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Intellectual Disability Assessment: Malingering and Retrodiagnosisin Death Penalty Cases Denis W. Keyes , Ph.D.   &    Sal M. Blandino, Ph.D.
Malingering Intellectual Disabilities… * CHARACTERISTICS 1.  RESPONSE INCONSISTENCY 2.  EXTENDED RESPONSE LATENCY 3.  EXAGGERATION OF PROBLEM 4.  TENDENCY TO FATIGUE
DETERMINING THE EXISTENCE OF MALINGERING:  USE OF FORMAL ASSESSMENT INSTRUMENTS  TEST OF MEMORY MALINGERING (TOMM, 1996)   BAROFF (2000)  SUGGESTED THAT USE OF TOMM WAS A VALID ALTERNATIVE         (at APA IN TORONTO)   TOMBAUGH INDICATED NO SAMPLING INCLUDED SUBJECTS WITH IDD  (PERSONAL CORRESPONDENCE,  2001)  t
2. REY 15 ITEM MEMORY TEST – II “Results of the study suggest that when compared to the TOMM, the qualitative as opposed to quantitative scoring methods of the REY-II was more discriminative, but showed both positive and negative predictive power that was unacceptably low, falling at .62 and .64 respectively.”   (WHITNEY, HOOK, STEINER, SHEPHARD, CALLAWAY, 2008, p. 287)
VALIDITY INDICATOR PROFILE  (VIP)(Frederick, 1997)   “Two alternative forced choice procedure intended to identify when the results of cognitive and neuropsychological testing may be invalid because of malingering or other problematic response styles.”
Use of the VIP… Rogers & Bender (in Goldstein, 2003) stated: The VIP should not be used clinically with two groups manifesting cognitive impairment, namely those with mental retardation or learning disabilities.  As noted by Frederick (1997), the VIP should not be used to evaluate patients with mental retardation (i.e., operationalized as Shipley IQs less than or equal to 75).   However, Frederick  (personal communication with Blandino, 2007) indicated that the VIP can be used with individuals who have IDD.  (The technical manual does include norms for individuals w/ IDD.)
NEW MR/ID MALINGERING RESEARCH STUDY:  EXISTING MEASURES THAT GOOD FOR MR/ID (Shandera, Berry, Clark, Schipper, Graue & Harp, 2010) ELEVEN STANDARD PSYCHOLOGICAL ASSESSMENT INSTRUMENTS  AND TESTS OF NEUROCOGNITIVE & PSYCHIATRIC FEIGNING WERE ADMINISTERED UNDER STANDARD INSTRUCTION TO 24 PARTICIPANTS DIAGNOSED WITH MILD MR AND 10 DEMOGRAPHICALLY MATCHED COMMUNITY VOLUNTEERS (CVH).  A SECOND GROUP OF 25 COMMUNITY VOLUNTEERS WAS INSTRUCTED TO MALINGER MR (CVM) DURING TESTING.  (n = 59) CVM PARTICIPANTS OBTAINED WAIS-iii FULL SCALE IQ SCORES THAT WERE SIGNIFICANTLY LOWER THAN THE DEMOGRAPHICALLY SIMILAR CVH GROUP BUT COMPARABLE TO THE MR GROUP, SUGGESTING THAT CVM SUBJECTS WERE FEIGNING COGNITIVE IMPAIRMENT.
NEW MR/ID MALINGERING RESEARCH STUDY:  EXISTING MEASURES THAT GOOD FOR MR/ID (Shandera, Berry, Clark, Schipper, Graue & Harp, 2010) STANDARD CUTTING  SCORES  (TEST MANUALS & ARTICLES,) OF FEIGNING MEASURES ADMINISTERED, ONLY THE TOMM  RETENTION (TRIAL 3) HAD A SPECIFICITY RATE GREATER THAN .90 IN THE MR GROUP.  HOWEVER, THE 2ND LEARNING TRIAL (TOMM) & A SHORT FORM OF THE DIGIT MEMORY TEST APPROACH THIS LEVEL OF SPECIFICITY WITH BOTH AT .88       THESE RESULTS RAISE CONCERNS ABOUT THE SPEFICITY RATES AT RECOMMENDED CUTTING SCORES (VALID OR INVALID) OF COMMONLY USED FEIGNING TEST IN DEFENDANTS WITH MR...
MALINGERING  MR  IN A CASE IN ARIZONA  (2009), A DEFENDANT MALINGERED HIS ACTUAL LEVEL OF CAPABILITY, DESPITE  THE FACT THAT  HE WOULD HAVE QUALIFIED  AS  IDD . . .  LETTERS  TO  GIRLFRIEND  &  STICK FIGURE DRAWINGS… THIS RAISES THE ISSUE:   HOW TO APPROACH THOSE DEFENDANTS WHO ARE CLOAKING  (OR OUTRIGHT DENYING) THE EXISTENCE OF THEIR DISABILITY BY DELIBERATELY PERFORMING LOWER THAN THEY HAVE TO…
STACKING THE DECK… 1.  BE UPFRONT ABOUT THE LEVEL OF EFFORT YOU EXPECT 2.  WARN THE EXAMINEE IF YOU SUSPECT LACK OF EFFORT 	- OFFER ONE OPPORTUNITY TO TRY AGAIN…  	  (DAP, KFD, HTP, PERSONAL INFORMATION, SPELLING, MATH,            MONEY, TIME, OTHER INFORMAL TESTING THAT MAY BE REPEATED             WITHOUT PREJUDICE…) 3.  IF YOU SUSPECT MALINGERING, HAVE A “COME TO JESUS” CHAT…  	- STOP THE TESTING AND TELL THE EXAMINEE YOU’RE NOT GOING TO CONTINUE UNLESS THEY ARE COOPERATIVE, AND CONTACT THE ATTORNEY.     	- YOU MAY WANT TO DISCONTINUE THE ASSESSMENT FOR THAT DAY, AND RESCHEDULE (IF POSSIBLE), IN ORDER TO GIVE TIME FOR THE ATTORNEY TO INSTRUCT THE CLIENT ABOUT THE DANGER OF MALINGERING TO HIS CASE…
RETRODIAGNOSIS  “An  Archeological  Expedition” Basically, we must go back in time to determine what was not determined then… Organize the case – what do you need first? Three Things:  Records!!!   Records!!!   Records!!! Documentation that might support or indicate the presence of any intellectual, adaptive, emotional, or developmental  issues or problems (i.e., placement in any special education program)  Don’t forget the overrepresentation of ethnic minorities in Spec. Ed!
The law requires… In criminal cases, the burden is placed on the defense to prove the existence of IDD/MR.   Background data and historical documentation that support the likelihood of “problems” or deficits noted in school, in social workers’ reports, psychologists’ data, etc., can be	 used to help prove the existence of disabilities that were not identified for VARIOUS reasons…  Parental refusal to place, Halo Effect, minority overrepresentation in Spec ED, teacher reluctance
2. Finding documentation FERPA & HIPAA Family Education Rights and Privacy Act Health Insurance Portability & Accountability Act These have resulted in schools destroying docs However, the government keeps copies… IDEA (20 USC at 1400, et seq., 2004) Congress requires 100 day reports sent for the annual report of IDEA; all those data still housed in the U.S. Dept. of Education…   Schools & medical records  Juvenile delinquency and correctional records
Where else to find data?(3. Qualitative Data/Information) Local schools & County School Board	 Teachers!!  Principals!! School Psychs!!  Guidance!! Social Security Administration & SSI Doctors & hospitals Prior psychological and/or academic testing Social workers and probation officers Ministers & Spiritual supports, employers
4. Adaptive Functioning Assessment (Quantitative Data/Information) -The most difficult aspect of conducting Atkins evals…WHY? -as opposed to the IQ prong, the construct of adaptive behavior is more difficult to understand and apply than intelligence -is more subjective as opposed to objective -retrospectively assessing an individual’s “typical” functioning prior to age 18  is difficult to assess in an incarcerated person due to the issue of finding respondents (i.e., family members, teachers, caretakers, etc.) who can accurately recall the person’s functioning
The accuracy of the respondent’s ratings is affected by:       a) memory, given the respondent having to recall the defendant’s functioning after not having contact with them for several years/decades due to being incarcerated and on death row and        b) bias, leading to a minimization and/or underestimating of functioning given the stakes involved.
-As indicated by Tasse’ (2009)… The assessment of MR is “not a measure of capacity of knowledge but in fact is a measure of what the individual typically does and what is the degree of independence in performing these skills” Since we are assessing “typical” functioning isolated/antecdotal examples of competent functioning DOES NOT disprove a diagnosis of IDD/MR (i.e., being able to drive, work/employment skills, “playing” chess, doing “crossword” puzzles, being an “expert” on Biblical passages) Also, within a prison environment, which is a highly structured environment, a person with IDD/MR tends to do well.  Thus, observations/ratings of correctional officers should not be used because they tend to overestimate the person’s abilities
Four Characteristics of Informants/Respondents (Bonnie and Gustafson, 2007) should have contact with the defendant almost every day 2. their contacts should generally last for at least several hours at a time 3. they should have had these contacts within the last several months 4. they should have had opportunities to observe the variety of skills measured by the adaptive behavior tests
Remember, the information obtained from respondents has to be reliable and accurate in order to obtain accurate and reliable scores/results on objective measures.  Thus, information reported is only as good as the informants/respondents providing the information.  If not… Garbage In = Garbage Out Thus, always a good idea and good practice to obtain as many sources/respondents as possible to corroborate information
Also, to increase accuracy and reliability of information reported by respondents in adaptive assessment (Tasse’ 2009):    -Identify a clear time period during which you want the respondent to focus their report of the individual’s adaptive behavior (instruct the respondent to recall the assessed individual before he was incarcerated)    -Build rapport with the respondent and ask them to think about where the assessed person was living at that specified time, working, etc.  These points of reference are important and will assist the respondent recall of that time period    -During the assessment, periodically remind the respondent that they are assessing the individual’s adaptive behavior in that specific time period
5. The Defendant as an Informant Highly suspect  Two Issues:    a)“Faking Bad” or over-exaggeration of deficits given the stakes    b)“Faking Good” or exaggerated claims of competence in order to mask the disorder and avoid embarrassment and stigmatization (“Cloak of Competence”)
.  6. Age of Onset/Developmental Origin   Meeting this prong does not require that the “formal” diagnosis be made before the age of 18 or that standardized testing used to support the diagnosis been administered prior to age 18.  It requires that there is evidence, not necessarily objective test scores that intellectual and adaptive deficits manifested prior to age 18 (reality is documentation-records of previous testing tends to make life easier!)
Age of onset/Developmental Origin (cont.)   Thus, if a defendant is proven, by testing and history, to have IDD/MR and there is no suspicion of malingering, it is safe to assume that the onset was prior to age 18 in the absence of any evidence of later onset due to brain injury or dementia sustained in adulthood (Bonnie & Gustafson, 2007)
7. IQ TESTING    There may be no previous assessment of intellectual functioning, particularly prior to age 18    This stresses the importance of having reliable data from multiple sources (convergent validation)    If there is previous testing within the range of IDD/MR - great!      But it can be a problem if previous testing is not in IDD/MR range and/or current testing contradicts this (look at issues of Flynn Effect, SEM, practice effects, malingering).  In the absence of early test protocols, one might speculate that the testing was inaccurate, particularly if the evaluator was not a qualified school psych.
Contact Information:      Denis Keyes, Ph.D.     Keyesd@cofc.edu (843) 813- 8850     Sal Blandino, Ph.D. Drtoto@aol.com (850) 556-3882

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Dr. Keys and Dr. Blandino AAIDD Atkins DP presentations on malingering and retrospective Dx of MR/ID

  • 1. Intellectual Disability Assessment: Malingering and Retrodiagnosisin Death Penalty Cases Denis W. Keyes , Ph.D. & Sal M. Blandino, Ph.D.
  • 2. Malingering Intellectual Disabilities… * CHARACTERISTICS 1. RESPONSE INCONSISTENCY 2. EXTENDED RESPONSE LATENCY 3. EXAGGERATION OF PROBLEM 4. TENDENCY TO FATIGUE
  • 3. DETERMINING THE EXISTENCE OF MALINGERING: USE OF FORMAL ASSESSMENT INSTRUMENTS TEST OF MEMORY MALINGERING (TOMM, 1996) BAROFF (2000) SUGGESTED THAT USE OF TOMM WAS A VALID ALTERNATIVE (at APA IN TORONTO) TOMBAUGH INDICATED NO SAMPLING INCLUDED SUBJECTS WITH IDD (PERSONAL CORRESPONDENCE, 2001) t
  • 4. 2. REY 15 ITEM MEMORY TEST – II “Results of the study suggest that when compared to the TOMM, the qualitative as opposed to quantitative scoring methods of the REY-II was more discriminative, but showed both positive and negative predictive power that was unacceptably low, falling at .62 and .64 respectively.” (WHITNEY, HOOK, STEINER, SHEPHARD, CALLAWAY, 2008, p. 287)
  • 5. VALIDITY INDICATOR PROFILE (VIP)(Frederick, 1997) “Two alternative forced choice procedure intended to identify when the results of cognitive and neuropsychological testing may be invalid because of malingering or other problematic response styles.”
  • 6. Use of the VIP… Rogers & Bender (in Goldstein, 2003) stated: The VIP should not be used clinically with two groups manifesting cognitive impairment, namely those with mental retardation or learning disabilities. As noted by Frederick (1997), the VIP should not be used to evaluate patients with mental retardation (i.e., operationalized as Shipley IQs less than or equal to 75). However, Frederick (personal communication with Blandino, 2007) indicated that the VIP can be used with individuals who have IDD. (The technical manual does include norms for individuals w/ IDD.)
  • 7. NEW MR/ID MALINGERING RESEARCH STUDY: EXISTING MEASURES THAT GOOD FOR MR/ID (Shandera, Berry, Clark, Schipper, Graue & Harp, 2010) ELEVEN STANDARD PSYCHOLOGICAL ASSESSMENT INSTRUMENTS AND TESTS OF NEUROCOGNITIVE & PSYCHIATRIC FEIGNING WERE ADMINISTERED UNDER STANDARD INSTRUCTION TO 24 PARTICIPANTS DIAGNOSED WITH MILD MR AND 10 DEMOGRAPHICALLY MATCHED COMMUNITY VOLUNTEERS (CVH). A SECOND GROUP OF 25 COMMUNITY VOLUNTEERS WAS INSTRUCTED TO MALINGER MR (CVM) DURING TESTING. (n = 59) CVM PARTICIPANTS OBTAINED WAIS-iii FULL SCALE IQ SCORES THAT WERE SIGNIFICANTLY LOWER THAN THE DEMOGRAPHICALLY SIMILAR CVH GROUP BUT COMPARABLE TO THE MR GROUP, SUGGESTING THAT CVM SUBJECTS WERE FEIGNING COGNITIVE IMPAIRMENT.
  • 8. NEW MR/ID MALINGERING RESEARCH STUDY: EXISTING MEASURES THAT GOOD FOR MR/ID (Shandera, Berry, Clark, Schipper, Graue & Harp, 2010) STANDARD CUTTING SCORES (TEST MANUALS & ARTICLES,) OF FEIGNING MEASURES ADMINISTERED, ONLY THE TOMM RETENTION (TRIAL 3) HAD A SPECIFICITY RATE GREATER THAN .90 IN THE MR GROUP. HOWEVER, THE 2ND LEARNING TRIAL (TOMM) & A SHORT FORM OF THE DIGIT MEMORY TEST APPROACH THIS LEVEL OF SPECIFICITY WITH BOTH AT .88 THESE RESULTS RAISE CONCERNS ABOUT THE SPEFICITY RATES AT RECOMMENDED CUTTING SCORES (VALID OR INVALID) OF COMMONLY USED FEIGNING TEST IN DEFENDANTS WITH MR...
  • 9. MALINGERING MR IN A CASE IN ARIZONA (2009), A DEFENDANT MALINGERED HIS ACTUAL LEVEL OF CAPABILITY, DESPITE THE FACT THAT HE WOULD HAVE QUALIFIED AS IDD . . . LETTERS TO GIRLFRIEND & STICK FIGURE DRAWINGS… THIS RAISES THE ISSUE: HOW TO APPROACH THOSE DEFENDANTS WHO ARE CLOAKING (OR OUTRIGHT DENYING) THE EXISTENCE OF THEIR DISABILITY BY DELIBERATELY PERFORMING LOWER THAN THEY HAVE TO…
  • 10. STACKING THE DECK… 1. BE UPFRONT ABOUT THE LEVEL OF EFFORT YOU EXPECT 2. WARN THE EXAMINEE IF YOU SUSPECT LACK OF EFFORT - OFFER ONE OPPORTUNITY TO TRY AGAIN… (DAP, KFD, HTP, PERSONAL INFORMATION, SPELLING, MATH, MONEY, TIME, OTHER INFORMAL TESTING THAT MAY BE REPEATED WITHOUT PREJUDICE…) 3. IF YOU SUSPECT MALINGERING, HAVE A “COME TO JESUS” CHAT… - STOP THE TESTING AND TELL THE EXAMINEE YOU’RE NOT GOING TO CONTINUE UNLESS THEY ARE COOPERATIVE, AND CONTACT THE ATTORNEY. - YOU MAY WANT TO DISCONTINUE THE ASSESSMENT FOR THAT DAY, AND RESCHEDULE (IF POSSIBLE), IN ORDER TO GIVE TIME FOR THE ATTORNEY TO INSTRUCT THE CLIENT ABOUT THE DANGER OF MALINGERING TO HIS CASE…
  • 11. RETRODIAGNOSIS “An Archeological Expedition” Basically, we must go back in time to determine what was not determined then… Organize the case – what do you need first? Three Things: Records!!! Records!!! Records!!! Documentation that might support or indicate the presence of any intellectual, adaptive, emotional, or developmental issues or problems (i.e., placement in any special education program) Don’t forget the overrepresentation of ethnic minorities in Spec. Ed!
  • 12. The law requires… In criminal cases, the burden is placed on the defense to prove the existence of IDD/MR. Background data and historical documentation that support the likelihood of “problems” or deficits noted in school, in social workers’ reports, psychologists’ data, etc., can be used to help prove the existence of disabilities that were not identified for VARIOUS reasons… Parental refusal to place, Halo Effect, minority overrepresentation in Spec ED, teacher reluctance
  • 13. 2. Finding documentation FERPA & HIPAA Family Education Rights and Privacy Act Health Insurance Portability & Accountability Act These have resulted in schools destroying docs However, the government keeps copies… IDEA (20 USC at 1400, et seq., 2004) Congress requires 100 day reports sent for the annual report of IDEA; all those data still housed in the U.S. Dept. of Education… Schools & medical records Juvenile delinquency and correctional records
  • 14. Where else to find data?(3. Qualitative Data/Information) Local schools & County School Board Teachers!! Principals!! School Psychs!! Guidance!! Social Security Administration & SSI Doctors & hospitals Prior psychological and/or academic testing Social workers and probation officers Ministers & Spiritual supports, employers
  • 15. 4. Adaptive Functioning Assessment (Quantitative Data/Information) -The most difficult aspect of conducting Atkins evals…WHY? -as opposed to the IQ prong, the construct of adaptive behavior is more difficult to understand and apply than intelligence -is more subjective as opposed to objective -retrospectively assessing an individual’s “typical” functioning prior to age 18 is difficult to assess in an incarcerated person due to the issue of finding respondents (i.e., family members, teachers, caretakers, etc.) who can accurately recall the person’s functioning
  • 16. The accuracy of the respondent’s ratings is affected by: a) memory, given the respondent having to recall the defendant’s functioning after not having contact with them for several years/decades due to being incarcerated and on death row and b) bias, leading to a minimization and/or underestimating of functioning given the stakes involved.
  • 17. -As indicated by Tasse’ (2009)… The assessment of MR is “not a measure of capacity of knowledge but in fact is a measure of what the individual typically does and what is the degree of independence in performing these skills” Since we are assessing “typical” functioning isolated/antecdotal examples of competent functioning DOES NOT disprove a diagnosis of IDD/MR (i.e., being able to drive, work/employment skills, “playing” chess, doing “crossword” puzzles, being an “expert” on Biblical passages) Also, within a prison environment, which is a highly structured environment, a person with IDD/MR tends to do well. Thus, observations/ratings of correctional officers should not be used because they tend to overestimate the person’s abilities
  • 18. Four Characteristics of Informants/Respondents (Bonnie and Gustafson, 2007) should have contact with the defendant almost every day 2. their contacts should generally last for at least several hours at a time 3. they should have had these contacts within the last several months 4. they should have had opportunities to observe the variety of skills measured by the adaptive behavior tests
  • 19. Remember, the information obtained from respondents has to be reliable and accurate in order to obtain accurate and reliable scores/results on objective measures. Thus, information reported is only as good as the informants/respondents providing the information. If not… Garbage In = Garbage Out Thus, always a good idea and good practice to obtain as many sources/respondents as possible to corroborate information
  • 20. Also, to increase accuracy and reliability of information reported by respondents in adaptive assessment (Tasse’ 2009): -Identify a clear time period during which you want the respondent to focus their report of the individual’s adaptive behavior (instruct the respondent to recall the assessed individual before he was incarcerated) -Build rapport with the respondent and ask them to think about where the assessed person was living at that specified time, working, etc. These points of reference are important and will assist the respondent recall of that time period -During the assessment, periodically remind the respondent that they are assessing the individual’s adaptive behavior in that specific time period
  • 21. 5. The Defendant as an Informant Highly suspect Two Issues: a)“Faking Bad” or over-exaggeration of deficits given the stakes b)“Faking Good” or exaggerated claims of competence in order to mask the disorder and avoid embarrassment and stigmatization (“Cloak of Competence”)
  • 22. . 6. Age of Onset/Developmental Origin Meeting this prong does not require that the “formal” diagnosis be made before the age of 18 or that standardized testing used to support the diagnosis been administered prior to age 18. It requires that there is evidence, not necessarily objective test scores that intellectual and adaptive deficits manifested prior to age 18 (reality is documentation-records of previous testing tends to make life easier!)
  • 23. Age of onset/Developmental Origin (cont.) Thus, if a defendant is proven, by testing and history, to have IDD/MR and there is no suspicion of malingering, it is safe to assume that the onset was prior to age 18 in the absence of any evidence of later onset due to brain injury or dementia sustained in adulthood (Bonnie & Gustafson, 2007)
  • 24. 7. IQ TESTING There may be no previous assessment of intellectual functioning, particularly prior to age 18 This stresses the importance of having reliable data from multiple sources (convergent validation) If there is previous testing within the range of IDD/MR - great! But it can be a problem if previous testing is not in IDD/MR range and/or current testing contradicts this (look at issues of Flynn Effect, SEM, practice effects, malingering). In the absence of early test protocols, one might speculate that the testing was inaccurate, particularly if the evaluator was not a qualified school psych.
  • 25. Contact Information: Denis Keyes, Ph.D. Keyesd@cofc.edu (843) 813- 8850 Sal Blandino, Ph.D. Drtoto@aol.com (850) 556-3882