Guidelines for Forensic Evaluation of Psychiatric Disability

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1 Guidelines for Forensic Evaluation of Psychiatric Disability Prepared by Taskforce on Guidelines for Forensic Evaluation of Psychiatric Disability American Academy of Psychiatry and the Law Liza H. Gold, MD, Chair Stuart A. Anfang, MD Albert M. Drukteinis, MD, JD Jeffrey L. Metzner, MD Marilyn Price, MD, CM Barry W. Wall, MD Lauren Wylonis, MD Philip M. Margolis, MD, Consultant Ralph S. Smith, Jr., MD, MBA, Consultant John E. Davidson, JD, Legal Consultant This is a draft of a work product in preparation. It is the sole property of the American Academy of Psychiatry and the Law. It is not for unauthorized distribution. It is not to be copied, quoted, or published in any fashion by any media, publication, or forum outside the American Academy of Psychiatry and the Law. 1 1

2 Table of Contents 2 Introduction 5 Section I. Psychiatry and Disability Evaluations 6 A. The disability evaluation: The psychiatrist as consultant 6 B. The increasing need for expertise in the provision of disability evaluations 6 C. Forensic psychiatry and disability evaluations 10 D. The benefit of guidelines 11 Section II. General Issues in Disability Evaluations 13 A. Definitions and issues relating to the definition of disability Disability and Impairment Restrictions and Limitations The Relationship between Illness and Impairment Impairment vs. Illegal behavior 17 B. Ethical issues Role conflict Honesty and striving for objectivity Confidentiality Forced employee evaluations 24 C. The Health Insurance Portability and Accountability Act of 1996 (HIPAA) and confidentiality 25 D. Safety Issues for Examiners 28 Section III. General Guidelines for Psychiatric Disability Evaluations

3 Format: Two categories of disability evaluations 29 General guidelines for psychiatric disability evaluations 30 A. Clarify the nature of the referral with the referral source 30 B. Review records and collateral information 32 C. Conduct a standard psychiatric examination 37 D. Correlate the mental disorder with occupational impairment 39 E. Consider alternatives which might account for claims of disability 45 F. Formulate well reasoned opinions 50 G. Write a comprehensive report that addresses referral questions 52 Section IV: Evaluations for Entitlement to Compensation for Work Impairment 57 A. Government Disability Programs: Social Security Disability Insurance and Social Security Income 58 B. Workers Compensation 76 C. Private Disability Insurance 86 Section V: Evaluations for Ability to Continue Working 97 A. Americans with Disabilities Act (ADA) evaluations 97 B. General Fitness for Duty Examinations Fitness for Duty Evaluations of Physicians Fitness for Duty Evaluations of Law Enforcement Officers 121 C. Return-to-Work Evaluations

4 VI. Conclusion 131 Appendix I: Summary of Salient Issues in Disability Evaluations 132 Appendix II: Additional Information Regarding HIPAA and Employment Evaluations 133 References

5 Introduction These guidelines are intended as a review of legal and psychiatric standards in the performance of disability evaluations. They suggest an assessment model designed to provide a basis for disability consultations performed by forensic psychiatrists. These guidelines are directed toward psychiatrists and other clinicians who conduct evaluations and provide opinions on disability. A wide variety of clinicians perform disability evaluations in the course of providing treatment for their patients. Clinicians may therefore find these guidelines informative and useful. Nevertheless, these guidelines are intended primarily to assist forensically trained psychiatrists. These guidelines reflect an expert consensus among experts about the principles and standards applicable to the conduct of disability evaluations. As with any guidelines, they are not binding. In addition, they should not be construed as excluding any other appropriate methods of evaluation aimed at achieving a credible and thorough evaluation. However, forensic psychiatrists and other clinicians who conduct disability evaluations should be prepared to explain any marked deviation from this model. Adherence to the model presented here will not necessarily ensure an accurate assessment of an individual s level of impairment or disability. Evaluators should be prepared to consider the circumstances and requirements of each evaluation on a case-bycase basis since the goals of disability evaluations vary. The factual circumstances of a disability claim may require forensic examiners to include or exclude aspects of the evaluation model described in these guidelines. 5 5

6 Section I. Psychiatry and Disability Evaluations A. The disability evaluation: The psychiatrist as consultant The purpose of disability related evaluations is to provide information that an organization or system can translate into a specific course of actions, such as making workplace accommodations, authorizing healthcare benefits, arranging for medical care, making changes in employment status or awarding damages. Psychiatrists providing such evaluations are generally required to answer specific questions put to them and need to do so in language that facilitates the process of fair and objective decision-making. Opinions may be offered based on a review of records alone or on a review of records in conjunction with personal evaluation of the individual in question. Such evaluations, often referred to as an independent psychiatric examination or independent medical evaluation (IME) may be requested by an insurance carrier, either party in a litigation proceeding, or an employer. Reports should clearly indicate the basis of opinions, and whether these are based on record review alone or whether a personal examination has been performed. B. The increasing need for expertise in the provision of disability evaluations Disability evaluations are the most common psychiatric evaluations requested for nontherapeutic reasons. Each year, mental disorders affect approximately 20% (23.5 million) or 1 in 5 Americans between the ages of 18 and Of individuals with any mental illness, 48-66% are employed, and 32-61% of individuals with serious mental illness are employed, compared to the percentages of all adults employed (76-87%). 2 In 2000, an estimated 30.7% of individuals who reported having a mental disability between the ages of 16-64, that is, two million people, were employed. 3 These individuals work in a range of occupational categories similar to those of people with no mental illness. (Among people with mental illness, as in the general population, educational attainment was the strongest predictor of employment in high level occupations. 2 ) Psychiatrists and their patients are all too aware that many mental disorders are chronic or episodic and may wax and wane. During acute exacerbations, individuals may develop symptoms that impair their work function to a greater or lesser degree. These may precipitate withdrawal from the workplace or requests for accommodations. During periods of relative stability, many individuals, even those who have some symptoms, may still function without impairment, or be only mildly impaired. 6 6

7 The frequency with which issues regarding work function, mental disorder and disability or accommodation arise is such that most psychiatrists can report some experience with requests for disability evaluation or documentation. Employers, third party private or public agencies, or workers themselves may request evaluations in order to meet the administrative requirements of the social and legal contracts that structure paid employment. Individuals may need a report to Social Security Disability Insurance (SSDI) justifying a request for benefits. Patients may require a note for a private employer authorizing leave from work. Psychiatric opinions regarding necessary accommodations for purposes of compliance with the Americans With Disabilities Act (ADA) or completion of a Family and Medical Leave Act (FMLA) certification form may be solicited. Individuals involved in personal litigation may require such evaluations to demonstrate damages. Conversely, individuals who have disclosed a psychiatric condition or whose employers may have discovered or suspect a psychiatric condition may require evaluation and documentation of lack of impairment or ability to work despite symptoms. For example, individuals who wish to resume employment after claiming a psychiatric disability may require a return-to-work evaluation. Employees who wish to continue to work despite a documented or suspected psychiatric disorder may be required to undergo a fitness-for-duty evaluation. Some of these evaluations may represent employers preemptive attempts to avoid premature resumption of employment that may exacerbate illness as well as attempts to detect unstable employees who may pose a risk to themselves or others in the workplace. Concerned employers may request fitness-for-duty evaluations related to disruptive behavior in the workplace or concerns regarding potentially violent behavior, the ability to safely operate machinery, or to safely handle firearms. Individuals with mental disorders typically have access to either public or private disability benefits through their employment. In 1999, mental or emotional problems represented one of the top ten causes of disability among adults overall, at a rate higher than disability caused by diabetes or stroke. 4 The National Health Survey Interview ( ) found that for younger adults, ages 18-44, mental illness was the second most frequently reported cause of activity limitation (10.4 per 1000 people), exceeded only by musculoskeletal conditions. For mid-life adults, 45-64, mental illness ranked as the third most frequently mentioned cause of activity limitation (18.6 per 1000). 2 The World Health Organization reports that depression is the fifth leading cause of disability worldwide and predicts that it will be the second leading cause of disability after heart disease by Disability benefits are administered through both public and private programs. In 2004, million workers were insured through public programs in the event of disability. This number has been steadily growing since the 1980 s, when only 100 million workers had such insurance. 6 In 2003, SSDI paid out 70.9 billion dollars in benefits to 5.9 million disabled workers. 7 Mental disorders that prevent substantial gainful employment are the leading reason that people receive 7 7

8 SSDI. Mental disorders also form the largest single diagnostic category among SSDI recipient. In addition, persons with mental disorders have the longest entitlement periods and are the fastest growing segment of SSDI recipients. In 2001, 28% of SSDI recipients received payment based on a mental disorder (not including mental retardation). 2,8 Disability insurance is also available through workers compensation programs and private insurers. In 2004, short-term disability (STD) benefits were available to 39% of workers, longterm disability (LTD) benefits were available to 30% of workers in private industry, and nearly all participated. 9 Statistics regarding the number and cost of mental health based disability claims in workers compensation and private insurance programs are difficult to obtain. However, indications are that mental health-based claims also represent a significant percentage of private insurance claims. UnumProvident Corporation, the leading provider of private income protection insurance, reported that each year, approximately four to five percent of both short-term and long-term disability claims are for depression. 10 Another major company reported that among private insurers, claims from stress and mental disorders are now 20% of all claims, and comprise one of the fastest rising categories of claims. 11 C. Forensic psychiatry and disability evaluations Clinicians who are not comfortable performing disability evaluations should consider referring these evaluations to forensic psychiatrists. Certain types of disability evaluations may not require forensic training or experience. Moreover, circumstances sometimes compel a practitioner to assume the dual role of treatment provider and forensic evaluator. 12 For example, an application for SSDI benefits requires an extensive report from the clinical treatment provider. However, in many cases, disability evaluations are best performed by psychiatrists with forensic training. Forensic psychiatrists tend to be more cognizant of and comfortable with the goals, obligations and constraints of disability evaluations. Clinicians may find moving from the therapeutic to the forensic role in such evaluations difficult due to the often irreconcilable conflict presented by the differences between clinical and forensic methodology, ethics, alliances and goals In addition, even seasoned clinicians may find the terms, requirements, and legal or administrative process involved in disability evaluations unfamiliar. Many disability evaluations require that an IME be performed. IMEs differ from clinical evaluations conducted for therapeutic purposes in many respects, including lack of confidentiality, involvement of third parties, and potential legal ramifications. Even seemingly straightforward evaluations regarding work ability or disability can become the subject of administrative or legal dispute. In these cases, evaluators need to be prepared to defend their opinions in deposition or in court, a situation with which forensic psychiatrists are familiar. Clinicians who provide disability assessments should be aware that should questions arise, they are likely to be held to the standards of forensic specialists. For example, in a court case involving questioning of a child custody evaluation, the court stated that although the child psychiatrist who performed the evaluation was not a member of American Academy of Psychiatry and the Law (AAPL), she should have been familiar with AAPL guidelines because she had undertaken a forensic evaluation. 15 D. The benefit of guidelines The authors believe that the challenges of providing a competent disability evaluation can be addressed to a large degree by adhering to these guidelines. These have been derived from ethical principles and clinical practice and informed by relevant legal or administrative standards. Adherence to these principles and standards can help evaluators avoid common errors, improve 8 8

9 the quality of their work, maintain their objectivity, and meet the needs of both the individuals and the systems in assisting to facilitate a fair and relevant decision making process. The authors also believe that adherence to these guidelines will facilitate the process of presenting the reasoning upon which psychiatric conclusions are based, an essential part of disability evaluations. In addition, the suggested guidelines can help ensure that the opinions provided are reliable and relevant. For example, when questions regarding credibility arise, the use of guidelines can help establish that an evaluation was conducted using standard methodology that falls within accepted practices. General guidelines for conducting credible forensic evaluations have been suggested, 16 although they have not been formally adopted by any professional organization. Moreover, they have not been specifically adapted to address the unique features of disability evaluations. The guidelines suggested here take into consideration the requirements of the various types of disability evaluations, distinct from other types of forensic evaluations. 9 9

10 Section II. General Issues in Disability Evaluations A. Definitions and issues relating to the definition of disability 1. Disability and Impairment Disability is essentially a legal concept, defined by statute, case law, or insurance policy language. The term disability has more than one legal definition. The Americans with Disabilities Act, the Social Security disability program, and private insurance plans all define the word differently. (See Appendix I for a summary comparison of definitions and salient issues in specific disability evaluations). Evaluating psychiatrists face the challenge of understanding the relevant definition and translating it into a clinically meaningful concept. A disability evaluation is in this way similar to a competency evaluation. Competency is also a legal rather than a clinical construct. Forensic psychiatrists typically translate competency into capacity, and address issues of specific functional capacities (to stand trial, to execute a will, to make treatment decisions, etc.). Forensic psychiatrists most typically translate disability into the clinical concept of functional impairment as it applies to vocational and occupational skills. Many DSM diagnoses include a criterion requiring that the symptoms cause clinically significant distress or impairment in social, occupational, or other important areas of functioning. 17 Unfortunately, the current DSM provides no simple definition or explanation of what constitutes psychiatric impairment. Clinicians are directed to use the Global Assessment of Functioning (GAF) scale or other functional scales as practical (albeit imperfect) ways of quantifying severity of functional impairment. Although these scales give quantified scores, they are not specifically designed to measure occupational function. In addition, scores assigned have an element of subjectivity and may vary depending on the evaluator s experience and perspective. Where definitions of disability exist, they differ depending on the specific context. Nevertheless, these definitions can help guide our clinical assessment of functional impairment. The World Health Organization defines impairments as problems in body function or structure such as a significant deviation or loss. 18 Under the Social Security Act (SSA), disability is defined as the inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairments(s) which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months. An impairment "results from anatomical, physiological or psychological abnormalities which can be shown by medically acceptable clinical and laboratory diagnostic techniques. 19 Private disability insurers offer a variety of disability definitions depending on the terms and nature of the specific policy (group or individual, long term vs. short term disability, etc.) Typically, these are framed as the inability to perform occupational duties due to injury or sickness. Examples might include any occupation (e.g., unable to engage in any gainful occupation for which an individual is reasonably fitted by education, training, or experience), your occupation (e.g., unable to perform the important [or material and substantial] duties of the individual s regular occupation), and other partial or modified definitions. Interestingly, these public and private insurers are less specific in their definition of impairment. The definitions of impairment and disability found in the American Medical Association Guides to the Evaluation of Permanent Impairment, 5th edition 20 are among the most useful in clarifying the difference between these two related concepts. The Guides defines impairment as a loss, loss of use, or derangement of any body part, organ system, or organ function (p. 2). This alteration of an individual s health status is assessed by medical means. In contrast, a disability is an alteration of an individual s capacity to meet personal, social, or occupational demands or statutory or regulatory requirements because of an impairment (p. 8). The latter is considered a 101 0

11 nonmedical assessment and the AMA definitions clearly indicate that impairments may or may not result in a disability. Despite these definitional distinctions, the terms impairment and disability are often used interchangeably. In addition, medical opinions are routinely offered on disability, including both its degree and its expected duration. These guidelines endorse the use of the AMA definitions unless an alternate definition is specifically requested or required. Thus, these guidelines will focus on the assessment of impairment relevant to disability but not on the determination of disability, unless specific types of evaluation include requests for opinions specifically on disability. Medical opinions on disability are not necessarily inappropriate, and may be requested, despite the fact that the final determination of disability may be made by a fact-finder such as a court, a governmental agency, or an insurance company panel. However, forensic evaluators should bear in mind that the determination of disability is ultimately an administrative or legal decision. Once a medical opinion is offered about disability, more than a purely medical opinion has been offered. In such cases, psychiatrists should be prepared to identify how and why the capacity to meet an occupational demand is altered. 2. Restrictions and Limitations Disability evaluators are also often asked to consider whether evaluees psychiatric signs and symptoms are severe enough to limit or restrict their ability to perform occupational functions generally (i.e., any substantial gainful activity) or specifically (i.e., the specific occupational tasks of a neurosurgeon for a your occupation private disability policy). Restrictions are most easily understood as what a claimant should not do. In contrast, limitations can be described as what a claimant cannot do due to severity of psychiatric symptoms. For example, an evaluee with Bipolar Disorder might be restricted from excessive irregular night hours due to the potential of triggering a manic episode. In contrast, the evaluee might be limited in the ability to sustain concentration beyond one hour due to racing thoughts and diminished attention. 3. The Relationship between Illness and Impairment The presence of an illness or diagnosis does not necessarily imply that an individual has significant functional impairment. In a competency assessment, the presence of a psychiatric illness does not provide the information necessary to address the question of decision-making capacity. Similarly the question of significant functional 111 1

12 impairment in the event of psychiatric illness requires further exploration of the severity and impact of active psychiatric signs and symptoms. Moreover, the presence of some areas of psychiatric impairment does not necessarily indicate or imply impaired capacity to perform specific occupational tasks and functions. Extending the example above, an individual with Bipolar Disorder might be restricted from working excessive irregular night hours. This might be disabling for a solo practitioner obstetrician, but may not represent any significant problem for an officebased dermatologist. A claimant with an orthopedic injury might be unable to lift weight beyond 20 pounds, but if the claimant has a sedentary job, this limitation would not create an occupational impairment. In addition, for disability insurance coverage (as noted in more detail below), sustained duration of significant occupational impairment is often a key question for the receipt of monetary benefits. 4. Impairment vs. Illegal behavior Issues related to the relationship between impairment due to psychiatric illness and illegal/unethical behavior can create confusion when they arise, particularly in cases involving private disability insurance and fitness-for-duty evaluations for professionals. At times, individuals claim their illegal or unethical behavior results from a psychiatric illness. Common examples of this issue involve sexually inappropriate behavior by a physician or other professional or financial misconduct. Issues relating to the relationship between impairment due to psychiatric illness and illegal or unethical behavior have not been extensively addressed. Nevertheless, several professional organizations have attempted to clarify the challenges presented by the evaluation of claims in which both alleged psychiatric illness and illegal behavior are 121 2

13 present..an American Psychiatric Association (APA) resource document on this issue notes, Under certain circumstances, a physician s problematic behavior leads to questions about fitness for duty. Boundary violations (such as sexual misconduct), unethical or illegal behavior, or maladaptive personality traits may precipitate an evaluation, but do not necessarily result from disability or impairment due to a psychiatric illness. 21 Similarly, the United States Federation of State Medical Boards (FSMB) adopted as policy a 1996 report that concluded, In addressing the issue of whether sexual misconduct is a form of impairment, the committee does not view it as such, but instead, as a violation of the public s trust. It should be noted that although a mental disorder may be a basis for sexual misconduct, the committee finds that sexual misconduct usually is not caused by physical/mental impairment. 22 These policies provide a model for the assessment of unethical or illegal behavior when it arises in the context of a claim of psychiatric impairment. The analysis of such claims needs to be case-specific and should include a detailed examination of the relationship between any mental illness and the individual s troublesome behavior. If, for example, an individual has a long history of Bipolar Disorder and is sexually inappropriate or embezzles funds only during a well-documented manic episode while off mood-stabilizing medication, a claim of psychiatric impairment may well be valid. In contrast, a claim in which the individual has serial affairs with selected patients or a pattern of financial misconduct over a 20 year period, but has no documented psychiatric history, is less likely to represent psychiatric impairment. A related issue is often referred to as legal disability, that is, the inability of a person to perform prior occupational tasks due to a legal barrier such as incarceration, 131 3

14 loss of professional license, or suspension from insurance programs. Evaluators should determine the sequence of legal events, the claimant s clinical status, and the timeframe for seeking treatment and filing a disability claim. The specific facts and context of the case are critical to the analysis of disability based on psychiatric impairments as opposed to disability due to legal problems. There is considerable case law rejecting recovery of disability benefits where the claimant's legal disability arose before the alleged medical disability (see, for example, Bertram v. Secretary of HEW 1974; 23 Goomar v. Centennial Life 1994; 24 Massachusetts Mutual v. Millstein 1997; 25 Pierce v. Gardner 1967; 26 Waldron v. Secretary of HEW ). B. Ethical issues No uniform ethical standards exist that apply to all forms of disability evaluations. However, AAPL has published newly revised ethical guidelines that apply to all types of forensic evaluations. 28 The AMA and the APA also have addressed the ethical requirements of third party evaluations and expert testimony. This discussion is intended to supplement these guidelines specifically in regard to disability evaluations. The core concept underlying all these ethical precepts is the relationship between the psychiatrist and the evaluee. Although a traditional treatment relationship does not exist, a limited doctor-patient relationship is established by a third party evaluation. 29,30 This relationship is best conceptualized as one in which the psychiatrist s primary duty is toward providing a complete and thorough evaluation for the retaining party, but in which psychiatrists have a secondary duty to the evaluee This relationship is based on evolving ethical precepts that have become clearer as the subspecialty of forensic psychiatry has evolved. The APA s publication Opinions of the Ethics Committee on the Principles of Medical Ethics with Annotations Especially Applicable to Psychiatry 33 states that psychiatrists must comply with the same ethical principles in performing third-party evaluations as within a treatment relationship. The 141 4

15 AMA states explicitly a limited patient-physician relationship should be considered to exist during isolated assessments of an individual s health or disability for an employer, business or insurer. 34 This document advises physicians performing independent evaluations that they have similar responsibilities to physicians providing treatment in respect to 1) providing objective evaluations; 2) maintaining confidentiality to the extent possible; and 3) fully disclosing potential or perceived conflicts of interest. The legal obligations attendant upon this relationship should be considered when providing disability and other employment-related evaluations. Lawsuits based on principles of medical malpractice and ordinary negligence, although significantly less common than in clinical practice, are arising more frequently than in the past. In addition, complaints of ethics violation can result in disciplinary actions by professional organizations or state medical boards. 29,30,35 1. Role conflict AAPL s ethical guidelines advise, A treating psychiatrist should generally avoid agreeing to be an expert witness or to perform an evaluation of his patient for legal purposes Whereas most psychiatrists concur with AAPL s ethical guidelines, a similar position regarding disability evaluations is more difficult to clearly delineate. For example, SSDI applications request that the treating clinician provide an extensive disability evaluation. Employers may require that their employee s treating clinicians provide information regarding fitness for duty or for purposes of meeting ADA or FMLA requirements. Adopting both treatment and evaluation roles are common in workers compensation cases. The goals of forensic disability assessment and clinical treatment are not always antithetical and may at times even be congruent. Circumstances sometimes compel a practitioner to assume the dual role of treatment provider and forensic evaluator or expert witness, 12 especially in disability cases. Nevertheless, psychiatrists asked to perform both roles should carefully consider whether the circumstances of a pariticular case may lead to ethical conflicts. The problems that arise from the assumption of both roles may create 151 5

16 compelling ethical and practical reasons for its avoidance whenever possible, especially in the context of actual litigation or circumstances that hold the potential for litigation. In such cases, treating physicians may wish to suggest that a forensic expert be retained for the disability evaluation role. 2. Honesty and striving for objectivity The endeavor to be honest and objective involves complex practical issues. The ethical imperative to strive for honesty and objectivity in the forensic practice of psychiatry has been extensively discussed. Forensic psychiatrists are aware of the many ways in various types of bias can influence opinions. Of these, advocacy bias or biases relating to the physician s own employment or source of income may present unique pressures for forensic disability evaluators. Requests for forensic evaluations of psychiatric disability typically come from third parties, such as insurance companies, government agencies or attorneys. Some forensic psychiatrists have formal, contractual arrangements with organizations or systems. The potential bias of relying for employment on the agency requesting a forensic opinion should be consciously addressed. Such employment does not preclude the ability to provide comprehensive, competent and fair disability assessments. It may however, create pressures that need to be considered on an ongoing basis. Some forensic psychiatrists may have a less formal, subcontractor relationship with disability insurers or companies that arrange independent psychiatric evaluations for insurers or employers. Large companies, insurers and administrative systems often generate multiple referrals. The desire for repeat business can create pressure to generate opinions that will be favorable to the referral source. The legal system expressly recognizes the potential for bias in these situations, and additional scrutiny is given to medical evaluators in such situations. Psychiatrists should resist compromising their opinions as a result of these or other pressures in disability evaluations. They should not feel reticent to voice an opinion that does not support the referral source s desired outcome. In disability evaluations, this obligation extends to recognizing that opinions expressed in the interest of pleasing the referral source, either to maintain employment or garner future referrals, are unethical. 3. Confidentiality The purpose of a disability evaluation is the collection of information about an evaluee that will be communicated to a third party. Therefore, disability evaluations, as is typically the case with forensic evaluations, are inherently not confidential. Psychiatrists 161 6

17 may be required to write reports or provide courtroom testimony that would reveal material to an employer or insurance company that in a clinical context would never be discussed outside the treatment setting. Individuals who have put their mental status at issue in a legal dispute have waived the privilege of confidentiality. Evaluees seeking disability benefits or accommodations for mental disability are also required to reveal the nature of the problems in order to obtain the benefits or accommodations they seek. Psychiatrists have an affirmative obligation to make certain that the limits of confidentiality are communicated clearly to the evaluee prior to beginning the evaluation. A pro forma description, such as a boilerplate written statement that does not specify the circumstances of the specific evaluation and that does not include adequate explanation and discussion, is not sufficient to fulfill this ethical obligation. Psychiatrists should obtain a signed release that indicates that these issues have been explained and that the evaluee consents to the release of information as indicated. Nevertheless, forensic psychiatrists are ethically obligated to maintain an evaluee s confidentiality as far as possible. Within the specific legal or administrative parameters of the disability evaluation, forensic psychiatrists should restrict disclosures of information obtained during the performance of the evaluation. Information that is not relevant to the disability evaluation should be considered confidential. This too should be explained to evaluees in the context of discussing the limits of confidentiality. Inevitably, situations will arise in which the assessing psychiatrist and the evaluee will disagree on what information is relevant. Evaluees should be advised that although their opinions may differ, the ultimate determination of what information is relevant is at the discretion of the evaluating psychiatrist. In addition, evaluees should be advised that any and all information communicated to the evaluating psychiatrist, even if not determined relevant and included in a written report, may be made public in the event of litigation and the process of discovery. All material reviewed by a forensic psychiatrist is considered confidential and under control of the court, the attorney, or other referral source providing it, and should not be disclosed or discussed without the referral source s consent (AAPL 2005). In the event of litigation, forensic psychiatrists should not disclose information that they obtained in the course of their evaluation that did not become public knowledge through courtroom or deposition testimony. Such disclosures are ethically inappropriate and may even result in legal liability. 30,31,35,36 4. Forced employee evaluations Employers at times attempt to force employees to undergo psychiatric examinations for nonpsychiatric reasons. In the event of workplace conflict, some employers may attempt to discredit or even terminate an employee through claims of mental instability. In the course of such conflicts, employees who have become problematic for reasons other than those involving their mental health may be required to undergo forced FFD evaluations. Retaliatory referrals for psychiatric evaluations following complaints of harassment or discrimination occasionally occur. The stigma attached to a psychiatric evaluation may itself be used to discredit the employee. Such employment practices are potentially damaging to the employee and represent a misuse of psychiatry. Forensic examiners should be sensitive to the possibility that their expertise may be 171 7

18 misused in this way. 37,38 The use of a psychiatric examination as retaliation or as a deterrent from expressing complaints is inappropriate. Individuals may feel stigmatized and narcissistically wounded by having to undergo a psychiatric evaluation. The nature of such evaluations is often intrusive and distressing. Moreover, such referrals raise ethical questions that are not easily answered, given that assessments under such circumstances may be inherently unethical, analogous in many respects to the unethical performance of unnecessary surgery. Thus, there is no single and ethically clear way of responding to referrals that arise for reasons other than legitimate concerns regarding the employee s mental health and its effect on the ability job performance. If the nature of the referral allows psychiatrists to identify a forced evaluation arising from an employment conflict or an attempt to discredit an employee, they should consider refusing the referral. Alternatively, psychiatrists could conduct the evaluation and note the nonpsychiatric nature of the referral. For example, the evaluator can state, This referral appears to have been generated by an unresolved workplace conflict rather than any change in the evaluee s psychiatric or mental status in addition to offering an opinion regarding the evaluee s fitness for duty. Although this may cause referral sources discomfort, evaluators cannot ethically justify ignoring the context of such evaluations. C. The Health Insurance Portability and Accountability Act of 1996 (HIPAA) and confidentiality HIPAA 39 is an extensive federal law covering many different issues, including the privacy and security of health data. The Privacy Rule, 40 promulgated under HIPAA provisions, created standards regarding the use and disclosure of individuals health information by covered entities under HIPAA. The Privacy Rule gives patients a statutory right to knowledge about and control over what information is shared, with whom, and for what purposes. Providers are responsible for determining their status as covered or not covered physicians HIPAA. 41 Nevertheless, even if not covered by HIPAA, psychiatrists may want to consider following HIPAA s guidelines in regard to third party evaluations. The Privacy Rule sets forth practices which represent a minimum in regard to privacy and confidentiality. Most psychiatrists are already familiar with the Privacy Rule, and indeed, with often more stringent state laws regarding privacy and confidentiality. Many if not most psychiatrist have already integrated these rules and obligations into their standard practices. Thus, the integration of HIPAA s requirements should not present significant hardship. In addition, should the Privacy Rule s requirements come to be considered a national standard of care, an issue that has not yet been addressed by case law, integration 181 8

19 of these practices would provide some protection from liability that can arise in third party evaluations from allegations of breach of confidentiality. 30 Psychiatrists should be familiar with the regulations regarding third party evaluations, such as employment related or disability evaluations. 42 The Privacy Rule permits covered healthcare providers to release an individual s protected health information with that individual s authorization to an employer or a disability insurance company. It allows such disclosure without authorization only in limited circumstances. 43 Although the Privacy Rule states that medical treatment of an individual cannot be conditioned upon the individual signing an authorization for the disclosure of information, it expressly allows IME physicians to require the evaluee to sign an authorization for the release of protected health information to the third party requesting the IME as a condition of performing the IME. 44 Disclosure of evaluations conducted in the context of litigation is subject to the rules of discovery of the jurisdiction. However, individuals have a right to receive, upon request, an accounting of disclosures of protected health information made by a covered entity. This accounting includes dislcosures made in litigation or in proceedings in which the covered entity is not a party, hen such disclosures are made in response to a subpoena, discovery request, or other lawful process. 45 Disclosure in workers compensation continues to be governed by state law. [T]he Privacy Rule explicitly permits a covered entity to disclose protected health information as authorized by, and to the extent necessary to comply with workers compensation or other similar programs established by law that provide benefits for work-related injuries or illness Providers are still required to reasonably limit the amount of protected health information disclosed to the minimum necessary to accomplish the workers compensation purpose. SSA has determined that consultative examinations (CEs) conducted for the SSA fall within the range of functions included in HIPAA definitions of "health care provider" 47 and "treatment." 48 SSA has indicated that examiners who are covered entities under HIPAA are required by the Privacy Rule to provide evaluees with a notice of the patient's rights and the psychiatrist s privacy practices, 49 and for the psychiatrist to receive a written acknowledgment of the receipt of the notice, or documentation of good faith effort to obtain such an acknowledgment. Covered entities must still comply with all of SSA s rules regarding disclosure of information and access to information gathered and maintained while performing work for SSA. Some of these regulations limit disclosure of information. 50 See Appendix II for resources regarding HIPAA regulations and medical practice and other specific issues related to third party evaluations

20 D. Safety Issues for Examiners Examiners conducting disability evaluations should give some thought to personal safety. Emotions associated with employment conflict can be as extreme as those in interpersonal conflicts such as divorce and custody battles. The outcome of a disability evaluation can result in lawsuits and the loss of monetary benefits, employment or careers. Evaluees who are angry about undergoing a psychiatric examination or who are angered by an evaluator s report may express that anger toward the evaluator. Evaluees referred because of anger management problems, substance abuse problems or paranoid delusions may become overtly threatening. Forensic psychiatrists should be aware of the setting and context in which they conduct an evaluation. An interview should not be undertaken when the examiner feels threatened in any way. Examiners should also be clear about setting limits around evaluation interviews. For example, forensic psychiatrists evaluating law enforcement personnel should consider routinely instructing evaluees to not bring firearms into the office. If an evaluee becomes threatening, the forensic evaluator should consider terminating the interview. Threats made after the evaluation should be reported to the referral source and if appropriate to local law enforcement agencies

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