adopted by leading Canadian test publishers and the Canadian Psychological Association (CPA)
NOTE: For those interested, here are some related resources on this website:
- Update on Malingering Research
- Deposition and Cross-examination Questions on Psychological Tests & Psychometrics
- Fallacies & Pitfalls in Psychological Assessment: 7 Common Mistakes
- Forensic Assessment Checklist
- Sample Agreement Between Expert Witness & Attorney
- Pearson Assessments HIPAA Regulations
- Harcourt Assessment's HIPAA Position Statement
- Responsibilities in Providing Psychological Test Feedback to Clients
- Practice Guidelines & Ethics Codes for Assessment, Forensics, Counseling, & Therapy
- The MMPI, MMPI-2, and MMPI-A In Court: A Practical Guide for Expert Witnesses and Attorneys (3rd Edition
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 Canadian Personal Information Protection and Electronic Documents Act (“PIPEDA”) and the United States’ Health Insurance Portability and Accountability Act (“HIPAA”). For over 20 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, wall charts, scoring templates, scoring keys, scoring programs and other test protocols (“Test Materials”), which is consistent with new privacy legislation in both Canada and the United States.
The Canadian Psychological Association, MHS and the release of test results under PIPEDA and provincial privacy legislation
The Canadian Psychological Association (“CPA”) and MHS’ maintain a policy of non-disclosure of Test Materials to clients who request such material under PIPEDA and provincial legislation. Psychologists and other qualified test purchasers are encouraged to follow this policy in order to protect the integrity/validity of the assessment, protect the public, and the publisher’s intellectual property rights.
Canadian legislation is not applicable to defined intra-provincial transactions of some organizations where that province has “substantially similar” legislation to PIPEDA. The Quebec Act Respecting the Protection of Personal Information in the Private Sector, and British Columbia and Alberta Personal Information Protection Acts are expected to be declared “substantially similar” by the federal Cabinet. These Acts therefore govern disclosure requests in those provinces. In practical terms, an organization in compliance with these Acts will generally be in compliance with PIPEDA. In all other provinces and territories, the federal legislation PIPEDA applies. These pieces of legislation apply to all personal information, including personal health information about an identifiable individual collected, retained, used, or disclosed in the course of commercial activities. This could include responses to items, test results, test data, reports, name, age, and gender of each client who has been administered an assessment by you, the qualified purchaser of MHS assessments.
Under PIPEDA, Principal 4.9 states that upon request, an individual must be informed of the existence, use, and disclosure of his or her personal information and must be given access to that information if requested. Section 9(3)(b) is an exemption provision stipulating that you are not required to give access to personal information if to do so would reveal confidential commercial information. However, under certain circumstances, access is permissible if the confidential commercial information is severable from the record containing any other information for which access is requested. In all cases, the requested information shall be provided or made available in a form that is generally understandable to the client. Section 23 (b) in the BC Act and Section 24 (2) (b) in the Alberta Acts contain a similar “confidential commercial information” exemption as described above. The Quebec Act does not contain such an exemption; however, release of personal health information may be refused on the basis that release would bring serious harm to the client, third party, or public safety, and would reveal third party personal information.
Regarding the release of such material to individuals who claim access rights under PIPEDA and provincial legislation, MHS advises that Test Materials fall outside the definition of “personal information” since these materials are not “about” the individual and are thus not releasable to a client.
Even if Test Materials are considered personal information and thereby releasable, 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 and access under PIPEDA and provincial legislation 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 confidential commercial 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.
Other jurisdictions such as in the United States have indicated through the U.S. Department of Health and Human Services (HHS) that the similar “trade secret” exemption under HIPAA is applicable to Testing Material which makes the application of the confidential commercial information exemption claim neither fanciful nor disingenuous in the Canadian context.
The test publishing industry considers Test Materials to be confidential information and trade secrets and protects these accordingly. To secure and protect Test Materials, MHS has required, for the past 20 years, the completion of a Test User Agreement which prohibits purchasers from releasing the tests to others who are not qualified to interpret the results or do not have the same ethical obligations to maintain test security, nor has MHS permitted its licensees, distributors, or employees to disclose such material.
The Canadian Psychological Association acknowledges that it is in the best interest of the public to protect the validity and integrity of Test Materials. As such, the CPA and MHS’ policy encourages you to apply the confidential commercial information exemption under PIPEDA to access requests to ensure the ongoing safeguarding of Test Materials. Release of such material would compromise the validity and utility of the tests with resulting significant negative impact on the health of Canadians, lead to the violation of purchase agreements, and infringe on MHS’ intellectual property rights.
However, in accordance with PIPEDA, MHS and CPA’s policy support the release of test results provided that the test results can be severed from the confidential commercial information embedded in the Test Materials and released in an understandable form. This policy permits the release of test results with an explanation of the results in a summary format (such as a feedback summary) that does not reveal the protected test items and other test protocols. Under no circumstances are individuals requesting results or other information entitled to copies of Test Materials.
Upon written request for access and release of Test Materials from your clients under PIPEDA and provincial legislation, the following steps should be followed:
(1) Provide the client with a detailed description/interpretation of the test results and offer to meet to meet with the client.
(2) If the client wants a copy of the item booklet, or response sheet that also contain the items, and/or any materials that contain the scoring criteria, algorithm, model, or other test protocols, explain to them in writing that release of these materials is not possible because it will compromise the integrity of the tests and goes against the policy of the Canadian Psychological Association and MHS, the test publisher.
The requested materials are considered confidential commercial information of the test publisher, MHS and are therefore exempt from disclosure under PIPEDA or provincial legislation. Release of such materials may breach the conditions of the MHS’ Test User Agreement, invalidate the assessment, and/or lead to a violation of MHS’ intellectual property rights;
(3) You may release the client’s test results provided you are able to remove the test items and scoring criteria, or other test protocols that may be attached to the test results or within the document, which are considered confidential commercial information. The test results must be issued in an understandable form, such as in a summary format. MHS and the CPA suggests that the provision of a detailed description/interpretation of the test results as stated in step 1, which does not release any confidential commercial information is sufficient for the purposes of PIPEDA and provincial legislation.
(4)Contact MHS for support if the client appeals your decision to deny access and release of Test Materials to the Privacy Commissioner of Canada, Alberta, BC, or Quebec as the case may be.
For more information regarding CPA’s policy regarding PIPEDA and provincial legislation go to the CPA website. For information regarding release of Test Materials in the litigation context see below.
HIPAA – United States
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:
Any 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.
HHS has confirmed that the trade secret exemption applies to proprietary Test Materials. This statement supports MHS’ non-disclosure policy regarding the release of such material. As already stated, MHS considers all of its Test Materials to be trade secrets and confidential commercial information, the release of which would violate the Test User Agreement, and compromise the validity, integrity, and value of the assessments. Health care providers may refrain from providing access to and copies of a client’s identifiable health information, in so far as to do so would reveal valuable trade secrets and propriety information. It is MHS’ recommendation that you obtain consent from your clients and that you provide clients with summary information.
Release of Test Materials in the Litigation Context and Ethical Obligations
MHS recognizes that, given the nature of our legal system, compelling reasons for disclosure of secured testing material may arise. To abide by the terms of purchase, MHS expects purchasers to do all they can to protect copyright material and to protect the items and scoring criteria as confidential, copyrighted, and trade secret material in response to written requests and/or subpoenas. An exception to releasing test data by a subpoena exists when the qualified purchaser obtains a court order extinguishing, also known as “quashing” or modifying, the subpoena. In this case, MHS requires qualified purchasers to bring to the court’s attention concerns regarding test security and to take steps to resolve the conflict in a responsible manner. When faced with a subpoena or court order for the reproduction of Test Materials, you should secure a court order or protective agreement (to the extent possible) containing the following requirements:
(a) 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;
(b) restricted copying of Test materials;
(c) assurance of the return or destruction of the materials at the conclusion of the proceeding (and confirmation of such return or destruction); and
(d) 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, MHS does 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.
Personal Information of our Customers
To purchase MHS products and/or to become a certified user of our assessments, customers must complete a Qualification Form (online, via email, or mail-in) to determine eligibility and, through the purchase process, MHS asks for your name, address, license number, credit card information, and other personal data required to process your request to purchase and maintain your customer account. We also collect information that allows us to enhance our products and services and provide you with more personalized services and a greater selection of products.
Personal Information of our Customers’ Clients
In general, purchasing test materials and administrations, or becoming certified does not involve the transfer of personal information of our clients’ customers.
MHS’ scoring software, ( e.g., PsychManager™ or SmartLink™), are stand-alone platforms that are intended to run on a single desktop, but can be integrated into a network of PCs. No personal information is disclosed to MHS while using the software.
In regards to our mail/fax scoring services, MHS encourages our customers to provide client ID numbers (not a Social Insurance Number (SIN) or a Social Security Number (SSN)) rather than a client’s name on the response sheet so that MHS does not receive any identifiable personal information about a client. By doing this, MHS has no way to link the ID number with a specific individual. MHS will, however, accept, for scoring purposes, any response sheets that contain a client’s name, age, responses, and other personal information. Answer sheets, once received, are kept in a locked, access-restricted cabinet. Those that are faxed, are accessible on our internal network only by client service representatives and others authorized to access such material.
Commencing April 5, 2004, to further protect the data transmitted to MHS, MHS’ online scoring services shall encrypt access passwords, which mean that identifiable data will be made accessible only to our customers or their designated administrators (“Administrators”). After April 5, 2004, Administrators will be prompted to change their existing password the first time they log into the MHS Scoring Organizer. The client’s information, including any personal information, will no longer be accessible by MHS unless an Administrator provides MHS with his or her protected password. However, MHS will be able to reset a password, at the request, of an Administrator if necessary.
If we make changes to our policy, we will post a prominent notice on our home page at www.mhs.com and may send you a notice by mail or email, if required. MHS would appreciate your help in keeping your contact information current and complete.
If you have any questions or concerns about the privacy of your personal information or that of your clients, please email firstname.lastname@example.org or call 1-800-268-6011 (within Canada) or 1-800-456-3003 (within the U.S.) or 1-416-492-2627 (outside of Canada & the U.S.).
If you have any questions or concerns about the release of protected Test Materials, please email email@example.com or call 1-800-268-6011 (within Canada) or 1-800-456-3003 (within the U.S.) or 1-416-492-2627 (outside of Canada & the U.S.).