Mental health professionals who conduct pre-employment and forensic evaluations frequently receive requests for release of their reports. When a routine clinical report is prepared to guide treatment, it is clear that the report should be released if there is an appropriate patient-initiated authorization. These records belong to the patient. But does an applicant for a job or a subject (examinee) of a fitness for duty evaluation have a right to a copy of a report commissioned by an employer or attorney?
Examples of Types of Evaluations
There are many types of evaluations that can generally be referred to as forensic or employment evaluations, and each of these have characteristics that may make release of the report to the examinee unwise or problematic. Additionally, laws and regulations that define rules for disclosure of these reports are often unclear or contradictory. Let’s consider some examples.
Example 1. Attorney John Jones has referred his client to you for evaluation. Mary was sexually harassed at work, and Mr. Jones wants you to determine whether she was psychologically injured by the harassment. You meet with Mary and administer psychological testing, and you conclude that she has no psychological disorder, such as depression, anxiety or trauma. She was upset about the harassment, but it does not appear to have damaged her or caused significant impairment. You send your report to Mr. Jones, and he decides to seek another psychologist’s opinion. Meanwhile, the attorney for the defendant has learned that you saw Mary and subpoenas the report as a medical record.
Example 2. The Springfield Police Department asks you to conduct a post-offer, pre-employment psychological evaluation. You administer several psychological tests that are considered “medical” tests, permissible only in a post-offer exam because of the requirements of the Americans with Disabilities Act. The police department provides you background investigation reports and polygraph results. You conclude that the applicant has bipolar disorder that isn’t controlled well enough to allow the applicant to work nights or alternating shifts as required by the department. When the applicant learns the employment offer was rescinded, he demands a copy of his psychological report and file.
Example 3. A police department refers an employee for a fitness for duty evaluation. The officer has been involved in a series of confrontations in which deadly force was deployed, and the department wants to know whether the officer has psychological problems that predispose him to be more aggressive than necessary. The department sends you a file containing internal investigations reports of the various incidents, including names of witnesses and their statements. The officer submits a request for a copy of his entire file.
Example 4. A school district refers a teacher to you for a fitness for duty evaluation and a threat assessment. The teacher reportedly made comments that were construed to be a threat to harm the school principal. The file sent to you contains interviews with several other teachers who overheard conversations and reported concerns about the teacher. The school asks you not to identify the witnesses to the teacher being evaluated out of concern for their safety. The teacher is seeing a psychiatrist, who sends you a release form signed by the teacher requesting copies of all information in your file, including referral information, test results, and your report.
Example 5. A nuclear power plant refers an employee for a fitness for duty evaluation. All employees in the facility must have security clearances, and the employee’s behavior has been erratic. The referral file contains pre-employment polygraph results, a criminal background check, traffic violation history, results of a physical exam and employment history. Referral information also includes memoranda from supervisors outlining examples of erratic behavior that are a source of concern. You conclude that the applicant may have dementia, and you refer to a neurologist, who then requests your entire file and report. Later, a disability insurance company requests your file when the applicant applies for disability payments.
Example 6. A case manager for worker’s compensation refers an injured construction worker for evaluation and treatment. One of the worker’s complaints is that he suffered memory loss after being electrically shocked while installing an air conditioner. A medical exam found no physical evidence of electrical injury. You administer several forced choice tests to detect malingering of cognitive symptoms and conclude that the worker’s number of correct answers was well below what could be expected by even random responding. The case manager requests the results of your evaluation.
A Review of Ethical and Legal Considerations
Ethical and legal considerations guide the decision whether to release records generated in a forensic evaluation or pre-employment report. Professional ethical guidelines from professional associations and state regulations traditionally have called for release of records to other professionals when a patient signs an appropriate release form (though patients generally were not considered to have the right to have test information, and the expectation was that such information would be released only to a qualified professional.)
Provisions of HIPAA (Health Information Portability and Accountability Act, 1996) state that even test results belong to patients as part of their records. (HIPAA allows that certain copyrighted and trade secret information, such as test manuals, stimuli and protocols may not be released by the patient’s request). But professional ethics and HIPAA regulations do not fully consider the complications of release of information issues in employment and forensic evaluations. The mental health professional cannot simply conclude that examinees have a right to their file.
HIPAA administrative regulations (HIPAA Administrative Simplification Regulation Text, March 2006) do appear to allow important exceptions when a file is requested. In 164.524 (Access of individuals to protected health information) the regulations recognize the right of an individual to access a record set except for the following: 1) psychotherapy notes; 2) information compiled in reasonable anticipation of, or for use in, a civil, criminal or administrative action or proceeding and 3) when a correctional institution or a covered health care provider may deny access to protect the safety, security, custody, or rehabilitation of other inmates, or the safety of any officer, employee, or other person at the institution. Access may also be denied if the information was obtained from someone other than a health care provider under a promise of confidentiality and the access would be reasonably likely to reveal the source of the information. Considering the exceptions allowed by HIPAA, the mental health professional may find many circumstances in which it would be acceptable to deny access to records or to parts of a file.
Applying Rules and Regulations to Examples of Types of Evaluations
In Example 1 above, the report for Attorney Jones was obviously prepared in “reasonable anticipation of litigation” and should be considered “work product” not subject to subpoena. Opposing counsel’s subpoena is simply an attorney’s request for records, and the attorney who commissioned the report should respond to the subpoena and refuse to release the report. If a court later rules that the report must be released, then the mental health professional should comply. The evaluator likely would be protected from lawsuit or ethical complaints because the records were transmitted in response to a court order.
But what if Mary tells her therapist that she was evaluated by a psychologist and signs a release permitting release of the report to her therapist? In this instance, Mary may not understand that the report, once released to the therapist, may eventually be copied and released by her therapist to opposing legal counsel in her sexual harassment lawsuit. Sending the report to another therapist may identify the report as a health record rather than as a document prepared for litigation purposes, and this may open the door to opposing counsel’s request for health records relevant to the plaintiff’s mental status, which is, of course, at issue in the sexual harassment litigation.
Mary’s sexual harassment case could be damaged by the release of a report unfavorable to her claim. Regardless, the report should be viewed not as Mary’s report but as her attorney’s report, and the report should not be released without the attorney’s consent. With the (unlikely) consent of Mary’s attorney, it may be possible to release the report to the therapist with an agreement that it should not be made available to other requests for the therapist’s file, but it is not possible to assure that the agreement would be followed.
In the unlikely event that the records are approved for sending, the psychologist should have Mary sign a form that contains a “hold harmless” clause to protect the evaluator from unforeseen consequences of misuse of the report.
In Example 2, the Springfield police department would likely be concerned that confidential background checks and polygraph questions, techniques and results might become public. It is debatable whether a routine employment evaluation is prepared “in reasonable anticipation of litigation,” a clause in HIPAA that may permit the mental health professional and/or the police department to decline to release of the report. But it may be possible to release the report and not the referral information provided by the police department by asking the department to forward such information with a request that it not be copied as part of any request for records.
Note here that if the pre-employment report is considered protected health information and the person being evaluated has a right to the report, then it is irrelevant whether the police department paid for the report. The source of payment may seem to determine “ownership” of the report, but it does not do so in most cases. Further, it is important to recognize that psychologists (if in private practice) may view their legal and ethical obligations as separate from the police departments. The police department may view the report as theirs to control, and the psychologist may believe that the examinee has a right to access the report. This is obviously a potential conflict that should be discussed with all such examination assignments.
This issue becomes more focused for mental health professionals who realize that it is relatively easy for individuals to file ethical complaints even if litigation is impractical. The referring organization will not pay for the psychologist’s time to defend against these ethical complaints, and the psychologist may prefer to release the report rather than risk a complaint. In addition, licensing boards may tend to side with the “patient’s” right to know over an organization’s right to proprietary information and therefore discipline a psychologist who refuses to release a psychological report. It should be noted that many state licensing boards incorporate reliance on the provisions of the ethics code of the American Psychological Association into their own state’s regulations, sometimes minimizing the chances of conflict between legal and ethical constraints on the professional’s conduct. But such conflicts are best dealt with in advance by clarifying “ownership” of the report.
Example 3 underscores the problems that occur when sensitive information is contained in referral information. Witnesses to an officer’s abuse of force most likely would not want to be identified to the officer because of fear of retaliation by that officer or his or her officer colleagues. Complicating this situation is the difficulty of writing a comprehensive report without making reference to sensitive referral information. Consequently, it is likely that both the referral information and the report itself should be seen as privileged and should not be released to the officer who was evaluated. It is arguably necessary and permissible to redact portions of a report to protect identities if it is determined that the officer has a right to the report. HIPAA administrative regulations specifically permit a mental health professional to decline release of information that could result in harm to the individual requesting the records or to others. (See HIPAA regulations footnote 1.)
Some experts argue that fitness for duty evaluations are not exempt from being considered protected health information which the evaluated individual has a right to have (Frankel &. Alban, 2011.) The thrust of Frankel’s and Alban’s argument is that most fitness for duty evaluations do not result in any kind of litigation. Consequently, there is not a “reasonable anticipation of litigation” as discussed in HIPAA regulations. However, our view is that every fitness for duty evaluation brings with it a foreseeable risk of litigation, and all reports should be written with this possibility in mind. (One of the authors, Harris, has appeared in Federal and State courts several times related to fitness for duty reports.) Psychologists should document evaluation procedures and findings carefully and should link test findings with functional limitations in job performance, if such concerns have been identified. In actuality, a carefully-completed evaluation and report will reduce the chances for litigation, and evaluations done without litigation in mind are more likely to result in litigation.
Pre-employment evaluations, on the other hand, may present less risk of litigation than fitness for duty evaluations and therefore are more likely to be considered a health record under HIPAA. However, referral information from police departments, for example, often includes polygraph reports, and it is unlikely that any police department would want such reports to be public. Questions asked in polygraph exams include questions about sexual behavior, and it is unlikely that most applicants would like their answers to be distributed, even to other doctors. It is therefore essential to be discriminating when copying a file, even a file for which the examinee has given permission to forward.
Concerns about disclosure of information in referral information also occur in Example 4. However, in this example, we are dealing not with occupations traditionally considered high risk but with normal civilian employment. The concern in this example is whether it is reasonable to release documents to a doctor treating the teacher that were considered confidential by the school district and that contain the names of other teachers and administrators who have raised concerns about their colleague. In some cases, it may be helpful for a treating doctor to understand a patient’s workplace behavior, and if this information helps treatment, the employee and employer may benefit.
But Example 4 also allows us to consider another ramification: possible impact on future employment. Assume that the teacher in question has not made any threats but rather is the object of rumors by others who hold a grudge for one reason or another. Rather than tolerate these rumors, the teacher completes the fitness for duty evaluation but decides to apply for positions elsewhere.
The teacher finds another position, and as part of a post-offer assessment, he or she is asked whether he has ever been treated or evaluated by a mental health professional. He responds affirmatively, and a doctor retained by the new employer requests the treating psychiatrist’s file, which now contains the referral information from the fitness for duty evaluation that the treating doctor requested. That file contains all the allegations, which are essentially unchallenged because the psychologist who conducted the fitness for duty evaluation was not positioned to interview those who made the allegations. The doctor for the new school district becomes alarmed at the possibility that the teacher could be a threat to others and recommends that the employment offer be withdrawn. In this instance, the fitness for duty file and report becomes a damaging document, unfairly so, and likely should not have been released to any doctor, even a treating psychiatrist, because of the viral possibilities of these records. In all such reports, psychologists should state that allegations received in referral information were not investigated and can’t be corroborated or contradicted on the basis of the information available to the psychologist.
Some psychologists who conduct fitness for duty evaluations write their reports with very little discussion of the information on which they base their opinions. Their focus is primarily on the question of whether the employee is or is not fit for duty and they do not discuss underlying psychological conditions or other contextual and medical information obtained from records gathered for the evaluation. This type of report does avoid the problem of re-disclosure of information obtained from referral sources and from medical records obtained for the evaluation (but only if the report itself is the only document the evaluated person later requests.) However, under HIPAA, when “patients” request that their file be forwarded to another doctor, all documents in that file must be copied, with the possible exception of drug and alcohol records. Consequently, writing a “bare bones” report does not automatically protect an employer’s confidential referral information. Additionally, the usefulness of a fitness for duty evaluation is likely to be constrained by a minimalist report because the report does not help the employer understand why an employee is or is not able to work.
In Example 5, the nuclear power plant employee must undergo a comprehensive evaluation because of security concerns. The file forwarded to the evaluator contains records, such as a criminal background check, that could contain information regarding arrests and convictions dating back to the individual’s early adulthood. A financial history could contain personal information such as bankruptcy actions and credit card debt. Medical examinations could include information about treatment for sexually transmitted diseases, chronic illnesses, abortions and other history that is sensitive, potentially embarrassing and private.
In this example, when the evaluator concludes that the employee may have dementia, the employee sees a neurologist for a medical opinion. Later, a disability insurer requests all records to process a claim. It is doubtful that the disability insurer, in order to process a claim, should have any information other than the medical diagnosis of dementia. But the release of an entire fitness for duty file provides confidential information that constitutes an unnecessary and unwarranted invasion of privacy that could affect a disability determination in unforeseen ways.
Another question is whether it is appropriate for a psychologist (or other mental health professional) to conduct a fitness for duty evaluation and also complete disability paperwork. A fitness for duty evaluation may address different questions than are asked in a disability determination process. For example, a fitness for duty evaluation may not address whether the employee is able to perform any job but instead will focus on whether the employee can do a specific job. But the deeper concern is that the fitness for duty evaluation may explore information that an insurance company has no right to see. In this case, the psychologist may be obligated to decline to complete the paperwork, though the employee, the insurance company and the employer may not fully understand the reasons behind the refusal.
Example 6 reveals the complexity of the mental health professional’s role and the difficulties created with regard to medical records. In this example, the worker was clearly referred for treatment and therefore the records are protected health information that the worker/client has a right to control. But in most states, the psychologist in the worker’s compensation system assumes dual roles as both forensic evaluator and treater, despite the prohibition of such in many states’ ethics guidelines. A report that says the client is “malingering” is likely to seriously damage the therapeutic relationship, but the worker’s compensation case manager probably has a right to the records that would prevail over the client’s probable desire to suppress their release. The mental health professional’s best protection in this work is clear documentation in advance of beginning evaluation and treatment of an agreement to release all records to the case manager.
When State Laws Provide More Protection than HIPAA
Frankel and Alban (2011) cite California and Nevada laws that provide more patient protection than even HIPAA does. Ordinarily, one would expect Federal law to be supreme over state law, especially when state laws provide greater protection for the individual. However, it is not only the examinee that has rights with respect to disclosure of referral information forwarded to the psychologist conducting a fitness for duty examination. Police departments and other employers surely have some rights to protect confidential information, and these rights must be balanced against the rights of individuals to obtain access to records. As Frankel and Alban point out, there has been limited litigation regarding these issues, and the present authors maintain that it is difficult to predict exactly how courts will decide varying fact scenarios.
On this matter, Frankel and Alban and the present authors have agreement. Psychologists conducting forensic, fitness for duty and pre-employment examinations should consult legal counsel and trusted colleagues whenever there is a dispute about releasing records. These consultations should be documented to establish a good faith effort to be responsive to the request and to comply with standards. In most states, the response to a request must occur within specified time limits, so it is important to act quickly to meet deadlines. It is probably a good idea as well to notify one’s malpractice carrier of any dispute because the insurance company may want to provide legal counsel to avoid or limit exposure.
As a practical matter, if there is litigation, it is likely that an attorney for someone evaluated for fitness for duty or employment will eventually be able to obtain a copy of any evaluation report and file. Consequently, after consultation with the referral source, it is probably sensible in most cases, if requested, to provide a copy of the report readily and without argument as long as there is an appropriate signed release that also advises the person about the possible problems that can occur when such a report becomes available to others. Doing so reduces the chances of an ethical complaint producing disciplinary action for failing to provide records construed as medical records.
Under the assumption that evaluation reports may eventually be disclosed to known or unknown third parties, as well as to the examinee, it is imperative that the psychologist make this possibility explicit in the consent and authorization agreement endorsed by the examinee prior to and in conjunction with the actual evaluation. Portions of a report may need to be redacted, and other documents in the examiner’s file may need to be shielded.
It may be possible to discourage examinees from requesting their reports by asking them to sign a form in advance of the evaluation indicating acceptance of the condition that they will not be provided a copy of the report. Such a form may also help the mental health professional deal with ethics complaints in the event the report is withheld.
It is also important to clarify in advance with referral sources whether access to the report can be denied to the examinee. As noted earlier, referral sources may believe that such reports are their property, but this may not be true, legally or ethically. There is not absolute clarity about this issue, and mental health professionals should probably try to avoid being involved in a case testing the various laws and the wisdom of licensing boards.
Mental health professionals should ask referral sources to send a letter with referral information and indicate that specified information not be further disclosed or released. It may be defensible, then, to release a report but not the sensitive documents provided by the employer.
It is often difficult to write a fitness for duty report or post-offer employment report without making reference to sensitive information provided by the referral source. Whenever possible, names of specific people (witnesses, reporters of allegations, etc.) should not be used, and other identifying information should not be listed.
' As in all evaluations, the examinee should sign release forms that explain the purpose and conditions of the evaluation. However, it is not always clear when a psychological evaluation is a medical record or an employment document. Consequently, it is sensible to provide the person being evaluated with as much access as can reasonably be permitted to information that is directly relevant to the examinee’s request. Whenever access is denied, there should be documentation regarding the justification in order to demonstrate a good faith effort to comply with ethical and legal rules.
American Psychological Association (2010). Ethical Principles of Psychologists and Code of Conduct. Retrieved from http://www.apa.org/ethics/code/index.aspx
Frankel A.S., & Alban, A. (2011) Fitness for Duty Evaluations: are your evaluees “patients?” California Psychologist January/February. Clinical Lawyer, February. Retrieved from http://clinicallawyer.com/?s=are+your+evaluees+patients .
Health Insurance Portability and Accountability Act of 1996. Pub.L. 104–191, (1996). Retrieved from http://www.gpo.gov/fdsys/pkg/PLAW-104publ191/html/PLAW-104publ191.htm
About the Authors
George Harris PhD
I am the consulting psychologist for the Kansas City Regional Office for developmental disabilities. I also provide consulting for Midwest Career Center, an evaluation program for Ministers. I taught Psychology course for Johnson County Community College and Avila College while in graduate school. I provide pre-employment evaluation and fitness for duty services to several areal police and fire departments. .
Martin Zehr, Ph.D., J.D., is a licensed psychologist and attorney in Missouri. He was a staff psychologist for the Veterans Administration Medical Center, an associate in a law firm and a psychologist conducting neuropsychological examinations in a hospital before entering private practice in Kansas City, Missouri.
Published by Dr. Robert O' Block in The Annals of Psychotherapy fall 2014.