Tuesday, December 6, 2016

Can Seeing A Therapist Block Your Security Clearance?

On November 16, 2016, National Intelligence Director James Clapper, issued Revised Instructions for Completing Question 21, Standard Form 86, “Questionnaire for National Security Positions,” ES 2013-00242.  Once the new Section 21 is made part of the SF-86, applicants for security clearances will face a different set of questions than in the past under Section 21 Psychological and Emotional Health.

The new Section 21, soon to be part of the SF-86, will comprise five questions.  They ask whether the applicant has:
  1. Been declared mentally incompetent by a court or administrative agency;
  2. Been ordered to consult with a mental health professional by a court or administrative agency;
  3.  Been hospitalized for a mental health condition;
  4. Been diagnosed by a physician or other health professional with specifically listed diagnoses; and/or
  5. A mental or other health condition that substantially adversely affects judgment, reliability or trustworthiness. 
The focus now is on the condition.  In the past, applicants were asked whether they had “consulted with a health care professional regarding an emotional or mental health condition.”  The mere act of consulting with a therapist or other mental health professional served as a stand-in for determining the existence of a mental health condition for purposes of the security clearance background investigation.  That question is now gone, replaced by questions asking for a diagnosis or conclusions reached by a court, or doctor, regarding a mental health condition.  DNI Clapper explains that, “These questions shift the focus from whether an individual has sought treatment to whether an individual has a condition that may affect his or her eligibility for access to classified information (security clearance) or for eligibility to hold a sensitive position.”  The change is intended to remove any concerns that applicants may have that seeking mental health treatment might “negatively impact their ability to receive a security clearance.”  DNI Clapper is emphatic,
I want to make clear that an individual’s decision to seek mental health treatment and/or counseling will not, in and of itself, adversely impact his or her ability to obtain or maintain a national security position, or alone form the basis for a denial or revocation of a security clearance.
The Preamble to the policy also states clearly, “Seeking or receiving mental health care for personal wellness and recovery may contribute favorably to decisions about your recovery.”  It remains to be seen whether seeking mental health care may now even become a “mitigating factor” in clearance decisions, as seeking therapy for alcohol addiction mitigates concerns regarding alcohol use.  See Adjudicative Guidelines ¶ 23(b-d).

Adjudicators are already admonished that “No negative inference concerning the standards in this Guideline may be raised solely on the basis of seeking mental health counseling.” (Adjudicative Guidelines, ¶ 27).  And see, EO 12968 ¶ 3.1(e) currently in effect:
No negative inference concerning the standards in this section may be raised solely on the basis of mental health counseling.  Such counseling can be a positive factor in eligibility determinations.  However, mental health counseling, where relevant to the adjudiction of access to classified information, may justify further inquiry to determine whether the (general eligibility criteria) are satisfied, and mental health may be considered where it directly relates to those standards.
The effort to ensure that security clearance adjudication proved no bar to clearance holders seeking mental-health treatment has been ongoing for some time before this most recent revision.

How the new questions will be used as part of the investigatory and adjudicatory process will not be clear for some time.  We will want to watch especially the last of the five new questions, which asks the applicant to self-assess whether a mental health condition “substantially adversely affects judgment, reliability or trustworthiness” and report only those that do rise to this “substantially adversely” standard.   The applicant’s self-assessment here would seem to create a mine-field of risks.  Except in extreme cases, how is an applicant to know whether his/her judgment, reliability or trustworthiness is “substantially adversely” affected by a mental health condition?  And what will be the penalty for misjudging this reporting standard?

Certainly, revisions to Section 21 make it no longer necessary for a person seeking counseling for a minor mental health problem to disclose that counseling on the SF-86.  But it is difficult to know now the risks to an applicant with some, but not substantial, mental health issues.   Just where will the line will be drawn – and how enforced, for the “substantially and adversely” standard for reporting mental health conditions on the SF-86?

This blog was written by Mary Kuntz.

This blog is provided to our readers for informational purposes only.  It is not offered as legal advice. Communication of information through this blog does not create an attorney-client relationship. You should not rely upon information contained in this blog without first seeking professional legal advice. If you would like a telephone screening or consultation with a KCNF attorney, you are welcome to call 202-331-9260 to begin our intake process, or submit your legal issue at http://www.kcnlaw.com/Contact.shtml.

No comments: