA, APA, & NCME, 2014; Standard 2.01, Boundaries of Competence):
- Sufficient familiarity with scoring and interpretation techniques to adequately perform these tasks themselves, detect errors in test scores provided by a service, and critically evaluate canned interpretations.
- Training and experience necessary to identify the limitations of test service interpretations and know when collateral test scores and other relevant information are necessary to adequately interpret and apply test results. Such information might include an examinee’s health status, culture, gender, age, employment history, educational experiences, language competencies, physical disabilities, symptoms of or empirical evidence supporting an assumption of comorbid disorders, current life stressors, and special conditions of the testing environment.
Digital Ethics: Security and Interpretation of Online Testing
The use of online preemployment testing is becoming increasingly popular because of its convenience and lower cost as well as an expansion of the pool of national and international applicants that can be screened. Organizational and consulting psychologists utilizing these systems need to be aware of the serious security risks associated with this new technology. As detailed by Foster (2010), these tests are often offered without security to enable easy administration and worldwide reach. This poses a threat to test interpretation, since there is usually no way to authenticate who actually took the test and test theft and cheating are easily accomplished.
9.10 Explaining Assessment Results
Psychologists who administer, supervise, or otherwise are responsible for test administration are also responsible for ensuring that the individuals tested, their guardians, or personal representative receive an explanation of the assessment results. The purpose of an explanation is to enable a client/patient to understand the meaning of a test score or test score interpretation as it relates to its purpose, implications, and potential consequences. An appropriate explanation “should describe in simple language what the test covers, what scores mean, the precision of the scores, common misinterpretations of the test scores, and how scores will be used” (AERA, APA, & NCME, 2014, p. 119). Whenever possible and clinically appropriate, psychologists assessing children and adolescents should provide feedback to the child as well as his or her guardian; the feedback should be appropriate to the child’s developmental level.
Employees and Trainees
According to Standard 9.10, the responsibility for appropriate test explanation lies with the psychologist. It takes into account whether he or she personally scored or interpreted the test, assigned the scoring or interpretation to an employee or assistant, or used an outside service (Standard 2.05, Delegation of Work to Others). The standard does not require psychologists to provide the explanation but to take reasonable steps to ensure that one is given. The term reasonable steps is used to acknowledge situations in which the examinee may not wish to or is unable to meet for an explanation of results or an employee has misinformed the psychologist about an explanation taking place. If, however, a psychologist is aware that appropriate staff is unavailable or unable to provide the explanation, the psychologist should do so personally.
- ☒ A psychologist supervised several interns at an outpatient unit of a veterans hospital. The interns were responsible for administering a battery of psychological tests to new patients. Weekly supervision meetings with the interns included discussion of test selection, administration, scoring, and interpretation. The psychologist paid only cursory attention to instructing the supervisees on how to explain test results to patients. The clinic director received several complaints that interns’ explanations of test results were confusing and distressing to patients (see also Standard 2.05, Delegation of Work to Others).
Use of Automated Scoring Services
A psychologist who asks a scoring service to send a computerized interpretation to a client/patient should take reasonable steps to ensure that the computerized interpretation provides an explanation adequate for conveying test performance information to examinees. As discussed under Standard 9.09b, psychologists who are covered entities under HIPAA and use scoring services must include this information in the Notice of Privacy Practices or obtain a specific client/patient authorization to use such services and ensure that the service transmits information and protects client/patient privacy in a HIPAA-compliant manner.
- ☑ A psychologist decided to use a popular scoring service for some frequently administered tests after examination of the company’s materials indicated that the scoring system was reliable and valid. An added benefit of the service was that it would send test interpretations directly to the client. For the first set of test data the psychologist sent to the service, she asked the service to send her the test interpretation that is usually mailed directly to the client. The psychologist reviewed the interpretive materials and believed that the information was too sparse to adequately inform clients and might create confusion. She therefore decided to continue using the service for scoring but did not permit the service to send explanations directly to the client.
Standard 9.10 permits exceptions to this requirement when an explanation of the results is precluded by the psychologist–examinee relationship, such as when an organization or legal counsel has retained the psychologist’s services or assessment has been ordered by a judicial referral. For example, it is usually inappropriate for psychologists to provide an explanation of test results directly to the examinee when testing is court ordered, when it involves employment testing, or when it involves eligibility for security clearances for government work. Rather, reports are released to the court or retaining party and cannot be released to examinees and their family members, doctors, lawyers, or other representatives without the permission of the retaining party or the court (Bush et al., 2006; National Academy of Neuropsychology Policy and Planning Committee, 2003). In such situations, prior to administering assessments, psychologists are required to inform examinees that the psychologist will not be providing them with an explanation of the test results. If legally permissible, the psychologist should provide the reason why an explanation will not be given (see Standards 3.10c, Informed Consent; 3.11, Psychological Services Delivered To or Through Organizations; 9.03, Informed Consent in Assessments).
9.11 Maintaining Test Security
An assumption of test validity is that individuals take the test under prescribed standardized conditions. For many tests, a critical aspect of standardization is that testees are equally unfamiliar with the test items. When some testees have access to test items prior to the administration of the test, the test norms and thus interpretations based on scaled scores may not be psychometrically defensible. Duplicating test materials or making video or audio recordings of an assessment session that subsequently enters the public domain also threatens the ongoing validity of tests. Individuals who have had uncontrolled access to test content can manipulate or coach others to manipulate test results that harm the public by enabling individuals to malinger or to obtain positions for which they are unqualified. Many tests consist of a static number of items that are costly to develop, take years to construct, and are not easily replaced. Thus, release of test materials can compromise the validity and usefulness of a test and jeopardize the intellectual property rights of test authors and publishers.
Definition of Test Materials and Test Security
Under Standard 9.11, test materials are manuals, instruments, protocols, and test questions or stimuli that do not come under the definition of test data, as defined in Standard 9.04a, Release of Test Data. Under Standard 9.11, psychologists have a duty to make reasonable efforts to protect the integrity and security of test materials and other assessment techniques. With few exceptions, test materials that do not include client/patient responses should never be released to clients/patients or others unqualified to use the instruments. Unless specifically recommended by the test developer, self-administered tests should not be given to clients/patients to take home. Additional security precautions need to be taken for tests administered through the Internet. Psychologists should consult test developers and, if necessary, seek legal consultation before distributing copyrighted tests over the Internet (Bersoff et al., 2012).
This standard does not prohibit psychologists from discussing individual test items with clients/patients if doing so assists in explaining test results (Standard 9.10, Explaining Assessment Results). Psychologists may also send test materials to other qualified health professionals bound by their ethical guidelines to protect the security of the instruments, taking appropriate steps not to violate copyright laws.
- ☒ A patient of a psychologist in independent practice was discussing her anxiety about an upcoming psychological evaluation for a job promotion that required security clearance. To reduce the patient’s anxiety, the psychologist took out from his files several of the standardized tests that are usually administered for such purposes and went over them with the patient.
Laws Governing Release of Records
Implications of HIPAA
Although HIPAA recognizes the obligation of covered entities to protect test materials that come under copyright law, as a matter of practice, psychologists should keep test materials separated from a client’s/patient’s mental health records so the materials do not risk being included as a HIPAA-defined “designated record set,” which may not be withheld pursuant to client/patient release under federal law. Test materials do not have to be included in the patient’s record if test data, as defined by Standard 9.04, Release of Test Data, are not recorded on the test material itself. Separated does not necessarily mean that the test data and test material must be kept in a separate file cabinet, but it does require that they be separated by a folder or binding unit so they are not confused or commingled with the test data records. Psychologists should seek legal advice before making such a determination and be mindful that removing clients’/patients’ responses from the test protocol after they have been recorded on the material can constitute unlawful alteration of the patient’s record.
Implications of FERPA
School psychologists may also find that laws governing the release of school records supersede the requirements of Standard 9.11. FERPA establishes the right of parents to obtain copies of their children’s school records where failure to provide the copies would effectively prevent a parent or eligible student from exercising his or her right to inspect and review the education records (20 U.S.C. § 1232G[a][A]; 34 CFR § 99.11b; http://www.ed.gov/offices/OM/fpco/ferpa/index.html). Schools are not required to provide copies of the records unless, because of distance or other considerations, it is impossible for the parent or student to review the records. Psychologists working in schools may also release test materials to attorneys or other nonprofessionals in response to a court order. In these situations, psychologists can request that the court issue a protective order requiring that test items not be duplicated or made available to the public as part of the court record and returned to the psychologist at the end of the proceedings.
Copyright Protection Laws
Release of “test data” that include client/patient responses recorded on the test protocol itself can raise issues of copyright protection and fair use by test development companies. If testing protocols allow, psychologists may wish to record client/patient responses on a form separated from the test items themselves to comply with contractual agreements with test developers and to maintain test security (Standard 9.11, Maintaining Test Security).
When test data consisting of PHI cannot be separated from test materials that are protected by copyright law, psychologists’ decision to withhold the release of test data would be consistent with HIPAA regulations and Standard 9.04a. In school contexts, reproduction of a test without permission may also be a violation of copyright law, although providing a single copy of a used protocol to parents under FERPA regulations may fall under the “fair use doctrine” provisions of copyright law (Jacob & Hartshorne, 2007; Newport-Mesa Unified School District v. State of California Department of Education, 2005).
The increase in use of listservs, social media, and websites authored by psychologists has given rise to an increase in threats to test security. Psychologists need to monitor their online communications to ensure that they do not divulge sensitive information about the content or interpretation of frequently used psychological tests (Schultz & Loving, 2012).
Hot Topic: The Use of Assessments in Expert Testimony: Implications of Case Law and the Federal Rules of Evidence
In 1988, testimony by mental health professionals accepted as experts by the court played a key role in the conviction of Kelly Michaels on 115 counts of sexual offenses involving 20 nursery school children. The “experts” claimed that the responses of children to assessment questions fit the profiles of abuse “documented” by Roland Summit (1983) and Suzanne Sgroi (1982). However, these profiles, drawn from clinical work with sexually abused children, were largely theoretical and had never been subjected to tests of validity or reliability in or out of a forensic context (Fisher, 1995). Five years after Ms. Michaels’s conviction, the Appellate Division ruled that the data on which the experts’ testimonies were based were unreliable, invalid, and not probative of sexual abuse and therefore could not be used as evidence of guilt (State of New Jersey v. Margaret Kelly Michaels, 1993).
The Kelly Michaels case served as a wake-up call for psychologists on the ethical and legal consequences of providing expert testimony based on assessment instruments and procedures that have not gained general acceptance within the field and do not have established relevance to the legal question at hand (Everson & Faller, 2012; Faller & Everson, 2012; Klee & Friedman, 2001; Olafson, 2012; Standards 2.04, Bases for Scientific and Professional Judgments, and 9.01, Bases for Assessments). This Hot Topic highlights ethical and legal challenges in selecting forensically valid assessment instruments for expert testimony.
Relevant Case and Federal Law
Mental health professionals are not alone in receiving increased scrutiny of expert opinion in criminal and civil cases. In recent years, there has been an increase in federal and case law requiring judges to determine evidentiary admissibility of expert testimony based on the general acceptance of methods and procedures within the expert’s field (Heilbrun & LaDuke, 2015; Klee & Friedman, 2001; Sales & Shuman, 2007).
The “General Acceptance” Standard
The “general acceptance” standard for admissibility of expert testimony was first established by the Supreme Court in Frye v. United States (1923). In Daubert v. Merrell Dow Pharmaceuticals, Inc. (1993), the standard was expanded to require specific relevance to the legal question at hand and demonstrated scientific reliability and validity. In General Electric Co. v. Joiner (1997), the Court held that judges should exclude from evidence expert testimony when the data (and the methodology used to substantiate the data) are insufficiently linked to the legal question at hand (Grove & Barden, 1999). The “general acceptance” standard was explicitly extended to practitioners in Kumho Tire Co., Ltd. v. Carmichael (1999).
As of 2004, the Federal Rules of Evidence (70 FED. R. EVID. 702) require judges to permit expert testimony only if it is derived from reliable principles and methods in the expert’s field and these principles and methods have been applied reliably to the facts of the case.
In light of case and federal law, appropriate selection of psychological assessment methods for forensic use should be determined by the legal question at hand, the psychometric properties of the instruments and procedures, and admissibility standards established by the court (Bush et al., 2006; Standards 2.01f, Boundaries of Competence; 9.01a, Bases for Assessments; and 9.02, Use of Assessments).
Challenges of the “General Acceptance” Standard to Selection and Use of Assessments in Forensic Contexts
The integration of Daubert, Kumho, and Joiner into courts’ standards for admissibility of expert testimony has led to ethical and legal debate regarding whether assessments used in clinical settings should be included in forensic opinions if they have not been validated for application to issues before the court. For example, diagnostic categories derived from the Diagnostic and Statistical Manual of Mental Disorders (DSM-5, American Psychiatric Association, 2013), while useful in increasing the reliability of practitioners’ agreement on a patient’s diagnosis, may not be acceptable under the Daubert–Kumho–Joiner evidentiary criteria because they are derived from a process of consensus among a small group of professionals that sometimes draws upon available research but does not require scientific data to validate the existence or etiology of the disorder (Grove & Barden, 1999; Heilbrun, Grisso, & Goldstein, 2009).
Similar arguments have been made against the use of tests such as the Rorschach Comprehensive System as data for expert testimony regarding psychopathology, based on the fact, among others, that its validity and reliability in and outside of forensic settings continue to be the subject of intense scientific debate (Grove, Barden, Garb, & Lilienfeld, 2002; Ritzler, Erard, & Pettigrew, 2002). Others have challenged whether assessments for neurological injury claims meet the Daubert–Kumho–Joiner standard for evidentiary admissibility in the absence of premorbid baselines or empirically established ecological validity of the tests to predict functioning in everyday life (Stern, 2001).
Kaufman (2011) has identified four recurring challenges to the admissibility of neuropsychological evidence: (1) battery selection (fixed vs. flexible), (2) symptom validity measures, (3) causation opinions, and (4) nonpsychologists exerting neuropsychological opinions.
The Limits of Psychological Assessments for Child Custody Disputes
In recent years, courts have begun using the ambiguous standard “best interests of the child” as a means of resolving custody decisions (APA, 2010d; Elrod & Spector, 2004). Currently, there are no reliable legal criteria or any validated mental health or behavioral criteria on which a psychologist can provide an expert opinion on “best interests” (Krauss & Sales, 2000). Forensic psychologists hired to evaluate the mental health of one or more family members can provide expert opinion on the interpretation of data based on assessment instruments found to be reliable and valid indicators of children’s or parents’ emotional and cognitive status and their interpersonal interactions with one another (O’Donohue, Beitz, & Tolle, 2009). However, unless there is established scientific evidence that these instruments can reliably determine whether joint custody or the number of visitations permitted for a noncustodial parent would be in the best interests of the child, expert opinion that implies a direct empirical link between the data collected to specific recommendations regarding custody decisions before the court may be inadmissible under the Daubert–Kumho–Joiner standard and in violation of Standard 9.01a, Bases for Assessments (Ellis, 2012; Heilbrun & LaDuke, 2015; Otto & Martindale, 2007).
Forensic Assessment Relevant to Violent or Abusive Crimes
In criminal cases, forensic psychologists are often called upon to provide expert testimony based on a defendant’s response to assessment instruments designed to measure inclinations toward violence or psychopathologies associated with abusive or other criminal behaviors (Nedopil, 2002; Tolman & Rotzien, 2007). Psychometric techniques for evaluating the validity of such assessment instruments most often depend on probability evidence and comparisons of within- and between-group responses to determine a test’s reliability and validity. By contrast, the ultimate decision before the court in such cases is categorical: A defendant is either guilty or innocent. The opinions of psychologists testifying as expert witnesses must therefore reflect the limitations of the methods in which data were obtained (Vitacco, Gonsalves, Tomony, Smith, & Lishner, 2012). The clinical forensic evaluator can testify as to the degree to which a defendant’s test scores reach criteria for psychological characteristics associated with different criminal behaviors but cannot form an opinion as to whether those scores indicate the defendant’s behavioral guilt or innocence in the legal case at hand (Fisher, 1995; Krauss & Lieberman, 2007).
The law is inconsistent on whether experts can testify to the ultimate legal issue (the question of law that is before the court). In some jurisdictions doing so is prohibited, while in others it is required. There is also continuing debate as to whether such testimony harms the legal process by invading the province of the judge or jury. For example, Grisso (2003) cautioned forensic psychologists to be aware that “an expert opinion that answers the ultimate legal question is not an ‘expert’ opinion, but a personal value judgment” (p. 477). If required to answer the ultimate legal issue, take steps to minimize any potentially adverse impact by explicitly recognizing in the forensic report and in testimony the court’s responsibility for the legal decision and that the ultimate opinion expressed is a clinical opinion of the evaluator (Heilbrun & LaDuke, 2015).
Ethical and Legal Considerations in the Selection and Use of Assessment Instruments for Expert Testimony
Psychologists providing expert testimony based on psychological assessments with established relevance to the legal question at hand assist the courts in making fair determinations by illuminating data on the legal issue. However, neither justice nor the legal rights of plaintiffs or defendants are well served when psychologists declaring “expert” status present forensic opinions based on assessment instruments and techniques insufficient to substantiate their findings (Principle B: Fidelity and Responsibility and Principle D: Justice; Standards 2.04, Bases for Scientific and Professional Judgments, and 9.01, Bases for Assessments). The following are points that psychologists should consider when expert testimony will be based on psychological assessment:
- Select assessment instruments and procedures with established psychometric validity and reliability for the legal question at hand (Standards 9.01a, Bases for Assessments; 9.02a, Use of Assessments).
- Ensure that established principles of test interpretation have been applied reliably to the facts of the case (Standard 9.06, Interpreting Assessment Results).
- Prepare testimony that reflects awareness of and meets legal criteria for the admissibility of expert testimony based on the reliability of the scientific foundation on which an opinion is based and the established validity and reliability in providing data relevant to the legal question for which their opinion is sought (Bush et al., 2006; Daubert–Kumho–Joiner; Standards 2.01f, Boundaries of Competence, and 2.04, Bases for Scientific and Professional Judgments).
- Take full responsibility for ensuring testimony is not flawed by the use of unorthodox assessment procedures and provide the court with the reasoning that led from the data to the expert opinion (Grisso, 2003; Heilbrun, 2001).
- Acknowledge limitations in the applicability of the test data to the legal issue (Standard 9.06, Interpreting Assessment Results).
- Avoid omission of relevant data or overemphasis on minor facts to support an opinion (Bush et al., 2006).
- Avoid offering testimony beyond the data collected.
Chapter Cases and Ethics Discussion Questions
Dr. Romanoff, a neuropsychologist in a small interprofessional group practice has been asked by the practice’s pediatrician to evaluate Tommy, a second grader who is displaying behavioral problems at home and at school. Tommy’s parents have joint custody and alternate their child care responsibilities on a weekly basis. Dr. Romanoff conducted a standard battery of assessments that included neuropsychological testing; standardized instruments completed by Tommy, his parents, and teachers; and a family-based clinical interview. The majority of standardized assessments support a diagnosis of attention-deficit/hyperactivity disorder (ADHD). However, the family interviews indicate that behavioral problems largely emerge during weeks when Tommy stays at the home of his mother and her female romantic partner. Dr. Romanoff is aware that in the future, her report may be used in court if Tommy’s father chooses to challenge the custody arrangements and is unsure whether her report should mention the gender of Tommy’s mother’s romantic partner. She is also concerned that if she includes a diagnosis of ADHD, the pediatrician will automatically prescribe medications without exploring the family factors that may also account for the symptoms. Discuss the ethical issues that Dr. Romanoff needs to consider as she is completing the assessment, writing the report, and interpreting the results.
Dr. Tagashi is a school psychologist who works in a district with very few resources. His responsibilities include developing an individualized educational plan (IEP) for students whose assessments indicate special needs. The district does not have the resources to provide most students with special needs the most up-to-date evidence-based practices (EBPs) for educational programs. Dr. Tagashi does not know whether he should recommend EBP programs when developing the IEPs or programs that reflect the resource limitations of the district. Discuss the ethical principles and Section 9 Assessment standards that Dr. Tagashi should consider in resolving his dilemma. How might a consideration of the virtues discussed in Chapter 3 also help guide ethical decision making?
Dr. Sharah, a clinical psychologist specializing in geriatric care, has a private practice that receives referrals from an integrated care facility. Under the Affordable Care Act (ACA) as a contracted mental health provider for the facility, she has access to every referred patient’s electronic health record (EHR) and is required to enter her weekly session reports into the shared EHR as well. The facility has just referred Andre, a 67-year-old retiree who has been diagnosed by the staff psychiatrist with moderate (middle-stage) Alzheimer’s disease. Andre, who lives with his daughter and her family, has been having increased episodes of anger and refusing to bathe. The EHR already includes a family medical and social history, but it appears incomplete. It is not clear from the record which practitioner (neurologist, psychiatrist, or primary care physician) collected the history or its timing. Dr. Sharah is concerned that if she doesn’t conduct her own family and social history, she may miss some information that may be helpful to her treatment plan. At the same time, she is aware that Andre’s insurer is reluctant to approve duplicative assessments. She is also concerned that subjecting Andre to another medical and social history interview will be frustrating for him and delay needed behavioral and family treatment. Drawing on the APA ethical principles and assessment standards, discuss how Dr. Sharah should resolve this dilemma. (Readers may wish to refer to the feature “Digital Ethics: Electronic Health Records (EHR) in Interprofessional Organizations” in Chapter 9).