October, 2010

At Public Safety Psychology, PLLC, about 90% of our work is doing pre-employment psychological evaluations and we typically complete several thousand per year. Fortunately, the process for Pre-employment Psychological Evaluations is spelled out in the recent DCJS guidelines as well as the guidelines established by the Police Psychological Services Section of IACP so it is clear what we should and should not be doing. Occasionally, we will also do second opinion evaluations for applicants who have failed their original psychological and are appealing the recommendation. However, there are no guidelines or established methods as how to do these second opinion evaluations. In fact, there is no clear consensus on how the hiring authority or the appointing agency should handle the process when an applicant wants to appeal a negative recommendation from a psychological evaluation. This edition of the newsletter reviews some of the ways departments handle disqualified applicants who want to appeal the original decision.

One of the sources of confusion regarding appeals is that there are no set rules that apply across the state as the process is solely at the discretion of the local civil service commission. The courts have given the civil service commission wide discretion in determining the fitness of candidates as long as the process is not arbitrary and capricious. In fact, research by one attorney could find no clause in civil service law establishing a right to an appeal. But an appeal process does have merit in that it provides some “checks and balances” over the psychological decision as well as providingdue process to the applicant. An appeal process tends to soften the blow to the applicant’s ego as well as diffuse the anger the applicant likely feels if given a “not recommended” rating.

In my 21 years of doing pre-employment psychological evaluations, I have seen several different appeal processes, each with advantages and disadvantages. Let me review and comment on some of the more common procedures.

No appeal process. In this option, the opinion of the psychologist is accepted and the decision of the agency is final. The downsides of this option include:

  1. Does the applicant go away angry and disgruntled, bad mouthing the department and the psychologist to everyone? The chat rooms on the internet are filled with comments by these people.
  2. With no other avenue available, is the applicant more likely to go to court in an effort to have the decision overturned? Do you want to open yourself up for litigation and all the related expenses?

Second opinion. With this process, an applicant that gets disqualified by the psychological evaluation is allowed to get a second evaluation, at his/her own expense, and present this as evidence to overturn the initial evaluation. When I do these second opinions, I intentionally do the evaluation without reviewing the initial report. I use the same procedures and decision rules as I would use in any pre-employment psychological evaluation. Then, if it is available, I review the initial report, check for consistency of information and why the initial psychologist failed the applicant. I find this two step process allows for the most objective and fair evaluation possible under the circumstances. However, even when using this bifurcated process, second opinion appeals are prone to problems.

  1. When doing a second opinion, the psychologist’s client is the applicant, instead of the department. So the psychologist may be more lenient and do what is best for the applicant rather than what is best for the department (i.e., minimize your risk).
  2. The applicant can shop around until finding a favorable recommendation. If the applicant is determined, he/she may go to two or more psychologists until finally getting the answer desired.
  3. While you hopefully have some faith in the decisions of the psychologist who does your evaluations, you probably know nothing about the psychologist doing the second opinion. Does this psychologist know what he/she is doing? Is he/she following the DCJS guidelines? To address this problem, some departments have a short list of psychologists they trust and instruct the applicant to go to one of the names on the list for a second opinion.
  4. If the second opinion comes back with a favorable recommendation, what do you do then? Go for a third opinion? Compare the first two opinions and pick the one that makes a stronger case? How do you decide?

Appeals board. In this model, when given a negative recommendation, the applicant has the right to appear in front of an appeals board to state his/her case. The applicant can present additional information, such as letters of reference or an independent evaluation, to support the argument to overturn the initial decision. The appeals board can have a variety of members including psychologists, psychiatrists, civil service representatives, attorneys, community members, department representatives, etc. The appeals boards I have seen tend to be very conservative in overturning an initial decision but it does give the applicant a chance to be heard. Again, some weaknesses of this model include:

  1. Are the members of the appeals board qualified to review the psychological data, such as test results, that the psychologist used in making the original decision? Or are they using some criteria other than psychological suitability in making their decision?
  2. Will the appeals board decisions turn out better than the original recommendation of the psychologist? In tracking appeals board decisions with one department, we found the applicants who got their initial rejection overturned by the department were twice as likely to end up getting fired. Not a good track record!

No matter what process you use, I would strongly encourage you to never release the psychological report directly to the applicant. These are technical reports that have your department as the client; they are not medical records covered by HIPAA and accessible to the applicant. Releasing the report to the applicant can result in serious misunderstanding by the applicant. Also, putting the report in the hands of the applicant just teaches them what they have to lie about next time so as to get a more favorable recommendation. In our disclosure and consent forms, all applicants must waive access to the report and the supporting data before beginning the written evaluation. If you do release the report to a second opinion psychologist, it should come with a clear reminder that this report is for professional review only and should not be released, shared or shown to the applicant.

The bottom line is there is no one ideal way to handle the appeal process. My feeling is giving the applicant an avenue to be heard, providing some due process that is spelled out in advance, and installing some checks and balances over the original psychological decision are all positive steps that make the evaluation process fair and litigation resistant. Furthermore, I believe the Appeals Board option tends to work best in diffusing a tough situation, allowing the applicant a chance to correct any misconceptions, and monitoring the decisions of the psychologist. I encourage you to consider your current appeal procedures and, in consultation with your local civil service board, determine if you need to make modifications.

William F. McIntyre, Ph.D.