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Harcourt Assessment's HIPAA Position Statement

Harcourt Assessments holds the copyright to the material on this web page. This material may not be reprinted or reproduced without permission from Harcourt Assessments. I (Ken Pope) would like to thank Harcourt Corporation's Legal Department for kindly granting permission for me to reprint this material on this web site. ©2003 Harcourt Corporation.

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HIPAA Position Statement

Many of our customers have inquired regarding Harcourt Assessment's position on whether test record forms must be disclosed to patients in order to comply with the Privacy Rule of the Health Insurance Portability and Accountability Act (HIPAA). The HIPAA Privacy Rule provides that individuals have a qualified right of access to individually identifiable health information maintained by health care providers covered by HIPAA. The widespread dissemination of record forms (which may disclose test questions and answers) would violate restrictions on providers' use of Harcourt Assessment's materials and would render test instruments invalid and therefore useless to the clinical community and to the public at large. In order to obtain clarification regarding this matter, Harcourt Assessment requested an opinion from the U.S. Department of Health and Human Services (HHS), which is responsible for HIPAA. We received a response from Richard Campanelli, the Director of the Office for Civil Rights at HHS, who stated in response:
'[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.'

Accordingly, as we have done for many years, we will continue to advise our customers that Harcourt Assessment's test instruments are trade secrets and their usefulness and value would be compromised if they were generally available to the public. We have stated this position in correspondence, court cases, news articles and on our website for many years. This position is also consistent with our longstanding practice of ensuring through our terms and conditions of use that all purchasers have the appropriate qualifications to administer and interpret the instruments being purchased and that such purchasers agree to maintain the confidentiality of the instruments.

Given the above-quoted support from HHS, Harcourt Assessment reiterates that customers may not disseminate copies of test record forms or protocols to persons who erroneously claim that they are entitled to copies under HIPAA. As the HHS has now confirmed, HIPAA does not require any person to disclose any trade secret materials, and all restrictions on the dissemination of test record forms and protocols remain in effect.


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