Avoidance of False or Deceptive Statements

CHAPTER 48

Standards on

Advertising and

Other Public Statements

5. Advertising and Other Public Statements

5.01 Avoidance of False or Deceptive Statements

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

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

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

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

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

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

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

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

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

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

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

regarding work activities or the activities of persons or organizations with

which psychologists are affiliated.

The terms avoidance and knowingly exclude as violations statements that psychologists

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

learn are false.

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

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

She ceased distribution and ordered a corrected brochure.

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

Definition of Public Statements

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

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

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

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

private professional or personal conversations with clients/patients, organizational

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

professional or personal relationship.

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

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

standard:

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

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

language lesson for infants that would improve reading comprehension in

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

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

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

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

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

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

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

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

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

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

psychology and nursing state licensure numbers.

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

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

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

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

several such courses.

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

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

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

testimony during which he publicly concluded that empirical evidence

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

large federally funded study challenged those conclusions.

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

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

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

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164——PART II ENFORCEABLE STANDARDS

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

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

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

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

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

because it is assumed that psychologists would have sufficient information about

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

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

under Standard 5.01b.

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

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

applicants were not significantly different from national data on employment practices

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

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

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

HMO

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

a psychologist stated that she had obtained substance abuse certification from

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

on substance abuse treatment at an APA meeting.

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

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

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

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

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

􀀴 Institutional or association affiliations. A psychologist in independent practice

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

suggested he was affiliated with the institution.

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

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

group more than a year ago.

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

A behavioral psychologist running a weight loss program for obese adolescents

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

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

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

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

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

psychological technique for preemployment integrity screening to weed out

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

consultations conducted by the psychologist over several years.

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

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

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

Comparative statements regarding the desirability of one type of service over

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

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

Judgments).

Deceptive Web-Based Services

Potentially deceptive web-based advertisements and claims regarding Internetbased

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

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

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

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

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

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

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

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

competence to provide services across a broad spectrum of

psychological disorders.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

responses provided prewritten general statements about behavioral child management

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

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

does not constitute treatment.”

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166——PART II ENFORCEABLE STANDARDS

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

psychology licensure by the state in which they practice.

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

as evidence of their competence to provide health services. Unlike

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

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

therapy or diagnostic or other types of health services.

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

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

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

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

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

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

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

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

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

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

Need to Know: Websites and

Potential Violation of Other Standards

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

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

such violations:

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

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

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

and Standard 9.11, Maintaining Test Security).

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

different disorders and treatments related to learning disabilities without

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

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

consumers on childhood learning disorders.

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

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

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

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

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

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

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

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

Work.)

Standard 5.02b underscores psychologists’ obligations to avoid actions that

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

5.02 Statements by Others

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

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

Psychologists retain professional responsibility for false, deceptive, or fraudulent

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

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

Standard 5.02.

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

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

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

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

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

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

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

the university mentioned.

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

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

complementary software that would provide narrative interpretations of the

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

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

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

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

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

software for narrative interpretations. The psychologist agreed to the

misleading advertisement.

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

in social work and not psychology.

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

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

school to which she had transferred.

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168——PART II ENFORCEABLE STANDARDS

This standard prohibits psychologists from paying or otherwise compensating

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

term compensate rather than pay means that psychologists who give nonmonetary

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

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

as such.

Standard 5.02c permits psychologists to run paid advertisements describing

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

of False or Deceptive Statements).

5.03 Descriptions of Workshops and

Non-Degree-Granting Educational Programs

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

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

granting educational programs ensure that they accurately describe the audience

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

involved.

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

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

and training programs covered under Standard 7.02, Descriptions of

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

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

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

Announcements must clearly specify the intended audience, educational objectives,

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

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

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

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

others may occur during the production and distribution of materials.

Psychologists should take reasonable steps to correct these errors.

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

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

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

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

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

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

were not licensed psychologists. The registrants complained that the advertisement

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

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

return the fees.

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

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

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

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

requirement.

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

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

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

certificate documenting their participation must pay an additional $100.

Industry-Sponsored Workshops

The pharmaceutical industry has become a primary sponsor of continuing

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

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

continuing education programs must ensure that the teaching materials

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

Conflict of Interest).

5.04 Media Presentations

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

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

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

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

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

and Professional Judgments.)

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

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

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170——PART II ENFORCEABLE STANDARDS

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

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

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

with whom psychologists have an established professional relationship,

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

student, colleague, or organizational client.

Competence and Bases for Judgments

Research and professional psychologists working through the media make

important contributions to the accuracy of reporting and societal awareness of

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

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

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

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

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

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

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

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

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

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

bipolar disorder).

Standard 5.04 prohibits psychologists from giving public advice or comment

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

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

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

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

Boundaries of Competence). The standard also prohibits psychologists from

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

inconsistent with established psychological literature and practice (see

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

thus reflects the importance of establishing public trust in the discipline

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

and Responsibility).

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

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

could identify and correct child language disorders.

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

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

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

recent research or established counseling techniques for test anxiety.

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

Otherwise Consistent With the Ethics Code

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

with all relevant standards of the Ethics Code.

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

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

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

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

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

Assessments).

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

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

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

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

Conflict of Interest).

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

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

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

Do Not Indicate a Professional Relationship

Has Been Established

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

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

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

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

communications with the person that may encourage the mistaken impression that

a professional relationship has been established.

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

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

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

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

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

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

manner rather than in broad educative statements, and individuals were

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

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

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

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

and related issues).

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172——PART II ENFORCEABLE STANDARDS

5.05 Testimonials

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

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

Psychologists are prohibited from asking individuals who are vulnerable to

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

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

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

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

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

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

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

for treatment.

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

Internet-based counseling services.

Need to Know:

Working With the Media

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

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

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

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

not personally evaluated this person.

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

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

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

their case.

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

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

explicitly labeled hypothetical cases.

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

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

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

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

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

Psychologists’ Work).

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

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

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

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

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

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

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

The standard does not prohibit unsolicited testimonials or the solicitation of

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

should be cautious about approaching former therapy clients/patients

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

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

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

might have made during therapy inviting the possibility of a posttermination

testimonial.

5.06 In-Person Solicitation

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

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

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

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

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

outreach services.

Standard 5.06 prohibits psychologists from soliciting business from individuals

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

The standard addresses business solicitation behaviors often characterized as

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

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

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

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

from approaching these individuals either directly or through another person

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

legally authorized representative to do so.

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

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

descriptions of services that are intended to exploit populations vulnerable to

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

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

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

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

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174——PART II ENFORCEABLE STANDARDS

Permitted Behaviors

The standard does not prohibit psychologists from establishing a professional

relationship with persons in therapy with another professional or otherwise vulnerable

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

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

Collateral Treatment

The standard does not preclude psychologists from approaching a family member

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

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

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

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

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

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

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

Standard 10.02a, Therapy Involving Couples or Families).

Disaster and Community Outreach

The standard also explicitly permits psychologists to approach individuals to provide

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

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

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

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

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

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

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

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

HOT TOPIC

Avoiding False and Deceptive Statements

in Scientific and Clinical Expert Testimony

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

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

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

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

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

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

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

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

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

suggests preventive actions to avoid these ethical pitfalls.

Navigating Relationships With Attorneys

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

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

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

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

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

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

before the court.

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

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

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

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

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

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

attorney.

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

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

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

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

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

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

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

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

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

Avoiding Bias in the Collection and

Interpretation of Forensic Data

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

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

Nonmaleficence; Standard 3.04, Avoiding Harm).

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

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

court (Deidan & Bush, 2002).

The following behaviors should be avoided:

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

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

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

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

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

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

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

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

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

Using comprehensive batteries for forensic assessments

Carefully recording all facts uncovered during pretrial data collection

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

Bush, 2002)

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

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

Lanyon, 2007; Shuman & Greenberg, 2003)

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

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

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

Professional and Scientific Work and Maintenance of Records).

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

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

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

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

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

modification (Bush et al., 2006).

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

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

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

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

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

9.06, Interpreting Assessment Results).

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

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

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

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

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

Competence).

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

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

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

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

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

balancing of facts that contributed to their opinion.

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

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

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

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

(Eisner, 2010).

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

Maintaining Objectivity and Avoiding Bias:

The Importance of Self-Evaluation

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

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

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

Conflicts of Interest

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

supporting the attorney’s case?

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

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

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

retaining party?

Personal and Professional Bias

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

description of the case?

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

Does the case touch upon a personal issue?

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

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

Multiple Relationships

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

objectivity?

Do I know the attorney or litigant socially?

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

with the litigant’s legal argument?

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178

CHAPTER 49

Standards on

Record Keeping and Fees

6. Record Keeping and Fees

6.01 Documentation of Professional and

Scientific Work and Maintenance of Records

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

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

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

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

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

Confidentiality.)

In appropriately documenting and maintaining records, psychologists benefit

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

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

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

creation and maintenance of assessment and treatment records benefit clients/

patients by ensuring continuity of services provided by the individual psychologist

and other qualified professionals. Scientific records provide the necessary information

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

of methodological modifications that may be required. Appropriate record keeping

by industrial–organizational and consulting psychologists assists organizations in

maintaining and improving work performance and in ensuring compliance with

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

documentation of appropriate planning, implementation, evaluation, and

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

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

responding to ethics complaints.

HMO

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Chapter 9 Standards on Record Keeping and Fees——179

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

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

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

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

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

activity and applicable state and federal regulations and institutional

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

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

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

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

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

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

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

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

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

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

Records for Mental Health Services

According to the Record Keeping Guidelines developed by the APA Committee

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

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

information necessary to

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

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

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

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

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

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

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

complaint. (p. 995)

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

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

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

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

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

basic components that psychologists should always consider including in records of

psychological services:

Information for the client’s ongoing file

Identifying data and contact information

Fees and billing arrangements

Guardianship status, if appropriate

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Informed consent/assent and any waivers of confidentiality

Mandated reporting, if relevant

Diagnosis or basis for request for services

Treatment plan (updated as appropriate)

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

for each substantive contact with clients as follows:

Date of service and session duration

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

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

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

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

Need to Know: Unexpected

Contacts With Clients/Patients

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

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

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

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

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

therapeutic relationship or responding to ethics complaints based on misperceptions.

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

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

also be included.

Multiple Client Records

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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Chapter 9 Standards on Record Keeping and Fees——181

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

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

Length of Record Retention

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

federal regulations, and institutional requirements. The APA Record Keeping

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

for record retention, complete records are maintained at minimum until

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

minor reaches the age of majority, whichever is later.

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

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

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

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

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

Preface to this book).

Need to Know: Electronic

Communications With Clients/Patients

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

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

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

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

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

Psychotherapy Notes

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

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

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

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

provides otherwise.

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

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

professional documenting or analyzing the contents of conversation during a private

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

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

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

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

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182——PART II ENFORCEABLE STANDARDS

with the appropriate authorization of the patient. Psychotherapy notes are

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

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

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

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

authorization to have a psychologist release psychotherapy notes. For psychotherapy

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

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

Billing and Fees

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

DHHS Transaction Rule requiring standard formatting of electronic patient records

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

Additional Implications of HIPAA

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

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

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

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

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

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

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

privacy officer.

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

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

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

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

record.

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Chapter 9 Standards on Record Keeping and Fees——183

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

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

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

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

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

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

would be in violation of Standard 6.01.

Record Keeping in Organizational Settings

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

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

have their own record keeping requirements that differ from those outlined

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

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

within the organization itself. The Guidelines recommend that psychologists

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

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

between the Ethics Code and organizational record keeping policies, psychologists

should follow the recommendations under Standard 1.03, Conflict Between

Ethics and Organizational Demands.

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

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

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

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

the psychologist upon departure or be shared with others without organizational

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

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

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

professional relationship with an organization.

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

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

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

undefined. The Guidelines encourage psychologists to participate in development

and refinement of multidisciplinary organizational policies involving record keeping.

Educational Records

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

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

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

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

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

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

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184——PART II ENFORCEABLE STANDARDS

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

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

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

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

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

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

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

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

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

policies.

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