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IN THIS ISSUE DECEMBER 2001
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HIPAA PAYMENT STUDY GROUP ESTABLISHED
The Electronic Commerce Payment Committee has established a subcommittee to study emerging payment issues arising from The Health Insurance Portability and Accountability Act of 1996 (HIPAA). Through its listserv, st-hipaapay@mail.abanet.org, the subcom-mittee will discuss and flesh out new payment issues, develop a core of expertise in this area, and publish any significant findings. HIPAA has had a major effect on the U.S. healthcare industry and beyond. Among other things, it establishes significant privacy rules for personal health information transmitted electronically. HIPAA privacy regulations went into effect in April 2001, with compliance by directly regulated organizations (health care providers, plans and clearing houses that engage in electronic exchanges of information) required by April 2003. Likely the most significant area of electronic exchange of personal health information involves payment-related transactions. It is not yet clear what side effects HIPAA will have on electronic commerce payment, but due to its sheer scope it cannot be ignored. I suspect this will be an increasingly active area of law practice. To join this subcommittee, please contact Rich Field at field@pipeline.com. MALINGERING AND BEHAVIORAL
SCIENCE: A JURISPRUDENT THERAPY PERSPECTIVE In keeping with our ongoing emphasis on both practical and theoretical approaches to social scientific matters, the Behavioral Sciences Committee has continued to utilize a "Jurisprudent Therapy" model for analyzing issues in law and mental health. This perspective evaluates mental health science, mental health practice, and mental health roles, in terms of their "jurisprudent" or "antijurisprudent" effects on those utilizing behavioral science expertise. "Malingering" is a term with both legal and scientific significance, denoting attempts by patients and/or litigants to exaggerate - or even outright fabricate - symptoms of an illness, the presence of which may lead either to an increased civil award or a diminished criminal penalty. Social scientific studies have identified rates of fraudulent symptomatic claims as high as 46 percent in some classes of civil litigation (Weintraub, 1995). Malingering is now recognized as such a significant phenomenon in criminal contexts that it has actually been characterized as grounds for imposition of a Federal sentencing enhancement, in U.S. v. Greer, 158 F.3d 228 (5 th Cir. 1998). Prior to the inception of the Freudian psychoanalytic movement in the early twentieth century, the various "nervous disorders" were typically associated with malingering as a matter of course (McMahon, 1984). The growing realization that unconscious factors played a significant factor in mental illness did not appreciably dispel suspiciousness concerning psychic injuries claimed during the First World War (Cooter, 1999). During the Second World War, the potential impact of malingering was recognized to the extent that British psychological warfare operatives, drawing upon commissioned psychiatric research, were distributing "a handbook teaching Germans how to malinger and trick their doctors into granting them a spell of sick leave." The success of this operation was reflected in the sincerest form of flattery: "The German authorities were so impressed with [our] handbook that they had it translated into English and shot it into the British and American lines" (Delmer, 1962). Modern psychiatry and psychology have placed considerable emphasis on the clinical detection of malingering. For adult patients and clients, this has meant the development of instruments to identify exaggeration or fabrication of symptoms in emotional/behavioral realms (such as the Structured Interview of Reported Symptoms, the M Test, or the Structured Inventory for Malingered Symptomatology) as well as neuropsychological deficits (such as the Test of Memory Malingering, the Rey Memory Test, and the Portland Digit Recognition Test) (Drogin, 2001). An expanding area of clinical research and practice has involved ferreting out malingering among minor examinees. While identifying unfounded symptomatic complaints is now commonly accepted as an important consideration in the full-spectrum diagnosis of adults, "[t]his concern becomes even more relevant when assessing children, who have historically been depicted as less than credible informants of their own thoughts, feelings, and behaviors" (Oldershaw & Bagby, 1997). Indicia of poor cognitive performance during clinical or forensic assessment can be compared to arguably better performance on previously administered achievement and ability measures (Grisso, 1998), which are likely to have been administered relatively recently in school settings. Personality tests like the Millon Adolescent Clinical Inventory and the Minnesota Multiphasic Personality Inventory for Adolescents contain internal validity scales similar to those found in their adult counterparts (McCann, 1998). The ethical role obligation of mental health professionals concerning malingering consists of two basic components. The first involves ensuring that the detection of malingering is, in fact, adequately pursued in each evaluation. The second reflects the need to prevent exposure of techniques for malingering assessment to the general public, thus avoiding impairment of the effectiveness of specialized tests and internal validity scales. According to the American Psychological Association's Ethical Principles of Psychologists and Code of Conduct (APA, 1992), "psychologists take into account the various test factors and characteristics of the person being assessed that might . reduce the accuracy of their interpretations." In addition, "psychologists' forensic assessments, recommendations, and reports are based on information and techniques . sufficient to provide appropriate substantiation for their findings." The Specialty Guidelines for Forensic Psychologists, adopted by the American Psychology-Law Society and the Division 41 of the American Psychological Association (1991), further mandate that 9 forensic psychologists maintain professional integrity "by examining the issue at hand from all reasonable perspectives." This requires "actively seeking information that will differentially test rival hypotheses." Where psychiatrists are concerned, the Ethical Guidelines for the Practice of Forensic Psychiatry, promulgated by the American Academy of Psychiatry and the Law (1987), require "honesty and striving for objectivity." Psychiatrists are directed to base their opinions on "all the data available to them," with the specific requirement of "distinguishing, to the extent possible, between verified and unverified information." The need to protect malingering assessment measures is primarily the responsibility of psychologists. The Ethics Code requires that "psychologists make reasonable efforts to maintain the security of tests and other assessment techniques." The Specialty Guidelines further direct that "when required to disclose results to a non-psychologist, every attempt is made to ensure that test security is maintained and access to information is restricted to individuals with a legitimate and professional interest in the data." Current scientific conceptualizations of malingering, techniques for the assessment of malingering, and established ethical requirements for inquiry into potential malingering and the preservation of measures to accomplish this task, all reflect jurisprudent applications of mental health science, practice, and roles, respectively. Section members with an interest in joining the Behavioral Sciences Committee can contact the Chair at the numbers and/or addresses below. ST-BEHAVSCI@mail.abanet.org is our new discussion list, also open to all Section members. Eric Y. Drogin, J.D., Ph.D., ABPP Electronic Mail: eyd@drogin.net |
