96 Transcript

Dr. Jeremy Sharp Transcripts Leave a Comment

[00:00:00] Dr. Sharp: Hey, welcome to The Testing Psychologist podcast. This is Dr. Jeremy Sharp, and this is the podcast where we talk all about the business and practice of psychological and neuropsychological assessment.

My guest today is someone I’ve been looking forward to talking with for a long time. Dr. Amanda Zelechoski is here to talk with us all about ethical and legal concerns related to psychological assessment. She is so well suited to have this discussion with me. 

Let me tell you a little bit about her background.

Amanda is a licensed attorney and clinical psychologist. She specializes in trauma and forensic psychology. She’s board certified in Clinical Child and Adolescent Psychology. From a clinical perspective, she’s worked with adults, children, and families in a variety of settings; inpatient, outpatient, and forensic. She’s done it all on the clinical side.

She directs the Psychology, Law, and Trauma Lab. Her primary research interests include forensic and [00:01:00] mental health assessment, at-risk delinquent and traumatized youth, child custody, child welfare, and of course, the intersection of psychology law and public policy. She does all these things in her lab at Valparaiso University, where she is a faculty member.

She’s also a risk management consultant for The Trust where she provides legal, ethical, and risk consultation and training for psychologists and other mental health professionals. If you haven’t heard of The Trust Risk Management Program, it’s great. It’s a free program where you can call and get risk management advice if you found yourself in a potentially sticky ethical situation.

She is also the associate editor of Law and Human Behavior. She conducts forensic evaluations and has provided training and consultation to any number of mental health, law enforcement, and correctional agencies. She’s really done it all.

This was a fantastic conversation. [00:02:00] She handled all the questions I threw at her with ease and grace. So I think you’ll enjoy this one.

Before we get to the podcast episode, let’s see, my mastermind groups are closed, for now. I’m really excited to have those going. Those will be in progress by the time this airs. What we can do though is look forward to the future. If you missed the mastermind groups this time around, another cohort will be starting up in early spring, 2020. So put that on your radar.

All right. Without further ado, here is my conversation with Dr. Amanda Zelechoski.

Hey, y’all welcome back to another episode of The Testing Psychologist podcast. I’m Dr. Jeremy Sharp. And like you heard in the intro, my guest [00:03:00] today is Dr. Amanda Zelechoski. Amanda is doing a lot of really cool things and I’m really excited to talk with her about any number of those things. But the main reason I reached out to her is for her role as an attorney and a psychologist to help us navigate the intersection of those worlds.

Amanda, welcome to the podcast.

Dr. Amanda: Thanks for having me.

Dr. Sharp: Of course. Thank you for being willing to come on and answer what might be some hard questions. We’ll see. I’ve been gathering questions, I feel like over the last five years to ask you. So, I really appreciate it. I’m excited.

Dr. Amanda: Absolutely.

Dr. Sharp: My first question is, how do you get two doctorate degrees? What comes first? And what is the process like when you finish one, and then you’re like, I think I need another one of those? What was that like for you?

Dr. Amanda: Good question. A question my family asked me for many years too.[00:04:00] I guess some of it comes from being very non-committal. I loved the law and I loved psychology as an undergraduate student, so had a hard time deciding between them. And so actually was really pleased to find out that I didn’t have to. So I actually didn’t do them separately. I did a joint program together.

The way that these joint programs tend to work, mine was at Drexel and Villanova Law School. And then Drexel’s where I did the Ph.D. But actually what you do is your normal first year of law school and then the rest of the years are both. You’re going back and forth between law classes and graduate psychology classes. It was a seven-year program and I was really integrated into amazing ways.

So I didn’t have to choose, but it was graduate school for seven years, which people definitely didn’t think I was making sound decisions at that point to be in school for that long.

Dr. Sharp: Sure. I could see some family questions about that like, are you ever going to be done with this?

Dr. Amanda: Exactly.

Dr. Sharp: So did you know then, [00:05:00] going into it that you wanted to have some career that worked in the intersection of those worlds?

Dr. Amanda: I did. I knew that I probably didn’t want to practice law ever in the traditional sense, but I knew that the foundation of what I would learn in law school was really important to a lot of things I wanted to do. So that included forensic mental health assessment, testifying, and being involved in that world. It also included research right at the intersection of law and psychology, also working in the public policy spaces.

And so, just being able to understand the languages spoken in both worlds and translate a lot of those things back and forth has been incredible throughout my career. I really wanted both of these knowledge bases and to figure out how to tie them together in various aspects of our field.

Dr. Sharp: I can think of any number of situations where I wish I had been able to do that because there’s a lot of overlap. And it’s like a black box in some ways. I feel like the law is [00:06:00] a black box and the language.

Dr. Amanda: Yeah. And the legal system and law itself can tend to have a lot more black-and-white thinking than we tend to have in science and in psychology. And so we sometimes deal better in areas of gray in psychology, but that can also be immensely frustrating to mental health professionals because the law is not as clear as we’d like it to be in some circumstances.

Dr. Sharp: Right. Gosh. So going into it, my question is, have you ended up in a place that you thought you would end up in?

Dr. Amanda: Great question and absolutely not. I, in my graduate studies definitely thought I’d be working in correctional facilities and prisons for the long haul. I wasn’t necessarily interested in the traditional academic route at that time.

Part of the deviation for me was as I was working in any number of different forensic settings, I started to really notice, gosh, so many of [00:07:00] these folks I work with have these horrific histories of trauma and why aren’t we paying attention to that? That was back at a time when nobody knew what the term trauma-informed care meant. We weren’t talking about those things in correctional and forensic spaces. And so it felt really important to me.

I actually deviated after my internship year and did a two-year postdoctoral fellowship focusing on trauma both in terms of research, but also clinical work to immerse myself in that world and learn it with the hope of bringing it back into the forensic world. I loved that. And that’s what I continue to focus on in my work now.

But so even then, I started to have a young family and so thought of how I wanted some flexibility. I really loved teaching and didn’t know that I would love teaching so much. I had opportunities to do so at various points throughout my training. And so loved it so much that I decided I really wanted to go that route more full-time and to just have flexibility in doing research. Again, I didn’t think I’d [00:08:00] want to research career, but really loved the privilege of having questions that I felt like were important and the ability to answer them.

So I left traditional clinical practice in the industry and took an academic position at Valparaiso University now almost nine years ago. I have been there ever since and love it because I really still get to do everything I want to do.

I get to teach. I get to do research. I get to be involved in clinical and consulting work. I work with a lot of agencies around the country on thinking about trauma and how to embed more trauma-informed care into their assessment practice, their clinical work, and their policies. I get to do risk management consulting for The Trust, which I love; lets me use my lawyer brain in really formal ways to just help psychologists work through lots of difficult things.

So an academic route has actually allowed me the flexibility to do really everything I wanted to do in different phases and levels of [00:09:00] intensity as my own family needs change too.

Dr. Sharp: Yeah, the flexibility of that is hard to beat. I think that’s a reason a lot of us get these degrees. A Ph.D. in psychology is pretty flexible.

Dr. Amanda: It is. We’re trained to do lots of things that I think people don’t always realize. And then you have the ability to change what you want to do throughout your career. You’re not trained to just do one thing, which is, I think, pretty unique to our field.

Dr. Sharp: Yeah, absolutely. I’m always struck by folks that I talk to here, certainly, my own story as well, where we go into graduate school thinking one thing and then end up in an entirely different place. And that’s just a cool journey all the way.

Dr. Amanda: Yeah, doors or opportunities you couldn’t have imagined; like you didn’t even know that was a thing somebody could do when you were in graduate school.

Dr. Sharp: Oh, for sure. That’s awesome. Well, you’re a great example of using your degrees in as many ways as possible. It seems like you have a nice mix of [00:10:00] activities.

Dr. Amanda: Thank you. I like to keep my hand in lots of things. Back to that being non-committal.

Dr. Sharp: There you go. That’s great. You can make a lifestyle of being non-committal.

Dr. Amanda: That’s right. For better or worse. That’s right.

Dr. Sharp: That’s great. So the thing that really drew me to you was the risk management side. Although we could certainly dive into any number of topics it sounds like and have a great conversation, I would love to focus on some of this risk management stuff because I think certainly myself included and many other clinicians, we have things come up daily, maybe weekly at least where it’s like, oh, I just wish I had an attorney tap to help me out here because there’s a lot of gray in our field and we need clarity [00:11:00] sometimes.

Dr. Amanda: There is. Yeah.

Dr. Sharp: I might open with a curve ball question, but maybe this is an easy question too. We’ll see where this goes. Forgive me if it’s totally ridiculous. Can you say, just from your risk management work with The Trust, what are we getting in trouble the most for that isn’t obvious? Like everybody knows don’t sleep with your clients, don’t whatever, I don’t know. There are those big things but what are the things that people are people getting in trouble for that we might not even realize?

Dr. Amanda: This is a great question. It’s one we get a lot, and I think we work hard to try to really coal our data. So we hit a milestone this summer at The Trust realizing we have done over 80,000 consultations since the risk management program began about 25 years ago. And so we are talking to people all over the country daily, [00:12:00] right? What is on the hearts and minds of psychologists around the country? What are they struggling with?

Some of the most common ones are legal requests, which I’m sure is probably not surprising. I got a subpoena, somebody’s demanding my records, what do I do with those?

There are times that clinicians intend to be really well-meaning. I want to be helpful or I’m terrified. And so what we found is none of us tend to make really good decisions when we’re scared or anxious. And so in an effort to push these issues away or be avoidant, we react hastily which in many of these cases and almost all of these cases, what you really need to do is slow down and figure out, consult with others: What is the right step here? What does the law say that I have to do or shouldn’t do in this case to really have help in making these decisions instead of panicking and being reactive?

I think that’s where people get themselves into trouble. Is it, I just want this to go away. It’s uncomfortable. I’m just going to [00:13:00] send everything they’ve asked for without even thinking about whether that is your legal obligation, whether that’s a breach of confidentiality in this case, do you have the appropriate permissions or releases to do that?

So distinguishing between things like subpoenas and court orders, people don’t always understand. They want to make it go away and go away quickly. I get that but recognize that that is a time to consult. Before you do anything else, just figure out what it is you’re required to do. So that’s a common thing that people I see get themselves in trouble too.

Believe it or not, another really common thing is actually very clinical in nature. So it’s getting there. It’s interesting that you said, there are so many times you want a lawyer to help you work through this. And that makes a lot of sense in some of these really specific circumstances, but I think one of the things we do really well with our risk management consultation program at The Trust is the fact that we are all clinicians and have significant clinical experience in addition to legal experience.

And [00:14:00] so, I would say that a good chunk of the calls and consultations that I do are helping people through complicated clinical situations. So I have a really high-need client maybe with some sort of personality disorder and I don’t know how to terminate and I’m afraid of how this is going to go.

And so those aren’t necessarily legal questions purely in nature, right? That’s how can I help you manage the risk of somebody filing a complaint against you, or maybe a lawsuit in the long run, but really how do we clinically manage this person? And things like that; multiple relationships, crossing boundaries, doing things like the client has asked me to write this letter for a legal purpose, and you didn’t realize that just became multiple roles for you. If you’re maybe the treating therapist, and now they’re asking you to testify in their child’s custody hearing, all of a sudden you’ve walked into a landmine and you didn’t realize it, which is a very common area that people have complaints filed against them.

So those are some of the most common [00:15:00] clinical conundrums, if you will, with maybe high-risk populations or high-risk situations but also a lot of these legal requests for documents.

Dr. Sharp: Yeah, certainly. You just said a lot that I would love to unpack.

Dr. Amanda: I did.

Dr. Sharp: I just thought of about 20 questions to ask. First of all, very simply, what is the difference between a court order and a subpoena?

Dr. Amanda: Great question. A court order comes from a judge. It’s signed by a judge. At the end of the day, you pretty much have to do what it says. There are limited exceptions where you can express your concern to the court if you’re really worried about harm to somebody. Don’t ever do that without consulting with a lawyer though because there’s a really specific way to do that, and only limited exceptions that allow you to do that. But a court order, most of the time you have to do what it says.

A subpoena on the other hand is a formal legal request. It comes from an attorney. It can be confusing to tell though because sometimes some jurisdictions use forms that have the judge or [00:16:00] the clerk stamp or seal at the bottom. And so it might look like, oh, this must be a court order. I see mention of a judge somewhere, but not necessarily. Subpoena really just a request. So that could be for records. It could be for you to come in and testify. It could be to participate in a deposition, but there are also exceptions to that. So in most cases, people would have to comply with that request.

In our field, there are exceptions to that. For example, the psychologist-patient privilege. And so if this is a privileged conversation, the law wants to privilege certain types of relationships and information sharing to further public policy reasons. We want clients to be able to talk to their therapists or their clinicians. That’s why there are these exceptions that are carved out for things like subpoenas.

So if you get a subpoena, usually that just means it’s a formal legal request from an attorney. You are compelled to respond. You don’t necessarily have to do what it’s asking you to do because there may be an [00:17:00] exception.

For example, if you get a subpoena from a lawyer on either side, your client’s lawyer, or maybe your client’s involvement in a lawsuit, and it comes from the other side, the other attorney, you have to respond to that. But unless your client has specifically signed a release allowing you to send information, it’s just a very generic response that you can’t even confirm that this person was a client, that your records are privileged, and would need proper authorization to release them or court order.

So the main difference is that one is coming from a judge and you have to do what it says. A subpoena you have to respond, but may not necessarily have to do what it says.

Dr. Sharp: I see. So that answers one of my other questions, which is you had mentioned don’t panic, take some time, and consult. So get the time to do that. If you get a court order or a subpoena can you respond and say, give me a minute, basically? Can I get a few days to [00:18:00] figure this out?

Dr. Amanda: Usually, there is a deadline. Most jurisdictions have really specific requirements around how much time they have to give you to respond to that subpoena. Now, there are problems with what’s called service and proper service. And if for some reason it was sent to your prior office address and took a while to get to you, then all of a sudden you’re opening it and it’s saying that the deadline for you to respond is tomorrow, there can be issues like that, but most of the time you’re given time to respond.

And so I think what we find on our end in doing these consultations often is people wait to call us for consultation until it’s the day that their responses due or the day before. And so, because they’ve been anxious or just haven’t had time to deal with it the last few weeks. So you do usually have time to respond.

You can ask for extensions, but in many cases, if you can’t get ahold of your client, you’ve tried to figure out what’s going on. You’ve tried, they’re not [00:19:00] responding or something like that. Then you can send this generic response like I explained that’s just saying something like, “I can’t confirm or deny providing services. The information requested would be privileged without proper authorization or court order. I can’t comply.” That’s it. You haven’t even confirmed if you know this person but you have responded within the appropriate time.

Now court order is different because usually there has been a series of subpoenas and hearings about this information. For it to even get to the point of a court order, all of these other steps have usually happened before. So we’re not usually surprised when we get a court order because there have been subpoenas that have gone back and forth and attorneys battling this out by the time you get that court order. So usually for that again, unless there’s a really compelling reason, and you’re working with an attorney to express concern over that court order, you have to send the information by that time or you can be found in contempt of court.

Dr. Sharp: I see.

Dr. Amanda: Which nobody wants.

Dr. Sharp: Not good.

Dr. Amanda: Not great.

Dr. Sharp: Okay. Sounds good. Now, one of the other things [00:20:00] that came up in that discussion there was what happens when you find yourself in a dual role all of a sudden, or what are the dual roles? So I think I’d raise the question to you as we were preparing here. What do we do?

I’ve certainly been in this situation where we do an evaluation and there was no mention of court activity or forensic needs or anything like that, and then low and behold six months down the road, that person is in a custody battle or something or there is whatever situation, and you’re in court. And it’s this evaluation that you’re talking about. How do we navigate these dual roles that come up, and what do we need to look for?

Dr. Amanda: A lot of it has to do with what was my role with this individual or this family or whatever at the beginning. And so if I’m brought in to do let’s say a neuropsychology evaluation that had nothing to do [00:21:00] with, there was no mention of custody. Like I said, everything was fine with this family, and then several years later or something, they want to bring this into the custody battle.

So I was there in this very narrow role to do this neuropsychological evaluation for this specific purpose, fine now they’re bringing me in to testify about that. In that case, there is some confusion distinguishing between fact and expert witnesses, right? When you are a therapist for somebody, the treating provider, it’s pretty clear in most of these cases that you are a fact witness. I’m just there to testify about the work that I’ve done with this individual. You have no basis for any opinions related to the court matter, whatever those legal questions are they’re sorting out.

When you do an evaluation, sometimes that gets a little trickier because you are an expert in the sense that I evaluated this person for this purpose. So do I have expertise in their neuropsychological needs or whatever it was that came up in [00:22:00] that referral question? Sure. But we have to be really careful to distinguish our role.

And sometimes we might find ourselves in the position of having to educate the court about this. I am not an expert as it relates to this case. I was not brought in as an expert witness for this legal matter. I was contracted to be a neuropsychologist evaluating this individual for this purpose. And so you have to put really firm boundaries around what your role was.

It doesn’t mean that attorneys aren’t savvy about trying to ask you questions that could lead to an opinion. For example, well, Dr. Sharp, during the time that you were evaluating this family, isn’t it true that dad never showed up for the evaluation and wouldn’t a good parent show up for the evaluation?

There are all these tricks that we have to ask questions that try to then steamroll you into providing expert opinions about that legal matter. And you have to be really disciplined and good about saying, unfortunately, I have no basis to give such an opinion. That’s not what I was [00:23:00] asked to evaluate. That’s outside the scope of my role. You have to keep putting those boundaries around no matter how hard they push you.

Usually, judges understand that and will make sure that the attorneys are complying with that, but not always. There might be times that a judge just says, well, dad wasn’t there or not Dr. Sharp? And do most parents show up? And so if the judge is ordering you to answer, there may be times where we have to say again, your honor, with all due respect, the ethical obligations of my field require me to stick within my role. That was outside the scope of my role. The judge might still tell you, answer the question. So at that point, you do your best to answer it within the confines of the information you have.

The risk for us is when we go outside the role we were originally retained to perform. And so if you are starting to say things about the legal matter and you didn’t evaluate that, that’s where we find a lot of clinicians have licensing board complaints filed against them. Licensing boards tend to be very [00:24:00] conservative about the degree to which you took on that dual role unjustifiably.

Dr. Sharp: Yeah. That sounds very familiar. I don’t do a lot of testifying by any means, but one of them was a case. It was a termination of parental rights case. I evaluated one of their children. It was a clinical matter. And I went and testified about that, but they did keep pushing to get me to comment on the other evaluator’s results like the parental, I forget, now I’m blanking…

Dr. Amanda: Parental fitness, probably

Dr. Sharp: The parental fitness evaluation, yeah. Like, what would you have done differently? Or what does this mean?

Dr. Amanda: It is a rabbit hole sometimes we don’t even realize we’re being led to. And it’s like, with every question you’re sitting there thinking about, okay, do I have a basis to answer this? Was this within the role that the assessment that I performed? You [00:25:00] just keep evaluating. And they will ask questions very rapidly to try not to give you time to think about that, but you are allowed to pause and think for a second and throw off that pace a little bit so that you have time to really thoughtfully consider whether you can answer that question or whether it’s appropriate for you to do so.

Dr. Sharp: That’s great. I can just hear people sighing with relief right now while they’re listening. Now, let’s see. What was I going to ask about that otherwise? Oh, and so some of us might be asked to be pure expert witnesses in some cases. Can you just talk a bit about what that looks like and how that’s different than if we’re an evaluator or treating clinicians?

Dr. Amanda: If you are retained as an expert, your expectation is that I am here to answer or provide information to help the court answer a specific legal question or set of legal questions. So that’s a whole different ballgame. They do have the right to ask you a lot of these questions. You were [00:26:00] retained to perform that particular role.

Now, if they’re asking questions or for opinions again, beyond the scope of what it is you evaluated, if you are doing a competence evaluation to stand trial, and they’re asking you questions about criminal responsibility, that doesn’t make sense because that’s not the evaluation you performed.

So there are still boundaries we have to place around what our role is, but you’re doing things in ways that you understand that at some point this is going to be questioned. I am here to pro to inform the court in some way or provide information that helps them make the ultimate decision, whether that’s a judge or jury.

So your process in the beginning, how you handle retainers, how you handle I use the term informed consent with some caution there because there’s lots of debate in the field about whether if somebody’s court ordered to be evaluated for some reason, to what extent is that truly informed consent? And what does that process look like? But of course, we still have an initial information period of [00:27:00] time where we’re providing notice around here’s what this is.

It may not be voluntary participation in this assessment, but the individual still has agency over things they answer or choose not to answer. And so, we have to be very clear about this is not a confidential or therapeutic context in which we are interacting. This is how I’ll use the information. This is who we’ll see it. All those elements are a really important part of the initial stages of a forensic assessment of any kind.

Dr. Sharp: Sure. So that makes me think, and I don’t want to spend a ton of time on forensic work specifically, but people do ask these questions a lot, like just very basic practical stuff. There are a lot of questions about how to set fees for forensic work. It seems like the going recommendation is just double your hourly rate and that’s your forensic rate.

Dr. Amanda: And when you say forensic rate, I think what you mean is, if I’m called in to [00:28:00] testify, that’s the rate I’m charging for those hours. Is that what you mean?

Dr. Sharp: Yeah. Called in to testify. Yeah, any testifying, but also I’ve seen it extended to the actual evaluation and the work performed or in the case of an expert witness, it’d be gathering data, preparing for the case, things like that.

Dr. Amanda: I think there are lots of considerations. I haven’t heard that. People have all these different rules or guides they use to set fees. Fee setting in our field’s just tough anyway. So much of it depends on the going rate in your area, other considerations, your overhead, maybe as compared to somebody else’s. And so, when you think about forensic assessment, may be different than purely clinical types of assessment referrals.

Maybe people are doing that because they’re building in things like, so I expect that I’m going to have lots of time to talk with attorneys or travel to [00:29:00] and from a court. So there are things like those overhead costs. Maybe you’re building in more so than other assessment contexts. 

I think there are lots of great resources out there about starting a forensic practice. There’s this number of books that have been written that I know have really great guidance in how you think about setting fees, but much of it has to do with how much you need to make to survive and keep your lights on, but also are your rates competitive in your particular geographic area and the market and target groups you’re trying to focus on. But that’s relative to really any private practice context that you’re thinking about those things.

Dr. Sharp: That’s true. Well, that’s good information just to know that there’s no hard and fast rule necessarily.

Dr. Amanda: No, I really haven’t heard any. I do take some pause though to think about, if somebody’s coming in for a psychological evaluation of their child, because my child is struggling with some issues,[00:30:00] and so I just want an evaluation, just clinically privately, and somebody else comes in the next day and wants a very similar evaluation because my partner and I are separating and we just want to know how best to help our child. And so to have the court order, some of these services would be helpful so that we don’t fight about it in the future. It’s essentially much of the same evaluation.

So does it make sense to charge family 1 one rate and family 2 double that rate just because it may be that at some point I have to go in and testify as opposed to being very clear that I will charge you for any time that I have to go testify.

So I would just bring that up as an example, to ask people to think about that. Like it’s not this hard and fast, you must double your rate and think about, well, what is it I’m being asked to do? And is that fair and justifiable to double it just because there may be some court involvement because with family A there’s actually similar, maybe amount of risk. Who’s to know in two years, you’re not all of a sudden involved- they’re involved in some legal matter too.

[00:31:00] Dr. Sharp: Yes. That totally makes sense. The way that we have it set up in our informed consent or disclosure is that we have a typical hourly rate for services and then a separate section that says, if we get called to testify, then our rate is X.

Dr. Amanda: Yes. I think that’s exactly how lots of people do it. And it makes sense. And that rate often is higher because that’s a lot of time you’re asked to sit there. You’ve had to cancel your whole day of patients possibly for that. So yeah, I think no matter what practice you have, you should always have some language in there about how you’ll handle any legal request and that you will bill for your time so folks are agreeing to that at the informed consent stage. And so then there’s no dispute several years later when all of a sudden I’m dragged into this legal matter and I’m saying to them, Hey, I’m going to bill you for that time. You can always refer back to your informed consent and show them that, remember you agreed to this in the beginning.

Dr. Sharp: That’s great. Well, I might switch gears a little bit, but try to keep [00:32:00] this thread of fees and financial stuff. One thing that comes up a lot is the question of, what do we do? Can we withhold folks’ documents or reports if they haven’t paid their bill? That comes up a lot. Do you have any thoughts on that?

Dr. Amanda: Yeah. It’s a really tricky one and it’s a really frustrating one for a lot of clinicians because HIPAA is pretty clear that you are not able to withhold records because of nonpayment. And so people have a right to access their records and we cannot penalize them if you will simply because of nonpayment.

Now, that gets really tricky with things like assessment. And even in the way that HIPAA is talking about records, it’s very specific around the designated record set. It certainly has an eye toward thinking about more clinical relationships rather than assessment. But still, the language is the language. We have seen lots of situations where clinicians find themselves in a bit of a [00:33:00] jam because they’ve done that and now somebody’s filing a complaint saying you’re violating my rights to my records.

That being said, I think it’s important to be really thoughtful about your process for assessments at the front end. Some folks I’ve seen set it up like 50% of estimated assessment costs for the whole process is gathered up front, and then the remaining amount is due when you deliver the report. That way, you’re at least recouping a significant amount at the beginning. And if this turns into one of those situations where the individual or the family disappears, and now I am not able to collect a payment, that sort of thing, at least it’s not a total loss. But you do have to be really careful on that back end that if I’ve completed this and it’s ready to go and they’re demanding it but they won’t pay for things, that can get really tricky.

Some people [00:34:00] I’ve seen say, okay, they certainly have a right to their records, but they don’t have a right to my report. And so I will not finish the report or deliver that until they pay. And I can see ways that that can go either way too because technically, could they still access their records? Sure.

And I have seen clinicians try to minimize the frustration there with the family by saying, I will not deliver the report, but if you are wanting to retain another clinician to do an assessment because you’re upset with how I’ve done things in some way, I’m happy to send them the records for them to be able to do that. But your report could be considered a work product in that situation. And so can they demand that? I’ve seen it debated in different ways.

At the end of the day, you just want to be careful though, because even if you can finagle a way to do that, remember that some of the most damaging things to us right now or risks to us as psychologists are licensing board complaints. It’s much more common than malpractice lawsuits. People tend to be really afraid of lawsuits, but the [00:35:00] licensing board complaint process is a much higher probability of happening to us because it’s free for people and anybody can file a complaint. That’s a really common response when clients or patients are angry that we’re not giving them what they want. They quickly turn around and file a complaint.

The other really damaging thing that can happen is negative online reviews. And so we want to do our best to really deescalate this and work with these individuals as best as we can to try to come up with a compromise or a payment plan or whatever we might be able to do to lessen the client’s anger or frustration at us because sometimes the repercussions are more damaging than if we had just let this go, chalked it up to overhead and sent them on their Merry way with their records.

So there really are pros and cons to different routes. I think it makes sense to think about, well, what is my payment structure. What do I require up front? I should anticipate that I’m going to have people that aren’t going to pay at some point. [00:36:00] We all have that in clinical practices. That there’s just a certain percentage of that you have to chalk up to overhead because it is a business decision whether to pursue things like collections or small claims court because we find with people that a lot of times it’s not worth it.

It causes more, long-term frustration, costs, time, and use of your resources than if you had just waived this, let it go, as frustrating as that is. I know it is, but it’s one of those long-term decisions around what makes more sense for me for how I shoot my time and resources. But I would say, always consult about these situations because you just don’t want to be in a position of having a HIPAA complaint filed against you because you withheld somebody’s records that they had a right to.

Dr. Sharp: Right. Now, is there any difference there depending on whether you take insurance or being private pay?

Dr. Amanda: In terms of whether people have a right to their records?

Dr. Sharp: Yeah, just when you use the word HIPAA, it makes me think about [00:37:00] insurance and electronic transaction.

Dr. Amanda: Well, the other thing is thinking about, well, two things there. So one is to figure out whether you’re a HIPAA-covered entity. That’s really important. And even if you don’t take insurance anymore, there are really specific guidelines for who’s a covered entity. You can easily go to the cms.gov tool, do the decision tree and figure out whether you’re a covered entity, but much of it has to do with, even if you’ve ever just engaged in one electronic transaction, meaning even looking up somebody’s benefits just once, you’re a HIPAA covered entity.

People don’t realize that. They think, oh, I don’t take insurance so I don’t have to be HIPAA compliant. And that’s actually not true for a lot of people. So make sure you’ve done the research to figure out whether you’re a covered entity and don’t assume you’re exempted from that just because you don’t take insurance in your practice.

So that’s one important piece. Now, I’m forgetting the second one I was going to say. You originally asked, does it matter if your HIPAA?

Dr. Sharp: Yeah, [00:38:00] insurance versus private pay.

Dr. Amanda: Oh, I know the other piece was, there’s also this whole element to whether HIPAA or state law are trumps. So we often, when we’re providing consultations to people around these things have to do what’s called a preemption analysis because sometimes states have even more stringent requirements around patients’ access to their records and their privacy.

So even if you are not bound by HIPAA, which I really would argue, most of us probably are when you go back and do that decision tree tool, you might still be bound to provide their records because of the way your state law is worded. So it’s just important to look at both before you assume that you don’t have to provide records until somebody pays.

Dr. Sharp: Sure. Another thing that came up as you were talking through that is the online review thing. So there have been a lot of horror stories. It’s happened to me. It’s happened to a lot of other people. How can we respond to online negative reviews, if at all? [00:39:00] How do we handle those?

Dr. Amanda: It is an increasingly frustrating thing I think for all of us. And again, pros and cons. Digital communication and platforms and social media have done wonders for many people’s practices but there are also risks that come with that. And so the question of, can you respond, you cannot in most cases directly because if somebody posts something, let’s say a bad Yelp review or we see all these other types of online review platforms for physicians and medical providers, the client is choosing to do that. Yes. Whether or not they include their name or not, and some people ask me that, well, they’ve identified themselves. So they’ve waived their confidentiality by doing that. That’s not how that works.

So yes, the client has the right to post whatever they want in whatever public space they’d like, however, we can’t respond because we don’t have a release or permission to even acknowledge whether we know [00:40:00] that person or not. So by responding, you run the risk of breaching that person’s confidentiality, which just gives them even more fodder to file complaints or be angry. Now, that being said, I think a lot of clinicians feel really powerless then; how frustrating that people could just post things whenever they like and I can’t do anything about it.

Dr. Sharp: Can I jump in real quick and ask a question?

Dr. Amanda: Yeah.

Dr. Sharp: I’ve never seen this done, but when you say you don’t have consent, is it at all possible to put that in our consent form to somehow have them consent to us responding to an online review?

Dr. Amanda: I think I have maybe a better alternate suggestion because I see some risks with what you’re saying. I get that like if you’re telling them, if you choose to post something, I reserve the right to respond to that. I think that’s a pretty tough open-ended demand for permission to publicly out them in some way. [00:41:00] I see a lot of both legal and probably ethical licensing board issues with.

I think it’s a great question. Why can’t we just get permission on the front end? To me, an analogy would be, if I’m just getting their blanket permission, like I want you to sign a release so that if and when at any point in the future, anybody asks me for information about you, I can provide it. That would never fly. It’s just too open and to general. So it sounds similar to me there.

What you can do is have what’s called a social communication policy or electronic communication policy. We have some free, publicly available samples of that language on The Trust website which is trustinsurance.com under resources. Anybody can access those, whether they are insured by The Trust or not. But on there, we include all things. Not only just I won’t respond to public online reviews and here’s why, but I also won’t accept friend requests. I won’t engage with you on social [00:42:00] media. Here’s why. And it’s to protect their privacy.

And so, we really encourage people to take a look and start to incorporate things like that in their informed consent forms in this rapidly changing digital age because it also can just help head off frustrations or feelings of betrayal by a client, or why didn’t you accept my friend request or something like that?

So for the online reviews, what you can do though if you see them, I would encourage you to be Googling yourself pretty regularly. It’s not narcissistic. It’s an important part of managing your online professional reputation. So remembering that even if our field for many years was all about word of mouth or first impressions we could make when we actually first met the client, now people form their first impressions of us by searching us online.

You don’t get the opportunity anymore to put your best foot forward when you meet them in person. People are making a lot [00:43:00] of assumptions about you by what they find about you online. So you should know what’s out there about you online and check regularly because you might notice something like a dip in your referrals and not realize, I didn’t know somebody had posted this review and I wonder if that is part of it.

So what you can do on some of those sites like Yelp and Google Business reviews and things like that is there are places on those sites where you can claim the business page if you haven’t already, and you can then put in information about your business. What a lot of people do effectively is they’ll put a generic disclaimer or statement in the section where you get to put information about your business that says something like, I am unable to respond to any individual reviews that are posted on this site. I encourage anybody with questions or concerns to contact me directly. I cannot respond in order to protect everybody’s privacy and confidentiality.

So you’re putting that out there, just generically. That way, if somebody else happens upon that review, they understand, oh, well, here’s why he didn’t respond to that. It’s [00:44:00] because he’s not able to. He’s legally and ethically bound to not respond or acknowledged knowing this person. So I think there are things like that that you can do.

If it’s bad enough, there are also online professional reputation companies that can do things to really strategically increase your positive online presence. So things like search engine optimization techniques can be used to make sure that when somebody Googles your name, the first thing that pops up is not that negative online review, but your website or things like that, which is another way to combat this is to make sure that you have a really strong online presence that you control, like your website. So those are some things that you can do.

Dr. Sharp: That’s great. I’ve seen some folks respond directly to the negative reviews with a very general like I cannot confirm or deny that this person is a client. What I can say is that in our practice, this is how we treat people, and that kind of thing. Do you have thoughts on that sort of[00:45:00] response?

Dr. Amanda: I would put that in that generic part of your business page rather than responding to individual people. And part of the reason is because, what if I respond to some and not others? Or what if I responded to the last three but I didn’t realize there was a new one, and all of a sudden can there be any perception that, oh, well, Look, she must have only responded to the people she knew or that her patients. You just don’t want anybody reading into any of it. So if you can be really consistent and neutral across the board. It’s just less risk for you.

Dr. Sharp: That totally makes sense. Gosh, it’s getting increasingly hard to navigate it.

Dr. Amanda: It is. And to monitor all these.

Dr. Sharp: It just doesn’t feel fair that you can’t respond.

Dr. Amanda: Yeah. It really doesn’t.

Dr. Sharp: This is good though. It’s good information. I think people would be really interested again, just switching gears a little bit to talk or circling back to record releases and what we can or cannot release. But I think there are two questions in there. There’s one around, what can [00:46:00] we release to the court if they request records and what can we release to parents or to clients if they request their own records? And I think the main thing is the raw test data. The protocol. The raw data is really the thing in question here.

Dr. Amanda: Yeah. I want to distinguish between what are referred to as test materials; that’s where you’re talking about your protocols, your stimulus materials- copyrighted things that are part of the published test instrument from raw data. So what’s generated from that because a lot of people lump those things together? The law is actually quite different around those, and so is our ethics code.

Our ethics code specifically distinguishes between test materials and test data. So some of it depends on the state. Every state has laws usually around what you are required to [00:47:00] release to whom and under what circumstances. When you get a request for, let’s say the full record of your assessment that you performed, what does that mean? If your state law defines it as automatically including test data they have a right to that information, then often, many states will have language around that you have to disclose that test data to another qualified professional as opposed to maybe the family let’s say or attorneys who don’t know what to do with that. But in other states, it might include that. And you’re releasing that with the caution that this should only be interpreted by somebody who’s qualified to do so.

So like I said, that’s very different than test materials. And so if they are demanding test materials, which again, I think judges are usually pretty informed about that. That there’s a difference. And if not, sometimes it’s our job to explain that difference; that these are copyrighted; that it compromises the test [00:48:00] integrity if I release the booklet of questions for the MMPI as distinguished from this person’s MMPI responses- the actual data, those are different things.

And so if you get pushback on that, that, no, they really are demanding the test materials or the attorney is. Again, we can cite state law if it doesn’t include test materials but talks about raw data. We can cite our ethics code around that distinction there and really try to make that case. And the other thing I think is really helpful is most of the test publishing companies that many of us get our assessment materials from have legal sections.

So if you scroll down on the bottom of their webpage, there’s usually a legal term of use, something like that section, and most of them have really helpful language that is already drafted for you to be able to use in response to these demands for this information where you’re talking about their copyright and all those things. If you ever get a lot of pushback, like sometimes a judge will [00:49:00] order you to turn that over. Some folks have even contacted the test publishers themselves and their legal department can get involved and help you advocate.

It’s in everybody’s best interest to really protect the integrity of these materials. And nobody has more of a vested interest in that, of course, than the test publisher. So often they are very willing to help you fight this battle. But I do know of clinicians where the judge ultimately ordered them. And so in those very rare cases, usually you are still able to do things like, okay, is there a way to do an in-camera review of these if it’s just the judge that needs to see it and it’s not going to become public record in any way. And so you can try to express your caution and request some conditions on that order, but that’s pretty rare that a judge is going to order you to do that.

It’s more so that we find ourselves back a few steps having to educate the attorneys or the court around here’s why I can provide the data and to whom I can provide that data because of state law, but I cannot provide the test materials. And often once we make that distinction, [00:50:00] then people sort of get it. But when they say, well, no, we need the test information, we need the results. Remember that it’s important for us to make that distinction between those two things.

Dr. Sharp: I got you. That’s super helpful. And then with parents or clients who request their own data, does the same distinction apply that we can release to them?

Dr. Amanda: The same distinction applies and the same need to go consult state law around whether they are entitled to test data or whether your state words at such that I can release data to another qualified professional. So mom and dad, here, you can have all of the other records; here are my notes, here’s collateral information, whatever, but the test data, I can release to whatever other psychologist or qualified mental health professional you designate for me to send it to. I’m happy to send it to them directly. So again, a lot of that is just consulting around or with somebody who can help you understand your state law about that.

Dr. Sharp: I got you. Let me ask a really nuanced [00:51:00] question that I just want to be clear about when we’re talking about all this stuff. So test materials are the things that are protected most it sounds like, and that’s the protocols, the booklets. I’m using the term raw data to mean the subtest scores, like this is what they got on block design. This is what they got on comprehension or whatever. And then test data. I’m not sure what you would call the scaled scores and the standard scores and all of that or is there even a difference there?

Dr. Amanda: I think to me that’s more like our interpretation and scoring. That would probably still fall under, to me, the raw data umbrella. Anything that’s going to compromise the integrity of the test or there are copyright concerns about, that’s more what falls under that test material camp.

Now that being said, I can think of [00:52:00] assessments. Even you brought up block designs. So if you’re thinking about the WISC or the WAIS or one of those and the actual scoring booklet that you use. I mean, there’s still some what I would consider being some copyrighted material in there. There are examples of block design that we’re scoring right on it. There’s things like that. It’s not just numbers you’re writing necessarily.

So there are occasions where you may have to redact portions of that, which again, another qualified professional would be able to take. No problem. You wouldn’t have to redact it for them. But if the mandate is that I have to provide that raw data directly to the client, then it might be that I have to redact some portions of whatever this physical hard copy is that I’m providing them because some of that information is copyrighted. So it just depends. And again, sometimes you can consult with the test publisher around that.

Dr. Sharp: Yeah. That’s one thread that keeps running through our conversation, and I hope people hear this, [00:53:00] that we’re not alone. We don’t have to figure this out on our own. Somehow there are plenty of resources to figure it out.

Dr. Amanda: Yeah. I’m really glad that that’s coming up and you’re underscoring that because not only you don’t have to go it alone, but don’t go it alone. It’s very risky for you to go it alone. And we’re not meant to. This is really difficult work and we find that with clinicians who are practicing in very isolated ways and not connected with professional communities and colleagues that they can consult with, the risks are just higher because you aren’t abreast of how things might be changing in the field or the right resources you weren’t aware of. Or just as my colleague Dant always likes to say, borrow other people’s brains. It is always going to help you to borrow someone else’s brain for a little bit, to get outside of your own.

Dr. Sharp: I like that. Yes. And this is another great place just to re-mention y’all’s risk management services. Like if you have insurance through The Trust, [00:54:00] we”ll you get that for free? Like you can just call and consult with an attorney?

Dr. Amanda: Yes, exactly. And they’re unlimited. And regardless of whether you’re insured by the trust or not, some of these cases we’re talking about that really do involve, I might have to have my own lawyer represent me because I am challenging this court order or something like that. You always want to consult with your professional liability insurer, whoever that is, because at the end of the day, if you find yourself in a jam, that’s who’s going to defend you or not. And most of your professional liability insurance policies require that you’re providing them with notice of the first incident or any indication that there might be a complaint or a lawsuit or something like that coming down the pike, you always want to notify them, whoever your provider is.

Dr. Sharp: Sure. I wonder if we might turn our attention toward online behavior a little bit in a number of ways. One way that is certainly very personally relevant is managing a large Facebook group of clinicians. [00:55:00] There’s a fair amount of consultation that happens in that group. And so, what comes with that is a lot of questions about how much is too much information to share online. I would love to hear your thoughts on that.

Dr. Amanda: Go ahead.

Dr. Sharp: Well, I was just going to say, can we do any consultation online in a group like that? If so, how do we do it ethically and appropriately?

Dr. Amanda: I think a lot of it is to keep at the forefront of your mind confidentiality- the client’s best interest. My number one role is to protect my client’s privacy and confidentiality. But we also have a need to consult. And so a lot of these online spaces can be wonderful for that. Social media groups, and listservs that many of us are part of, and I’m sure we’ve all seen very different ways that people will present situations they’re wrestling with.

I get [00:56:00] really concerned when I see people describing clinical situations with such specificity that there is a risk that this person could be identified. Even sometimes where I see it’s concerning is, people looking for referrals. So would anybody in this group be able to see this person in this town with these presenting issues at this age? And it’s like all of a sudden you’ve provided a lot of identifying information that somebody might know that person. Many of us practice in rural or smaller areas where the degrees of separation aren’t that many. So you just have to be mindful of that.

And I think consulting with colleagues is always a great idea. You just have to do that reasonably and use good judgment around what is the minimum necessary information I need to provide to be able to get my questions answered. In the assessment, that’s hard. I know.

Interestingly, at least when I’ve seen in your Facebook group and in other similar spaces with assessment, a lot of times what we’re asking is not always [00:57:00] so much that specific about the client but is this the right test I should use for this question? Or these scores came out this way and I’m not quite sure how to interpret that. And so in some ways, it’s a bit of a safer space or those contexts to talk about than if you’re really getting into somebody’s clinical history or treatment issues or whatever.

I would just urge people to use good judgment and think about, is there any possibility somebody could identify who I’m talking about in this and do I need this level of detail for the questions I’m asking? We don’t always. It’s just that we are so fascinated with people’s histories and we think every detail is relevant. But if you strip it down, what is my question? And what’s the minimum necessary information I need to provide to get that question answered?

And it might be that there are a lot of specific details that matter. And if that’s the case, I wouldn’t do it in an online space like that that anybody can access. I would do that on a phone call with a colleague I trust or something like that, where there isn’t a risk of that information getting out because the other piece of this is don’t [00:58:00] forget that once it’s written down and out there in cyberspace, it’s there and it exists. And if there are ever lawsuits or complaints, there are screenshots. People can print that. That can be evidence used against you in some way.

Dr. Sharp: Great point.

Dr. Amanda: So you just want to be mindful of putting things in writing in a place that others can access and interpret. There’s always a risk of breaching confidentiality.

Dr. Sharp: Sure. That’s good to hear.

Dr. Amanda: Can I say one more thing about that? Sorry.

Dr. Sharp: Of course.

Dr. Amanda: I was talking about clients. Actually, the other risk we see for people sometimes in these listservs and online groups is how we talk about each other, talking about colleagues, and making referrals or not. Sometimes you never know who’s reading things. And so there’s also a risk of things like defamation and saying things about other colleagues or damaging their professional reputation in some way, maybe without basis. So I just would urge people again, to be really careful about what they post.

Sometimes we get into these discussions with [00:59:00] people and forget that there may be 500 other people reading these posts. And so if I’m saying, oh, I need referrals in this area and somebody responds with two names and then a third person responds and says, oh, do not go to Dr. so-and-so because he’s terrible, whatever. I mean, that’s out there in public now. And people might have grounds for complaint depending on what you’re accusing people of. Just be really careful. And we’re all respectful civil professionals, but remember, again, once it’s written down, there are risks in slandering people’s reputations without basis. So just be careful. And even with basis, you still want to be really careful with what you post about your colleagues or other professionals.

Dr. Sharp: Of course. So that leads me to a question of something that unfortunately comes up, I think, fairly frequently, which is, what do we do if we… Well, the way it manifests is, folks will get a prior evaluation that looks bad for whatever reason. It’s [01:00:00] bad. It could be any number of things, but let’s just say it’s been determined. It’s a bad evaluation. Then there’s a lot of questions like, what do we do? Do we report that person to the board? And I’m not talking about like they just weren’t kind or they got the diagnosis wrong, they missed something. These are, in theory, fairly egregious oversights or something like malpractice almost. What do we do with that when it’s a colleague?

Dr. Amanda: Yeah. Or even not a colleague, even somebody you don’t know and you’re just like, oh, something is not right.

Dr. Sharp: Yeah.

Dr. Amanda: Exactly. I realize I’m answering it depends to so many questions. But it does depend on a lot of factors and what is the unethical or harmful behavior you’re worried about? There’s obviously a continuum there and there’s a difference between somebody who you’re like, wow, this is just [01:01:00] a report that’s not well written. It’s really disorganized. It’s not how I would do it. There’s that? And then there’s the other end of like, oh my gosh, it was completely inappropriate for this person to use these tests. This doesn’t make sense or it’s unethical what they’ve done, something like that.

Dr. Sharp: Let’s take that second example. Let’s say we have the report. It’s like, here’s the referral question, diagnoses, and question, whatever. And the measures just don’t match or it’s very brief, like I said, we’ll try to keep it simple. It seems like an egregious miss with the evaluation process.

Dr. Amanda: There’s a number of egregious things like that. Or this person doesn’t have the training or qualification to even be doing this kind of evaluation or it’s really clear there was like a dual role. Like why would the therapist also have done this evaluation? I think there are quite a few of those things that come up. So again, I would say some of it depends on your [01:02:00] state’s law.

A number of states have laws that require us to report, sometimes the terminology is an impaired colleague or things like that. Not many actually have those for psychology. Most states have them for physicians because it also depends on what we’re talking about in terms of impairment. Like, what does that mean? I just wanted to say that because it’s important to make sure you know that. Similarly, your licensing board regulations. You want to look up, what is the guidance or policies around, if I’m concerned about a colleague’s unethical behavior, what do I need to do? So always look there as well, because that’s what you’re bound by in your particular state where you’re licensed.

And then we, of course also have to look at our ethics code, which has pretty specific language around if you’re concerned about a colleague’s unethical behavior, that most of the time, your first step is to confront them directly about it. Not to go right to the licensing board. And I can talk about some exceptions in a second, but to go to them and give [01:03:00] people the benefit of the doubt and call that person up and say, Hey, I just was reviewing this and I’m really concerned. So I’m guessing maybe there’s some context. I just wanted to ask why you would’ve done these things because I have some concerns about that.

I think any of us would appreciate that same benefit of the doubt and grace to not have people jump to conclusions but to ask us first about what was going on, because there might be some who know other things going on or contextual factors that make sense.

So usually you want to go talk to that person first. I’ve seen people handle that in a number of ways. I mean, not a lot of people are really excited to get that phone call. So they might not be super willing to talk with you about how you think they are terrible at their jobs. So I’ve seen other people if folks have refused to have the conversation or there’s just conflict between them, then they’ve done that in the form of a letter.

So here are my concerns. I’ve tried to talk with you this many times. I really need you to understand what my concerns are. Please let me know how you’ve addressed these or planned to [01:04:00] address these. Otherwise, I may need to report this to the board, something like that. So there are ways to handle that, to do our diligence ourselves in terms of our ethical requirement to call that behavior out if it’s problematic.

Now, I mentioned some exceptions because if there is a concern about like harm to people, like this is really serious, I’m worried about imminent harm to somebody because of this, then I might need to go right to the licensing board because we can’t let harm continue. But if it’s just, I don’t think this person’s doing their job the way they’re supposed to, or I think they’re doing it unethically, that’s one that I would usually lean toward going to the person first.

Dr. Sharp: I see. And can you give any examples of what you’ll call imminent harm?

Dr. Amanda: I’m trying to think of one offhand that is in the assessment world. I don’t know. Something like fitness for duty is coming to mind [01:05:00] that there are clearly all these issues. This person is actively abusing substances. Like there is something about their job that requires that they are safe to work with; maybe they’re law enforcement, maybe they’re medical professionals. And so somebody has evaluated them and said, yes, they are fit for duty in some way but yet all of the data in that report are saying, nope, this person can cause harm to other people. And based on what I’m reading and what I’ve evaluated with this person, this is really serious. And I can’t imagine why you would’ve recommended that they’re safe to return to work. Maybe something like that.

Dr. Sharp: Yeah, that’s a good example. Very nice. Thanks for talking through all these questions.

Dr. Amanda: I know. They’re difficult and that’s why you say borrow other people’s brains when you can.

Dr. Sharp: Oh yeah, absolutely.

Dr. Amanda: Because the other piece is, when you’re in it, it’s so charged- any of these situations you’ve been asking about. It’s hard to have distance and be able to think through because you are in the middle of it. There could be a complaint filed [01:06:00] against me, or I don’t want to confront my colleague about this, or I’m angry that this family won’t pay their bill. We have real emotions attached and skin in this game. And so it is very hard to think clearly about what you should do.

Dr. Sharp: Absolutely. Well, let me close with one more question before our time runs out here. This may be something you can speak to, maybe not, but it is something that comes up a lot. And it’s really this question of, who is qualified to do an assessment? There’s a lot of debate about like masters versus Ph.D., psychologist or not, neuropsychologist or not, all of that. I’m curious if you can comment on that at all.

Dr. Amanda: Yeah. It’s a big question with lots of nuances. Some of that has to do with our respective disciplines and professional guidance- what our licensing regulations say we can and can’t do, what title you can use in your [01:07:00] jurisdiction based on your training qualifications or level of license. And so, it’s not like a blanket answer. It’s different everywhere you are.

For example, in my home state of Indiana, it’s very clear that for example, for people who are licensed clinical mental health counselors, so that’s a master’s degree, they have a license, there is language under the definition and practice of what a mental health counselor can do that says they can administer and interpret appraisal instruments that the mental health counselor is qualified to employ by virtue of the counselor’s education, training, and experience. So that leaves the window open for them to do some assessments assuming they have the education training, and experience to do so.

And so in the curriculum that is required, for example, in our mental health counseling program at Valparaiso University, we do teach certain appraisal instruments. We’re not teaching mental health counselors because we just don’t have the time in their two-year program nor would it make sense to probably teach them how to do IQ assessments, to [01:08:00] do really heavy lifting personality assessment and interpretation. They’re doing career survey instruments. They’re doing symptom inventories. So instruments that make sense given the role and context in which they’ll practice, they do have experience and training to be able to do.

So you can see how in our state that language is quite vague. And so then it would be up to the counselor, him or herself to be able to defend. I do have the training and experience to be able to administer this assessment. In other states, there isn’t a language like that. So it really just depends on what the definition of each type of mental health professional is under their licensing regulations and what they’re allowed to do and not. There are cases to be made on both sides.

A lot of this, as I’m sure we all know of, it is a turf war, right? Like we don’t want some people being able to do certain things that that’s what our profession does and vice versa. And so there is trying to draw some of those boundaries. But on the flip side, there are many areas of the country that [01:09:00] have a massive supply and demand issue. And so it just depends on what assessments we’re talking about and who is truly qualified to be able to administer those and under what circumstances.

So it really comes down to looking at your particular geographic area and what the licensing board regulations and state laws say. But then we also know that there’s professional guidance. So you brought up neuropsychology as an example. I know that there’s debate in the field around whether is board certification required or not, and after what year. And so I can tell you that once it gets to legal matters, that when people have to testify, those things become really important. They do start to split hairs around well, isn’t true that your professional guidelines say that you have to have this training?

And so you have to be able to defend that- what is the standard of practice or the standard of care for your discipline and for what you were being asked to do?

Dr. Sharp: Right. For better or for worse, that’s just my shortcut if I end up with any ambiguous questions like, should I do this? [01:10:00] Can I do this? I just immediately flashed to being on that stand and having an attorney question me and what would my answer be.

Dr. Amanda: Exactly. Can I defend or justify having done this? That’s right.

Dr. Sharp: That usually helps make the decision real fast.

Dr. Amanda: Exactly.

Dr. Sharp: Well, this has been great, Amanda. I really appreciate it. I think you’ve communicated tons of helpful information and answered a bunch of random very specific questions that hopefully capture some of the main concerns that we bump up against.

Dr. Amanda: Yeah. My pleasure.

Dr. Sharp: Before we wrap up, anything else that you would think would be important for us to know? Any big takeaways that we haven’t covered? And as well, I’ll tackle two questions just like a good attorney, any resources for folks who just want to make sure that they’re doing the best they can from an ethical and legal standpoint?

Dr. Amanda: Yeah. So just like a [01:11:00] good attorney, I’ll try to answer your two questions with one answer. I really think the big takeaway and the resource is to use people. I know I’ve done this a lot, but consult. I actually find a lot of clinicians are so afraid to do so. I get it. We’re afraid to be judged. We’re afraid our colleagues might think less of us, or maybe I should have known the answer to this, and I didn’t. But at the end of the day, obviously, our field is about working with other people in so many capacities. We are not meant to do this in isolation as I was talking about earlier.

So I think the biggest resource, and I hope my biggest takeaway has come from our whole conversation is to reach out and consult with other people. These are complicated questions. There are so many areas of gray as we’ve been talking about. And so it just makes sense to try to talk it through with other people that can help us think about things a little bit more objectively. Other people have had maybe similar experiences or [01:12:00] know who to point you to in the right direction.

So consult with others, whether that’s trusted colleagues. Don’t be afraid to reach out to people who have expertise with the particular question you’re struggling with, whether that’s an attorney because it’s a legal question or something you have to sort out, but it may be a payment question. Ask somebody who runs a similar practice that you really respect. How have you dealt with some of these difficult payment conflicts we get into. Seek out consultation and expertise from other people who can help you think it through. And don’t view that as a sign of weakness, like you should know the answer. We’re always all evolving in our training and experience and you can’t possibly anticipate every situation.

So I think the biggest resource we have is really each other, which is why things like this podcast and the group you’ve started. Many of these spaces that allow us to have support and consultation from each other are just critical to our success in the field.

Dr. Sharp: Well said. I love it. Well, [01:13:00] thank you one more time. I really appreciate it.

Dr. Amanda: Thanks for having me.

Dr. Sharp: Of course. If people do want to get in touch with you for whatever reason, one, are you open to that and if so, how do they do that?

Dr. Amanda: Feel free to reach out. Certainly, if it’s for a more formal consultation context, then you’d need to do that through The Trust Risk Management Program. But any other questions about non-risk-related stuff or you just want to chat about cool things and trauma and forensic assessment, or really anything, feel free to reach out at my Valparaiso address. Just search me at Valparaiso University.

Dr. Sharp: Great. Awesome. Well, thanks a lot. This is fantastic.

Hey, y’all. I hope you enjoyed that interview with Dr. Amanda Zelechoski. I’ll have all the contact information for Amanda and The Trust in the show notes. It’s a great resource if you need any guidance on the ethical side. Like you heard in an interview, there are any number of concerns that might [01:14:00] come up in our practices and she and others like her are there to help.

So thanks for listening. If you haven’t subscribed to the podcast, you can do that easily on iTunes or Spotify or Stitcher, or wherever you’d listen to it. It’s pretty easy. Just look for the button that says subscribe. And if you’re feeling extra kind and generous, you could leave a rating and a review. I’d love to hear from folks about how the podcast is going and what you think of it. All right. Take care. We’ll catch you next time.

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