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Security Clearance Attorney Sean M. Bigley represents clients worldwide in security clearance denials and revocations. He is a former investigator for the U.S. Office of Personnel Management. For more information, please visit www.bigleylaw.com.
This article is the first in a three-part series on psychological considerations for security clearance holders.
If you have a psychological condition that the government fears could adversely impact your ability to perform your duties or safeguard classified information, you may be ordered to meet with a mental health professional for an assessment.
Such an assessment could occur at any time: during the investigation phase of the security clearance or suitability process; during the adjudication phase; or between regularly scheduled background investigations if information of adjudicative significance arises (the most common examples being concerning workplace behavior or signs of substance abuse). Regardless of when it occurs, the examination is on the government’s dime. Your insurance is not billed, nor are you expected to make a co-pay. So, as someone recently put it to me, “you get a paid day off to go rest on some shrink’s comfy couch.” Not such a bad deal, right?
Not so fast. This is where the phrase “nothing in life is free” proves itself true. That’s because in the context of a government-directed fitness for duty evaluation, you, the security clearance holder, are not actually considered the provider’s “client.” Whatever you tell the psychologist or psychiatrist will be reported to your employer, along with whatever professional observations the provider makes of you. Those things might be favorable to your position – in which case, yes, you did get a paid day off of the nine-to-five drudgery. But more often than not, those things are unfavorable. And in that case, you might be looking at a lot more days off – when your security clearance or suitability has been denied and you are out of a job.
Confidentiality, HIPAA and Employment Suitability
“But wait”, you are probably thinking; “I thought anything I tell a doctor is confidential”?
It is true that under HIPAA, the federal law governing patient confidentiality, in most circumstances doctor-patient interactions, and your medical records more broadly, are strictly confidential. Remember the nuance here though: the doctor is not evaluating you for your own sake in a fitness for duty exam, she or he is doing it for the government. What good would these evaluations be if the evaluator was prohibited from sharing his or her findings with the requesting federal agency?
Of course, keep in mind that a refusal to participate in a mental health examination is, in and of itself, grounds to deny your security clearance or employment suitability. So, in most cases, the gamble of an unfavorable evaluation is worth the risk. Adverse mental health reports can often be rebutted by a competent attorney and expert witness. There are, however, certain scenarios in which agreeing to a government-directed mental health examination could be an egregious miscalculation – specifically, where the examinee admits to major and previously unknown issues (e.g. viewing illegal pornography; a compulsive urge to steal; or other non-criminal blackmail concerns), as I have seen multiple examinees do. The bottom line is that whether to agree to or decline a government-directed mental health evaluation should be a decision you make after some thoughtful consideration of the pros and potential cons. Psycho-analysis is not in everyone’s best interest.
This article is intended as general information only and should not be construed as legal advice. Consult an attorney regarding your specific situation.