Decoding The Ethics Code, Ch. 8 & 9

Decoding The Ethics Code

CHAPTER 48

Standards on

Advertising and

Other Public Statements

5. Advertising and Other Public Statements

5.01 Avoidance of False or Deceptive Statements

(a) Public statements include but are not limited to paid or unpaid advertising, product endorsements,

grant applications, licensing applications, other credentialing applications, brochures,

printed matter, directory listings, personal resumes or curricula vitae, or comments for use in

media such as print or electronic transmission, statements in legal proceedings, lectures and

public oral presentations, and published materials. Psychologists do not knowingly make public

statements that are false, deceptive, or fraudulent concerning their research, practice, or other

work activities or those of persons or organizations with which they are affiliated.

Psychologists aspire to promote accuracy, honesty, and truthfulness in the science,

teaching, and practice of psychology and do not engage in subterfuge or

intentional misrepresentation of fact (Principle C: Integrity). Standard 5.01a of the

APA Ethics Code (APA, 2010c) prohibits false, deceptive, or fraudulent public statements

regarding work activities or the activities of persons or organizations with

which psychologists are affiliated.

The terms avoidance and knowingly exclude as violations statements that psychologists

would reasonably be expected to believe are true but that they may later

learn are false.

􀀵 A psychologist in a group practice distributed brochures with a listing of the group

members’ credentials, only to discover that one member had submitted false credentials.

She ceased distribution and ordered a corrected brochure.

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Chapter 8 Standards on Advertising and Other Public Statements——163

Definition of Public Statements

This standard begins with a definition of public statements. This definition

applies to the use of the term public statement or statement in all standards under

Section 5, Advertising and Other Public Statements. The definition refers only to

statements made in the public domain. It does not apply to statements made during

private professional or personal conversations with clients/patients, organizational

clients, attorneys, students, colleagues, or others with whom psychologists have a

professional or personal relationship.

The following are the types of statements included in this definition along

with examples of false or deceptive statements that would be in violation of this

standard:

􀀴 Paid or unpaid advertising or product endorsements. A toy company paid a

school psychologist for her endorsement stating the proven effectiveness of a taperecorded

language lesson for infants that would improve reading comprehension in

elementary school. There was no empirical evidence supporting this claim.

􀀴 Licensing, grant applications, and other credentialing applications. In the

Preliminary Studies section of a federal grant application, an experimental psychologist

listed as completed a pilot study that was still in the data collection phase.

􀀴 Directory listings, personal resumes, or curricula vitae. A psychologist with a

Ph.D. in social psychology and no specialized clinical or other practice-oriented postdoctoral

training listed himself in the city directory under health care providers.

􀀴 Business cards. A clinical neuropsychologist set up a practice in which she prescribed

psychotropic medications through her license as a nurse practitioner. Her business

cards only included her degree and title as a neuropsychologist, but listed both her

psychology and nursing state licensure numbers.

􀀴 Comments for use in print, electronic, or other media. In a television interview,

a psychology professor who had an academic freedom suit against his university

claimed that the university refused to allow any faculty to teach courses that

include discussion of human sexuality when in fact the university catalog listed

several such courses.

􀀴 Statements in legal proceedings, lectures, public oral presentations, and

published materials. An industrial–organizational psychologist was hired as an

􀀵 A research psychologist gave a public lecture, a series of media interviews, and congressional

testimony during which he publicly concluded that empirical evidence

supported a particular policy initiative. Six months later, the release of results from a

large federally funded study challenged those conclusions.

􀀵 A clinical psychologist, whose professional website included links to online listings of

national and local mental health informational services, vetted the accuracy of the

information on each listed website before the initial listing, and periodically thereafter.

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164——PART II ENFORCEABLE STANDARDS

(b) Psychologists do not make false, deceptive, or fraudulent statements concerning (1) their training,

experience, or competence; (2) their academic degrees; (3) their credentials; (4) their institutional

or association affiliations; (5) their services; (6) the scientific or clinical basis for, or results

or degree of success of, their services; (7) their fees; or (8) their publications or research findings.

In contrast to Standard 5.01a, 5.01b does not include the term knowingly

because it is assumed that psychologists would have sufficient information about

the facts listed to avoid false, deceptive, or fraudulent statements.

The following are examples of violations of the eight types of statements listed

under Standard 5.01b.

expert witness by an attorney for a large retailing firm accused of discriminatory hiring

practices. She testified that data on the firm’s hiring of women and ethnic minority

applicants were not significantly different from national data on employment practices

in similar companies, despite the fact that she had not examined any of the firm’s

actual employment data. See the Hot Topic at the end of this chapter on “Avoiding

False and Deceptive Statements in Scientific and Clinical Expert Testimony.”

HMO

􀀴 Training, experience, or competence. On a professional liability insurance application,

a psychologist stated that she had obtained substance abuse certification from

the APA College of Professional Psychology when in fact she only attended a workshop

on substance abuse treatment at an APA meeting.

􀀴 Degree. A health psychologist applying to the ABPP for diplomat status in behavioral

psychology falsely claimed he had received his doctorate in clinical psychology.

􀀴 Credentials. On his business cards, a clinical psychologist with formal postdoctoral

training in neuropsychology listed herself as a “licensed clinical neuropsychologist”

when her state only issues licenses in psychology (see Meharg & Bush, 2010).

􀀴 Institutional or association affiliations. A psychologist in independent practice

who rented office space from a university created a letterhead on his stationery that

suggested he was affiliated with the institution.

􀀴 Services. A psychology group practice website listed family therapy as one of the

services offered, even though the only psychologist offering this service had left the

group more than a year ago.

􀀴 Scientific or clinical basis for, or results or degree of success of, their services.

A behavioral psychologist running a weight loss program for obese adolescents

stated in the program brochure that “99% of clients maintain their weight

loss after they leave the program.” The statement did not include the fact that for

most of these clients, the maintenance of weight loss lasted for less than 3 weeks.

􀀴 Brochures and printed matter. A consulting psychologist distributed brochures to

personnel departments of banks in major cities stating that he had developed a foolproof

psychological technique for preemployment integrity screening to weed out

applicants who were prone to dishonesty. The claim was based on undocumented

consultations conducted by the psychologist over several years.

􀀴 Fees. A child clinical psychologist presented a talk on childhood disorders at a parents’

association meeting. After the talk, she handed out printed information about

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Chapter 8 Standards on Advertising and Other Public Statements——165

Comparative statements regarding the desirability of one type of service over

another are not prohibited if there is substantial evidence to support the claim

(Shead & Dobson, 2004; Standard 2.04, Bases for Scientific and Professional

Judgments).

Deceptive Web-Based Services

Potentially deceptive web-based advertisements and claims regarding Internetbased

mental health services risk violating Standard 5.01b. In their survey of

e-therapy websites, Heinlen et al. (2003) found substantial gaps in ethical compliance,

including (a) failure to inform consumers that the psychologist’s license to

provide mental health services online might be restricted by state law, (b) unsupported

statements disparaging face-to-face therapies in comparison to online

services, (c) descriptions of psycho-educational web-based services that could lead

consumers to believe that they would receive individualized counseling, assessment,

or therapeutic services, and (d) failure to clarify the boundaries of the psychologist’s

competence to provide services across a broad spectrum of

psychological disorders.

her practice that stated that she offered all clients a sliding scale of fees beginning at

$40 a session. The handout did not mention that the $40 rate was only for clients

specifically referred by the HMO with which the psychologist had a contract.

􀀴 Publications or research findings. A school psychologist on the faculty of a large

university received a grant from an educational services company. The purpose of the

funded project was to compare student academic achievement in city-administered

public schools with those run by the educational services company. Data from schools

in the eight cities studied indicated significant differences in favor of the city-run

schools in two cities, significant differences in favor of the company-run schools in two

cities, and no significant differences in the other four school districts. The psychologist

published only data from the two cities in which a positive effect of companycontracted

schools was found and suggested in the conclusion of the article that these

results could be generalized to other cities (see also Standard 3.06, Conflict of Interest).

􀀴 A psychologist developed a web-based service for parents of children with behavioral

problems at “www.parent-therapy-online.com.” Parents could pay $25 to e-mail a

specific question about how to help their child that was answered within 24 hours by

one of eight psychologists identified on the website as “child experts who will provide

therapeutic advice personalized to each request.” In actuality, the “personal” e-mail

responses provided prewritten general statements about behavioral child management

techniques. In small print at the bottom of the web page appeared the following

statement: “The information provided on this website is for educational purposes and

does not constitute treatment.”

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166——PART II ENFORCEABLE STANDARDS

(1) were earned from a regionally accredited educational institution or (2) were the basis for

psychology licensure by the state in which they practice.

Standard 5.01c applies only to psychologists who are claiming degrees or credentials

as evidence of their competence to provide health services. Unlike

Standard 5.01b, this standard is not directed at whether a psychologist actually

obtained the degree but whether the degree can be claimed as a basis for offering

therapy or diagnostic or other types of health services.

Psychologists may refer to only two types of degrees as evidence of education and

training in the field of psychology that qualifies them as a health service provider.

The first type is a degree in psychology (e.g., Ph.D., Ed.D., or Psy.D.) earned from a

regionally accredited educational institution (e.g., the Commission on Higher

Education of the Middle States Association of Colleges and Schools). The second

type of degree is from a program in a nonaccredited institution, whose curriculum

and training experiences have been approved by the state in which the psychologist

practices as qualifying him or her for eligibility for licensure in psychology.

A psychologist who claims a degree as a credential for health services that does

not meet the above criteria would be in violation of this standard:

Need to Know: Websites and

Potential Violation of Other Standards

Website advertising can place psychologists in violation of other Ethics Code standards

(Koocher & Keith-Spiegel, 2008; Nagy, 2011; Nicholson, 2011). Below are two examples of

such violations:

A neuropsychologist posted quasi-psychological screening tools with questionable

validity and items drawn from standardized tests to “help” potential clients

evaluate whether they needed his services (Standard 9.02a & b, Use of Assessments

and Standard 9.11, Maintaining Test Security).

A school psychologist’s professional website included information sheets on

different disorders and treatments related to learning disabilities without

appropriate citation (Standard 8.11, Plagiarism). The violation was exacerbated

when her website was listed by search engines as providing expert information for

consumers on childhood learning disorders.

􀀴 An individual licensed as a social worker in his state acquired a Ph.D. in counseling

psychology from a nonaccredited university. He was unable to obtain licensure in

psychology because the state in which he practices did not recognize his doctoral

training as a basis for licensure in psychology. His business cards and professional

letterhead included a Ph.D. after his name, the title Counseling Psychologist, and his

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Chapter 8 Standards on Advertising and Other Public Statements——167

(b) Psychologists do not compensate employees of press, radio, television, or other communication

media in return for publicity in a news item. (See also Standard 1.01, Misuse of Psychologists’

Work.)

Standard 5.02b underscores psychologists’ obligations to avoid actions that

might encourage others to make false or fraudulent statements about their work.

5.02 Statements by Others

(a) Psychologists who engage others to create or place public statements that promote their

professional practice, products, or activities retain professional responsibility for such statements.

Psychologists retain professional responsibility for false, deceptive, or fraudulent

public statements by others whom they have engaged to promote their work or

products. Failure to prevent or to correct such misstatements is a violation of

Standard 5.02.

􀀵 A psychologist viewed the website of the company that was publishing a book she

had just completed. She was surprised and pleased to see the company had started

advertising the book as “forthcoming.” She then noticed that she was wrongly listed

on the website as professor of psychology at a university where she had taught as an

adjunct several years ago. She called her editor at the company to notify him of the

error and to ask him to take steps to correct the website. She followed up with a letter

to him reiterating this request and copied the chair of the psychology department at

the university mentioned.

􀀴 A psychologist developed a program that enabled other psychologists to score a

popular psychological test on their computers. The psychologist had not yet completed

complementary software that would provide narrative interpretations of the

scores. The marketing staff at the distribution company he contracted with to sell

his product advised him that the scoring software would sell better if it was advertised

as providing both scoring and interpretation. They argued that even though

this was not currently true, because he was already working on the new program,

eventually those who bought the original software would be able to use the complementary

software for narrative interpretations. The psychologist agreed to the

misleading advertisement.

social work licensure ID number. The letterhead did not indicate that his license was

in social work and not psychology.

􀀴 On her personnel curriculum vitae, a psychologist claimed that she had received her

Ph.D. from an accredited university, when her actual degree was from an unaccredited

school to which she had transferred.

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168——PART II ENFORCEABLE STANDARDS

This standard prohibits psychologists from paying or otherwise compensating

members of the media in return for news coverage of their work. The use of the

term compensate rather than pay means that psychologists who give nonmonetary

gifts or pay for expensive dinners for journalists or others in the media in return for

publicity in a news item may be considered in violation of this standard.

as such.

Standard 5.02c permits psychologists to run paid advertisements describing

their services, publications, products, or other aspects of their work, as long as it

is stated or otherwise clear to consumers that it is a paid advertisement. The standard

applies to advertisements on the Internet, in print, or in other media.

“Canned columns” are an example of a paid advertisement that often is presented

in a way that can be deceptive to consumers. Canned columns written and paid

for by psychologists are typically presented in news or advice column format

intended to mislead readers to believe that the psychologist has been invited or

hired by the magazine or other media outlet to write the column because of his

or her expertise. The “column” usually includes a description of the psychologist’s

services, the psychologist’s picture, and contact information. Canned columns

that do not include a clear statement that the column is a “paid advertisement”

are in violation of this standard. In some instances, psychologists do not write the

column themselves but purchase it from a writer who sells columns to psychologists

nationwide. In such instances, the column must state that the psychologist

is providing but has not written the column (see also Standard 5.01a, Avoidance

of False or Deceptive Statements).

5.03 Descriptions of Workshops and

Non-Degree-Granting Educational Programs

To the degree to which they exercise control, psychologists responsible for announcements,

catalogs, brochures, or advertisements describing workshops, seminars, or other nondegree-

granting educational programs ensure that they accurately describe the audience

for which the program is intended, the educational objectives, the presenters, and the fees

involved.

Standard 5.03 applies to workshops, seminars, and non-degree-granting educational

programs that are not part of the established degree-granting education

and training programs covered under Standard 7.02, Descriptions of

Education and Training Programs. Psychologists who offer non-degree-granting

programs are responsible for ensuring the accuracy of announcements, catalogs,

brochures, or advertisements appearing in print, the Internet, or other media.

Announcements must clearly specify the intended audience, educational objectives,

presenters, and fees. The phrase “to the degree to which they exercise control”

is included in the standard in acknowledgment that despite a psychologist’s

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Chapter 8 Standards on Advertising and Other Public Statements——169

best efforts to control and monitor the process, errors or misrepresentations by

others may occur during the production and distribution of materials.

Psychologists should take reasonable steps to correct these errors.

􀀴 Registration for a 1-day workshop on projective assessment techniques given by a

well-known psychologist was advertised in several psychology journals and newsletters.

Individuals paid in advance to reserve a seat in the course. Registration money

could be partially refunded up to 2 days prior to the workshop. Several registrants

who arrived to take the workshop were surprised to learn that although they were

permitted to attend, they would not be given a certificate of completion because they

were not licensed psychologists. The registrants complained that the advertisement

had not mentioned that a license was required to receive the certificate and asked

for their money back. Stating the cancellation policy, the psychologist refused to

return the fees.

􀀴 A psychologist offered a seminar on child abuse identification and reporting that was

advertised as fulfilling the state licensing board requirement for child abuse reporting

training. Attendees who later submitted their seminar completion certificate to the

state board were told that the curriculum did not satisfy the state’s educational

requirement.

􀀴 A group of psychologists offered an 8-week certificate program on drug addictions

counseling. Advertisements for the seminar listed the fee as $1,000. During the last

week of the program, attendees were told that those who wished to obtain an official

certificate documenting their participation must pay an additional $100.

Industry-Sponsored Workshops

The pharmaceutical industry has become a primary sponsor of continuing

medical education because sponsors have found that it is a tool for influencing audiences

to use their products (Pachter et al., 2007). Psychologists conducting industrysponsored

continuing education programs must ensure that the teaching materials

are not biased toward the marketing interests of the sponsor (see also Standard 3.06,

Conflict of Interest).

5.04 Media Presentations

When psychologists provide public advice or comment via print, Internet, or other electronic

transmission, they take precautions to ensure that statements (1) are based on their professional

knowledge, training, or experience in accord with appropriate psychological literature and practice;

(2) are otherwise consistent with this Ethics Code; and (3) do not indicate that a professional

relationship has been established with the recipient. (See also Standard 2.04, Bases for Scientific

and Professional Judgments.)

Standard 5.04 applies to psychologists who issue public advice or comment via

print, Internet, television, radio, or other media. Such activities can include an

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170——PART II ENFORCEABLE STANDARDS

occasional news media interview, a regular column in a print or Internet publication,

a recurring spot on television or radio talk shows, or advice giving on one’s

own professional blog. The standard does not apply to comments made to individuals

with whom psychologists have an established professional relationship,

such as an Internet communication or videoconferencing with a client/patient,

student, colleague, or organizational client.

Competence and Bases for Judgments

Research and professional psychologists working through the media make

important contributions to the accuracy of reporting and societal awareness of

scientific and professional knowledge relevant to issues of public concern. This

can include explaining (a) current research findings on human cognition,

behavior genetics, emotion, personality, and behavior; (b) contributions of

forensic psychology to legal decisions broadly or with respect to cases capturing

media attention; (c) factors underlying organizational, military, political,

religious, and other group attitudes and behaviors; or (d) the nature of and

effective approaches to widely experienced psychological challenges (e.g.,

parent–adolescent conflict, stressors associated with caring for disabled children

or elder parents); and (e) the nature and treatment of psychological

problems or mental health disorders (e.g., learning disabilities, schizophrenia,

bipolar disorder).

Standard 5.04 prohibits psychologists from giving public advice or comment

on the radio, in print media, on television, on the Internet, or other forms of

communication on topics and issues that are outside the boundaries of their

competence based on their education, training, supervised experience, or other

accepted means of acquiring professional or scientific expertise (see Standard 2.01a,

Boundaries of Competence). The standard also prohibits psychologists from

giving public comment or advice that significantly deviates from or is otherwise

inconsistent with established psychological literature and practice (see

Standard 2.04, Bases for Scientific and Professional Judgments). This standard

thus reflects the importance of establishing public trust in the discipline

through adherence to professional standards of conduct (Principle B: Fidelity

and Responsibility).

􀀴 A comparative psychologist who had spent her career specializing in language in

primates appeared on several talk shows providing public advice on how parents

could identify and correct child language disorders.

􀀴 In a television interview, a counseling psychologist advised college students to follow

his 10-step cure for test anxiety. The steps included drinking green tea, taking vitamin

supplements, studying in groups, and other recommendations not in accord with

recent research or established counseling techniques for test anxiety.

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Chapter 8 Standards on Advertising and Other Public Statements——171

Otherwise Consistent With the Ethics Code

Public comment or advice through the media or the Internet must be in compliance

with all relevant standards of the Ethics Code.

􀀴 After speaking with a listener for 3 minutes on a live radio talk show, a psychologist

stated over the air that the listener showed definite signs of obsessive–compulsive

disorder. Before going to a commercial break, the psychologist asked the

listener to stay on the line “for a referral to a health care professional who can

help you with this serious disorder” (violation of Standard 9.01a and b, Bases for

Assessments).

􀀴 A developmental psychologist created a blog on which he provided critiques and

recommendations for age-appropriate children’s products. The blog did not include a

statement informing readers that the psychologist was on the board of directors of a

company whose toys he regularly reviewed favorably (violation of Standard 3.06,

Conflict of Interest).

􀀴 In response to a reporter’s request for background on a highly publicized murder, a

psychologist described details of items on forensic tests typically administered in these

cases (violation of Standard 9.11, Maintaining Test Security).

Do Not Indicate a Professional Relationship

Has Been Established

Psychologists providing public advice in response to questions over the radio, on

television, on the Internet, or in published advice columns should clarify the educative

versus therapeutic nature of their answers, avoid language that implies personal

knowledge about the person asking the question, and take steps to avoid repeat

communications with the person that may encourage the mistaken impression that

a professional relationship has been established.

􀀴 A group of psychologists established a psychology advice e-mail service. The group’s

website included each participating psychologist’s credentials and picture. The website

described the service as one that provides advice for people suffering from “social

anxiety.” Individuals were charged by credit card for an answer to each e-mail question

they submitted. The site specifically stated that the service was not therapy.

However, the psychologists’ answers were written in a very individualized and personalized

manner rather than in broad educative statements, and individuals were

encouraged to identify the psychologist who they would like to answer their question.

There was no limit to the number of questions that could be submitted, and some

clients submitted daily questions to the same psychologist over several weeks or even

months (see D. E. Shapiro & Schulman, 1996, for an excellent discussion of such a case

and related issues).

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172——PART II ENFORCEABLE STANDARDS

5.05 Testimonials

Psychologists do not solicit testimonials from current therapy clients/patients or other persons

who because of their particular circumstances are vulnerable to undue influence.

Psychologists are prohibited from asking individuals who are vulnerable to

undue influence to provide commercial statements testifying to the benefits of the

psychologist’s services. Standard 5.05 specifically prohibits solicitation of testimonials

from clients/patients currently in therapy with the psychologist. Clients/

patients are particularly vulnerable to exploitation by a psychologist who seeks their

public testimonials because of power inequities between the therapist and client/

patient, the psychological problems that brought clients/patients to therapy, the

sharing of personal thoughts and feelings in therapy, and dependence on the psychologist

for treatment.

􀀴 A psychologist used testimonials from current clients on a website advertising his

Internet-based counseling services.

Need to Know:

Working With the Media

Below are some general points to consider when working with the media (for these and

other excellent recommendations, see McGarrah, Alvord, Martin, & Haldeman, 2009).

When asked to comment on psychological factors influencing the behavior of a

person in the news, make general comments only and explicitly state that you have

not personally evaluated this person.

Be wary of potential client/patient exploitation, harm, and unanticipated violations

of confidentiality when reporters ask you to recommend clients who might be part

of the interview or when clients grant a reporter the right to speak with you about

their case.

When illustrating a point with a case example on blogs, talk shows, or interviews,

avoid risks to client/patient confidentiality and potential harm by presenting

explicitly labeled hypothetical cases.

Before an interview or broadcast, know its length and the nature of the

medium (e.g., live or pretaped), carefully plan out what you will say to limit the

possibility of distortion, and be aware that whether or not they provide you an

opportunity to fact-check their report in advance, members of the media have

final control over the information disseminated (Standard 1.01, Misuse of

Psychologists’ Work).

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Chapter 8 Standards on Advertising and Other Public Statements——173

Parents of children with learning disabilities, who depend on a school psychologist’s

yearly evaluation to qualify for special education services for their children,

might, because of their particular circumstances, be considered vulnerable to

undue influence to offer testimonials for the psychologist. Family members in

therapy with a psychologist for court-ordered treatment might also be considered

vulnerable to threat or exploitation if approached to give a testimonial.

The standard does not prohibit unsolicited testimonials or the solicitation of

testimonials from former clients/patients who are not vulnerable. However, psychologists

should be cautious about approaching former therapy clients/patients

who may be vulnerable to undue influence based on their mental status, the

duration and intensity of the therapy, the circumstances of termination, the amount

of time that has passed since termination, or comments that the psychologist

might have made during therapy inviting the possibility of a posttermination

testimonial.

5.06 In-Person Solicitation

Psychologists do not engage, directly or through agents, in uninvited in-person solicitation of

business from actual or potential therapy clients/patients or other persons who, because of

their particular circumstances, are vulnerable to undue influence. However, this prohibition

does not preclude (1) attempting to implement appropriate collateral contacts for the purpose

of benefiting an already engaged therapy client/patient or (2) providing disaster or community

outreach services.

Standard 5.06 prohibits psychologists from soliciting business from individuals

who, because of their particular circumstance, are vulnerable to undue influence.

The standard addresses business solicitation behaviors often characterized as

“ambulance chasing.” Individuals who are current or potential therapy clients/

patients are specifically identified as vulnerable in this standard. Others who may

be vulnerable to undue influence are individuals whose loved one has just committed

suicide or a person who is abusing drugs or alcohol. Psychologists are prohibited

from approaching these individuals either directly or through another person

to solicit business if the psychologist has not been invited by the individual or a

legally authorized representative to do so.

Although not explicitly prohibited in the language of Standard 5.06, psychologists

should be wary of public statements, brochures, and web-based or other

descriptions of services that are intended to exploit populations vulnerable to

undue influence by generating fear and anxiety (Shead & Dobson, 2004).

􀀴 A clinical child psychologist sought to generate clients by speaking to breast cancer

survivor support groups about “serious psychological disorders of childhood” that

“often” emerge in children as a reaction to maternal illness.

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174——PART II ENFORCEABLE STANDARDS

Permitted Behaviors

The standard does not prohibit psychologists from establishing a professional

relationship with persons in therapy with another professional or otherwise vulnerable

to undue influence if the person approaches the psychologist for services (see

also Standard 10.04, Providing Therapy to Those Served by Others).

Collateral Treatment

The standard does not preclude psychologists from approaching a family member

or significant other to invite them to participate in collateral treatment to benefit

a client/patient with whom a psychologist has a professional relationship.

􀀵 A psychologist treating an adult woman for bulimia, with the patient’s permission,

invited her husband to participate in family therapy sessions where the focus was

on the woman’s health. Whether the husband was currently in therapy with

another professional was not an issue because the reason he had been approached

was to participate in therapy where the wife was the identified patient (see also

Standard 10.02a, Therapy Involving Couples or Families).

Disaster and Community Outreach

The standard also explicitly permits psychologists to approach individuals to provide

disaster or community outreach services. Psychologists may offer emergency services to

individuals who are distraught or otherwise vulnerable as a result of a natural or other

type of disaster. Within the mental health and aging field, it is generally recognized that

older adults may not spontaneously self-refer for mental health services. A variety of

outreach activities have been used in public and private services for older adults that

involve approaching persons who are not thinking of seeking psychological interventions,

educating them about the benefits of mental health intervention, and encouraging

them to seek such help. Such outreach is permissible under Standard 5.06.

HOT TOPIC

Avoiding False and Deceptive Statements

in Scientific and Clinical Expert Testimony

When research and professional psychologists provide oral testimony or prepare written reports for legal

proceedings conducted in the public domain, they are engaging in public statements as defined under

Standard 5.01a, Avoidance of False or Deceptive Statements, of the APA Ethics Code. As articulated in Principle C:

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Chapter 8 Standards on Advertising and Other Public Statements——175

Integrity, psychologists seek to promote accuracy, honesty, and truthfulness in the science and practice of

psychology. When forensically relevant statements or reports misrepresent facts through commission or

omission, psychologists can be in violation of Standard 5.01a. False, deceptive, or fraudulent statements most

often emerge in legal contexts when psychologists lose their objectivity as a consequence of misunderstanding

the psychologist’s role, conflicts of interest, or susceptibility to attorney influences. This Hot Topic identifies and

suggests preventive actions to avoid these ethical pitfalls.

Navigating Relationships With Attorneys

Engagement in the legal system thrusts psychologists into dynamic relationships with attorneys whose role

obligations will sometimes converge and often conflict with the ethical responsibilities of psychologists.

Understanding Distinctive Roles. The rules embedded within constitutional, civil, and criminal law

ensure that justice is served by protecting the rights of each party in a dispute to control what information will

be placed into evidence and debate its legal merits. The primary responsibility of attorneys is therefore to

advocate on behalf of their client and ensure that the party they represent has presented the best case possible

before the court.

By contrast, in the legal context, the primary responsibility of psychologists serving as expert witnesses

is to provide the triers of fact (e.g., the judge, jury, administrative hearing officer) with the information they

need to make determinations about the legal question at hand. The primary responsibility of psychologists

providing opinions to the court is therefore to advocate for the facts and not for the legal position

advanced by either of the disputing parties (Melton, 1990). The objectivity necessary to advocate for the

facts can be compromised when psychologists’ legal opinions are influenced by pressure from the retaining

attorney.

Establishing Boundaries. Prior to trial, the retaining attorney may pressure the psychologist to provide

an opinion that goes beyond or is unsupported by the scientific or clinical data. Anticipating this possibility

provides the psychologist with the opportunity to establish boundaries between the expert’s objective role and

the attorney’s advocacy role (Bush et al., 2006; Woody, 2009).

Initial conversations with the retaining attorney should clarify the boundaries of competence within which

the psychologist will testify (Standard 2.01f, Boundaries of Competence). Psychologists should also clarify their

obligation to offer an honest opinion based on available facts (Principle C: Integrity). Shuman and Greenberg

(2003) recommend that the initial conversation be followed up with a retaining letter from the attorney

documenting the issues on which the psychologist will be asked to testify.

Avoiding Bias in the Collection and

Interpretation of Forensic Data

In the legal context, biased expert testimony can cause significant harm to the legal system and its stakeholders

if it misleads the triers of fact into unfounded legal determinations (Principle A: Beneficence and

Nonmaleficence; Standard 3.04, Avoiding Harm).

Inferential and Confirmation Bias. Data collection and interpretation biases can result in misdiagnosis,

selective data collection, inaccurate and misleading expert reports, and fraudulent or deceptive statements in

court (Deidan & Bush, 2002).

The following behaviors should be avoided:

Seeking out information to confirm the litigant’s argument or the psychologist’s own theoretical or

personal view (Bush et al., 2006; Neoh & Mellor, 2009; Shuman & Greenberg, 2003; Stern, 2001)

Overreliance on diagnoses with which the psychologist is most familiar

Over- or under-attribution of behaviors to situational versus stable personal characteristics

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Preconceptions or initial impressions resistant to challenge by conflicting data

Reliance on reconstructive memory to fill in gaps in evidence or failure to adequately record facts that

arise during evidence collection (Deidan & Bush, 2002; Otto & Martindale, 2007)

Strategies to reduce the potential for such biases include the following:

Generating alternative hypotheses (Bush et al., 2006)

Using comprehensive batteries for forensic assessments

Carefully recording all facts uncovered during pretrial data collection

Examining which facts support and challenge initial impressions or preconceptions (Deidan &

Bush, 2002)

Guarding against assumptions that the attorney has provided all relevant facts and asking for pleadings

and legal memorandums and competing perspectives of stakeholders in the legal case at hand (Saks &

Lanyon, 2007; Shuman & Greenberg, 2003)

Resisting Requests to Alter Reports. Irrespective of the format in which the expert’s opinion will be

provided, psychologists are ethically required to maintain accurate records of their work for the period of time

in which it may be needed to ensure the accuracy of their testimony (Standard 6.01, Documentation of

Professional and Scientific Work and Maintenance of Records).

In their advocacy role, retaining attorneys may ask psychologists to modify their report in ways that bias

information or opinion in favor of their client. Compliance with Standard 5.01a, Avoidance of False or

Deceptive Statements, requires that psychologists deny such requests. If an attorney’s suggestion represents

a valid factual correction, the correction should either be presented in an amendment to the original

document or be included in a clearly identified revision of the report with a written rationale for the

modification (Bush et al., 2006).

Acknowledging the Limitations of Data or Conclusions. Psychologists should always anchor their

scientific opinions to available empirical data and their clinical opinions to collected data. False or

deceptive statements emerge in forensic testimony or reports when psychologists fail to adequately

indicate limits to the certainty with which clinical data or research findings can diagnose or predict

conclusions drawn about individuals (Standards 5.01a, Avoidance of False or Deceptive Statements, and

9.06, Interpreting Assessment Results).

Misuse of Psychologists’ Work. Attorneys will often attempt to control the nature of oral testimony to

omit facts that would hurt their case or inaccurately represent the psychologist’s statements to support their

client’s case. To take reasonable steps to correct the misrepresentation of their work, psychologists who provide

expert testimony must be familiar with the judicial rules governing their ability to correct misstatements

regarding their testimony (Standards 1.01, Misuse of Psychologists’ Work, and 2.01f, Boundaries of

Competence).

For example, attorneys often attempt to limit expert’s comments to “yes/no” responses. Psychologists

should be aware that some jurisdictions provide expert witnesses greater leeway than other witnesses in

requesting court permission to qualify their statements when they believe attorney questioning has created

confusion or misrepresentation of their opinion. Another strategy for limiting attorneys’ ability to misrepresent

their findings is for psychologists to avoid declarative oral or written statements that do not reflect the

balancing of facts that contributed to their opinion.

Limiting Attorney Attempts to Impeach Testimony. Opposing attorneys will often attempt to

impeach the credibility of an expert witness. In addition to the recommendations discussed above, forensic

psychologists should be prepared to counter accusations of conflict of interest and inadequate

qualifications and to competently address hypothetical and difficult questions during cross-examination

(Eisner, 2010).

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Chapter 8 Standards on Advertising and Other Public Statements——177

Maintaining Objectivity and Avoiding Bias:

The Importance of Self-Evaluation

Prior to agreeing to serve as an expert witness, psychologists are encouraged to engage in the following forms

of self-inquiry regarding possible biases that might lead to false or deceptive testimony (Bush et al., 2006;

Fisher, 1995; Gutheil & Simon, 2004; Saks & Lanyon, 2007):

Conflicts of Interest

Will financial interests influence my willingness to go beyond my expertise or the facts to give opinions

supporting the attorney’s case?

Am I tempted to sell my testimony for monetary gains?

Am I fearful an objective opinion will deter the attorney from hiring me in the future?

Am I being sought because of a reputation for providing opinions consistently favoring the

retaining party?

Personal and Professional Bias

Have I already determined the nature of the testimony I will provide based on the attorney’s initial

description of the case?

Am I unduly influenced by sympathy for the plaintiff or defendant?

Does the case touch upon a personal issue?

Will I use my testimony to advocate for a cause I believe in?

Will moral, religious, political, or other biases intrude upon my ability to present all sides of the issue?

Multiple Relationships

Do I have a special relationship with the attorney or the attorney’s client that would impair my

objectivity?

Do I know the attorney or litigant socially?

To what degree will these relationships place pressure on me to change my opinion if it is in conflict

with the litigant’s legal argument?

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178

CHAPTER 49

Standards on

Record Keeping and Fees

6. Record Keeping and Fees

6.01 Documentation of Professional and

Scientific Work and Maintenance of Records

Psychologists create, and to the extent the records are under their control, maintain, disseminate,

store, retain, and dispose of records and data relating to their professional and scientific work in

order to (1) facilitate provision of services later by them or by other professionals, (2) allow for

replication of research design and analyses, (3) meet institutional requirements, (4) ensure accuracy

of billing and payments, and (5) ensure compliance with law. (See also Standard 4.01, Maintaining

Confidentiality.)

In appropriately documenting and maintaining records, psychologists benefit

those with whom they work (Principle A: Beneficence and Nonmaleficence) and

fulfill their responsibilities to the society and the specific organizations and communities

in which they work (Principle B: Fidelity and Responsibility). Responsible

creation and maintenance of assessment and treatment records benefit clients/

patients by ensuring continuity of services provided by the individual psychologist

and other qualified professionals. Scientific records provide the necessary information

required for replication of research and for peer, sponsor, and IRB evaluation

of methodological modifications that may be required. Appropriate record keeping

by industrial–organizational and consulting psychologists assists organizations in

maintaining and improving work performance and in ensuring compliance with

relevant regulations and law. Record keeping also benefits psychologists by providing

documentation of appropriate planning, implementation, evaluation, and

modifications of services or research. Good record keeping will also include documentation

of ethical, scientific, or practice decision making that can assist in effectively

responding to ethics complaints.

HMO

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Chapter 9 Standards on Record Keeping and Fees——179

Under Standard 6.01 of the APA Ethics Code (APA, 2010c), psychologists must

create, maintain, disseminate, store, retain, and dispose of records and data in a

manner that enables the records to be used effectively and appropriately by the

psychologist or others and to benefit those with whom the psychologist works.

Steps necessary to comply with this standard will vary with the purpose of the psychological

activity and applicable state and federal regulations and institutional

policies. The standard applies to written reports, computer files, audio- and videotapes,

and reports in any other media in which information can be created and

stored. Creating or maintaining records that are disorganized, illegible to others, or

have not been appropriately updated would be a violation of this standard. The

phrase “to the extent the records are under their control” recognizes that psychologists

may have limited or no control over records once they are appropriately

released to third parties or when they are the property of an organization, company,

institution, or government agency for which a psychologist works or consults (see

also Standards 1.01, Misuse of Psychologists’ Work; 1.03, Conflicts Between Ethics

and Organizational Demands; and 3.06, Conflict of Interest).

Records for Mental Health Services

According to the Record Keeping Guidelines developed by the APA Committee

on Professional Practice and Standards, Board of Professional Affairs (APA, 2007c),

the level of detail and adequacy of content included in records is determined by the

information necessary to

(a) provide good care, (b) assist collaborating professionals in delivery of

care, (c) ensure continuity of services in the case of a psychologist’s injury,

disability, or death or with a change of provider; (d) provide for relevant

supervision or training; (e) provide documentation required for reimbursement

or required administratively under contracts or laws; (f) effectively

document any decision making, especially in high-risk situations;

and (g) allow the psychologist to effectively answer a legal or regulatory

complaint. (p. 995)

The drafters of the guidelines recognized that across the diverse settings in which

psychologists work, the content of records will depend upon legal (rules of evidence)

and regulatory factors (HIPAA, FERPA), work settings (e.g., institutions,

disaster relief), requirements of third parties, and the nature of the services provided

(Drogin, Connell, Foote, & Sturm, 2010). The guidelines thus specify the

basic components that psychologists should always consider including in records of

psychological services:

Information for the client’s ongoing file

Identifying data and contact information

Fees and billing arrangements

Guardianship status, if appropriate

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180——PART II ENFORCEABLE STANDARDS

Informed consent/assent and any waivers of confidentiality

Mandated reporting, if relevant

Diagnosis or basis for request for services

Treatment plan (updated as appropriate)

The guidelines also recommend the type of information that should be recorded

for each substantive contact with clients as follows:

Date of service and session duration

Type of service (e.g., consultation, assessment, treatment)

Nature of professional intervention (e.g., modality)

Nature of professional contact (e.g., in-person, e-mail, phone)

Current assessment (formal or informal) of client/patient status

Need to Know: Unexpected

Contacts With Clients/Patients

It may be necessary to record additional information depending on the circumstances and

client needs. For example, it is often wise for practicing psychologists to note in their

records unexpected contacts with clients/patients outside of the office or by phone or

Internet. As described in greater detail in Chapter 6, Standard 3.05, Multiple Relationships,

such records are often helpful in understanding clients’/patients’ misperceptions about the

therapeutic relationship or responding to ethics complaints based on misperceptions.

Emergency interventions, including contacts with other professionals, family members,

partners, or others to ensure adequate services or protect client/patient welfare, should

also be included.

Multiple Client Records

Psychologists providing couple, family, or group therapy must be alert to issues

that may arise when keeping multiple client records. For example, following marital

dissolution, it may be unclear who should have access to records created during

couples or family therapy. Points for consideration for multiple client records highlighted

by the Record Keeping Guidelines (APA, 2007c) include (a) whether the

identified client is the couple/family unit or each individual, (b) legal requirements

and implications for creating separate or a single joint record, and (c) agreement of

all concerned on the record keeping policy during informed consent (see also

Standards 3.10, Informed Consent; 4.01, Maintaining Confidentiality; 4.02,

Discussing the Limits of Confidentiality; 10.01, Informed Consent to Therapy;

10.02, Therapy Involving Couples or Families; and 10.03, Group Therapy).

Relatedly, when other individuals are involved for collateral support for an identified

patient, these individuals are not the “client/patient” and the psychologist does

not maintain separate health records for them. Rather, information provided by the

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Chapter 9 Standards on Record Keeping and Fees——181

collateral that is relevant to the primary client’s/patient’s treatment is entered in the

client’s/patient’s record (Knauss & Knauss, 2012; Younggren, 2009).

Length of Record Retention

The number of years for retention of records varies with respect to state law,

federal regulations, and institutional requirements. The APA Record Keeping

Guidelines (APA, 2007c) recommend that, in the absence of specific legal requirements

for record retention, complete records are maintained at minimum until

7 years after the last date of service delivery for an adult or until 3 years after a

minor reaches the age of majority, whichever is later.

HIPAA. HIPAA regulations require that policies and procedures used to comply with

the Privacy Rule are documented and retained for 6 years from the date of creation

or the last date in which it was in effect, whichever is later (45 CFR 164.530[j][2]). If

state law establishes longer periods of record retention than HIPAA, psychologists

who are covered entities must follow the state law (see “A Word About HIPAA” in the

Preface to this book).

Need to Know: Electronic

Communications With Clients/Patients

HIPAA requires that records of all clinically relevant e-mail messages, including the full text

of a patient’s query and a psychologist’s reply, should be stored in the patient’s medical

record. In general, if you or your client/patient are sending clinically relevant communications

via e-mail or text messaging, in most cases those communications will be considered

part of the treatment record and copies of those communications must be maintained.

Psychotherapy Notes

Psychotherapy notes (also known as process or personal notes) are considered

a work product privilege and are immune from subpoena (Mental Health

and Developmental Disabilities Confidentiality Act of 1979, ¶ 802, § 2[4]).

Accordingly, psychotherapy notes can be disposed of at any time, unless state law

provides otherwise.

HIPAA. HIPAA creates a separate category for “psychotherapy notes,” defined as

“notes recorded (in any medium) by a health care provider who is a mental health

professional documenting or analyzing the contents of conversation during a private

counseling session or a group, joint, or family counseling session and that are

separated from the rest of the individual’s medical record” (45 CFR 164.501).

Patients do not have a right of access to psychotherapy notes. Psychologists may

choose to provide patient access or agree to release psychotherapy notes to others

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182——PART II ENFORCEABLE STANDARDS

with the appropriate authorization of the patient. Psychotherapy notes are

exempted from HIPAA general provisions for sharing PHI for the treatment, payment,

or health care operations of another entity. For example, health plan providers

and other HIPAA-covered entities may not condition the provision of treatment,

payment, enrollment in the health plan, or eligibility for benefits on a patient’s

authorization to have a psychologist release psychotherapy notes. For psychotherapy

notes to meet HIPAA exemption criteria, psychologists must store the notes in

a file separated from the client’s/patient’s other health records.

Billing and Fees

The Record Keeping Guidelines (APA, 2007c) highlight a few areas relevant to

Standard 6.01 that call for special attention. First, records should include documentation

of a fee and billing agreement between the psychologist and client/patient, including

when applicable agreements regarding third-party payment for services (e.g., the

client’s/patient’s health insurance, billing of services to a family member). When

appropriate, acknowledgment of client/patient receipt of the psychologist’s standard

written fee policy should be included in the record (see Standard 6.04, Fees and

Financial Arrangements, for additional detail on fee and billing information). Second,

as detailed later in this chapter under Standard 6.05, Barter With Clients/Patients,

barter agreements and transactions can be ethically complex and thus require careful

documentation to ensure that compensation is fair to both the client/patient and the

psychologist. Third, psychologists need to document and justify any adjustment in the

balance owed for services, especially when third parties are involved (see Standard 6.06,

Accuracy in Reports to Payors and Funding Sources). Fourth, any fee collection efforts

should also be recorded (see Standard 6.04e, Fees and Financial Arrangements).

Psychologists providing health care–related services also need to be aware of the

DHHS Transaction Rule requiring standard formatting of electronic patient records

for health care claims and other purposes (see http://aspe.hhs.gov/admnsimp/).

Additional Implications of HIPAA

Access of Individuals to PHI. Clients/patients have the right to inspect and obtain

a copy of their PHI records used by the psychologist to make diagnostic, treatment,

and billing decisions (45 CFR 164.524). For exceptions to this rule, see

discussions in Chapter 12 on Standards 9.04, Release of Test Data, and 9.11, Test

Security. Where HIPAA regulations apply, psychologists’ records must be created

and stored in a manner that facilitates compliance with this and other aspects of

the Privacy Rule. For group practices, records must also include the name of the

privacy officer.

Right to Amend. Clients/patients have the right to request that their PHI be

amended if they believe that the information provided is incorrect (45 CFR

164.526). If a psychologist believes that the amendment is justified, the amendment

should be attached to the record; the psychologist should never alter the original

record.

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Chapter 9 Standards on Record Keeping and Fees——183

Right to an Accounting. Clients/patients have a “right to an accounting” of disclosures

of PHI that entails a list of individuals or organizations to whom PHI has

been disclosed in the past 6 years. Content of the accounting must include the date

of the disclosure, the name of the entity or person who received the PHI and the

address if known, a brief description of the PHI disclosed, and the purpose of its

disclosure (45 CFR 164.528). Failure to keep an accurate record of such disclosures

would be in violation of Standard 6.01.

Record Keeping in Organizational Settings

The Record Keeping Guidelines (APA, 2007c) recognizes that organizational

settings may present unique challenges in record keeping. First, organizations

have their own record keeping requirements that differ from those outlined

previously. These requirements are influenced by organization mission and local,

state and federal laws. These requirements may or may not be clearly defined

within the organization itself. The Guidelines recommend that psychologists

consult with organizational representatives, colleagues, and relevant law to identify

differences in record keeping requirements. In the event there is a conflict

between the Ethics Code and organizational record keeping policies, psychologists

should follow the recommendations under Standard 1.03, Conflict Between

Ethics and Organizational Demands.

Second, record ownership is often defined by the psychologist’s legal relationship

with the organization. For example, in consultative relationships record ownership

is typically maintained by the psychologist, whereas in staff relationships the

organization has ownership, and the physical records may not be able to travel with

the psychologist upon departure or be shared with others without organizational

permission (see also Standard 6.02b, Maintenance Dissemination, and Disposal of

Confidential Records of Professional and Scientific Work). The Guidelines recommend

that psychologists clarify the issue of ownership at the beginning of their

professional relationship with an organization.

Third, in organizational settings multiple staff members may have access and contribute

to the record and their disciplinary standards for record creation, maintenance,

and confidentiality may differ from the discipline of psychology or may be

undefined. The Guidelines encourage psychologists to participate in development

and refinement of multidisciplinary organizational policies involving record keeping.

Educational Records

Psychologists working in schools need to be familiar with FERPA (20 U.S.C.

§ 1232-34 CFR Part 99; www.ed.gov/offices/OM/fpco/ferpa/index.html) to ensure

compliance with Standard 6.01. Under FERPA, parents and students older than age 18

or attending college have the right to (a) inspect and review the student’s education

records maintained by the school, (b) request that a school correct records that they

believe to be inaccurate or misleading, (c) call for a formal hearing if the school does

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184——PART II ENFORCEABLE STANDARDS

not amend the record, and (d) place a statement with the record setting forth the

parent or student views if the school still does not decide to amend the report.

Records are not considered part of a student’s education record and therefore are not

subject to parental or student inspection or amendment if they are (a) kept in the

sole possession of the school psychologist, (b) used only as a personal memory aid,

and (c) not accessible or revealed to any other person except a temporary substitute

for the maker of the record. In addition, under IDEA (Pub. L. No. 108-446,

§ 682[c]), schools must develop policies for the storage, retrieval, and disposal of

educational records, and parents of students must be provided a statement of these

policies.

Need to Know: Avoiding Conversion of

Treatment Records to Educational Records

School-employed and community-based psychologists need to be aware of the special

legal status of “educational records” governed by FERPA, distinctions between these

laws and those pertaining to mental health treatment records (HIPAA), and how to

avoid unintended violations of youth privacy through appropriate record keeping procedures.

Recent analyses by Doll, Strein, Jacob, and Prasse (2011) and R. A. Wise, King,

Miller, and Pearce (2011) provide important guidance for the correct application of

HIPAA and FERPA to treatment records in college counseling centers and elementary

and secondary schools. First, they emphasize that FERPA applies only to students’ education

records; it does not apply to student medical or mental health treatment records.

As a consequence, once treatment information is placed in a student’s educational

record, FERPA does not offer the confidentiality protections for PHI provided by HIPAA.

For example, school officials, or in some cases instructors or campus security, can inspect

students’ educational records without consent and without accounting for the disclosure.

Unlike treatment records, educational records can be transferred to another college

in which the client/student enrolls and can be used in a school’s legal case against a

student. Further, there are no restrictions on students’ access to psychotherapy notes or

psychological assessments placed in their educational records. To ensure that treatment

records are appropriately maintained, Doll et al. (2011) and R. A. Wise et al. (2011)

highlight the following:

FERPA does not apply to students’ psychological treatment records unless they are

converted into educational records through disclosure to other school personnel.

This means that school-based psychologists, counselors, trainees, and supervisors

should not discuss student treatment with other school or university personnel and

ensure that nonclinic or school staff do not have access to psychological records.

School-based and counseling center treatment personnel should clearly differentiate

psychological from educational records through labeling and separate files.

When treatment records do not come under FERPA, if students request to examine

their psychological records, they should be informed of the possibility that the

material will be converted into educational records.

When parents request that assessment or treatment records be sent to their child’s

school, community-based psychologists should explain the implications of FERPA

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Chapter 9 Standards on Record Keeping and Fees——185

Forensic Records

Psychologists conducting forensically relevant activities need to be familiar

with laws governing the creation, maintenance, and disposal of records. In the

legal arena, the notes, test data, testing protocols, and research protocols are governed

by the rules of evidence in the court’s jurisdiction. For example, with the

exception of relevant client/patient privilege, the entirety of the psychologist’s

records created or used in a case is subject to discovery. In addition, in deposition

and court testimony, psychologists are often asked when certain facts became

known and, if so, by whom and in what context. Sufficiently detailed records are

essential when there is an extended period between relevant interviews or data

collection and hearing of a case (APA Committee on Legal Issues, 1996; Martindale,

2004). Under Standard 6.01, forensic records must be created and maintained in a

manner that facilitates their appropriate use in the legal arena (APA Committee on

Legal Issues, 2006; see also Standard 2.01f, Boundaries of Competence).

Documentation of Scientific Work

and Maintenance of Records

Psychologists conducting research must create and maintain records in a manner

that allows for replication of the research design by the psychologist or others.

This includes an adequate description of recruitment procedures, documentation

of informed consent, relevant demographic characteristics of participants, data

collection procedures, materials or equipment, and data analysis strategies. Raw

data should be stored in a form accessible to analysis or reanalysis by the psychologist

or other competent professionals who seek to verify substantive claims

(see Standard 8.14, Sharing Research Data for Verification).

The number of years of retention of raw data for investigators will vary with

state law, federal regulations, and institutional policies. Federal regulations

on confidentiality limitations and proactively review written documents with parents

prior to sending them to the school. When these records are sent only to the

school psychologist, after review and when appropriate the school-employed psychologist

should consider returning the materials rather than let these become part

of the educational record.

Counseling Center staff and trainees should be aware that HIPAA confidentiality

protections only apply if a university training clinic provides services solely to nonstudents

and the clinic engages in billing or other electronic transactions.

When HIPAA does not apply, during informed consent students in counseling centers

should be made aware when billing records are considered part of the educational

record and other limits to confidentiality imposed by FERPA.

When it is appropriate to include mental health information in a student’s educational

record, psychologists must remain attentive to protection of copyrighted test

information (Standard 9.11, Maintaining Test Security).

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186——PART II ENFORCEABLE STANDARDS

(Office of Management and Budget Circular A-110) and PHS Grants Policy (NIH

Grants Policy Statement, revised October 2011) require that data generated

through federal support be maintained by institutions for at least 3 years following

the completion of the project and the filing of the final progress and financial

reports. The number of years may be longer if a patent is involved. Specific record

keeping requirements for IRBs include maintenance of copies of the scientific

proposal, the informed consent document, summaries of the project, financial

reports, and reports of injuries or other serious adverse events. Authors of articles

published in APA journals must have their raw data available for at least 5 years

after the date of publication (APA, 2010e).

Under Standard 6.01, principal investigators on federally funded grants must

also create and maintain accurate records of costs associated with the research,

including participant compensation, research assistant salaries, investigators’

percent effort working on the grant, equipment, travel, and other supplies necessary

to conduct the research. For federally funded projects, IRBs are subject to

federal grants compliance and oversight. For each grant, the IRB must account

for cost allocations/cost transfers, time and effort reporting, allowable grant

charges, and unobligated balances (see http://grants.nih.gov/grants/compliance/

compliance.htm).

6.02 Maintenance, Dissemination, and Disposal of

Confidential Records of Professional and Scientific Work

(a) Psychologists maintain confidentiality in creating, storing, accessing, transferring, and disposing

of records under their control, whether these are written, automated, or in any other medium.

(See also Standards 4.01, Maintaining Confidentiality, and 6.01, Documentation of Professional

and Scientific Work and Maintenance of Records.)

Standard 6.02 requires that psychologists protect the confidentiality of professional

or scientific information in all phases of record creation, maintenance, dissemination,

and disposal. The standard refers to confidential records or data in the form of written

and printed materials, automated scoring reports, audio and video recordings, Internet

websites or e-mails, company computer networks, storage on hard drives or disks, and

faxes. Steps that can be taken to protect confidentiality include (a) keeping records in

a secure place, (b) limiting access to staff or team members who must use the record

to competently perform their duties, (c) de-identifying records using code numbers or

other methods, and (d) disposing of tapes and other identifiable records when they are

no longer needed and their disposal is consistent with law.

Psychologists should be careful not to assume that their staff or employees of an

institution or company with which they work are familiar with confidentiality

requirements or appropriate confidentiality procedures. To the extent it is under

their control, they must take steps to ensure that confidential records are kept

secure from staff who do not have approved access. Consider the following example

of a violation of Standard 6.02a.

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Chapter 9 Standards on Record Keeping and Fees——187

Implications of HIPAA

HIPAA compliance is required whenever PHI is transmitted in electronic form

for health care claims, health plan premium payments, referral certification and

authorization, injury reports, health care payment and remittance advice, and

transfer of records to other professionals. HIPAA regulations require that client/

patient authorization to transfer records of PHI to third parties should be different

from and visually and organizationally separate from other permission forms,

include a statement that the client/patient may revoke authorization in writing, and

be signed and dated (45 CFR 164.508).

When transmitting PHI to other covered entities or others, psychologists must

insure its security in transit and protect it from unauthorized access, alteration,

deletion, and transmission (HIPAA Security Standards 45 CFR 160). Covered entities

are also expected to keep office doors locked when no one is inside, store patient

records in such a way that guests are unlikely to see PHI, and ensure for group

practices that terminated employees cease to have access to files.

(b) If confidential information concerning recipients of psychological services is entered

into databases or systems of records available to persons whose access has not been consented

to by the recipient, psychologists use coding or other techniques to avoid the inclusion of

personal identifiers.

Standard 6.02b draws attention to the need to take specific steps to protect

confidential records when these records are stored in record systems or databases

available to persons whose access has not been consented to by the recipient.

To comply with this standard, practitioner and research psychologists

storing data on institutional networks can use protected passwords, de-identify

information, and discuss with institutional staff responsible for network maintenance

and monitoring appropriate procedures for confidentiality protections.

Psychologists working in group practices should be aware of and comply with

HIPAA security rules governing office and other infrastructure PHI protections,

including access to offices, files, and secure transmission procedures (see the

section “Implications of HIPAA” under Standard 6.02a above). When applicable,

psychologists should identify limitations in efforts to protect confidentiality on

􀀴 A consulting psychologist was contracted to evaluate whether on-site day care centers

set up at the company’s offices in 10 states were fostering a positive organizational

climate. The psychologist conducted taped interviews with employees to find out

whether the day care centers had minimized their need to take days off from work for

child care and their satisfaction with the plan. Each month, she traveled to a company’s

office in a different city to conduct the interviews. As she left, she usually asked

one of the office secretaries to box up the tapes and ship them to the company’s main

headquarters.

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188——PART II ENFORCEABLE STANDARDS

databases and systems of records and inform clients/patients, organizational

clients, research participants, or others with whom they work about such limitations

(see also Standard 4.02c, Discussing the Limits of Confidentiality).

Need to Know: Electronic Health Records

New and unanticipated challenges to record keeping and security may arise as the wider

health care community transitions from practitioner control of paper files to electronic

health records (EHR)-based systems. As detailed by Drogin et al. (2010), psychologists

need to stay attuned to and more involved in EHR system development to address security

issues that may arise with increased client access to their electronic records, threats to

HIPAA security, and intermingling of mental health records with psychotherapy notes.

Psychologists Working With or in Organizations

For psychologists working in or consulting to organizations, record keeping

procedures may be governed by the legal relationship established between the psychologist

and the organization. In some instances, the physical records belong to

the organization and cannot be secured solely by the psychologist or leave the

organization’s premises. In other instances, individual consulting services, for

example, the records may belong to the psychologist. In either situation, to the

extent feasible, the psychologists are responsible for the appropriate documentation

and maintenance of the records and must clarify to organizations their obligations

under the Ethics Code if a conflict arises (see Standard 1.03, Conflicts Between

Ethics and Organizational Demands).

confidentiality of records and data in the event of psychologists’ withdrawal from positions or

practice. (See also Standards 3.12, Interruption of Psychological Services, and 10.09, Interruption

of Therapy.)

The obligation to maintain the confidentiality of professional or scientific

records includes advance planning for the secure transfer of such records in case

of planned or unplanned withdrawals from a position or practice because of job

termination, promotion, a new position, parental or family leave, retirement, illness,

or death. Information may be transferred in person, by mail or by fax,

through the Internet, or through private company networks. Psychologists planning

in advance for the transfer of PHI need to be aware of the DHHS Transaction

Rule requiring standard formatting of electronic patient records for health care

claims and other purposes.

Psychologists planning to transfer forensically relevant records should be familiar

with laws in their state governing the extent to which licensed psychologists’

privacy protections extends to their staff. Failure to take appropriate steps to protect

the confidentiality of records or data transfer would be a violation of Standard

6.02c. The following are three examples of such violations.

HMO

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Chapter 9 Standards on Record Keeping and Fees——189

6.03 Withholding Records for Nonpayment

Psychologists may not withhold records under their control that are requested and needed for a

client’s/patient’s emergency treatment solely because payment has not been received.

Psychologists, like other professionals, have the right to be paid for their services.

However, the ideal of nonmaleficence, to do no harm, articulated in Principle A:

Beneficence and Nonmaleficence, is a core value of the discipline that obligates

psychologists to provide informational assistance, if not doing so would jeopardize

the welfare of a current or former client/patient. Standard 6.03 prohibits psychologists

from withholding records needed for a client’s/patient’s emergency treatment

solely because payment for services has not been received. The term solely allows

the psychologist to withhold such records if disclosure is prohibited by law or, in

the psychologist’s judgment, release of records would cause substantial harm to the

client/patient or others.

The standard does not apply to nontreatment situations, such as when parents

who have not paid for a completed psychological assessment of their child request

the records for an application for special educational services. Similarly, the standard

does not apply to treatments that are not an emergency, such as when a therapy

client/patient who has not paid for services asks a psychologist to send

treatment records to a new therapist.

􀀴 A research psychologist who had conducted a 20-year large-scale longitudinal study

retired from her faculty position. She agreed to allow the university to keep her data

set for archival research by graduate students and other faculty. Among the records

that she donated to the university was the coding file linking subject numbers to the

names and contact information of participants.

􀀴 After a 2-year postdoctoral fellowship in neuropsychology at a university hospital, a

psychologist prepared to leave for a new position in a different state. The day before

he left, he met the new postdoctoral fellow assigned to his office space. The psychologist

apologized to the new fellow about leaving his patient records in the

unlocked office file cabinets. He told her that the records were important to ensure

continuity of care for patients that he had assessed but that the hospital administrators

had not gotten back to him about where the records should be moved. He asked

the new fellow to keep them in her office or to have one of the maintenance crew

move the files to a temporary place in the basement.

􀀴 A psychologist in independent practice was told by the HMO with which he had a

contract that it would not extend benefits for one of the psychologist’s clients unless

the psychologist provided the HMO with his psychotherapy notes. Knowing that his

client needed and wanted to continue therapy, the psychologist reluctantly complied

without getting written authorization from the client to release the notes. A week

later, he attended a professional workshop on HIPAA regulations and learned that not

only is a signed client/patient authorization required to release psychotherapy notes

but also managed care companies are prohibited from conditioning treatment benefits

on access to psychotherapy notes.

HMO

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190——PART II ENFORCEABLE STANDARDS

Emergency Treatment

The standard refers only to the provision of records for treatment and only when

emergency treatment is needed. For example, a client’s/patient’s therapy or assessment

records may be needed immediately to help other health professionals provide

appropriate emergency treatment for a client/patient in an acute state of mental

disorder such as a schizophrenic episode or a depression accompanied by suicidal

ideation. Records may also be required to help health professionals quickly determine

whether an incapacitating cognitive or language disorder is the result of an

injury, medical problem, or a symptom of a previous mental disorder. Under the

Ethics Code, psychologists are not required to obtain the client’s/patient’s consent to

release information if it is requested for emergency treatment (see Standard 4.05b,

Disclosures). Similarly, the HIPAA Privacy Rule permits disclosure of PHI without

patient authorization to avert a serious threat to health or safety (45 CFR 164.512[j]).

Control and Requests

For the standard to apply, two other criteria must be met. The records must be

under the psychologist’s control. For example, Standard 6.03 would not apply if the

health care system that a psychologist works for is legally responsible for the records

and the institution refuses to release the records because of nonpayment. The records

must also be requested, meaning that psychologists do not have to provide such

records if they simply learn that a client/patient is receiving emergency treatment.

Regulatory and Legal Caveats

The HIPAA Privacy Rule establishing the rights of clients/patients to receive their

PHI records does not distinguish between emergency and nonemergency requests,

nor does it consider failure to pay as a legitimate reason to refuse a patient request

to release records. Thus, although ethically permissible under Standard 6.03, withholding

records for nonpayment under nonemergency conditions may not be legally

permissible. Psychologists should also carefully review their contracts with HMOs to

establish whether providers retain the right to withhold client/patient treatment

records if the HMO has delayed or refused to reimburse for services.

6.04 Fees and Financial Arrangements

(a) As early as is feasible in a professional or scientific relationship, psychologists and recipients

of psychological services reach an agreement specifying compensation and billing arrangements.

An individual’s or organization’s decision to enter into a professional or scientific

relationship with a psychologist will depend in part on the costs and billing

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Chapter 9 Standards on Record Keeping and Fees——191

arrangements for the services. Failure to specify and agree on compensation and

billing arrangements can lead to mistrust or financial exploitation (Principle B:

Fidelity and Responsibility). According to Standard 6.04a, psychologists providing

counseling, therapy, assessment, consultation, forensic, scientific, or other services

must reach an agreement about compensation and billing with the service recipient

as early as is feasible in the professional or scientific relationship.

Specifying Compensation

In specifying compensation, psychologists must include a description of all reasonably

anticipated costs so that organizations, attorneys, or clients can make an

informed hiring decision. For organizational or research services, this might include

charges for telephone or other electronically mediated conversations; client, employee,

or participant interviews; library or computer research; statistical analysis; travel;

postage; or duplication. Psychologists arranging compensation for assessment services

should provide information about fees for test administration, scoring, interpretation,

and report writing. Forensic evaluators may bill for time spent reviewing case

materials for deposition or court testimony, briefing the retaining attorney on findings

(Barnett & Walfish, 2011). Financial agreements for therapy should include,

where appropriate, discussion of (a) payment schedules, fees for therapy sessions,

telephone or other electronically mediated sessions, sessions with family members or

significant others, charges for consultation with other professionals and appointment

cancellations, acknowledgment of third-party payor preauthorization requirements,

and copayment agreements and (b) whether costs may be covered by health insurance,

as well as time or cost limitations regarding third-party payors.

􀀴 A research psychologist agreed to provide expert testimony on developmental differences

in the effect of divorce and step-parenting on child and adolescent development.

The psychologist reached agreement with the attorney stipulating a flat fee for

reviewing the case material and writing a background paper relevant to her testimony.

After receiving compensation for this work, the psychologist sent the attorney a bill

for duplication, computer supplies, and telephone and book purchase costs with a

note saying that she would not be available to testify unless these costs were reimbursed

immediately.

Billing Arrangements

Standard 6.04a requires psychologists to reach an agreement about billing

arrangements as early as is feasible in the professional relationship. Psychologists

must notify and reach an agreement regarding when bills will be rendered and payments

expected, for example, weekly or monthly. Billing arrangements may also

include agreement on a series of scheduled prepayments or compensation for

HMO

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192——PART II ENFORCEABLE STANDARDS

different phases of the psychologist’s services. For organizational consulting and

forensic evaluation, psychologists are encouraged to develop a written financial

agreement clarifying all payment agreements before services are rendered (Barnett &

Walfish, 2011). For example, the American Psychological Association Insurance

Trust (APAIT) provides a sample forensic agreement that can be adapted to specific

forensic roles (http://www.apait.org/apait/download.aspx).

􀀵 An organizational psychologist hired by a hospital to conduct a quality improvement

study set up a payment schedule tied to completion of data collection, completion of

the first draft of the report, and completion of the final draft.

To avoid billing disputes that may later arise between couples or family members,

psychologists conducting couples therapy or child custody assessments may

wish to consider reaching an agreement in advance regarding which member of the

couple or which parent will assume responsibility for payments.

Timing

The use of the phrase “as early as is feasible” permits psychologists to delay finalizing

a financial arrangement to obtain additional information. For therapy this

may refer to the need for additional information about the client’s/patient’s service

needs or health care benefits. In addition, discussion of fees in the first session may

be clinically contraindicated if a new client/patient is experiencing a crisis needing

immediate therapeutic attention. In such situations, agreement on compensation

and billing must be finalized as soon as all information is available or the crisis has

subsided (see also Standard 10.01a, Informed Consent to Therapy).

􀀵 A series of consultations with different company executives was required before a

psychologist could develop a comprehensive plan for and pricing of services required.

􀀵 A psychologist was aware that a new patient’s HMO frequently failed to provide

timely feedback about the extent and limits of patient health care benefits. The psychologist

mentioned the possibility of this occurring during the initial consultation

with the patient and discussed delaying additional sessions until the extent of coverage

could be clarified.

􀀵 At his first session with a psychologist for treatment for alcoholism, the client was

obviously intoxicated, evidencing speech impairment and a lack of coherence in his

remarks. The psychologist addressed clinical issues with the client relevant to the

immediate situation and made an appointment with him to discuss fees and other

issues regarding therapy at a time when he would be sober.

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Chapter 9 Standards on Record Keeping and Fees——193

Contingent Fees

A contingent fee is typically defined as a fee to be paid only in the event of a

future occurrence. Psychologists should avoid contingent fees that have the potential

to impair objectivity and unduly influence their methods, activities, or reports

(see Standard 3.06, Conflict of Interest). In forensic contexts, psychologists should

avoid accepting contingent fees when the services delivered involve offering evidence

to a court or administrative body or affirmations or representations intended

to be helpful to a court or to be relied upon by third parties. Other promises of

future payment that might be considered contingent fees are those that are promised

depending on the outcome of the legal matter at hand, such as future proceeds

or settlement benefits (AP-LS Committee on the Revision of the Specialty

Guidelines for Forensic Psychology, 2010).

(b) Psychologists’ fee practices are consistent with law.

This standard specifically requires psychologists’ activities to be consistent with

relevant laws. To comply with Standard 6.04b, psychologists must be familiar with

and develop fee practices compatible with local, state, and federal laws governing

fee practices, including legal contracts with HMOs or other third-party insurers.

Health care fraud or the submission of false claims is open to legal censure and

actions, which can result in costly fines or imprisonment. It includes falsifying costs

of services, intentionally over-diagnosing mental health disorders, or omitting

information that might lead to denial of benefits. The following are examples of fee

practices violating this standard:

􀀴 An HMO agreed to pay a psychologist 80% of his standard $100 hourly fee. The psychologist

typically waived the $20 copayment for patients insured by this HMO. The

HMO eventually accused the psychologist of insurance fraud, noting that in reality, his

standard hourly fee for their insured patients had become $80.

􀀴 A single mother who had a minimum-wage job sought treatment for depression. She

informed the psychologist that because of her limited funds, she had purchased health

insurance for her 3-year-old daughter but not for herself. The psychologist reasoned

that her mental health would affect her child’s wellbeing and told her he would be

willing to bill the insurance company under the daughter’s policy.

􀀴 A client’s health insurer did not cover mental health services for emotional problems

associated with bereavement over the death of a spouse. The psychologist gave the

client a diagnosis of major depressive disorder when she submitted the insurance

form to gain coverage for sessions.

􀀴 The Medicaid system in the state in which a psychologist worked required professionals

to have a preliminary meeting with a child to provide an initial diagnostic

report that would then be used to request approval for a full battery of psychological

testing. The psychologist routinely wrote the preliminary report without interviewing

children to limit the loss of school time and to shorten the approval period.

HMO

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194——PART II ENFORCEABLE STANDARDS

This standard requires that psychologists provide clients/patients, organizational

clients, and others who will be charged for services an accurate statement of

the costs of the services that will be offered. For example, under Standard 6.04c,

psychologists are prohibited from the following:

􀀴 A psychologist charged a first-time fee when a client asked for a list of individuals to

whom the psychologist had released the client’s PHI over the past 2 years. The psychologist

was unaware that under HIPAA, each year clients/patients have the right

to receive one free accounting of all disclosures of PHI information made within the

previous 6 years.

Need to Know: Submitting

Claims for Telehealth Services

To date, Medicare and Medicaid and less than a quarter of states have enacted regulation

requiring insurance companies to pay for telehealth services; and the public

payors restrict reimbursement to certain areas (e.g., rural and other underserved settings).

When submitting claims, psychologists need to clearly identify the services as

using electronic media with specific codes provided by the insurers. Psychologists

should also check with federal or state insurance regulators to determine potential

differentials in reimbursement for in-person versus telehealth services (see Baker &

Bufka, 2011, for a detailed review of legal, regulatory, reimbursement, and ethical

issues in telehealth).

􀀴 Listing in advertisements, brochures, websites, or other public representations fees

lower than what the psychologist actually charges (see also Standards 5.01a,

Avoidance of False or Deceptive Statements, and 5.02, Statements by Others)

􀀴 Adding unnecessary tests to an assessment battery to raise the cost of services after

reaching an agreement about fees with the client/patient

􀀴 Failing to disclose expectable costs of secretarial assistance or time devoted to telephone

conversations, library reference work, or travel during fee negotiations for

consulting or forensic work

􀀴 Using “bait-and-switch” tactics, such as offering low rates to lure a client/patient into

therapy, only to raise the rates after a few sessions

􀀴 Inflating reports of hourly fees for noninsured patients to obtain a higher rate for

covered services when submitting a provider application to an HMO

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Chapter 9 Standards on Record Keeping and Fees——195

(d) If limitations to services can be anticipated because of limitations in financing, this is discussed

with the recipient of services as early as is feasible. (See also Standards 10.09, Interruption of

Therapy, and 10.10, Terminating Therapy.)

In some instances, financial limitations in providing services may be anticipated

at the beginning or during the course of a professional or scientific relationship.

This most frequently occurs when HMOs readily provide health care

professionals with their policies on the type of mental health services and number

of sessions that are covered by a client’s/patient’s health plan. When, in a

psychologist’s professional judgment, clients/patients will require more therapy

than their health plan covers, the psychologist must discuss this as early as is

feasible in the professional relationship. Such discussion enables clients/patients

to decide if they want to begin the treatment under the HMO’s limitations and

provides the psychologist the opportunity to inform clients/patients about other

financial arrangements that can be made to ensure continued care. Alternative

financial arrangements can include reduced fees, deferred payment, limited sessions,

or referral to lower cost services.

􀀴 A psychologist in independent practice had an initial consultation with a patient who

appeared to be suffering from obsessive–compulsive disorder. The psychologist was

aware that short-term treatments for this disorder have not proven effective. However,

the patient’s HMO would approve only 10 sessions. The psychologist told the patient that

she was confident that she could convince the HMO to extend payments after 10 sessions

and recommended they begin treatment. After 10 sessions, the HMO refused approval for

additional sessions, and the patient could not afford additional treatment on his own.

Standard 6.04d also applies to instances when, during the course of a contractual

agreement, organizational, consulting, forensic, or research psychologists become

aware that the actual costs of a project will exceed the agreed-on costs. As soon as

this becomes apparent, psychologists must discuss the limitations with the parties

with whom they are contracted.

􀀵 A consulting psychologist was aware that the hospital that hired him to conduct a

quality assurance study had a limited budget. His original proposal for the study

was well within this budget. As the study was getting started, the hospital became

involved in a lawsuit that required in-depth evaluation of practices that were only

of marginal interest in the original quality assurance study. The psychologist quickly

estimated the additional costs of examining these practices in depth and set up a

meeting to discuss limitations of the original proposal and its costs to handle the

hospital’s sudden needs.

HMO

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196——PART II ENFORCEABLE STANDARDS

(e) If the recipient of services does not pay for services as agreed, and if psychologists intend to

use collection agencies or legal measures to collect the fees, psychologists first inform the person

that such measures will be taken and provide that person an opportunity to make prompt payment.

(See also Standards 4.05, Disclosures; 6.03, Withholding Records for Nonpayment; and

10.01, Informed Consent to Therapy.)

Psychologists are permitted to use collection agencies or other legal measures

to obtain compensation when the recipient of services has not made agreed-on

payments. Before using such services, under Standard 6.04e, psychologists must

inform the client/patient or other service recipient that such measures will be

taken and provide that person an opportunity to make prompt payment. The

definition of prompt payment should be reasonable but need not extend beyond

a month depending on the length of time that payments have been delinquent. As

a rule of thumb, most businesses turn unpaid bills over to a collection agency after

60 to 90 days.

Need to Know: Third-Party Reimbursement

for Telehealth Services

Psychologists are increasingly turning to wireless devices, web-based video communications,

and other forms of electronic media as useful tools for scheduling and delivering

mental health care services. Third-party payors differ in the type of electronic

media–delivered services they will reimburse (Baker & Bufka, 2011). Consequently,

psychologists considering the use of telehealth tools with specific clients/patients

should determine the type and the extent to which the client’s/patient’s health care

insurer will cover services and discuss any limitations in reimbursements with the

client/patient as soon as feasible.

􀀵 During informed consent, a psychologist always informed clients/patients that his

fee policy was to be paid in full for services on a bimonthly basis, that bill collection

procedures would be initiated when clients/patients reached an accumulated debt

of the cost of six sessions, and that a letter alerting patients about billing concerns

would be mailed to them if billing accumulated at 4 weeks to give them time to

pay the bill.

Standard 6.04e applies to psychologists providing therapy, assessment, consultation,

forensic, and other services when the service recipient is an individual, couple,

or family. The standard does not apply when psychologists choose to use a collection

agency or legal measures to collect unpaid fees from attorneys, companies,

organizations, or institutions.

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Implications of HIPAA

Several HIPAA regulations are relevant to Standard 6.04e. First, HIPAA permits

covered entities to use and disclose PHI to carry out treatment, payment, or health

care operations without specific authorization from the patient (45 CFR 164.506).

Although specific requirements regarding consent were removed from the final

HIPAA Privacy Rule, clients/patients must be aware of the covered entity’s disclosure

policies. Thus, covered entities who want the option of using collection agencies

for nonpayment for health services must include this information in a Notice

of Privacy Practices given to the client/patient at the onset of services, and the

Notice must be a separate document from the consent materials (45 CFR 164.520).

Psychologists should also include this information in their informed consent procedures

(see Standards 4.02, Discussing the Limits of Confidentiality; 9.03,

Informed Consent in Assessments; and 10.01, Informed Consent to Therapy).

Collection agencies hired by a psychologist may be considered a “business associate”

under HIPAA (45 CFR 160.103). A business associate is an entity who acts on

behalf of a covered entity but not as an employee of the covered entity. An arrangement

with a business associate must ensure that the business associate, on behalf of

the covered entity, agrees to safeguard the use and disclosure of PHI in ways that

are HIPAA compliant (45 CFR 164.504[e]).

What to Disclose to Collection Agencies

HIPAA’s “minimum necessary” standard (45 CFR 164.502[b]), as well as

Standard 4.01, Maintaining Confidentiality, in the APA Ethics Code can be interpreted

as requiring psychologists to limit the information provided to collection

agencies to the minimum necessary to accomplish the intended purpose.

Information to such agencies should be limited to (a) the client’s/patient’s name,

(b) the dollar amount of the fee that is overdue, (c) the date of services for which

the unpaid fee was billed, and (d) the client’s/patient’s address, telephone number,

and other relevant contact information. Psychologists should never reveal a client’s/

patient’s diagnosis or reason for seeking services. In most instances, psychologists

do not need to mention the type of services provided (e.g., therapy) and can simply

inform the collection agency that the overdue bill is for “services provided.”

􀀴 A patient who had terminated therapy with a psychologist had failed to pay for sessions

during the last 2 months of treatment. After sending the former patient several

notices requesting payment and the psychologist’s intention to use a collection

agency if payment was not received, the psychologist turned the matter over to an

agency. During the course of treatment, the psychologist had observed signs of explosive

anger in the patient. Concerned that individuals at the collection agency might

place themselves in danger if they angered the patient, the psychologist informed the

head of the collection agency of the diagnostic reasons for these concerns.

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198——PART II ENFORCEABLE STANDARDS

6.05 Barter With Clients/Patients

Barter is the acceptance of goods, services, or other nonmonetary remuneration from clients/

patients in return for psychological services. Psychologists may barter only if (1) it is not clinically

contraindicated, and (2) the resulting arrangement is not exploitative. (See also Standards 3.05,

Multiple Relationships, and 6.04, Fees and Financial Arrangements.)

This standard applies when psychologists accept from clients/patients nonmonetary

remuneration for services. The issue of bartering often emerges in response to

a client’s/patient’s financial limitations or lack of affordable health insurance.

Providing services in return for bartered goods is ethically permissible in situations

when to not do so would deprive clients/patients of needed services or run counter

to community’s economic or cultural practices. Although barter is not a per se violation

of the Ethics Code, psychologists need to be cautious about accepting bartered

goods or services from clients/patients in lieu of monetary payments because such

arrangements have an inherent potential for client/patient harm, exploitation, and

unethical multiple relationships (Standard 3.05a, Multiple Relationships). For

example, it is often difficult to determine the extent to which a bartered good is

equivalent in price to the dollar amount of a psychologist’s fee, running the risk that

clients/patients will be exploited or the psychologist underpaid. Bartering clerical or

other (e.g., house painting, babysitting) services for psychological services risks creating

potentially harmful multiple relationships resulting from interactions with the

client/patient outside a professional role or loss of professional objectivity in reaction

to the quality of the client/patient bartered services.

Standard 6.05 specifically prohibits barter with clients/patients when it is clinically

contraindicated or exploitative. The following are an example of a potential

violation of this standard and an example of ethically permissible barter.

􀀴 A psychologist in independent practice in a wealthy suburban community saw clients

in an office attached to her home. One of her clients, a landscaper, noticed that her

driveway and landscaping in front of her home were in serious disrepair. He suggested

that instead of paying fees for 2 months, he would landscape her home. Although the

cost of the landscaping would be greater than the psychologist’s fees during this

period, the psychologist agreed. The client was unable to complete the job in the

2-month period, leading to increased tension during the therapy sessions.

􀀵 A school psychologist worked 2 days a week at an isolated Alaskan Native fishing community

providing parent and teacher consultations and behavior therapy for children

diagnosed with ADHD and other learning problems. During the year, an oil spill created

serious economic consequences for the village. It was estimated that it would take

2 months for normal fishing to resume. The tribal leader, on behalf of the parents and

school, asked the psychologist if she would be willing to take free room, board, office

space, and travel to the village donated by the tribe equivalent to her fees during this

period. The psychologist agreed and set up a time-limited remuneration contract

specifying the equivalent monetary value of the services. The psychologist reasoned

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Chapter 9 Standards on Record Keeping and Fees——199

6.06 Accuracy in Reports to

Payors and Funding Sources

In their reports to payors for services or sources of research funding, psychologists take reasonable

steps to ensure the accurate reporting of the nature of the service provided or research

conducted, the fees, charges, or payments, and where applicable, the identity of the provider, the

findings, and the diagnosis. (See also Standards 4.01, Maintaining Confidentiality; 4.04, Minimizing

Intrusions on Privacy; and 4.05, Disclosures.)

This standard requires accuracy in reports to payors and funding sources and

reflects the values of honesty and truthfulness articulated in Principle C: Integrity. The

standard applies when psychologists bill insurance companies for client/patient therapy

or assessments, charge companies for consulting fees or forensic clients for services,

or document grant-related research expenses. The phrase “take reasonable steps”

recognizes that in some instances, psychologists may have limited control over financial

reports sent to third-party payors (i.e., psychologists working in group practices or

in health delivery systems) or to funding sources (i.e., research psychologists working

in academic institutions through which reports to external funders must be made).

Research and Industrial–Organizational

and Forensic Services

Psychologists receiving research support from their institution, private foundations,

or federal programs must provide accurate reports of charges for and the

research-related purpose of equipment and supplies, travel, and payments to research

participants, investigators, and research assistants. Psychologists billing companies or

forensic clients for services should provide an accurate accounting of the number of

hours worked on the particular project, the nature of and work product produced

during those hours, and any other legitimate expenses (i.e., additional staff, travel,

and duplication or postage costs) associated with the work contracted for.

Therapy

Accurate Diagnosis

Psychologists conducting therapy must provide an accurate diagnosis to

third-party payors. Psychologists who provide an incorrect diagnosis to obtain

that barter in this case would be ethically permissible because the barter did not directly

affect her therapeutic relationships with the children or the parents or teachers with

whom she consulted, and the exchange was a fair rate that was not exploitative. In

addition, the psychologist’s agreement to barter demonstrated her recognition and

respect for the efforts and importance the tribe attributed to her services.

HMO

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200——PART II ENFORCEABLE STANDARDS

reimbursement from a client’s/patient’s health plan would be in violation of this

standard. In addition, such practices would represent insurance fraud and violation

of Standard 6.04b, Fees and Financial Arrangements.

Billing for Missed Appointments

Some psychologists have a policy of charging for sessions missed when a client/

patient cancels a therapy appointment. Health insurers will not reimburse these

charges because no mental health services were provided. In their report to thirdparty

payors, psychologists must clearly identify sessions for which charges are for

a client/patient cancellation. Psychologists must also make any missed-appointment

policies clear to clients/patients at the outset of the professional relationship

(Standards 6.04a, Fees and Financial Arrangements, and 10.01, Informed Consent

to Therapy).

Accurate Representation of Billing Practices

Some HMOs calculate reimbursement for provider services on a percentage

of the psychologist’s fee scale. Psychologists must provide these organizations

with an accurate representation of their billing practices for all clients/patients

for the period requested by the HMO, including use of a sliding-fee scale if relevant.

In some instances, licensed psychologists may supervise therapy or assessments

conducted by unlicensed trainees or employees. When reimbursement for

such therapy or assessment is sought from third-party payors, the licensed psychologist

must clearly identify the actual provider of the services. Readers may

wish to refer to Hot Topic “Managing the Ethics of Managed Care” at the end of

this chapter.

6.07 Referrals and Fees

When psychologists pay, receive payment from, or divide fees with another professional, other

than in an employer–employee relationship, the payment to each is based on the services provided

(clinical, consultative, administrative, or other) and is not based on the referral itself. (See

also Standard 3.09, Cooperation With Other Professionals.)

Psychologists often have pay arrangements with other mental health professionals.

These may include renting out office space, referring new clients/patients

to another psychologist when one’s own schedule is filled, assigning a client to a

member of a group practice, or contracted payment for collateral services provided

to a client/patient. Standard 6.07 is intended to protect the welfare of clients/

patients and the integrity of the profession by ensuring that payments between

practitioners are based on professional services rendered and in the best interest

of the client/patient.

HMO

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Chapter 9 Standards on Record Keeping and Fees——201

Prohibition Against Fee Splitting

Standard 6.07 is also meant to ensure that fees charged to clients/patients reflect

the services provided. A psychologist may divide fees with another professional

only if both have contributed to the service.

Referrals

One reason psychologists are sued is for improper referral (Bennett et al., 2006).

Standard 6.07 is meant to ensure that client/patient referrals among professionals are

based on the expertise of the professional to whom the referral is being made, as well as

the appropriateness of the service for the client/patient, and not on the basis of the referral

itself. Standard 6.07 prohibits psychologists from charging other professionals for

client/patient referrals or, conversely, from paying another professional for a referral.

Such payments place psychologists in a potential conflict of interest if the referral is

based on the financial remuneration rather than on the match between a psychologist’s

expertise and the needs of the client/patient (see Standard 3.06, Conflict of Interest).

The standard does not prohibit psychologists who are members of a psychotherapy

referral service from paying a percentage of a referred client’s/patient’s fee to support the

administrative costs of the service, including the intake interview, as long as (a) the service

follows a policy of making referrals only to those members who have expertise

appropriate to a client’s/patient’s treatment needs and (b) the costs of the administrative

and professional services are spread over the membership so that no individual psychologist

is treated as a preferred referral solely because of his or her financial contribution

to the service. However, psychologists need to be familiar with their state regulations

regarding kickbacks and fee splitting to ensure these activities are consistent with law.

􀀴 A group of psychologists started a mental health referral service. Referrals were

selected from a computerized list of psychologists’ fees and available office hours. The

group charged participating psychologists a first-time fee for each referral and a fee

for each subsequent session based on the patient’s monthly bill. This method of reimbursement

violated Standard 6.07 and their state laws prohibiting kickbacks and fee

splitting for both the referral service and the participating psychologists.

Need to Know: Fees and Group Practice

Unlike the mental health service referral practices described above, it is ethically acceptable

for a group practice to charge its employees a percentage of their client’s/patient’s

fee. This is because the employer (the group practice) is not referring but assigning a client/

patient to an employee, who in turn has a fiduciary responsibility to provide acceptable

services on the employer’s behalf (Woody, 2011).

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202——PART II ENFORCEABLE STANDARDS

􀀵 A clinical geropsychologist regularly consulted with a neurologist when conducting

cognitive assessments of patients with Parkinson’s disease and other neurological

disorders. The patient fee included the amount of money the psychologist paid the

neurologist for the consultation. These billing arrangements were described to the

patient or his or her legal guardian in advance, and the psychologist accurately

described the arrangement in billing statements to patients and third-party payors

(see Standards 6.06, Accuracy in Reports to Payors and Funding Sources; 9.03,

Informed Consent in Assessments; and 10.01, Informed Consent to Therapy).

Other Permissible Payments

The standard does not prohibit psychologists from (a) charging another psychologist

for office space, (b) paying professionals who are employees a percentage

of a client/patient fee, (c) paying an institution for referrals, or (d) having membership

in an HMO (Canter et al., 1994).

HOT TOPIC

Managing the Ethics of Managed Care

The primary function of HMOs and other forms of managed health care, such as MCOs, preferred provider

organizations, Medicare, and Medicaid, is to control health care costs while maintaining high-quality care.

HMOs seek to accomplish this by (a) identifying which health conditions will qualify for benefits, (b) determining

the manner and frequency in which services will be provided, (c) monitoring their delivery, and (d) regulating

distribution of monetary reimbursement. This is accomplished through forming contractual relationships

among insurers, providers, and clients/patients.

Ideally managed mental health should enhance accountability, treatment effectiveness, and quality assurance.

However, even when conducted properly, managed care plans raise a unique set of ethical challenges for psychologists.

This Hot Topic section highlights ethical pitfalls related to fees and financial arrangements under managed care.

Payment for Services

Practicing psychologists have different payment relationships with HMOs and other third-party insurers. Some

psychologists contract directly with an HMO and receive referrals from that company. Others bill the insurer

directly or bill the client/patient directly while providing the information necessary for the clients/patients to

receive reimbursement from the insurer. Irrespective of payment arrangements, psychologists are responsible for

fact finding about and communicating to clients/patients the nature of their HMO or other third-party coverage.

As soon as feasible, psychologists should inform clients/patients about the following (Acuff et al., 1999;

Standards 6.04, Fees and Financial Arrangements; 9.03, Informed Consent in Assessments; and 10.01, Informed

Consent to Therapy):

The insurer’s provisions related to the number of authorized sessions

The method and timing of utilization review

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Chapter 9 Standards on Record Keeping and Fees——203

The nature of the information required by the insurer to authorize services

The amount of reimbursement provided

The patient’s share of any expenses (co-payment or deduction)

The services that are covered or excluded

The responsibility for payment if the insurer determines that a particular service is not covered under

the patient’s plan

When a delay in the insurer determination regarding coverage and length of care presents a problem for

establishing a therapeutic relationship, psychologists should consider and discuss with clients/patients delaying

future sessions until benefits are determined.

Perverse Incentives

Clients/patients should receive the same quality of care no matter what type of insurance they may have

(Principle D: Justice; Shipman, Hooten, & Roa, 2011). Capitation is a specific cost containment model adopted

by a number of HMOs and government-sponsored health plans that sets outpatient mental health benefits at

a certain fixed price per client/patient. Capitation guarantees a provider with a fixed (capitated) amount of

dollars for each patient, irrespective of disorder or number of sessions. It is intended to incentivize practitioners

to provide the most cost-effective treatment by providing briefer sessions for clients/patients with less severe

disorders to allow for more sessions for individuals with severe disorders. In some states, it has been shown to

reduce mental health care costs by lowering utilization of high-cost inpatient services (Bloom et al., 2011).

While capitation offers psychologists greater flexibility in determining treatment modality and frequency of

sessions, it also establishes a financial incentive to keep sessions for all clients/patients to a minimum to

maximize profits (Berenson & Rich, 2010). Capitation thus runs the risk of becoming a “perverse incentive”

(Haas & Cummings, 1991) that places psychologists in a conflict of interest between patient care and their

financial gain (see Standard 3.06, Conflict of Interest). To avoid unintentionally downgrading services for financial

gain under capitation, Acuff et al. (1999) recommend that psychologists develop an internal monitoring

system for their practice to compare the length of care for patients in the capitated plans with those who are

in fee-for-service or other forms of coverage.

Diagnosing for Dollars

The American Psychiatric Association’s (2000) Diagnostic and Statistical Manual of Mental Disorders

(DSM) is the most widely used system for classifying mental health disorders in the United States (Seligman,

1999). Health insurers use the DSM classifications to determine criteria for coverage, length of treatment, and

treatment outcomes. They often deny insurance reimbursement for certain DSM classifications that are common

among clients/patients served by psychologists, including adjustment disorders, diagnostic codes that are

exclusive to DSM Axis II (Personality Disorders) and DSM V codes (Relational Problems and Other Conditions

That May Be a Focus of Clinical Attention; Braun & Cox, 2005).

Patients with diagnoses not covered by their insurer may not be able to pay for out-of-pocket costs. In

response, some psychologists may be tempted to “upcode” (over-diagnose) a disorder or exaggerate or

exclude relevant client symptoms to establish a diagnosis that meets an insurer’s benefits criteria. Upcoding

also occurs when a psychologist conducting couples or family counseling services not covered by a health plan

provides a false diagnosis for one spouse to obtain individual benefits to cover the joint counseling. Wylie

(1995) labeled these practices as diagnosing for dollars, and Rappo (2002) noted that this term adequately

describes diagnoses aimed at managing health costs rather than managing care.

Legal and Ethical Implications. “Upcoding” and other false diagnoses are illegal and unethical. Overdiagnosing

a client/patient to receive health care benefits is insurance fraud and thus a violation of Standard 6.04,

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204——PART II ENFORCEABLE STANDARDS

Fees and Financial Arrangements. It is also inconsistent with Principle C: Integrity, under which psychologists do

not engage in fraud, subterfuge, or intentional misrepresentation of fact. Moreover, it violates Standard 3.06,

Conflict of Interest, by allowing personal financial interests to interfere with psychologists’ objectivity.

Psychologists suspected of “upcoding” can be investigated and prosecuted under the False Claims

Amendments Act of 1986 (U.S. Code 31, Chapter 37, Subchapter III), which permits clients/patients to bring

cases against practitioners on behalf of the government for which a practitioner’s claim of ignorance is an

insufficient defense (see Braun & Cox, 2005). Psychologists found guilty of insurance fraud will most likely lose

their state license to practice, be required to pay substantial monetary penalties, and, in the case of criminal

charges based on defrauding Medicare or Medicaid, may spend time in prison.

Distributive Justice. Some psychologists defend over-diagnosis as an ethical choice that places the best

interests of the client over the “unjust” criteria used by health care management organizations to distribute

health care. This defense rests on the fallacious assumption that health care resources are unlimited. While it

is beyond the scope of this book to address political and economic influences on the availability and costs of

health care, health resources are finite. Therefore, when psychologists upcode a client’s/patient’s diagnosis to

receive reimbursement for services, they are further limiting the resources available for individuals who actually

have more serious disorders and, in the long run, potentially contributing to a rise in insurance costs to cover

the number of clients/patients who are meeting diagnostic criteria (Principle D: Justice).

Client/Patient Harm. Upcoding a diagnosis to gain health care benefits can lead to multiple foreseeable

harms (Principle A: Beneficence and Nonmaleficence; Standard 3.04, Avoiding Harm). First, the exaggerated

diagnosis becomes a permanent part of the client’s/patient’s health record and potentially could be categorized

as a “preexisting condition” that will form the basis of insurance denial or increased costs for the client/patient

in the future. Second, a false diagnosis can lead to inappropriate treatment decisions by the HMO or future

care providers that are iatrogenic for the client/patient and outside the psychologist’s control. Over-diagnoses

can also create social stigma and negatively affect clients’/patients’ assessment of their psychological wellbeing

and their responsiveness to therapy or contribute to a harmful self-fulfilling prophecy.

Colluding With Clients/Patients in Upcoding. Some psychologists erroneously believe that they should

involve clients in decisions regarding which diagnosis to submit to their health care insurer. Such actions compromise

the psychologist–client/patient relationship. First, it represents an abdication of the psychologist’s

fiduciary responsibility to arrive at a diagnosis and treatment plan that accurately reflects the client’s/patient’s

psychological problems (Principle B: Fidelity and Responsibility). It can thus set the stage for clients/patients to

lose faith in or mistrust the psychologist’s intent and ability to provide the best standard of care. Second, it

communicates to the client/patient that the psychologist believes that deception, false claims, and lies are

acceptable forms of achieving goals—a message inconsistent with the aims of therapy (Principle C: Integrity).

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205

CHAPTER 10

Standards on

Education and Training

7. Education and Training

7.01 Design of Education and Training Programs

Psychologists responsible for education and training programs take reasonable steps to ensure that the

programs are designed to provide the appropriate

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