Forensic & Clinical Psychology

Alta Psychological Services:

4325 Laurel Street, Suite 297
Anchorage, Alaska 99508
907-561-4141

6925 Union Park Center, Suite 550
Cottonwood Heights, Utah 84047
801-273-3365

fax: 866-907-2822
email: markzelig@markzelig.com

Contractual and Ethical Provisions Limiting a Psychologist’s Ability to Provide Raw Test Data to Non-Psychologist

Psychologists are sometimes asked to provide raw test data and other protected test materials to non-psychologists.  When such requests arise in the context of a legal dispute, the psychologist may be reluctant to provide the test materials, particularly if the intended recipient is not a psychologist.  Although the Ethics of the American Psychological Association allows disclosure under certain circumstances, a psychologist should also consider the contractual relationship they hold with the respective test publisher before releasing protected materials.  I have reproduced the policies of three large North American Test Vendors (MHS, Pearson, and Psychological Assessment Resources).

If you are a psychologist and disclosure becomes an issue, I suggest that you check with the test manufacturer – their policies and restrictions may have changed since publication of this document.  It may also be useful to obtain legal counsel.

I have provided some definitions that may be useful in responding to requests to provide such data to non-psychologists.  In my experience, I have usually found that the attorney requesting the materials is not aware of these issues.  After all, any other forensic expert typically provides their findings and data without hesitation to opposing counsel!  The reason why psychologists are unique in this case, and have an ethical obligation to refrain from unprotected release of raw psychological test materials, is because such dissemination can undermine the validity of the instrument, rendering it less useful (or even useless) when used in the future.   I have found it useful to analogize unprotected test disclosure as being equivalent to releasing a currently-used edition of the Law School Admission Test (LSAT).  Accordingly, if the requesting attorney is informed of these concerns, an agreement can usually be formed whereby the psychologist releases the requested materials to another licensed psychologist retained by the requesting attorney.  The recipient psychologist then has the duty to scrutinize the test findings, while taking professional responsibility to safeguard the security of the test instrument.  If you find yourself in such a situation, this document, which summarizes relevant ethical issues and provides sample copies of various contractual agreements with test vendors, may be helpful to the attorneys or the Court.

I am mindful that some psychologists do not want to release these materials out of concern that a peer will find fault with the manner of test administration or interpretation.  The latter, of course, is not a legitimate reason to avoid disclosure.  If you are an attorney or other legal authority, and suspect that test material is being withheld for self-serving (rather than ethical or contractual) reasons, contact my office.  I have drafted a boilerplate motion to compel disclosure of such materials to a licensed psychologist retained by the requesting attorney.

I coauthored a publication that makes recommendations regarding how a psychologist should respond to a subpoena for their records.  This publication is available upon request.

1.  Definition of raw test data and duty to refrain from release if the psychologist is concerned about harm to the client/patient or misuse of test material: “The term test data refers to raw and scaled scores, client/patient responses to test questions or stimuli and psychologists’ notes and recordings concerning client/patient statements and behavior during an examination. Those portions of test materials that include client/patient responses are included in the definition of test data. Pursuant to a client/patient release, psychologists provide test data to the client/patient or other persons identified in the release. Psychologists may refrain from releasing test data to protect a client/patient or others from substantial harm or misuse or misrepresentation of the data or the test, recognizing that in many instances release of confidential information under these circumstances is regulated by law” (Reference: Ethical Principles of Psychologists and Code of Conduct, Section 9.04 (a)).

2.  Responsibility to protect test manuals and test stimuli.  “The term test materials refers to manuals, instruments, protocols and test questions or stimuli and does not include test data as defined in Standard 9.04, Release of Test Data. Psychologists make reasonable efforts to maintain the integrity and security of test materials and other assessment techniques consistent with law and contractual obligations, and in a manner that permits adherence to this Ethics Code”  (Reference: Ethical Principles of Psychologists and Code of Conduct, Section 9.11).

MHS

Client Access to Test Results

MHS’ position on the issue of test disclosure and the release of test results takes into consideration access rights to test information and results under the United States’ Health Insurance Portability and Accountability Act (“HIPAA”) and the Canadian Personal Information Protection and the Electronic Documents Act (“PIPEDA”). For over 25 years, MHS has consistently applied and continues to maintain its non-disclosure policy of its test items, response/answer sheets (which include test items), test manuals, user guides, scoring templates, scoring keys, scoring programs and other test protocols (“Test Materials”), which is consistent with new privacy legislation in both the United States and Canada.

In the US context, the HIPAA Privacy Rule provides that individuals have a qualified right of access to individually “identifiable health information” maintained in their “designated record set” by health care providers covered by HIPAA. MHS advises that Test Materials, such as test protocols, items, scoring criteria, and manuals by themselves are not “identifiable health information” and are thus not releasable. Since HIPAA does not state that the requested information should be made available in a form that is generally understandable to the client, MHS advises health care providers to retain Test Materials, such as item booklets, manuals, and scoring criteria separate from the client’s designated record set. In these circumstances, upon written request, a client may gain access to only the test results.

Even if Test Materials are considered releasable, Section 1172(e) states that health care providers are not required to disclose any information that is a trade secret or confidential commercial information. The U.S. Department of Health and Human Services (HHS) has confirmed by way of a letter dated August 6, 2003, that a client’s access request is subject to the trade secret exemption:

[A]ny requirement for disclosure of protected health information pursuant to the Privacy Rule is subject to Section 1172(e) of HIPAA, ‘Protection of Trade Secrets.’ As such, we confirm that it would not be a violation of the Privacy Rule for a covered entity to refrain from providing access to an individual’s protected health information, to the extent that doing so would result in a disclosure of trade secrets.
MHS has confirmed that the trade secret exemption applies to proprietary Test Materials. MHS advises that its Test Materials are proprietary, copyrighted, confidential commercial information, analogous to trade secrets, and treats and protects them accordingly.
Test Materials thus fall under the exception to release in order to ensure the ongoing safeguarding of such material. To provide clients with test items, scoring criteria, and other test protocols would be to reveal trade secret information on which the scores are based and would render the Test Materials useless. Studies confirm that if test items and test protocols were readily available, the integrity of the test and scoring model could be compromised and would harm the public. There are a limited number of tests for particular purposes that cannot be easily replaced or substituted if made available upon request.

1.    restricted access to materials and the testimony regarding materials to the most limited audience possible, preferably only to individuals who satisfy the test publisher’s qualification policy;
2.    restricted copying of Test materials;
3.    assurance of the return or destruction of the materials at the conclusion of the proceeding (and confirmation of such return or destruction);
4.    the sealing of and/or removing from the record to the extent any portion of such materials are disclosed in pleadings, testimony, or other documents in order to safeguard the integrity of the assessments. It is crucial that the Test Materials do not become part of the public record.

In the absence of a protective court order, we do not support the release of Test Materials to unqualified users who do not have an interest in maintaining the security of the test for the reasons stated above. You may wish to consult a lawyer to assist you with the above. If you have any questions or concerns about the release of protected test materials, please contact MHS by calling 1.800.456.3003.

Accessed February 18, 2013 from http://www.mhs.com/info.aspx?gr=mhs&prod=service&id=TestDisclosure

Pearson

Copyright and Trade Secrets

Pearson Products are protected by various intellectual property laws, including trade secrets, copyright and trademark. Printing or reproducing copyright-protected materials or content, whether the reproductions are sold or furnished free for use, including reproduction of test items, scales, scoring algorithms, scored directions, or other content, is strictly prohibited by law and by these Ts & Cs. Pearson software outputs, including but not limited to reports, are protected as trade secrets. Trade secrets are not permitted to be disclosed in response to requests made pursuant to HIPAAh or to any other data disclosure law that exempts disclosure of information or documents protected as trade secrets.

Customer acknowledges and agrees that the use or disclosure of trade secrets and confidential information in a manner inconsistent with the provisions of these Ts & Cs may cause Pearson irreparable damage for which remedies other than injunctive relief may be inadequate. Accordingly, Customer may request, from a court of competent jurisdiction, injunctive or other equitable relief seeking to restrain such use or disclosure where appropriate under the circumstances. Customer may seek a protective order safeguarding the confidentiality of test materials if Customer is required to produce such materials in court or administrative proceeding.

Accessed January 13, 2012 from http://www.pearsonassessments.com/pai/ca/legal/terms.htm

Litigation

Please feel free to use this policy statement along with the company’s name in your materials. We very much appreciate your concerns with regard to this issue. If you have other questions, please contact Pearson at 800-228-0752 and ask for the Legal Department.

Accessed January 13, 2012 from http://www.pearsonassessments.com/haiweb/Cultures/en-US/Site/General/LegalPolicies.htm

Psychological Assessment Resources

Trade Secrets

PAR considers its tests and test materials to be trade secrets. Test questions and answers, profile forms, manuals, stimulus materials, and other items accompanying the test are confidential, and PAR takes steps to secure and ensure confidentiality of such material throughout the development process. For example, all PAR employees must sign a confidentiality agreement, and external consultants and examiners involved in pilot and standardization edition administrations must also sign confidentiality agreements.

Litigation

PAR values the swift progress of legal proceedings; however, we are unwilling to threaten the security and integrity of our test instruments by consenting to the release of copyrighted and confidential material to those not professionally qualified to obtain them. When litigation involving a psychologist reaches the point that a court is contemplating the release of proprietary test materials to nonprofessionals such as counsel, we ask that the court issue a protective order prohibiting parties from making copies of the materials; requiring that the materials be returned to the professional at the conclusion of the proceedings; and requiring that the materials not be publicly available as part of the record of the case, whether this is done by sealing part of the record or by not including the materials in the record at all.

Additionally, if testimony reveals content of the items or confidential test data, PAR recommends that the court seal the disclosure, and not include the disclosures within the court record. Pleadings and other court filings should not, unless absolutely necessary, make specific reference to the content of or responses to any item, and any portion of any document that does so should be sealed. Finally, we request that the judge’s opinion, including both findings of fact and conclusions of law, not include descriptions or quotations of the items or responses. PAR believes that this is the minimum requirement to protect our copyright, as well as the security, integrity, and validity of the test.

Please feel free to use this policy statement along with the company’s name in your materials. We appreciate your concerns with regard to this issue. If you have other questions, please contact PAR at 800-331-8378 and ask for the Legal Department.

Accessed January 13, 2012 from http://www4.parinc.com/WebUploads/StaticPages/PhotocopyingTestMaterials.pdf