Releasing Test Data & Materials

Scenario  ‘‘You are commanded to appear and present copies of all reports, notes, statements, responses or other materials made or utilized in connection with this case, including, but not limited to results of a mental examination, interview notes, raw data, scientific or psychological tests and testing materials, experiments, technical manuals, testing or comparisons made in connection with this case. Your failure to comply with this subpoena will subject you to punishment for contempt of this court.’’ What do you do?

Scenario Kaufmann et al., 2009

To Release or Not to Release  Subponea  Patients have the right to access records.  HIPAA does not recognize protection of test materials as reason to withhold records  Patients have no right (HIPAA) to access records “compiled in reasonable anticipation of, or for use in a civil, criminal or administrative proceeding.”  Test security- Protect test novelty and validity  APA states it is unethical to make copies of actual tests for patients or other parties as a means of providing feedback or assessment findings  Copyright

1992 APA Standard  Prevented release of data to individuals not qualified to use the raw data

Test Data VS Test Material  2002 APA Standard define  Test data-  Test Material-

Test Data VS Test Material  Standards support RELEASE OF TEST DATA and MAINTENANCE OF TEST SECURITY (i.e. test material).  BUT, 1) what did the subpoena ask for, 2) test data can become test material

What Did Subpoena Ask for?  ‘‘You are commanded to appear and present copies of all reports, notes, statements, responses or other materials made or utilized in connection with this case, including, but not limited to, results of a mental examination, interview notes, raw data, scientific or psychological tests and testing materials, experiments, technical manuals, testing or comparisons made in connection with this case. Your failure to comply with this subpoena will subject you to punishment for contempt of this court.’’

When Test Material Becomes Test Data?  Test protocols/stimuli become test data when patient responses are recorded on them.  WAIS Block Design, WTAR, WMS Logical Memory, etc.  Kaufmann “it is impossible for psychologists to maintain test security when they are ethically required to release test data contained on test materials.”

Suggestions for Releasing Data?  How to release test data without releasing test stimuli/material?  Release summary sheet alone  Block out stimuli; leave only patient responses  Release data to another neuropsychologist  Release data into a sealed record & request limited release of test material only to the case  Stimuli may be requested in the context of a subpoena, court order or HIPAA  Would the setting influence your strategy? How?

Clinical Versus Forensic Setting  Clinical/HIPAA- Right to deny release of records if reasonably likely to endanger the life or physical safety of patient or another person.  Forensic- Patients have no (HIPAA) right to access records “compiled in reasonable anticipation of, or for use in a civil, criminal or administrative proceeding.”  Importance of informed consent?  Stipulate what information will be released and to whom?

Sample ICF From NAN

Suggestions for Releasing Data?  Communicating importance of protecting test materials to judge  LSAT/BAR analogy  Risks of cheating in future cases (from test disclosure)  Attorneys coach clients- survey reveal that half of attorneys spend at least 1 hour preparing clients for CMEs (Essig et al., 2001)

Standards/Legal Rulings For Releasing Data?  Ethical Standard 9.04  “Psychologists may refrain from releasing test data to protect a client/patient or others from substantial harm or misuse or misrepresentation of data or the test, recognizing that in many instances release of confidential information under these circumstances is regulated by law.  About 20 states have statutes or regulations restricting the release of test materials to non-psychologists (including Florida).

Example- Illinois Statute  Psychological test material whose disclosure would compromise the objectivity or fairness of the testing process may not be disclosed to anyone including the subject of the test and is not subject to disclosure in any administrative, judicial or legislative proceeding. However, any recipient who has been the subject of the psychological test shall have the right to have all records relating to that test disclosed to any psychologist designated by the recipient

Discovery Demands  Excessive discovery demands:  All raw data, testing manuals, scoring manuals, past job applications, IRB applications, books from library, etc.  Federal rules protect from:  Undue burden/expense  Unreasonable time demands