October 1st, 2013

Test data access examined

Are clients/patients entitled to test data as part of their records if they request a copy of their records or request their records be forwarded to others?

In 2002, the American Psychological Association changed its Ethics Code to include “test data” as part of a client/patient’s records. Standard 9.04 defines test data as “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.”

Notice that “test data” does not include “test material.” Test material is the actual test administered to the client/patient. Test data, however, is the material collected by the test giver as a result of administering the test material. Most test material is covered by copyright and trade secret and contract and is not part of the client/patient record.

Test data and test material should be maintained separately. Only individual information regarding client/patient responses should be kept in the client/patient record.

The basic rule regarding client/patient records is that the client/patient is entitled to see, have and direct the client/patient record. The permission to disclose or transmit a client/patient record can be accomplished by two separate mechanisms: 1.) A client can provide a “release” in writing. Oral permission is not adequate. 2.) A court order mandating the release of the record. Psychologists should not be concerned with this outcome, although there may be some annoyance regarding time in court and preparation for court, and being paid for the time.

These matters, particularly payment for reproduction and transferring records, should have been covered in the original written agreement/contract with the client/patient when services began. In the situation when a court order results, the judge has taken the decision as to whether or not patient/client information is transferred to others out of the psychologist’s hand. It is now the court’s decision.

There seems to be some confusion whether or not a subpoena has the same power as a court order. A subpoena is not the same as a court order. Generally, a subpoena is not one of the two mechanisms. A subpoena is a request to produce information. Some states do require that the psychologist (or the client/patient) object to the subpoena. In those instances, doing nothing, if a psychologist receives a subpoena is not acceptable and may be actionable.

Notwithstanding the prior paragraph, a psychologist should only release a record under one of two conditions: a written release by the client/patient, including all participants if there are multiple clients/patients in the record (although records redacting the other participants’ names and responses and information or a summary of the record may be an acceptable alternative); or an order of a court of competent jurisdiction.

Today’s client/patient position is based on two modern concepts. The first idea is that the client/patient is an independent person with rights. This belief is an underlying basis for most consumer advocacy. The second idea is that today, the client/patient may/can/should participate in decision-making regarding treatment including the right to informed treatment and the right to refuse treatment in most, not all, situations.

However, the general rule is not an absolute rule. There are exceptions. HIPAA makes a reference to physical safety as an exception. This term is broad and not well defined for all circumstances. Psychologists who believe they are delivering information that will cause a concerning reaction on the part of the client/patient may wish to consider using this exception. Concerns for suicidality or a possible client/patient interpretation far different than a client/patient present self-image may raise the issue of making an exception.

There may also be exceptions covered by language such as “substantial harm” or “misuse” or “misrepresentation of the data.” Remember, that these are exceptions to a general rule to release data. But these exceptions are available, although they may be interpreted differently, in different states. One possible alternative is to offer the client/patient a summary of the raw data and its “findings/suggestions/possibilities” rather than provide the “test data.” In these matters psychologists are expected to use their professional judgment.

The client/patient may sue to get the record or may file a complaint at the Board of Licensure for Psychologists. This client/patient response may occur whether or not the psychologists’ professional judgment is sound.

This column assumes that the testing psychologist and the treating psychologist are the same person. Often this is not the case. Sometimes, a client/patient wants to transfer the test data in order to acquire a second opinion regarding test results. There are a number of permutations. Each psychologist should treat his/her records as the patients’ records, although there may be issues of agency or group practice that are beyond this column’s scope.

A special note is required to remind everyone that the APA Ethics Code is a guideline and that each state has its own rules and laws. Even HIPAA on the federal level gives some guidelines regarding client/patient records; although, contrary to most federal laws, it often defers to state law. Therefore, there may be times when it will be essential to get the advice of an attorney in your state regarding the laws and regulations in effect in these matters.

Edward M. Stern, J.D., has a private law practice in Newtonville, Mass., Stern serves as assistant dean for pre-law advising at Boston University and is a visiting lecturer for the University of Massachusetts/Boston Department of Sociology.

By Edward Stern J.D.

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