Impact of the New APA Code on the Use of Psychological and Psychiatric Data in the Federal Government
Annette Spychalski
Enterprise Advisory Services, Inc.
Wyle Laboratories
Many thanks to Art Gutman and Paul Sackett for their speedy and patient responses that have helped calm my fears, set me straight, and keep me out of jail during my learning process.
Im an I-O psychologist working for a government contractor in Texas. My interest in legal aspects of psychologists work has historically been modest, and I never envisioned myself writing about this topic. Let me describe my situation and what has brought me to this point.
Im part of a team involved in psychological aspects of astronaut selection applicant screening at NASA. Due to the unique stressors of the astronaut position, we conduct psychiatric screening in addition to the more typical person/job fit evaluation. In other words, our selection process includes both a medical evaluation and a personnel evaluation. This makes things both interesting and complicated as we collect psychological and psychiatric data during the selection screening process (particularly the latter). For example, our practices must comply with legal and professional guidelines written by the American Psychological Association, the American Psychiatric Association, SIOP, the federal government, the American Medical Association, and other groups.
One relaxing Sunday morning, I finished reading the newspaper and started into the January APA
Monitor. I reached the article about the new APA Ethical Principles of Psychologists and Code of Conduct (Smith, 2002). In the section about Standards 9.04 and 9.11, the second sentence read, Beginning June 1, psychologists must release test data to clients and their designees when clients provide a written release. This sentence caused me to raise an eyebrow. Vague memories of guidelines about not releasing psychological data to people unqualified to interpret them (e.g., applicants) allowed me to relax the eyebrow. Then I got to the final column and read, HIPAA does not recognize the misuse or misinterpretation of tests as a legitimate reason to withhold health records, so psychologists should take caution in such situations. I re-read that part and thought about the psychiatric component of our selection process.
Suddenly, both eyebrows were raised and I was choking on my coffee. I had visions of dozens of applicants calling and knocking on my door, demanding test scores and interview notes. On Monday, I began educating myself. I got my hands on the APA Ethics Code, the Freedom of Information Act (FOIA), the Health Insurance Portability and Accountability Act (HIPAA), policies from the American Medical Association, the
Standards for Educational and Psychological Testing, and the Psychologists Licensing Act and Rules and Regulations of the Texas State Board of Examiners of Psychologists. Then I got to work contacting experts on selection and legal issues. I am writing this piece to share what I learned.
First of all, the new APA code doesnt change the basic recommendations for psychologists selection practices. Ordinary selection instruments (e.g., cognitive, normal personality) are protected under APA 9.10, which states that, psychologists take reasonable steps to ensure that explanations of results are given to the individual or designated representative unless the nature of the relationship precludes provision of an explanation of results (such as in some organizational consulting, pre-employment or security screenings, and forensic evaluations), and this fact has been clearly explained to the person being assessed in advance. The recommendation for sharing test results with test takers is certainly nothing new (e.g., American Educational Research Association, American Psychological Association, & National Council on Measurement in Education, 1974). Furthermore, organizations have been relieved of any obligation to provide inappropriate details of their selection processes to applicants (and others) for quite some time (e.g., American Psychological Association, 1992).
Next, FOIA establishes a presumption that records in the possession of agencies and departments of the executive branch of the U.S. Government are accessible to the people. (Committee on Government Reform and Oversight, 1997). Thankfully, it includes some exemptions that allow us to keep psychological and selection data in the hands of qualified people who are legitimately involved in the selection process. Specifically, Exemption 5 protects the deliberative process and predecisional information such as test data and interview notes collected during the selection process. Furthermore, testing or examination material used solely to determine individual qualifications for appointment or promotion in the federal service the disclosure of which would compromise the objectivity or fairness of the testing or examination process is exempted. In addition, Exemption 6 protects personal privacy and makes it more difficult for people interested in someone elses private information to obtain it. In most circumstances, our agency cannot be required to share selection data with third parties without the individuals direct consent (Committee on Government Reform and Oversight, 1997).
To address the psychiatric aspect of our selection process, I learned some things about medical assessment for selection. For example, the American Medical Association recognizes a limited patient-physician relationship during an isolated assessment of an individuals health or disability for an employer, business, or insurer. As such, the physician must inform the patient about important health information abnormalities discovered during the examination. (American Medical Association, 1999). This can be covered during a debrief that follows testing and/or examination. Regarding the disclosure of medical (e.g., psychiatric) data to the individual providing the data, the Privacy Act of 1974 stipulates that, If the agency determines that direct disclosure is unwise, it can arrange for disclosure to a physician selected by the individual or possibly to another person chosen by the individual. (Committee on Government Reform and Oversight, 1997). However, the picture becomes more complex when considering HIPAA, which grants individuals access to their health records.
In summary, the situation is fairly straightforward to psychologists using typical selection tools to measure aspects of normal personalityI didnt find new laws that suggest a need to change our practices. However, our use of a psychiatric screen complicates the situation, and we are still wrestling with the details in that area.
To be honest, Im a little embarrassed by my initial reaction to the Monitor article. Had I been more grounded in the relevant legal guidelines, I wouldnt have reacted in the way that I did. The benefits of my frenzy include a crash refresher course on the use and maintenance of psychological and psychiatric data for selection. Even better, I had some great conversations with folks who have deep expertise and obvious commitment to the legal and professional obligations surrounding our work.
I hope that my description of this experience has been helpful to you. In our case, the issue is complex, and it will be difficult to find a clear resolution.
References
American Educational Research Association, American Psychological Association, and National Council on Measurement in Education. (1974).
Standards for educational & psychological tests. Washington, DC: American Psychological Association.
American Medical Association, Policy E-10.03. PatientPhysician Relationship in the Context of Work-Related and Independent Medical Examinations. (June, 1999). Available:
www.ama-assn.org.
American Psychological Association. (1992). Ethical Principles of Psychologists and Code of Conduct.
American Psychologist, 47, 15971611.
American Psychological Association. (2002). Ethical Principles of Psychologists and Code of Conduct.
American Psychologist, 57.
Committee on Government Reform and Oversight. (1997). A citizens guide on using the Freedom of Information Act and the Privacy Act of 1974 to request government records. House Report 105-37. Available:
wais.access.gpo.gov.
Federal Privacy Act of 1974 (5 USC x 552a).
Freedom of Information Act FOIA (5 USC x 552).
Smith, Deborah. (2002). What you need to know about the new code. Monitor on Psychology, 6265.
July 2003 Table
of Contents | TIP Home
| SIOP Home