These Legal Policies were written to apply to the following: the assessment products and services listed on this website (Site), with the exception of Pearson Inform™, Pearson Benchmark™, PASeries®, GMADE™, GRADE™ and Write to Learn™, which may be subject to similar, but not necessarily identical policies. For additional information concerning Pearson Inform™, Pearson Benchmark™, PASeries®, GMADE™, GRADE™ or Write to Learn™, go to www.pearsonschool.com or contact us.
These Legal Policies are subject to change from time to time by updated postings, and changes will be effective upon posting of an update.
Please see the Important Note at the top of these Legal Policies concerning applicability.
Many of our customers have inquired regarding Pearson’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 Pearson’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, Pearson 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.
This page addresses proper security measures with respect to the copying, release, videotaping, and/or audiotaping of psychological tests for adults and children that are published by Pearson and covered by these Legal Policies. Categories include trade secrets, copyright, FERPA, second opinions, ethical issues, nonstandard conditions, and litigation. Please see the Important Note at the top of these Legal Policies concerning applicability.
Pearson asserts that strong measures are necessary to protect the validity of valuable testing instruments. Pearson believes that any copying of its tests constitutes copyright infringement. Furthermore, disclosure of the tests threatens the ongoing validity of the test results, and therefore, the commercial value of the test.
Pearson considers its secured tests to be trade secrets. The test questions and answers, manuals and other materials divulging test questions or answers constitute highly confidential, proprietary testing information which Pearson takes every precaution to protect from disclosure beyond what is absolutely necessary for the purpose of administering the test. Initially, the materials are treated confidentially by Pearson (including its employees, agents and consultants) throughout the development process. For example, employees working with test materials must sign a confidentiality agreement, and consultants working in development and examiners administering pilot and standardization editions must sign agreements containing confidentiality obligations.
Pearson continues to guard the secrecy of its test materials once they become finished products. They are sold only to qualified individuals who are bound by the ethical standards of their profession to protect the integrity of the materials by maintaining the confidentiality of the questions and answers. Pearson has a Qualifications Department for such purpose.. The Registration Form that all purchasers must complete and submit to Pearson before purchasing contains a statement signed by the purchaser indicating that the purchaser is so qualified, and that all ethical rules will be observed by the purchaser.
It is the position of Pearson that any copying of the tests or audio- or videotaping during test administration constitutes an infringement of the copyright and other proprietary rights in the above-referenced protocols. Such copying does not, in our view, fall under the “fair use” exception of the copyright law. Section 107 of the copyright law states four factors as being among those which should be considered in determining whether unauthorized copying of copyrighted material is a "fair use." These factors are:
(1) the nature of the use (e.g. commercial vs. non-profit educational use);
(2) the nature of the copyrighted work (e.g. special consideration such as security issues);
(3) the amount of the copyrighted work which is used; and
(4) the effect of the use in a potential market for the copyrighted work.
Although the disclosure of copies of test materials might, in certain cases, fall on the "fair use" side of point (1), it almost certainly falls on the "non-fair use" side of the other three, particularly points (2) and (4).
Even in a school setting, release of copies of test questions or protocols in any form is not required under federal law. The applicable U.S. statute is the Family Education Rights and Privacy Act (FERPA). This establishes the right of parents “to inspect and review the education records of their children” (20 U.S.C. § 1232G(a)(1)(A)). It requires schools to establish procedures that will enable parents to review their children’s records within a reasonable time after a request is made.
The regulations implementing this section define “the right to inspect and review education records” as including:
“(1) the right to a response from the [school] to reasonable requests for explanations and interpretations of the records; and
(2) the right to obtain copies of the records from the [school] where failure of the [school] to provide the copies would effectively prevent a parent or eligible student from exercising the right to inspect and review the education records” (34 C.F.R. § 99.11(b)).
The import of this section is that only where failure to provide copies would deny the exercise of this right will schools be obliged to provide copies. In all other cases, inspection alone would presumably suffice. If a parent requests an inspection of a child’s record, once the school agrees to review the content of the child’s test record with the parent, it is most unlikely that a court would find that exercise of the right to review educational records had been denied.
Pearson encourages professionals to review test results with parents, including, if the psychologist deems appropriate, review of responses to individual items. This may involve showing a test protocol or answer contained in test booklets to parents in order to facilitate discussion. However, we strongly oppose the release of copies of protocols for the reasons noted above. The tests are extremely valuable instruments, which are widely used throughout the world. Impairment of their security could threaten the validity of the tests and, therefore, their value as a measurement tool.
We recognize that in some cases, parents may wish to consult a second professional regarding a child’s test scores. In these situations, we have no objection to a copy of the completed test protocol being sent to another professional for the purposes of review; however, the materials should pass directly from professional to professional and not through the hands of the parents or their attorney.
The original dissemination of these test materials is carefully restricted to individuals with a professional background in psychology, and only individuals with appropriate training in psychological assessment should interpret the tests. Under the Standards for Educational and Psychological Testing (American Psychological Association), psychologists have an ethical duty to protect the integrity of secure tests by maintaining the confidentiality of the questions and answers to the tests and by releasing such tests only to professionals who have the same duty.
The confidentiality of test questions and answers is paramount to maintaining the integrity of the tests and the validity of test results. Unlike many other types of tests, the Wechsler tests (and many of our other tests) do not consist of a large collection of test items that are rotated. Rather, these tests have one expensive and highly researched version that should remain intact for 10 to 15 years. Millions of dollars have been spent on the research and “norming” (compiling of statistical data regarding results) of the tests. Any leakage of test items severely compromises the value of the tests.
It is our opinion that the presence of a third party (audio- or videotaping or other non-standard condition) may not result in a statistically accurate or psychometrically sound scaled score. As you may know, norms for standardized tests are developed under strict conditions. If such conditions are not met, the scaled scores obtained by application of the test norms are not statistically defensible. Although it is the position of Pearson that the validity of any scaled score which results from a non-standard administration is suspect, it is the responsibility of the individual psychologist administering the test to determine whether testing under non-standard conditions serves any other purpose.
Pearson does not wish to impede the progress of legal proceedings; however, we are equally unwilling to jeopardize the security and integrity of our test instruments by consenting to the release of copyrighted and confidential material to those not professionally qualified to obtain them. Should litigation in which a psychologist is involved reach the stage where a court considers ordering the release of proprietary test materials to non-professionals such as counsel, we request that the court issue a protective order prohibiting parties from making copies of the materials; requiring that the materials be returned to the professional at the conclusion of the proceedings; and requiring that the materials not be publicly available as part of the record of the case, whether this is done by sealing part of the record or by not including the materials in the record at all.
In addition, testimony regarding the items, particularly that which makes clear the content of the items, should be sealed and again not be included in the record. Pleadings and other documents filed by the parties should not, unless absolutely necessary, make specific reference to the content of or responses to any item, and any portion of any document that does so should be sealed. Finally, we ask that the judge's opinion, including both findings of fact and conclusions of law, not include descriptions or quotations of the items or responses. We think this is the minimum requirement to protect our copyright and other proprietary rights in the test, as well as the security and integrity of the test.
Please feel free to use this policy statement along with the company’s name in your materials. We very much appreciate your concerns with regard to this issue. If you have other questions, please contact Pearson at 800-228-0752 and ask for the Legal Department.