Dear Editor:

I wish to comment on an article that was published in the November-December 2014 issue of Innovations in Clinical Neuroscience on disclosure of psychological testing information.[1]

I find it more helpful, when considering disclosure of records, to follow the law (rather than my role or ethics codes), and to distinguish three categories of law:
1. Privilege laws (disclosures to the legal system)
2. Privacy/confidentiality laws (disclosures to third parties)
3. Access laws (disclosures to patients/evaluees).

The general rule regarding access is that patients are afforded a broad right to obtain copies of their records. For example, the Health Insurance Portability and Accountability Act of 1996 (HIPAA)[2] likely requires access to test data, because its definition of protected health information is quite broad. Further, HIPAA preempts any state law that restricts patient access to records. Thus, for those clinicians who are covered entities, HIPAA likely requires disclosure of test data to the patient. (I acknowledge that the law regarding disclosure of records can be vague, complicated, located in disparate statutes, and even contradictory. For example, although Texas statutes adopt HIPAA,[3] the Texas Board of Psychology rules prohibit forensic evaluees from obtaining copies of their records.[4])

Similarly, it appears that forensic evaluees are permitted access to their test data. First, the HIPAA exemption for “information compiled in reasonable anticipation” of litigation does not appear to apply to forensic evaluations; it refers to information that would enjoy the protection of attorney work product.[5] Secondly, the two child custody cases cited by Vanderpool[1] are likely inapplicable, because local New York rules differ from other states and because admissibility of mental health records in child custody cases differs from other types of cases.[6] These two decisions may reflect exceptions to the law, rather than the general rule.

Further, an expert may assert ethical and legal prohibitions against disclosure of test data, and some courts may accept the argument at face value without a hearing. However, few courts have refused to foreclose discovery of test data entirely.[7] Additionally, evaluees can typically obtain copies of their records from their attorneys, and retain an independent right to access their records outside of the legal system.[8]

Can a clinician provide a summary (of records) in lieu of test data? HIPAA does permit this,[9] but only if the patient agrees. When the patient has not agreed, the provider does not have the option of producing a summary.

The real problem here is test protocols that overlap with, or otherwise reveal, test stimuli. Few clinicians disclose test manuals, for example, and most do not have a problem with disclosing answer sheets (e.g., Minnesota Multiphasic Personality Inventory-2[10]). Test protocols, however, that reveal the stimuli are both test data and test materials (e.g.,Wechsler Memory Scale[11]). The conflict occurs because we are simultaneously required to disclose the protocol to the patient (the American Psychological Association’s Ethical Principles of Psychologists and Code of Conduct[12] [EPPCC] Standard 9.04) and to prevent the dissemination of the test (EPPCC Standard 9.11).

Will disclosures of these overlapping protocols result in invalid tests? Although psychologists do have an ethical duty to maintain the integrity and security of test materials, these duties are limited to reasonable efforts that are consistent with law (EPPCC Standard 9.11). Thus, if the law requires disclosure, then ethics may not permit withholding. Further, disclosing a single copy of test data to the evaluee is unlikely to result in the invalidation of a test, so prohibiting access to a single evaluee may not be reasonable. Finally, test publishers created this problem by publishing protocols with overlapping test data and test materials, and they could easily solve the problem by separating test stimuli from evaluee-responses.

1. Vanderpool D. Requests for disclosure of psychological testing information. Innov Clin Neurosci. 2014;11(11–12):41–44.
2. Health Insurance Portability and Accountability Act of 1996. Public Law 104-191. 104th Congress. Accessed July 1, 2015.
3. State of Texas. Health and safety code. Title 2: health. Subtitle 1: medical records. Chapter 181: medical records privacy. Subchapter A: general provisions. Accessed July 1, 2015.
4. Texas Administrative Code. Title 22: examining boards; Part 21: Texas State Board of Examiners of Psychologists; Ch. 465: rules of practice; Admin codes 465.1(3), 465.1(7), 465.22(b), (c)(4).
5. Borkosky BG, Pellett JM. Can forensic evaluators refuse to release records to evaluees because the records are “information compiled in reasonable anticipation of” litigation (as defined by HIPAA)? Am J Forensic Psychol. 2013:31(3):21-40
6. Paruch D. The psychotherapist-patient privilege in the family court: an exemplar of disharmony between social policy goals, professional ethics, and the current state of the law. Northern Illinois University Law Review. 2009;29(3):499–570.
7. Newport-Mesa Unified v. State of Cal. Dept. of Ed. 371 F. Supp. 2d 1170 (C.D. Cal. 2005).
8. See, e.g., In Re McCann, Case Nos. AP-76998, AP-76999 (Tex: Ct. Crim. App., Nov 20, 2013); Kellar v. US Dept of Veteran Affairs. Civil Action No. 08-cv-00761-WYD-KLM (D. Colo. Feb. 6, 2009).
9. United States Code of Federal Regulations. 45 CFR § 164.524 (c)(2)(iii). See also the case example where the provider had relied on state law that permits the provider to unilaterally make this substitution. Accessed July 1, 2015.
10. Butcher JN, Butcher J, Tellegen A, et al. Manual for Minnesota Multiphasic Personality Inventory-2. San Antonio, TX: Psychological Corporation/Pearson Assessment; 2001.
11. Wechsler D. Manual for the Wechsler Memory Scale. 4th ed. San Antonio, TX: Psychological Corporation/Pearson Assessment; 2009.
12. American Psychological Association. Ethical principles of psychologists and code of conduct. July 1, 2015.

With regards,
Bruce G. Borkosky, PsyD
Psychologist, independent practice, Sebring, Florida

Funding/financial disclosures. No funding was received for the preparation of this letter. The author has no conflicts of interest relevant to the content of this letter.

Author Response

Dear Editor:

I do not disagree with most of this reader’s comments. Consistent with his comments, my article states that the Health Insurance Portability and Accountability Act of 1996 (HIPAA)[1] requires disclosure of test data to patients. And I agree with this reader’s statement that “the real problem here is test protocols that overlap with, or otherwise reveal, test stimuli.” Further, as indicated in the advice section of my article,[2] I agree that the solution to the problem is to separate test materials from the responses. Where this reader and I appear to disagree is the interpretation of HIPAA’s exemption from access to “information compiled in reasonable anticipation of, or for use in, a civil, criminal, or administrative action or proceeding.” It is my belief there is no definitive answer, so it is reasonable to look to laws and court opinions for guidance. The reader is correct in noting that case law will not necessarily apply in every jurisdiction and may be very fact-specific.

1. Health Insurance Portability and Accountability Act of 1996. Public Law 104-191. 104th Congress. Accessed July 1, 2015.
2. Vanderpool D. Requests for disclosure of psychological testing information. Innov Clin Neurosci. 2014;11(11–12):41–44.

With regards,
Donna Vanderpool, MBA, JD
Vice President, Risk Management, Professional Risk Management Services, Inc., Arlington, Virginia