Chapter 2- Ethical, Legal, and Professional Issues PDF

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Dr. Ryan Kneer...

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ETHICAL, LEGAL, AND PROFESSIONAL ISSUES IN ASSESSMENT In this chapter we examine the sometimes perplexing ethical, legal, and professional issues that confront individuals who are assessing others. We start by examining some of the ethical codes and standards that drive ethical decision-making and then we review the ethical decision making process as it relates to assessment. We next examine some of the many laws and legal issues that have affected testing and assessment over the years. The chapter concludes with an overview of some professional issues, including a quick look at associations and accreditation bodies that focus on assessment, a review of forensic evaluation, the importance of viewing testing as a holistic process, a look at a number of important cross-cultural issues related to assessment, and a discussion about the fear that many clinicians have concerning their use of assessment techniques. I. Ethical Issues in Assessment This section of the chapter offers (1) a brief overview of some aspects of the American Counseling Association’s (ACA) and American Psychological Association’s (APA) ethical codes that highlight assessment, (2) a quick look at the many standards that have been developed to help guide the practitioner in the ethical use of assessment procedures, and (3) a discussion on the process of ethical decision-making. 1. Overview of the Assessment Sections of the ACA and APA Ethical Codes The ethical codes of our professional associations provide us with guidelines about how to respond under certain situations. For instance, both the ACA (2005) and APA (2010) codes include guidelines that specifically address issues of testing and assessment. This includes choosing appropriate assessment instruments, competence in the use of assessment instruments, confidentiality, cross-cultural sensitivity, informed consent, invasion of privacy, proper diagnosis, release of test data, test administration, test security, and test scoring and interpretation. a. Choosing Appropriate Assessment Instruments Ethical codes stress the importance of professionals choosing assessment instruments that show test worthiness, which has to do with the reliability (consistency), validity (the test measuring what it’s supposed to measure), cross-cultural fairness, and practicality of a test. Professionals must take appropriate actions when issues of test worthiness arise during an assessment so that the results of the assessment are not misconstrued. b. Competence in the Use of Tests Competence to use tests accurately is another aspect that is stressed in the codes. The codes declare that professionals should have adequate knowledge about testing and familiarity with any test they may use. To establish who is qualified to give specific tests, the APA, in 1954, adopted a three-tier system for establishing test user qualifications: Level A tests are those that can be administered, scored, and interpreted by responsible non psychologists who have carefully read the test manual and are familiar with the overall purpose of testing. Level B tests require technical knowledge of test construction and use and appropriate advanced coursework in psychology and related courses. Level C tests require an advanced degree in psychology or licensure as a psychologist and advanced training/supervised experience in the particular test. More specifically, an individual with a bachelor’s degree who has some knowledge of assessment and is thoroughly versed with the test manual can give a Level A test and, under some limited circumstances, a Level B test. These Level C tests are reserved for those who have a minimum of a master’s degree, a basic testing course, and advanced training in the specialized test (e.g., school psychologists, learning

disabilities specialists, clinical and counseling psychologists, and master’s-level counselors who have gained additional training) c. Confidentiality Whether giving one test or conducting a broad assessment of a client, keeping information confidential is a critical part of the assessment process and follows similar guidelines to how one would keep information confidential in a therapeutic relationship. The importance of keeping information confidential is a professional responsibility, but sometimes it is contradicted by the law. Thus, professionals must sometimes grapple with difficult dilemmas pitting professional responsibility against the law. Although one should always check the laws of the state in which one practices, practitioners are generally on fairly solid professional and legal ground in revealing information under the following conditions: client in danger or harming himself/someone else; a client is a minor or is legally incompetent and the law states that parents or guardians have a right to information about that person; If a client asks you to break confidentiality; defend oneself against charges filed by a client; reveal information about your client to clerical help, colleagues, or supervisor to benefit the client, etc. d. Cross-Cultural Sensitivity In reference to cross-cultural sensitivity, the codes tend to focus on the potential biases of assessment procedures when selecting, administering, and interpreting assessment instruments. In addition, they stress the importance of professionals being aware of and attending to the effects of age, color, cultural identity, disability, ethnicity, gender, religion, sexual orientation, and socioeconomic status on test administration and test interpretation. e. Informed Consent Informed consent involves ensuring that clients obtain information about the nature and purpose of all aspects of the assessment process and for clients to give their permission to be assessed. Although there are times when informed consent does not need to be obtained, such as when it is implied (e.g., giving an achievement test in schools), or when testing is mandated by the courts (e.g., custody battles), generally test administrators should give their clients information about the assessment process and have obtained the client’s permission to be assessed. f. Invasion of Privacy The codes generally acknowledge that, to some degree, all tests invade one’s privacy and they highlight the importance of clients understanding how their privacy might be infringed upon. Concerns about invasion of privacy are lessened if clients give informed consent, have real choice in accepting or refusing testing, and know the limits of confidentiality, as noted earlier. g. Proper Diagnosis Due to the delicate nature of diagnoses, the codes emphasize the important role that professionals play when deciding which assessment techniques to use in forming a diagnosis for a mental disorder and the ramifications of making such a diagnosis. h. Release of Test Data Test data can be, and have been, misused. Thus, the codes assert that data should only be released to others if clients have given their consent. The release of such data is generally only given to individuals who can adequately interpret the test data and to those who will not misuse the information. i. Test Administration As you might guess, the codes reinforce the notion that tests should be administered in a manner that is in accord with the way that they were established and standardized. Alterations to this process should be

noted and interpretations of test data adjusted if testing conditions were not ideal. j. Test Security The codes remind professionals that it is their responsibility to make reasonable efforts to ensure the integrity of test content and the security of the test itself. Professionals should not duplicate tests or change test material without the permission of the publisher. k. Test Scoring and Interpretation Ethical codes highlight the fact that when scoring tests and interpreting their results, professionals should reflect on how test worthiness (reliability, validity, cross-cultural fairness, and practicality) might affect the results. Results should always be couched in terms that reflect any potential problems with test interpretation. 2. Standards for Responsible Testing Practices Partly a response to criticism of the manner in which tests have been used and abused over the years, a number of standards in assessment to help guide practices have been developed in recent years. These standards delineate the proper use of assessment techniques in educational, agency, and private practice settings. Including: Standards for Qualifications of Test Users, Standards for Multicultural Assessment, Rights and Responsibilities of Test Takers, Standards for Educational and Psychological Testing, etc. 3. Making Ethical Decisions Because ethical codes can be limiting in their ability to guide a practitioner who is faced with a thorny ethical dilemma, it is important that other avenues are available to aid in ethical decision-making. For instance, some practitioners might use moral models in guiding their ethical decision-making process. One moral model suggests that there are six critical moral principles one should consider when making difficult ethical decisions. They include autonomy, which has to do with protecting the independence, self-determination, and freedom of choice of clients; nonmaleficence is the concept of “do no harm” when working with clients; beneficence is related to promoting the good of society, which can be at least partially accomplished by promoting the client’s well-being; justice refers to providing equal and fair treatment to all clients; fidelity is related to maintaining trust (e.g., keeping conversations confidential) in the counseling relationship and being committed to the client within that relationship; and veracity has to do with being truthful and genuine with the client, within the context of the counseling relationship. Following eight steps when making complex ethical decisions: ● Identify the problem or dilemma ● Identify the potential issues involved ● Review the relevant ethical guidelines ● Know the applicable laws and regulations ● Obtain consultation ● Consider possible and probable courses of action ● Enumerate the consequences of various decisions ● Decide on what appears to be the best course of action II. Legal Issues in Assessment A number of laws about testing have been passed and lawsuits resolved that impinge on the use of tests. Most of these legal decisions speak to issues of confidentiality, fairness, and test worthiness (reliability, validity, practicality, and cross-cultural fairness). 1. The Family Education Rights and Privacy Act (FERPA) of 1974 FERPA assures the right of privacy of student records, including test records, and applies to almost all schools that receive federal funds. The law also gives the right to parents of students, or to the students

themselves once they reach the age of 18 and are beyond high school, to review their records. If parents or the eligible student believe that school records are incorrect or misleading, they have the right to challenge them. The law also states that if records are to be released, schools must receive written permission from parents or the eligible student. 2. The Health Insurance Portability and Accountability Act (HIPAA) In general, HIPAA restricts the amount of information that can be shared without clients’ consent and allows clients to have access to their records, except for process notes used in counseling. Although HIPAA has far-reaching implications for the privacy and security of records and how confidential transactions are made, relative to testing, some of the more salient features of the law includes ensuring that (1) clients are given information regarding their right to privacy, (2) agencies have clear procedures established to protect client privacy, (3) employees are trained to protect the privacy of clients, and (4) client records are secure. 3. Privileged Communication Privileged communication is a conversation conducted with someone who state or federal law identifies as a person with whom conversations may legally be kept confidential (i.e., therapist-patient, attorney-client, doctor-patient, clergy-penitent, husband-wife, etc.). In the case of clinicians, the goal of the law is to encourage the client to engage in conversations without fear that the clinician will reveal the contents of the conversation (e.g., in a court of law), thus ensuring the privacy and efficacy of the counseling relationship. The privilege belongs to the client, and only the client can waive that privilege. Privileged communication should not be confused with confidentiality, which is the ethical, not legal, obligation of the counselor to keep conversations confidential 4. The Freedom of Information Act This law assures the right of individuals to access their federal records, including test records, if an individual makes a request in writing. All states have enacted similar laws that assure the right to access state records. 5. Civil Rights Acts (1964 and Amendments) This first act was focused on banning racial segregation in schools, public places, and employment. Since that time, a number of far-reaching amendments of the original law have been passed. Relative to testing, the laws assert that any test used for employment or promotion must be shown to be suitable and valid for the job in question. If not, alternative means of assessment must be provided. Differential test cutoffs are not allowed unless such scores can be shown to be based on valid educational principles 6. Americans with Disabilities Act (ADA) Implemented in 1992, the ADA bans discrimination in employment, public services and public transportation, public accommodations, and telecommunications for individuals with disabilities. One of its biggest impacts was in the area of employment, where the law prohibits employers “from discriminating against qualified individuals with disabilities in job application procedures, hiring, firing, advancement, compensation, job training, and other terms, conditions and privileges of employment”. Because testing is often used in the hiring and promotion of individuals in jobs, the law asserts that accommodations must be made for individuals with disabilities who are taking tests for employment and that testing must be shown to be relevant to the job in question. 7. Individuals with Disabilities Education Act (IDEA) In 1975 Public Law 94-142 was passed and guaranteed the right to a free and public education, with appropriate accommodations, for children with disabilities. The law asserts that if a student is assessed

and found to have a disability, schools must ensure that the student is given accommodations for his or her disability and taught within the “least restrictive environment,” which is often a regular classroom. Students who are suspected of having a disability are generally referred for medical, psychological, communication, and/or vision and hearing evaluations. Any assessment that is conducted should be cross-culturally appropriate, and parents should be informed of the kinds of tests being used and give permission for the child to be tested. 8. Section 504 of the Rehabilitation Act Assessment for programs must measure ability—not disability. This act applies to organizations and employers that receive financial assistance from the federal government and was established to create a “level playing field” and prevent discrimination based on disability. Relative to assessment, any instrument used to measure appropriateness for a program or service must measure the individual’s ability, not be a reflection of his or her disability. 9. Carl Perkins Career and Technical Education Improvement Act of 2006 This federally funded program, which gives financial grants to the states, assures that individuals in six identified “special populations” can have access to vocational assessment, counseling, and placement so that these individuals will be more likely to succeed in technical education programs and in their careers. Act applies to the following populations: (a) individuals with disabilities; (b) individuals from economically disadvantaged families, including foster children; (c) individuals preparing for nontraditional fields; (d) single parents, including single pregnant women; (e) displaced homemakers; and (f) individuals with limited English proficiency. III. Professional Issues 1. Professional Associations a. The Association for Assessment and Research in Counseling (AARC)- “is an organization of counselors, educators, and other professionals that advances the counseling profession by promoting best practices in assessment, research, and evaluation in counseling”. Consider joining AARC if you are interested in testing, diagnosis, the training, and supervision of those who do assessment, and if you are fascinated by the process of developing and validating assessment products and procedures. b. Division 5 of the American Psychological Association: Evaluation, Measurement, and Statistics -is devoted to “promoting high standards in both research and practical application of psychological assessment, evaluation, measurement, and statistics” 2. Accreditation Standards of Professional Associations A number of the professional associations have accreditation standards that specifically speak to curriculum issues in the area of assessment. Such standards help to establish a common core of experience for students who enter their programs, regardless of the institution in which the program is housed. 3. Forensic evaluation Increasingly, counselors, psychologists, and other mental health professionals are becoming involved in a wide range of evaluation activities related to law enforcement and legal issues. To do this competently, they must have accurate knowledge of assessment, legal issues, and ethical issues when dealing with such cases. Forensic evaluators and forensic psychologists need to know how to conduct forensic evaluations, which include the use of specific tests for the situation at hand, interviewing techniques that are focused on the goals of the court case, knowledge of ethical and legal issues relevant to expert testimony and the specific case, and how to write forensic reports that will be used in court.

4. Assessment as a Holistic Process A good assessment will often involve a number of different kinds of instruments, including formal tests, informal assessment instruments, and a clinical interview. In addition, tests tend not to measure certain aspects of a person, such as an individual’s motivation, intention, and focus of attention and one should always consider how cultural factors can impact test results. Ultimately, the examiner should take into account test scores, multiple assessment procedures, individual traits, and cultural factors that can impact results when making suggestions and decisions about the client. This holistic process can help us obtain a broader and more accurate view of the client than if we were to rely on just one test 5. Cross-Cultural Issues in Assessment Lawsuits have questioned the accuracy of some tests, laws have been passed preventing the use of other tests, and research has been conducted that demonstrates the negative impact that some tests can have on minorities and women. In the future, we are likely to see an increased emphasis on understanding the inherent bias in tests, the creation of new tests that are less biased, and new efforts to properly administer, score, and interpret tests with the understanding that they will, to some degree, have bias. 6. Embracing Testing and Assessment Procedures If you have an aversion to using assessment procedures, and you act on it, then you are not being fair to your clients. This is because testing and assessment procedures can help clients know who they are, why they behave the way they do, what they are good at, and what choices to make in their future.Probably, multiple assessment procedures should always be considered for our clients if we are to give them the most effective services possible. To not do so is bringing your fears and biases into the helping relationship....