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Maintaining Test Security

Maintaining Abel Screening Test Security

 

Question:

How do I handle requests for ASI test materials and results from clients, the judicial system, or mental health professionals?

Answer:

A frequently occurring situation when doing an evaluation that involves litigation and/or the courts, involves receiving requests to turn over all of the materials related to the ASI tests, including, but not limited to, your particular client’s results, the testing materials, the images used to assess sexual interest, scoring algorithms used in interpretation of results, etc. What are you allowed to release and what not, and to whom?

There are numerous issues including professional standards/codes, laws, and contractual obligations that you need to be aware of and understand. We encourage you to contact your professional organization or an attorney for specific guidance as issues arise. An important distinction must be made between ASI Test Results (also referred to as test data) and ASI Test Materials (also referred to as test materials).

The accuracy and validity of the ASI Test Materials, like most psychological tests, is partially dependent on the test-taker not knowing how the test works. Release of ASI Test Materials to unqualified persons, including attorneys and the courts could potentially jeopardize the validity of the ASI tests and their future use in the assessment of alleged sexual abusers. The ASI Test Materials include (but are not limited to): the Questionnaire items, VRT™ images, and information about how VRT™ is measured. As a result, it is critically important that you understand the issues involved in the release of test results versus the release of test materials. If anyone is attempting to compel you to release ASI Test Materials or trade secrets, PLEASE CONTACT ABEL SCREENING, INC. IMMEDIATELY.

There are relevant passages from the APA Ethical Principles of Psychologists and Code of Conduct as well as HIPPA and The Standards for Educational and Psychological Testing and others that apply to the sharing of test data that apply to sharing test materials.

The APA Ethical Principles of Psychologists and Code of Conduct have this to say about sharing of test data (i.e., ASI Test Results):

9.04 Release of Test Data
(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. 

 

9.10 Explaining Assessment Results
Regardless of whether the scoring and interpretation are done by psychologists, by employees or assistants, or by automated or other outside services, psychologists take reasonable steps to ensure that explanations of results are given to the individual or designated representative unless the nature of the relationship precludes provision of an explanation of results (such as in some organizational consulting, pre-employment or security screenings, and forensic evaluations), and this fact has been clearly explained to the person being assessed in advance.

Prior to HIPPA (1996) and its associated rules and regulations (2001; Privacy Rules effective 4/14/03), as well as the 2002 Revision of the APA Code of Ethics (which is also in our licensure law and therefore has the force of law), inquiries regarding the release of psychological testing were handled in accordance with the 1992 APA Ethical Code. The 1992 Code had a standard regarding the release of “raw test data” which broadly prohibited the misuse of assessment techniques, results or interpretations by psychologists and others not qualified to use such information. As a result, psychologists and mental health practitioners almost never released raw test data, preparing instead a summary of test results and interpretations for patients. Where the raw data was released (e.g., litigation), the data was sent to another qualified psychologist working for the particular attorney requesting the information, so that the raw test data was released in a fashion consistent with the APA Ethical Code and licensing law.

However, HIPPA regulations and regulations regarding the Privacy Rules in 2001 changed mental health clinicians’ handling of the release of psychological test data. HIPPA gives patients the right to access and even amend their designated mental health record. Psychotherapy notes are excluded from the federal law delineating the contents of the “designated mental health record;” however psychological testing is not excluded. In effect, providers can no longer simply give patients a summary of their scores and test results/interpretations. Patients can acquire the actual raw data of their psychological testing upon their request. That same opportunity is available when litigation is an issue at hand. Given these HIPPA regulations, APA rewrote its 2002 Code of Ethics using the above mentioned language in Sections 9.04 and 9.10.

Importantly, there is a difference between test materials and test data. HIPPA rights refer to test data, not test materials which involve copyright and trade secret considerations, protection of the public so that only qualified individuals secure the test materials, etc. While a patient request for test data or a litigation situation may result in test data being released, you are under no obligation of any sort to release test materials. In fact, our 2002 Code of Ethics compels psychologists to maintain the integrity and security of test materials. You would be breaking part of professional licensing law TCA 63-11-214 if you released test materials to unqualified individuals. As you know, in order to protect the public as well as the integrity of psychological tests, not just anyone can order and secure these psychological test materials. Commonly, to secure test materials one has to demonstrate completion of the appropriate professional degree, possess a license to practice health care in the state of residence, and some demonstration of professional competency, education, and training in these matters.

The relevant APA ethics code section states as follows:
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. 

In addition the protection of copyrighted material is also addressed by The Standards for Educational and Psychological Testing.

Standards 11.7 and 11.8 state:
11.7: Test users have the responsibility to protect the security of tests, to the extent that developers enjoin them to do so.
11.8: Test users have the responsibility to respect test copyrights” (Standards for Educational and Psychological testing, 1999, p. 115). <

For these reasons, if in litigation, if one side obtains the test data but requires the test materials in order to make sense of the test data, that party commonly hires a qualified professional to interpret the data for the untrained parties reviewing the test data. Specifically, the attorney litigating the case makes the request for test data. If that attorney then feels he or she needs the test materials in order to make sense of the test data, that attorney secures the services of another psychologist to review the test data with this second psychologist working in the employ of the attorney making the request for the test data.

When it comes to the ASI Test Materials, you also signed a license agreement with Abel Screening, Inc. that states:

For purposes of this Agreement, “Confidential Information” shall mean information or material proprietary to ASI or designated as “Confidential Information” by ASI, and not generally known by non-ASI personnel, which Licensee may obtain knowledge of or access to as a result of its use of or exposure to the Software, the Documentation, the Test Sheets or the Photographic Images. The Confidential Information includes, but is not limited to, the following types of information or other information of a similar nature (whether or not reduced to writing): all documentation (including the Documentation) and other tangible or intangible discoveries, ideas, concepts, software, designs, drawings, specifications, techniques, models, information, source code, object code, diagrams, flow charts, procedures and “know-how” comprising all or any portion of the Software, the Documentation, the Test Sheets or the Photographic Images or revealed to Licensee in connection with any negotiations or testing of the same. Confidential Information also includes any information described above that ASI obtains from another party that ASI treats as proprietary or designates as Confidential Information, whether or not owned or developed by ASI. Information publicly known and that is generally employed by the computer software industry or any profession at the time that Licensee learns of such information or knowledge shall not be deemed part of the Confidential Information.

Licensee shall not directly or indirectly disclose, display, provide, transfer or otherwise make available all or any part of the Confidential Information or the Licensed Materials to any person or entity at any time during the period in which Licensee has access to the Confidential Information and the Licensed Materials or thereafter, unless Licensee has received prior written permission from ASI. Licensee shall not make copies of the Confidential Information, the Licensed Materials or any portion thereof. At no time and under no circumstances shall Licensee reverse-engineer, decompile or disassemble the Software or the Confidential Information or attempt to use the Software in any form other than machine-readable object code. Licensee shall allow only its employees to have access to the Confidential Information and the Licensed Materials. Licensee shall not provide access to the Confidential Information or the Licensed Materials to any third parties, including consultants and independent contractors.

As a result of the APA Ethics Code, Standards for Educational and Psychological Testing, copyright law, and Abel Screening Incorporated’s License Agreement, “qualified psychologists” to which you can send the ASI Test Materials include only individuals who have been trained in the use and interpretation of the ASI Test Materials, which are other ASI licensed individuals (who should already have a copy of the ASI Test Materials, and therefore do not require you to send them the ASI Test Materials).

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