What is it about?
This is the 2nd in a series of articles on the disclosure of test data. When psychologists perform psychological testing with a person (either for clinical or forensic purposes), the test taker's responses are known as test data. Psychologists then use this test data to write a report and/or testify about the person. Test takers can seek to obtain copies of their records (including the test data), under state and federal laws. This is commonly known as the patient access right. However, many psychologists do not want to disclose test data out of a concern that it might become public knowlege and thus ruined for future users. They assert that state and federal laws not only do NOT support test data disclosure to patients, but the law supports refusing to disclose the information. This article surveyed 174 statutes and regulations from all 50 states (as well as federal laws) regarding the regulation of test data disclosure. Findings were: - multiple federal laws preempt state laws that restrict test data disclosure to patients. In other words, although some state laws do restrict test data disclosure, should those laws be subject to a HIPAA preemption analysis, courts would likely find that the laws are invalid/void to the extent that the limit patient access to their records. - 25 states require test data disclosure, without any laws that restrict disclosure. - 13 states have no laws regulating test data disclosure - 8 states restrict test data disclosure - 6 states both restrict and require test data disclosure
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Why is it important?
Almost all of the past literature on this subject have been advocacy pieces, presenting states whose laws purportedly prohibit test data disclosure. Also, the literature primarily presented logic-based reasons; this is the first article to present objective data about what state laws actually require. This article investigates the competing interests of test publishers (withholding information) and the patients (patient rights). Psychologists who wish to avoid sanctions can use the recommendations for the state they are practicing in.
Perspectives
The 'test security' view is an ideological position that is promulgated primarily by forensic neuropsychologists within the field of psychology. It is not shared by other subfields, such as forensic psychology. I say that it is ideological because (a) it is extreme ('test data must never be disclosured to non-psychologists under any circumstances') and it's proponents typically fail to be convinced by evidence and reason. Also, this position has its roots in the ethics code of the 1990's and has been mostly unchanged for at least 25 years. It has failed to accommodate changing public policies, such as patient access rights (à la HIPAA).
Dr. Bruce G Borkosky
Ohio Wesleyan University
Read the Original
This page is a summary of: A national survey of state laws regulating test data disclosures to patients: Is the sky falling?, Professional Psychology Research and Practice, March 2025, American Psychological Association (APA),
DOI: 10.1037/pro0000614.
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