Release of test data and APA's new Ethics Code

In August 2002, our Council of Representatives adopted a new Ethics Code, which became effective this past June 1. The Ethics Code Task Force, charged with revising the 1992 code, spent five years and reviewed over 1,300 comments before submitting its seventh draft to council for consideration. Council was unanimous in approving the new code.

Ethical Standard 9.04 "Release of Test Data" represents an important and far-reaching change in APA's new Ethics Code. The former standard regarding release of test data, Standard 2.02(b) in the 1992 code, stated that psychologists refrain "from releasing raw test results or raw data to persons, other than to patients or clients as appropriate, who are not qualified to use such information." In interpreting Standard 2.02(b), psychologists struggled with when it was "appropriate" to release test data to patients and what persons were "qualified" to receive the data. Standard 9.04 no longer uses the terms "appropriate" or "qualified." Perhaps most important, Standard 9.04 now emphasizes client consent as the touchstone for when, and to whom, test data are to be released.

In a nutshell, Standard 9.04:

• Defines test data;

• Says that psychologists disclose test data pursuant to a client release (clause a) or, in the absence of a client release, do not disclose test data unless legally mandated to do so (clause b);

• Identifies exceptions that permit (although do not require) psychologists to withhold test data.

The following analysis of Standard 9.04 examines the definition of "test data" and describes the standard's obligations and exceptions. "Ethics Rounds" then offers further points for psychologists to consider as they review release of test data under the new Ethics Code.

Definition of test data

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." This definition includes any information the psychologist collects that is unique to a particular client. Put another way, what derives from a specific client and indicates or reveals something about that particularclient falls under this definition. Standard 9.04 elaborates by stating that "Those portions of test materials that include client/patient responses are included in the definition of test data." By using the term "test materials," Standard 9.04 links itself to Standard 9.11, "Maintaining Test Security." The point of contact is the term "test materials," which Standard 9.11 defines as "manuals, instruments, protocols, and test questions or stimuli and does not include test data as defined in Standard 9.04."

The mutually referential definitions in Standards 9.04 and 9.11 thus define test data as what is unique to this particular client, while test materials do not include anything unique to this particular client. By virtue of these mutually exclusive definitions, what are test data cannot be test materials and what are test materials cannot be test data. When materials that would otherwise be test materials under Standard 9.11 contain information unique to a particular client, those materials become test data and thus fall under Standard 9.04. As an example, if a psychologist records client responses on WAIS-III scoring sheets that contain the test items, the scoring sheets are now under Standard 9.04's definition of test data. Because of this "conversion," many psychologists, and presumably psychological testing corporations, are exploring ways to keep client responses separate from test materials that reveal the nature or content of psychological tests.

Obligations pursuant to a client release and the exceptions to the obligation

Following its definition of test data, Standard 9.04 states that, "Pursuant to a client/patient release, psychologists provide test data to the client/patient or other persons identified in the release." Thus, both clause (a) and clause (b) of Standard 9.04 make client consent the touchstone upon which the standard turns. If, as this column has suggested, ethics can be defined as thinking about reasons in terms of values, then Standard 9.04 can be seen as reflecting a trend in law and ethics that began well over three decades ago, that of a greater emphasis on patient autonomy. This trend is seen in state laws that have expanded the rights of patients to be informed about and refuse treatment, and is seen in federal regulations (HIPAA's Privacy Rule is an excellent example), that afford patients greater control over their health information.

After stating that psychologists provide test data pursuant to a client release, Standard 9.04 states that psychologists have the discretion ("may refrain") to withhold test data "to protect a client/patient or others from substantial harm or misuse or misrepresentation of the data or the test." These exceptions allow a psychologist to withhold test data for the reasons stated, when otherwise Standard 9.04 would require the psychologist to release the data. Psychologists may thus think of the Ethics Code revision as a shift in figure-ground: In the 1992 Code, psychologists presumed that test data would be withheld, unless certain conditions were met. In the new Ethics Code, the presumption favors release unless the specified exceptions are present. Because the exceptions to the obligation to release are permissive rather than mandatory, psychologists will use their professional judgment and discretion in determining whether and when to apply the exceptions.

Further points for consideration

Four additional points may be helpful as psychologists review Standard 9.04. First, clause (b) states that "In the absence of a client/patient release, psychologists provide test data only as required by law or court order." Thus, when a client has not provided a release, psychologists will only release the data when there is a legal mandate--perhaps by virtue of a court order or a statute--to do so. If a client release (clause a) can be thought of as "triggering" a psychologist's ethical obligation to release test data, then, in the absence of that trigger, only a legal mandate (clause b) likewise serves this "triggering" function.

Second, in applying Standard 9.04's exceptions, it is important to consider how the standard interacts with the law. Certain state and federal laws give clients the right to direct psychologists to release test data. In the context of a legal obligation to release test data, psychologists will need to examine whether the legal basis for the obligation has exceptions similar to Standard 9.04's exceptions before a decision to withhold the data is made. HIPAA makes reference to physical safety as a reason to withhold protected health information and certain state laws allow a decision to withhold for reasons of safety as well. The law will less often, however, have an exception on the grounds that the data or the test will be misused or misrepresented. If a psychologist wishes to invoke her ethical discretion to withhold data in the context of a legal obligation to release the data, obtaining legal guidance will be essential, insofar as withholding data in these circumstances may result in adverse legal consequences.

Third, while a client's release creates an ethical obligation to release test data under Standard 9.04, a psychologist may, at the same time, have a legal reason that speaks against disclosure, perhaps, for example, copyright law. In this instance, the psychologist may refer to Standard 1.02, "Conflicts Between Ethics and Law, Regulations, or Other Governing Legal Authority." Obtaining direction or a protective order from a court, or discussing the conflict with the test publisher, may be helpful steps in resolving the conflict under Standard 1.02.

Fourth, release of test data pursuant to a subpoena requires special attention. When the subpoena is not accompanied by a client's release, or a court has not issued an order to release the test data (note that a subpoena is not the same as a court order), obtaining legal and ethical consultation in deciding how to respond to the subpoena can be especially important, for several reasons. Under certain well-defined conditions, HIPAA allows for the release of records in response to a subpoena without the client's consent or even knowledge. HIPAA's preemption clause, however, provides that when HIPAA conflicts with state law, the law (HIPAA or state) more protective of privacy governs. Because many, perhaps all, state laws are more protective of privacy than HIPAA regarding release pursuant to a subpoena, a preemption analysis will likely indicate that test data cannot be released on the basis of a subpoena alone. In addition, clause (b) of Standard 9.04 permits a psychologist to disclose test data in the absence of client release only when there is a legal mandate to do so. It is very unusual that a subpoena by itself will create a legal mandate to release confidential material. Psychologists therefore risk running afoul of Standard 9.04 should they release test data in response to the subpoena when the subpoena is neither accompanied by a client release nor enforced by a court order. Finally, because a subpoena is a legal document, psychologists cannot simply ignore a subpoena. Some response is required, and the response must be made in a thoughtful and informed manner. Before responding to a subpoena, especially a subpoena that is not accompanied by a client release and when a court has not issued an order to release, psychologists should obtain ethical and legal consultation. The better part of valor before releasing the data will almost certainly be to obtain permission from your client (or an appropriate representative) or an order from a court.

Standard 9.04 states that the psychologists apply its exceptions, "recognizing that in many instances release of confidential information under these circumstances is regulated by law." Standard 9.04 amply demonstrates that psychologists always do well to consider how APA's Ethics Code and the law interact when the release of confidential information is at issue.

(a) The term test data refers to 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. Those portions of test materials that include client/patient responses are included in the definition of test data. Pursuant to a client/patient release, psychologists provide test data to the client/patient or other persons identified in the release. Psychologists may refrain from releasing test data to protect a client/patient or others from substantial harm or misuse or misrepresentation of the data or the test, recognizing that in many instances release of confidential information under these circumstances is regulated by law. (See also Standard 9.11, "Maintaining Test Security.")

(b) In the absence of a client/patient release, psychologists provide test data only as required by law or court order.

9.11 MAINTAINING TEST SECURITY

The term test materials refers to manuals, instruments, protocols, and test questions or stimuli and does not include test data as defined in Standard 9.04, Release of Test Data. Psychologists make reasonable efforts to maintain the integrity and security of test materials and other assessment techniques consistent with law and contractual obligations, and in a manner that permits adherence to this Ethics Code.