Many of our customers have inquired regarding Psychological Publications, Inc’s position on whether test record forms must be disclosed to patients in order to comply with the Privacy Rule of the Health Insurance Portability and Accountability Act (HIPAA). The HIPAA Privacy Rule provides that individuals have a qualified right of access to individually identifiable health information maintained by health care providers covered by HIPAA. The widespread dissemination of record forms (which may disclose test questions and answers) would violate restrictions on providers’ use of Psychological Publications, Inc’s materials and would render test instruments invalid and therefore useless to the clinical community and to the public at large. In order to obtain clarification regarding this matter, an opinion was requested from the U.S. Department of Health and Human Services (HHS), which is responsible for HIPAA. Richard Campanelli, the Director of the Office for Civil Rights at HHS, responded to this request as follows:
“[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.”
Accordingly, we continue to advise our customers that the test instruments covered by these Legal Policies are trade secrets and their usefulness and value would be compromised if they were generally available to the public. This position has been consistently taken in correspondence, court cases, news articles and on the website for these assessments for many years. This position is consistent with the longstanding practice of requiring that all purchasers have the appropriate qualifications to administer and interpret the instruments being purchased and that such purchasers agree to maintain the confidentiality of the instruments.
Given the above-quoted support from HHS, Psychological Publications, Inc reiterates that customers may not disseminate copies of test record forms or protocols to persons who erroneously claim that they are entitled to copies under HIPAA. As the HHS has now confirmed, HIPAA does not require any person to disclose any trade secret materials, and all restrictions on the dissemination of test record forms and protocols remain in effect.