APAPO builds on work to protect psychological testing data

APAPO and psychology leaders support the psychological testing data study mandated in the HITECH Act of 2009

by Government Relations Staff

October 27, 2010 — Thanks to government relations staff for the APA Practice Organization (APAPO), the Health Information Technology for Economic and Clinical Health (HITECH) Act contains a requirement that the Department of Health and Human Services (HHS) conduct a study to determine whether psychological testing data needs to be afforded the same level of protection as psychotherapy notes.

As called for in section 13424 of the HITECH Act, the HHS Office for Civil Rights (OCR) and The Substance Abuse and Mental Health Services Administration (SAMHSA) are conducting a study of the “Confidentiality and Privacy Issues Related to Psychological Testing Data.” According to the language of this provision — which had been suggested to Congress by APAPO for inclusion in the bill — the study seeks to determine if these special protections should be applied to “test data that is related to direct responses, scores, items, forms, protocols, manuals or other materials that are part of a mental health evaluation.”

In 2003, efforts by the APAPO ensured the Health Insurance Portability and Accountability Act (HIPAA) Privacy Rule (PDF, 204 KB) provides a higher level of protection for psychotherapy records. Under HIPAA, in most situations psychotherapy notes cannot be released without the patient signing a detailed authorization form. Most other records can be released for treatment and payment purposes with the patient’s signature on a simpler general consent form. The HITECH Act study will determine whether psychological testing data should be afforded the same heightened protection as pertains to psychotherapy notes.

Last fall, SAMHSA reached out to the APAPO to learn about this provision and its intent and why testing data should have the heightened protection associated with patient authorization. Following these discussions, SAMHSA awarded the study project contract to AMSAQ, tasking the Maryland-based consulting, policy research, and performance measurement company with convening a nine-stakeholder expert focus group to study the issue; organizing three regional meetings to obtain information and feedback from stakeholders and the general public; running a webinar on the issue; and drafting a report describing the findings of the focus group, meetings and webinar, along with reviews of published literature and other relevant documents.

The APAPO is closely monitoring progress of the study. AMSAQ named Executive Director for Professional Practice Katherine C. Nordal, PhD, and Deputy Executive Director for Professional Practice Randy Phelps, PhD, to the study’s expert work group. Dr. Phelps represented APAPO on the expert work group in June, and Dr. Nordal, along with Shirley Higuchi, JD, Associate Executive Director, Legal and Regulatory Affairs; and Alan Nessman, JD, Senior Special Counsel, Legal and Regulatory Affairs, attended the first of the three scheduled public meetings, in Washington, DC in July.

Terry Koller, PhD, attended the Chicago-area meeting (PDF, 118 KB) held in October. Psychologists will also attend the final meeting in Los Angeles this winter.

According to Dr. Koller, psychologists from the Veterans Administration, private hospitals, and private practice provided comments at the Chicago meeting, as did experts in neuropsychological testing and psychologists representing testing companies.

“There was widespread support for strengthening privacy and security safeguards for psychological testing to ensure that psychological testing remains a valid diagnostic tool and that test data is not subject to misinterpretation by untrained individuals,” Koller said.

SAMHSA anticipates receipt of AMSAQ’s report in March 2011. While SAMHSA stresses that the study will present the relevant information and viewpoints rather than settle the issue, if the contractor’s findings are favorable, Doug Walter, JD, Counsel for Legislative and Regulatory Affairs in the Practice Directorate Government Relations office said, “the APAPO will have a strong argument with HHS that the Privacy Rule should be amended to include testing data.”