1. Ethical and Legal Issues in Assessment
Chapter 17
Ethical and Legal Issues in Assessment

2. Professional Standards and Codes of Ethics
Ethics are sets of morals or principles that guide the behaviors of groups or individuals.
Most professional organizations use a code of ethics to provide guidelines for member behavior.
No ethical code can detaile desired behavior in every situation!

3. American Counseling Association Code of Ethics
Section E of the ACA Code of Ethics focuses on assessment.
Assessments are intended to be used as one of many tools in the counseling process.

4. E.1.a. Assessment
The primary purpose of educational, psychological, and career assessment is to provide measurements that are valid and reliable in either comparative or absolute terms. These include, but are not limited to, measurements of ability, personality, interest, intelligence, achievement, and performance. Counselors recognize the need to interpret the statements in this section as applying to both quantitative and qualitative assessments.

5. E.1.b. Client Welfare
Counselors do not misuse assessment results and interpretations, and they take reasonable steps to prevent others from misusing the information these techniques provide. They respect the client’s right to know the results, the interpretations made, and the bases for counselors’ conclusions and recommendations.

6. E.2.a. Limits of Competence
Counselors utilize only those testing and assessment services for which they have been trained and are competent. Counselors using technology-assisted test interpretations are trained in the construct being measured and the specific instrument being used prior to using its technology-based application. Counselors take reasonable measures to ensure the proper use of psychological and career assessment techniques by persons under their supervision.

7. E.2.b. Appropriate Use
Counselors are responsible for the appropriate application, scoring, interpretation, and use of assessment instruments relevant to the needs of the client, whether they score and interpret such assessments themselves or use technology or other services.

8. E.2.c. Decisions Based on Results
Counselors responsible for decisions involving individuals or policies that are based on assessment results have a thorough understanding of educational, psychological, and career measurement, including validation criteria, assessment research, and guidelines for assessment development and use.

9. E.3.a. Explanation to Clients
Prior to assessment, counselors explain the nature and purposes of assessment and the specific use of results by potential recipients. The explanation will be given in the language of the client (or other legally authorized person on behalf of the client), unless an explicit exception has been agreed upon in advance. Counselors consider the client’s personal or cultural context, the level of the client’s understanding of the results, and the impact of the results on the client.

10. E.3.b. Recipients of Results
Counselors consider the examinee’s welfare, explicit understandings, and prior agreements in determining who receives the assessment results. Counselors include accurate and appropriate interpretations with any release of individual or group assessment results.

11. E.4. Release of Data to Qualified Professionals
Counselors release assessment data in which the client is identified only with the consent of the client or the client’s legal representative. Such data are released only to persons recognized by counselors as qualified to interpret the data.

12. E.5.a. Proper Diagnosis
Counselors take special care to provide proper diagnosis of mental disorders. Assessment techniques (including personal interview) used to determine client care (e.g., locus of treatment, type of treatment, or recommended follow-up) are carefully selected and appropriately used.

13. E.5.b. Cultural Sensitivity
E.5.b. Cultural Sensitivity. Counselors recognize that culture affects the manner in which clients’ problems are defined. Clients’ socioeconomic and cultural experiences are considered when diagnosing mental disorders.

14. E.5.c. Historical and Social Prejudices in The Diagnosis of Pathology
Counselors recognize historical and social prejudices in the misdiagnosis and pathologizing of certain individuals and groups and the role of mental health professionals in perpetuating these prejudices through diagnosis and treatment.

15. E.5.d. Refraining from Diagnosis
Counselors may refrain from making and/or reporting a diagnosis if they believe it would cause harm to the client or others.

16. E.6.a. Appropriateness of Instruments
Counselors carefully consider the validity, reliability, psychometric limitations, and appropriateness of instruments when selecting assessments.

17. E.6.b. Referral Information
If a client is referred to a third party for assessment, the counselor provides specific referral questions and sufficient objective data about the client to ensure that appropriate assessment instruments are utilized.

18. E.6.c. Culturally Diverse Populations
Counselors are cautious when selecting assessments for culturally diverse populations to avoid the use of instruments that lack appropriate psychometric properties for the client population.

19. E.7.a. Administration Conditions
Counselors administer assessments under the same conditions that were established in their standardization. When assessments are not administered under standard conditions, as may be necessary to accommodate clients with disabilities, or when unusual behavior or irregularities occur during the administration, those conditions are noted in interpretation, and the results may be designated as invalid or of questionable validity.

20. E.7.b. Technological Administration
Counselors ensure that administration programs function properly and provide clients with accurate results when technological or other electronic methods are used for assessment administration.

21. E.7.c. Unsupervised Assessments
Unless the assessment instrument is designed, intended, and validated for self-administration and/or scoring, counselors do not permit inadequately supervised use.

22. E.7.d. Disclosure of Favorable Conditions
Prior to administration of assessments, conditions that produce most favorable assessment results are made known to the examinee.

23. E.8. Multicultural Issues/Diversity in Assessment
Counselors use with caution assessment techniques that were normed on populations other than that of the client. Counselors recognize the effects of age, color, culture, disability, ethnic group, gender, race, language preference, religion, spirituality, sexual orientation, and socioeconomic status on test administration and interpretation, and place test results in proper perspective with other relevant factors.

24. E.9.d. Reporting
In reporting assessment results, counselors indicate reservations that exist regarding validity or reliability due to circumstances of the assessment or the inappropriateness of the norms for the person tested.

25. E.9.b. Research Instruments
Counselors exercise caution when interpreting the results of research instruments not having sufficient technical data to support respondent results. The specific purposes for the use of such instruments are stated explicitly to the examinee.

26. E.9.c. Assessment Services
Counselors who provide assessment scoring and interpretation services to support the assessment process confirm the validity of such interpretations. They accurately describe the purpose, norms, validity, reliability, and applications of the procedures and any special qualifications applicable to their use. The public offering of an automated test interpretations service is considered a professional-to-professional consultation. The formal responsibility of the consultant is to the consultee, but the ultimate and overriding responsibility is to the client. (See D.2.)

27. E.10. Assessment Security
Counselors maintain the integrity and security of tests and other assessment techniques consistent with legal and contractual obligations. Counselors do not appropriate, reproduce, or modify published assessments or parts thereof without acknowledgment and permission from the publisher.

28. E.11 Obsolete Assessments and Outdated Results
Counselors do not use data or results from assessments that are obsolete or outdated for the current purpose. Counselors make every effort to prevent the misuse of obsolete measures and assessment data by others.

29. E.12. Assessment Construction
Counselors use established scientific procedures, relevant standards, and current professional knowledge for assessment design in the development, publication, and utilization of educational and psychological assessment techniques.

30. E.13.a. Primary Obligations
When providing forensic evaluations, the primary obligation of counselors is to produce objective findings that can be substantiated based on information and techniques appropriate to the evaluation, which may include examination of the individual and/ or review of records. Counselors are entitled to form professional opinions based on their professional knowledge and expertise that can be supported by the data gathered in evaluations. Counselors will define the limits of their reports or testimony, especially when an examination of the individual has not been conducted.

31. E.13.b. Consent for Evaluation
Individuals being evaluated are informed in writing that the relationship is for the purposes of an evaluation and is not counseling in nature, and entities or individuals who will receive the evaluation report are identified. Written consent to be evaluated is obtained from those being evaluated unless a court orders evaluations to be conducted without the written consent of individuals being evaluated. When children or vulnerable adults are being evaluated, informed written consent is obtained from a parent or guardian.

32. E.13.c. Client Evaluation Prohibited
Counselors do not evaluate individuals for forensic purposes they currently counsel or individuals they have counseled in the past. Counselors do not accept as counseling clients individuals they are evaluating or individuals they have evaluated in the past for forensic purposes.

33. E.13.d. Avoid Potentially Harmful Relationships
Counselors who provide forensic evaluations avoid potentially harmful professional or personal relationships with family members, romantic partners, and close friends of individuals they are evaluating or have evaluated in the past.

34. AERA, APA, and NCME Standards for
Educational and Psychological Testing
The Standards for Educational and Psychological Testing (1999) were developed in a join venture between the American Educational Research Association, the American Psychological Association, and the National Council on Measurement in Education.

35. Core Standards
The Standards for Educational and Psychological Test focuses on three core areas:
Test Construction, Evaluation, and Documentation
Fairness in Testing
Testing Application

36. Test Construction, Evaluation, and Documentation
Focuses on standards for:
reliability
validity
errors of measurement
test development and revision
scaling
norming
score compatibility
test administration
scoring and reporting
support documentation

37. Fairness in Testing Focuses on standards for: fairness and bias
the rights and responsibilities of test takers
testing individuals of diverse linguistic backgrounds
testing individuals with disabilities

38. Testing Applications Focuses on standards for:
general responsibilities of test users
psychological testing and assessment
educational testing and assessment
testing in employment and credentialing
testing in program evaluation and public policy

39. American Psychological Association (APA) Ethical Principles of Psychologists and
Code of Conduct
The APA Ethical Principles of Psychologists and Code of Conduct (2002) consists several ethical standards set forth as rules of conduct for psychologists.

40. Standard 9.01
Psychologists should base recommendations on information and techniques sufficient enough to substantiate their findings.

41. Standard 9.02
Psychologists should use valid and reliable assessment techniques as evidenced by research.

42. Standard 9.03
Psychologists must obtain informed consent when using assessment techniques; this includes explaining the nature and purpose of the assessment, fees, involvement of third parties, and limits of confidentiality.

43. Standard 9.04
Psychologists must not release clients’ test results unless the client gives permission; in the absence of client permission, psychologists provide test data only as required by law or court order.

44. Standard 9.05
Provides an outline of ethical procedures involved in test construction.

45. Standard 9.06
When interpreting tests, psychologists need to explain results in language that can be understood by the individual being assessed.

46. Standard 9.07
Psychologists’ have a responsibility of not promoting the use of psychological assessment techniques by unqualified examiners.

47. Standard 9.08
Psychologists refrain from basing their assessment, intervention decisions, or recommendations on outdated test results and measures that are not useful for the current purpose

48. Standards 9.09 and 9.10
Individuals offering assessment or scoring services to other professionals have the obligation to make sure their procedures are appropriate, valid, and reliable. In explaining assessment results, psychologists must ensure that explanations are given by appropriate individuals or services.

49. Standard 9.11
Psychologists are responsible for making reasonable efforts to maintain the integrity and security of tests and other assessment techniques consistent with the law, contractual obligations, and the code of ethics.

50. NASP: Ethical Issues
National Association of School Psychologists (NASP) also have a code of ethics, “NASP Professional Conduct Manual”
nasponline.org/standards/ProfessionalCond.pdf

51. Joint Committee on Testing Practices Code
of Fair Testing Practices in Education
The Code of Fair Testing Practices in Education provides guidelines for assessment in the following areas:
Developing and Selecting Appropriate Tests
Administering and Scoring Tests
Reporting and Interpreting Test Results
Informing Test Takers

52. National Council on Measurement in
Education (NCME) Code of Professional
Responsibilities in Educational Measurement
The Code for Professional Responsibilities in Educational Measure provides guidelines for assessment for individuals who:
Develop assessment products and services
Market and sell assessments products and services
Select assessments products and services
Administer assessments
Score assessments
Interpret, use, and communicate assessment results
Educate others about assessment
Evaluate educational programs and conduct research on assessments

53. Ethical Issues
There are numerous common themes among the ethical codes and guidelines available for assessment.

54. Professional Training and Competence
Counselors should be properly trained for the assessments they use.
Different assessments require different levels of training to administer, score, and interpret.

55. Competency Guidelines
Understand basic measurement concepts such as scales of measurement, types of reliability, types of validity, and types of norms.
Understand the basic statistics of measurement and define, compute, and interpret measures of central tendency, variability, and relationship.
Compute and apply measurement formulas such as the standard error of measurement and the Spearman-Brown prophecy formula [test length relates to reliability].
Read, evaluate, and understand test manuals and reports.

56. Competency Guidelines, Cont.
Follow exactly as specified the procedures for administering, scoring, and interpreting a test.
List and discuss major tests in their fields.
Identify and locate sources of test information in their fields.
Discuss as well as demonstrate the use of different systems of presenting test data in tabular and graphic forms.
Compare and contrast different types of test scores and discuss their strengths and weaknesses.
Explain the relative nature of norm-referenced interpretation and the use of the standard error of measurement in interpreting individual scores.

57. Competency Guidelines, Cont.
Help test takers and counselees to use tests as exploratory tools.
Aid test takers and counselees in their decision making and in their accomplishment of developmental tasks.
Pace an interpretative session to enhance clients’ knowledge of test results.
Use strategies to prepare clients for testing to maximize the accuracy of test results.
Explain test results to test takers thoughtfully and accurately, and in a language they understand.

58. Competency Guidelines, Cont.
Use the communication skills needed in test interpretation and identify strategies for presenting the results to individuals, groups, parents, students, teachers, and professionals.
Shape clients’ reaction to and encourage appropriate use of the test information.
Be alert to the verbal and nonverbal cues expressed by clients, not only in the testing situation but also during feedback situations.
Use appropriate strategies with clients who perceive the test results as negative.

59. Competency Guidelines, Cont.
Be familiar with the test interpretation forms and computerized report forms in order to guide clients through the information and explanation.
Be familiar with the legal, professional, and ethical guidelines related to testing.
Be aware of clients’ rights and the professional’s responsibilities as a test administrator and counselor.
List and discuss the current issues and trends in testing.

60. Competency Guidelines, Cont.
Present results from tests both verbally and in written form and know what types of information should be presented in case studies and conferences.
Discuss and utilize strategies to assist an individual in acquiring test-taking skills and in lowering test anxiety.
Identify and discuss computer-assisted and computer-adaptive testing and show application to their fields.

61. Test User Qualifications
User qualification is a controversial area. Some professionals maintain that only psychologists should have the right to assess, while others argue that professionals with appropriate levels of training should be able to assess.

62. Test User Qualifications
In 1950 the APA developed a classification system for assessments.
While the system was later dropped, many publishers continue to use this system.
A-Level – No advanced training required.
B-Level – Graduate degree with assessment coursework.
C-Level –B-Level qualifications plus a doctorate in psychology or related fields; with specialized training and supervision in assessment.

63. Qualifications of Test Users
ACA Standards for the
Qualifications of Test Users
Skill in practice and knowledge of theory relevant to the testing context and type of counseling specialty.
A thorough understanding of testing theory, techniques of test construction, and test reliability and validity.
A working knowledge of sampling techniques, norms, and descriptive, correlational and predictive statistics.

64. Qualifications of Test Users, Cont.
ACA Standards for the
Qualifications of Test Users, Cont.
Ability to review, select, and administer tests appropriate for clients or students and the context of the counseling practice.
Skill in administration of tests and interpretation of test scores.
Knowledge of the impact of diversity on testing accuracy, including age, gender, ethnicity, race, disability, and linguistic differences.
Knowledge and skill in the professionally responsible use of assessment and evaluation practice.

65. Client Welfare Issues
Philosophical differences between psychologists and educators exist in regards to testing.
Counselors and psychologists consider confidentiality to be a critical issue.
Educators are often less concerned with issues of confidentiality in regards to the use of tests.

66. Test Bias
Historically, test content has expressed a favoritism toward white middle-class individuals.
Care should be taken to ensure that assessments are appropriately normed for clients and that results are interpreted in a way that accounts for client context.
Some gains are being made in creating assessments that have greater sensitivity to minorities.

67. Internet-based Assessment
Internet-based testing provides a mix of benefits and liabilities.
Benefits include:
The large population access
Lower cost
The possibility of providing the tools around the clock, without any time limitation
The completely voluntary participation, which usually improves respondents’ motivation

68. Internet-based Assessment, Cont.
Limitations of Internet-based testing include:
Questions regarding validity and reliability
Poor test construction
Commercially driven

69. Legal Issues in Assessment
Statutes: laws written by legislative bodies.
Regulations: laws created by government agencies.
Judicial decisions: laws created by opinions from the court, often in litigation cases.

70. Americans with Disability Act of 1990
Employers cannot select and administer an employment test if a particular disability adversely affects an individual’s performance on that test.
Individuals with disabilities must be assessed using “reasonable accommodations.”

71. Americans with Disability Act of 1990
Modifications might include:
extending testing time
providing written materials in large print, braille, or audiotape
providing readers or sign language interpreters
holding test administration in accessible locations
using assistive devices

72. Civil Rights Act of 1991
All formal assessment instruments used for employment decisions that may adversely affect hiring, promotion, or other employment opportunity for classes protected by Title VII constitutes discrimination unless the test can demonstrate “a reasonable measure of job performance.”

73. Family Education and Privacy Act of 1974
Protects students rights in regards to records.
Parents have the right to access their children’s records, including test scores.

74. Individuals with Disabilities Education Improvement Act of 2004
Requires states to have a system in place for assessing individuals from birth to 21 who may have a disability.
The purpose of disability assessment is to:
To determine if the child is a “child with a disability” as defined by IDEA.
To gather information that will help determine the child’s educational needs.
To guide decision making about appropriate educational programming for the child.
As a result of this act, schools have multiple means available for assessing learning disabilities.

75. Individuals with Disabilities Education Improvement Act of 2004, Cont.
Many states use a Response to Intervention model to assisting students:
Early screening of all students to identify those who are at-risk for academic failure.
Providing research-supported instruction and other interventions to at-risk students.
Conducting frequent and repeated measures of student progress to assess the effectiveness of interventions.
Providing special education to those students who are achieving below age/grade expectations and fail to make adequate progress having been provided research-based instruction and interventions.

76. Health Insurance Portability and Accountability Act of 1996
Provides mandatory guidelines for maintaining the privacy of health records.
General guidelines include:
Provide information to clients about their privacy rights and how that information can be used
Adopt clear privacy procedures for their practices
Train employees so that they understand the privacy procedures
Designate an individual to be responsible for seeing that privacy procedures are adopted and followed, i.e., a privacy officer
Secure patient records

77. No Child Left Behind Act of 2001
Requires schools to demonstrate outcomes measures for learning.
Core principles include:
Stronger accountability
Increased flexibility and local control
Expanded options for parents
Emphasis on effective teaching

78. Carl D. Perkins Vocational and Technical Education Act of 2006
Increases accountability for Career and Technical Education programs.
Strengthens the relationship between secondary and postsecondary education.

79. Judicial Decisions Involving Educational Assessment
Larry P. v. Riles (1974, 1979, 1984)
[use of IQ testing with Afr. Amer.]
Diana v. California State Board of Education (1973, 1979)
[2nd lang]
Debra P. v. Turlington (1979, 1981, 1983, 1984)
[Afr.Amer. Students & graduation exam]
Sharif v. New York State Educational Department (1989)
Gender bias in testing

80. Judicial Decisions Involving Employment Tests
Griggs v. Duke Power Company (1971)
Washington v. Davis (1976)
Bakke v. California (1978)
Golden Rule Insurance Company v. Richard L. Mathias (1980)
Contreras v. City of Los Angeles (1981)
Berkman v. City of New York (1987)
Watson v. Fort Worth Bank and Trust (1988)
Ward Cover Packing Company v. Antonio (1989)