Innov Clin Neurosci. 2014 Nov-Dec; 11(11-12): 41–44.
Access to psychological testing.We’ve considered possibility of being hurt by tests – but what about possible benefits of tests? Who gets those benefits?.WAIS-III kit costs $775 per person – for tester to buy the kit. Cost must be passed on to someone. Who should that be?
PMID: 25621188
This article has been cited by other articles in PMC.
This ongoing column is dedicated to providing information to our readers on managing legal risks associated with medical practice. We invite questions from our readers. The answers are provided by PRMS, Inc. (www.prms.com), a manager of medical professional liability insurance programs with services that include risk management consultation, education and onsite risk management audits, and other resources to healthcare providers to help improve patient outcomes and reduce professional liability risk. The answers published in this column represent those of only one risk management consulting company. Other risk management consulting companies or insurance carriers may provide different advice, and readers should take this into consideration. The information in this column does not constitute legal advice. For legal advice, contact your personal attorney. Note: The information and recommendations in this article are applicable to physicians and other healthcare professionals so “clinician” is used to indicate all treatment team members.
QUESTION
“I perform psychological testing and was trained not to disclose raw psychological testing data directly to patients. I now have a patient demanding access to my testing data, claiming HIPAA [Health Insurance Portability and Accountability Act of 1996] requires disclosure to patients. I offered the patient a summary of the results, but the patient is insisting on the raw data. Is my patient correct? If so, isn’t that going to ultimately result in the invalidity of assessment tools?”
ANSWER
Your patient is correct in that you are required to disclose test data to the patient, pursuant to a release authorization. However, patients do not have access to test materials. While this may seem straightforward, this issue becomes more complicated when the answers are recorded on a test instrument, or when disclosure of testing materials is sought in litigation.
Definitions: “Test data” versus “test materials.” The American Psychiatric Association (APA) updated its Ethical Principles of Psychologists and Code of Conduct (APA Ethics Code) in 2002 to be consistent with patients’ rights under HIPAA to access protected health information. According to the APA:
9.04 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 patient/client responses are included in the definition of test data. 9.11 Test materials refers to manuals, instruments, protocols and test questions or stimuli and does not include test data.
Test data are unique to the particular patient, but test materials do not include anything unique to the patient. If the test materials contain information unique to the patient, they become, by definition, test data that are to be disclosed to patients. For example, if patient responses are recorded on scoring sheets that contain the test items, the scoring sheets become test data.1
Disclosure of test data to patients.Per the APA. APA Ethics Code 9.04, Release of Test Data, states the following:
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. In the absence of a client/patient release, psychologists provide test data only as required by law or court order.
Per state law. Some states have codified in statutes or regulations the patient’s right to access test data. For example, Georgia simply adopted by regulation2 the applicable APA Ethics Code sections, including the statement “pursuant to a client/patient release, psychologists provide test data to the client/patient or other persons identified in the release.” Other states do not address the issue explicitly, but rather in guidance by the state psychology board. As an example, the Kentucky Board of Examiners of Psychology issued an Opinion and Declaratory Ruling Regarding the Release of Raw Test Data addressing the change in the APA Ethics Code. The board advises licensees to disclose test data to patients.
Per HIPAA’s Privacy Rule. As of 2003, under HIPAA’s Privacy Rule, patients of covered entities under HIPAA were granted the right of access to the “designated record set,” which consists of billing and medical records. While “psychotherapy notes,” as defined by the Privacy Rule,3 were excluded from patient access, psychological testing information was not. Section 13424(f) of the Health Information Technology for Economic and Clinical Health (HITECH) Act requires the following:
The Secretary shall study the definition of ‘psychotherapy notes’ in [the Privacy Rule], with regard to including test data that is related to direct responses, scores, items, forms, protocols, manuals or other materials that are part of a mental health evaluation, as determined by the mental health professional providing treatment or evaluation, in such definition and may, based on such study, issue regulations to review such definition.
The Substance Abuse and Mental Health Services Administration was tasked with conducting this study. A few public meetings were held in 2010, but to date, there has been no further information about this issue.
Disclosure of test materials to patients.Per the APA. APA Ethics Code 9.11, Maintaining Test Security, states the following: “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.” Unlike disclosure of test data that was significantly impacted by HIPAA, the disclosure of test materials has remained unchanged. Accordingly, psychologists should continue to only disclose test materials to qualified licensed psychologists or pursuant to a valid court order.
Per state law. States are inconsistent in safeguarding the security and integrity of test materials. Some states, again such as Georgia,2 have adopted by regulation the APA Ethics Code. Other states are more explicit, such as New Mexico,4 where “the psychologist is required to release such [testing] materials only to those licensed and qualified in the use and interpretation of psychological testing and testing materials.” The prohibition on disclosure of test materials to patients may also be found in licensing board guidance, such as the Kentucky Board’s opinion mentioned above. That opinion explicitly states that test materials are not to be disclosed to patients.
Per test publishers. Test publishers need to ensure the validity of their testing materials. One publisher, Pearson, asserts that any reproduction of its tests without the prior written permission from Pearson is a violation of its Terms and Conditions of Sale and Use of Pearson products, and violates copyright and other proprietary rights.5 Moreover, publishers will claim a right of trade secrets. Pearson cites clarification from the Department of Health and Human Services that “it would not be a violation of [HIPAA’s] 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.”5
Disclosure of testing information in ligitation.Psychologists in the treatment role, not the forensic role. Psychologists who perform psychological testing for treatment purposes may receive a subpoena to disclose test information. To disclose test data, the psychologist would need a release authorization from the patient or a valid court order. States are more restrictive on the disclosure of test materials in litigation. Some states preclude the disclosure of test materials in litigation. For example, under Iowa law,6 “the test material shall not be disclosed in any administrative, judicial, or legislative proceeding.” Other states may provide specific advice on responding to subpoenas. For example, under New Mexico law,4 “if test materials are sought by the subpoena or discovery request, the psychologist shall seek a protective order from a court of competent jurisdiction in order to maintain test security. Thereafter, the psychologist shall comply with the court order.”
While valid subpoenas should not be ignored, they need to be responded to. Such a response should include applicable state law and ethics provisions prohibiting the disclosure of test materials. Keeping in mind the contractual issue with the test publisher, psychologists could offer to disclose test materials to the attorney’s expert who is a qualified and licensed psychologist. If the parties continue to insist on the disclosure of the test materials to non-psychologists, psychologists should contact the test publisher’s legal department for further guidance.
Psychologists in the forensic role, not the treatment role. The rules change for psychologists performing independent evaluations for litigation purposes. Section 164.524 of HIPAA’s Privacy Rule exempts from access “information compiled in reasonable anticipation of, or for use in, a civil, criminal, or administrative action or proceeding.” Case law is also instructive.
Requests for forensic psychologist’s test data, In two cases involving custody disputes,7,8 the court-appointed psychologists in the custody cases were asked to disclose raw data from the psychological testing. Both courts ruled that pre-trial disclosure of test data was not appropriate, given the unique role of the court-appointed forensic psychologist in custody cases. The courts noted that this expert is different from experts retained in other types of litigation. The psychologists in both of these cases were directed to bring their notes for testimony, in the event the report was questioned and there was cause at that point for the notes to be disclosed to the attorneys.
Requests for forensic psychologist’s test materials. Courts have denied parties’ motions for disclosure of test materials. One court9 advised the requesting party to subpoena the tests from the test publisher. Other courts10,11 declined to order the disclosure to the attorneys, but advised that the test materials could be disclosed to the qualified psychologists serving as experts in the case. Still other courts12,13 have ordered the disclosure of test materials, but only after putting into place specific protections proffered by the test publishers, via a protective order from the court. These protections included:
- (a) Restricting access to the materials and any testimony regarding the materials to the most limited audience possible, preferably only to counsel and experts engaged by the parties who are professionals qualified to use and interpret the tests;
- (b) Restricting use of the test materials only to that required for the resolution of the pending proceeding;
- (c) At the conclusion of the proceeding, requiring the prompt return of the materials produced and the destruction of any copies made;
- (d) Sealing the record to the extent any portion of such materials are disclosed in pleadings, test, exhibits, or other documents which would otherwise be available for public inspection.
RISK MANAGEMENT ADVICE
- To the extent possible, record test data separately from testing materials.
- Determine if your state licensing board has addressed disclosure of psychological testing information.
- Require proper legal compulsion to disclose test data, i.e., patient authorization or court order.
- When faced with a disclosure request that would impact the security and integrity of the test, seek assistance from the test publisher’s legal department.
Footnotes
SUBMIT YOUR OWN QUESTION: To submit a question, e-mail Elizabeth Klumpp, Executive Editor, moc.mocdemxirtam@ppmulke. Include “Risk Management Column” in the subject line of your e-mail. All chosen questions will be published annymously. All questions are reviewed by the editors and are selected based upon interest, timeliness, and pertinence, as determined by the editors. There is no guarantee a submitted question will be published or answered. Questions that are not intended for publication by the authors should state this in the e-mail. Published questions are edited and may be shortened.
REFERENCES
1. Behnke S. Release of test data and APA’s new Ethics Code. Monitor on Psychology. 2003;34(7):70.[Google Scholar]
3. 45 CFR 164.501 defines “psychotherapy notes” as “notes recorded (in any medium) by a health care provider who is a mental health professional documenting or analyzing the contents of conversation during a private counseling session or a group, joint, or family counseling session and that are separated from the rest of the individual’s medical record. Psychotherapy notes excludes medication prescription monitoring, counseling session start and stop times, the modalities and frequencies of treatment furnished, results of any clinical tests, and any summary of the following items: diagnosis, functional status, treatment plan, symptoms, prognosis, and progress to date.”. [Google Scholar]
4. NM Admin. Code §16.22.2.16(B) [Google Scholar]
5. http://www.pearsonclinical.com/legal.html Pearson. Legal Policies.
7. Ochs v. Ochs, 749 N.Y.S.2d 650 (2002)
9. Gavin v. Hilton Worldwide, Inc., 291 F.R.D. 161 (2013)
10. Walton v. North Carolina Dept. of Agriculture, 2011 WL 2893622 (2011)
12. Taylor v. Erna, 2009 WL 2425839 (2009)
13. Carpenter v. Superior Court, 45 Cal.Rptr.3d 821 (2006)
Articles from Innovations in Clinical Neuroscience are provided here courtesy of Matrix Medical Communications
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📒Handbook Of Psychological Testingby Paul Kline
Genre : Psychology
Publisher : Routledge
ISBN_10 : 9781317798040
Copyright Year : 2013-11-12
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Publisher : Routledge
ISBN_10 : 9781317798040
Copyright Year : 2013-11-12
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DESCRIPTION : Since publication in its first edition the Handbook of Psychological Testing has become the standard text for organisational and educational psychologists. It offers the only comprehensicve, modern and clear account of the whole of the field of psychometrics. It covers psychometric theory, the different kinds of psychological test, applied psychological testing, and the evaluation of the best published psychological tests. It is outstanding for its detailed and complete coverage of the field, its clarity (even for the non-mathematical) and its emphasis on the practical application of psychometric theory in psychology and education, as well as in vocational, occupational and clinical fields. For this second edition the Handbook has been extensively revised and updated to include the latest research and thinking in the field. Unlike other work in this area, it challenges the scientific rigour of conventional psychometrics and identifies groundbreaking new ways forward.
Genre : Psychology
Publisher : Pearson College Division
ISBN_10 : 0205194346
Copyright Year : 1998
File Format : PDF, EPUB
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Publisher : Pearson College Division
ISBN_10 : 0205194346
Copyright Year : 1998
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DESCRIPTION : This new book is the first psychological testing book to devote over 40% of its coverage to psychometric theory. In a detailed account, the author explains why measurement is critical to all sub-areas of psychology-from developing psychologists to educational psychologists to experimental psychologists. The book unfolds with coverage of the specialty areas in psychology. Secondly, it discusses the extent to which tests are actually used. By utilizing this book, readers will gain an appreciation and understanding of how psychological tests impact society. Topics include: measurement and statistics; norms and the meaning of test scores; validity; item analysis; test construction; and more. Developing and seasoned psychologists.
📒The Use Of Psychological Testing For Treatment Planning And Outcomes Assessmentby Mark E. Maruish
Genre : Psychology
Publisher : Routledge
ISBN_10 : 9781135630584
Copyright Year : 2004-07-19
File Format : PDF, EPUB
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Publisher : Routledge
ISBN_10 : 9781135630584
Copyright Year : 2004-07-19
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DESCRIPTION : Test-based psychological assessment has been significantly affected by the health care revolution in the United States during the past two decades. Despite new limitations on psychological services across the board and psychological testing in particular, it continues to offer a rapid and efficient method of identifying problems, planning and monitoring a course of treatment, and assessing the outcomes of interventions. This thoroughly revised and greatly expanded third edition of a classic reference, now three volumes, constitutes an invaluable resource for practitioners who in a managed care era need to focus their testing not on the general goals of personality assessment, symptom identification, and diagnosis so often presented to them as students and trainees, but on specific questions: What course of treatment should this person receive? How is it going? Was it effective? New chapters describe new tests and models and new concerns such as ethical aspects of outcomes assessment. Volume I reviews general issues and recommendations concerning the use of psychological testing for screening for psychological disturbances, planning and monitoring appropriate interventions, and the assessing outcomes, and offers specific guidelines for selecting instruments. It also considers more specific issues such as the analysis of group and individual patient data, the selection and implementation of outcomes instrumentation, and the ethics of gathering and using outcomes data. Volume II discusses psychological measures developed for use with younger children and adolescents that can be used for the purposes outlined in Volume I; Volume III, those developed for use with adults. Drawing on the knowledge and experience of a diverse group of leading experts--test developers, researchers, clinicians and others, the third edition of The Use of Psychological Testing for Treatment Planning and Outcomes Assessment provides vital assistance to all clinicians, and to their trainees and graduate students.
Genre : Psychology
Publisher : Cambridge University Press
ISBN_10 : 9781139455145
Copyright Year : 2006-04-24
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Publisher : Cambridge University Press
ISBN_10 : 9781139455145
Copyright Year : 2006-04-24
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DESCRIPTION : This book is an introductory text to the field of psychological testing primarily suitable for undergraduate students in psychology, education, business, and related fields. This book will also be of interest to graduate students who have not had a prior exposure to psychological testing and to professionals such as lawyers who need to consult a useful source. Psychological Testing is clearly written, well-organized, comprehensive, and replete with illustrative materials. In addition to the basic topics, the text covers in detail topics that are often neglected by other texts such as cross-cultural testing, the issue of faking tests, the impact of computers and the use of tests to assess positive behaviors such as creativity.
Genre : Psychology
Publisher :
ISBN_10 : STANFORD:36105036597107
Copyright Year : 1976
File Format : PDF, EPUB
File Download : 168
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Publisher :
ISBN_10 : STANFORD:36105036597107
Copyright Year : 1976
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DESCRIPTION :
Genre : Social Science
Publisher : SAGE Publications
ISBN_10 : 9781506315942
Copyright Year : 2005-02-15
File Format : PDF, EPUB
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Publisher : SAGE Publications
ISBN_10 : 9781506315942
Copyright Year : 2005-02-15
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DESCRIPTION : Psychological Testing: A Practical Approach to Design and Evaluation offers a fresh and innovative approach for graduate students and faculty in the fields of testing, measurement, psychometrics, research design, and related areas of study. Author Theresa J.B. Kline guides readers through the process of designing and evaluating a test, while ensuring that the test meets the highest professional standards. The author uses simple, clear examples throughout and fully details the required statistical analyses. Topics include—but are not limited to—design of item stems and responses; sampling strategies; classical and modern test theory; IRT program examples; reliability of tests and raters; validation using content, criterion-related, and factor analytic approaches; test and item bias; and professional and ethical issues in testing.
📒Psychological Testing Principles Applications And Issuesby Robert M. Kaplan
Genre : Education
Publisher : Nelson Education
ISBN_10 : 9781133492016
Copyright Year : 2012-05
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Publisher : Nelson Education
ISBN_10 : 9781133492016
Copyright Year : 2012-05
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DESCRIPTION : PSYCHOLOGICAL TESTING: PRINCIPLES, APPLICATIONS, AND ISSUES, Eighth Edition explains the fundamentals of psychological testing, their important applications, and the controversies that emerge from those applications in clinical, education, industrial, and legal settings. Robert M. Kaplan and Dennis P. Saccuzzo’s engaging and thorough text demonstrates how psychological tests are constructed and used, both in a professional setting and in everyday lives. Part I focuses on the core concepts that affect the evaluation of all tests. Part II discusses the major types of psychological tests, while Part III looks at present-day issues affecting testing such as bias, laws, and ethics. Chapters are independent enough to allow instructors to structure their class to achieve course objectives. A multitude of test profiles and sample items illustrate how psychological testing is used and reported. Real-life case studies demonstrate the uses and misuses of psychological testing, helping to maximize student interest, while Technical Example boxes assist students in grasping complex statistical concepts. Important Notice: Media content referenced within the product description or the product text may not be available in the ebook version.
Genre : Employees
Publisher : CIPD Publishing
ISBN_10 : 0852929684
Copyright Year : 2005
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Publisher : CIPD Publishing
ISBN_10 : 0852929684
Copyright Year : 2005
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DESCRIPTION : This leading text has long been established as a definitive introduction for managers and students to understanding what tests are. The new edition will embrace current trends and practices. The book's aim is to cover the many tests that have been designed for use in the areas of clinical or educational psychology.
📒Foundations Of Psychological Testingby Leslie A. Miller
Genre : Psychology
Publisher : SAGE Publications
ISBN_10 : 9781483369273
Copyright Year : 2015-06-16
File Format : PDF, EPUB
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Publisher : SAGE Publications
ISBN_10 : 9781483369273
Copyright Year : 2015-06-16
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DESCRIPTION : Offering a clear introduction to the basics of psychological testing as well as to psychometrics and statistics, Foundations of Psychological Testing: A Practical Approach, Fifth Edition by Leslie A. Miller and Robert L. Lovler is a practical book that includes discussion of foundational concepts and issues, using real-life examples and situations that students will easily recognize, relate to, and find interesting. A variety of pedagogical tools further the conceptual understanding needed for effective use of tests and test scores. Now aligned with the 2014 Standards for Educational and Psychological Testing, the Fifth Edition offers new and expanded content throughout.
Genre : Medical
Publisher : Pearson College Division
ISBN_10 : UOM:39015040704309
Copyright Year : 1997
File Format : PDF, EPUB
File Download : 721
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Publisher : Pearson College Division
ISBN_10 : UOM:39015040704309
Copyright Year : 1997
File Format : PDF, EPUB
File Download : 721
Price : FREE
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DESCRIPTION : This classic, authoritative introduction to psychological testing is widely hailed for its broad coverage and its ability to cover 'graduate school' topics in terms that one with little testing experience can understand. This book familiarizes the reader with the basics of test construction and prepares the reader to effectively evaluate different tests, choose tests for particular purposes and individual examines, and interpret scores properly.