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 United States’ Health Insurance Portability and Accountability Act (“HIPAA”) and the Canadian Personal Information Protection and the Electronic Documents Act (“PIPEDA”). For over 25 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, scoring templates, scoring keys, scoring programs and other test protocols (“Test Materials”), which is consistent with new privacy legislation in both the United States and Canada.
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:
[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.
MHS has confirmed that the trade secret exemption applies to proprietary Test Materials. 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 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 trade secret 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.
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 over 25 years, the completion of a Test User Agreement through the Qualification Process which prohibits purchasers from releasing the tests to others who are not qualified to interpret the results or who do not have the same ethical obligations to maintain test security, nor has MHS permitted its licensees, distributors, or employees to disclose such material. Furthermore, it is in the best interest of the public to protect the validity and integrity of Test Materials.
Thus, 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
We recognize 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, we expect 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, we require 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:
- 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;
- restricted copying of Test materials;
- assurance of the return or destruction of the materials at the conclusion of the proceeding (and confirmation of such return or destruction);
- 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, we do 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. If you have any questions or concerns about the release of protected test materials, please contact MHS by calling 1.800.456.3003.
MHS position on FERPA and Test Disclosure