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NASP Communiqué, Vol. 29, #7

Test Protocols, Part I: Right to Review and Copy

by Andrea Canter, NCSP

Throughout their careers, school psychologists face challenges to what they know to be "best practice" and/or ethical conduct. Frequently reported situations involve competing ethical principles or conflicts between ethics and law (Jacob-Timm, 1999). Access to test protocols is one such dilemma, as it involves apparent contradictions among data privacy laws, due process rights, copyright laws and standards for ethical practice.

Regardless of the school psychologist’s philosophical leanings and daily practice, sooner or later we create at least a few files containing test protocols. Given that the typical school psychology practitioner conducts at least 75 evaluations per year (Thomas, 2000), it is essential that school districts and professionals establish clear policies regarding the review, copying and storage of the resulting protocols. A foundation for such policies exists in law (e.g., Family Education Rights and Privacy Act of 1974 - FERPA; IDEA; federal copyright laws); in federal policy letters (e.g., Bureau of Education of the Handicapped; Office for Special Education Programs); in court rulings (see Jacob-Timm and Hartshorne, 1998); and in professional standards (e.g., American Psychological Association; National Association of School Psychologists).

Policies and guidelines regarding test protocols should help school psychologists, administrators and other school personnel answer commonly asked questions:

  • Can parents review actual test protocols (questions and responses)?
  • When do we have to provide parents with copies of test protocols?
  • What do we do if a parent requests that we send copies of test protocols to a community agency psychologist?
  • Where should protocols be stored?
  • How long should we keep test protocols? Can old records be destroyed?

These issues will be addressed in two parts. This first article attempts to integrate relevant law and regulations with professional standards in the context of school psychology practice, specifically considering parents’ right to review and the copying of psychological test protocols defined as school records. While legal requirements of federal statutes are addressed, each state may have additional regulations that must be considered in developing policy and guiding practice. State consultants and associations are encouraged to review such regulations and address their implications for policy in local districts.

Protocols Defined as Educational Records

Q. Are protocols defined as "educational records?"

A. Yes

FERPA defines "educational records" as records maintained by the schools (or their agent) pertaining to the individual student (34 CFR §99.3). Although at times some psychologists and administrators may claim that test protocols are "personal notes," a number of federal policy documents (see Jacob-Timm & Hartshorne, 1998) as well as at least one court ruling (John K. and Mary K., 1987) have defined protocols as "educational records" and therefore subject to any regulation of such records.

FERPA further excludes professional "notes" from this definition of school records. These notes are defined as "records of instructional, supervisory, and administrative personnel and educational personnel ancillary to those persons that are kept in the sole possession of the maker of the records, and are not accessible or revealed to any other person except a temporary substitute for the maker of the record" (34 CFR, §99.3). School psychologists are cautioned that notes shared with others (except a "substitute") become school records regardless of where kept; further, these notes can be subpoenaed (Jacob-Timm & Hartshorne, 1998).

Access to Records - Review of Protocols

Q. Can parents review actual test protocols, including specific items?

A. Yes.

FERPA: The regulations addressing parent access to educational records are found in FERPA (the "Buckley Amendment") and its regulations (34 CFR, §99; 1996). Under FERPA, parents and eligible students (age 18 or in post secondary programs) are guaranteed access to educational records; schools are further required to provide parents with copies of policies and procedures governing access and storage of school records. After receiving a parent’s request to review records, schools must provide access within 45 days.

IDEA ’97: The IDEA Amendments of 1997 (34 CFR, §300) reiterate FERPA in guaranteeing that each "agency shall permit parents to inspect and review any education records related to their children that are collected, maintained or used by the agency" The agency shall comply with a request without unnecessary delay and before any meeting regarding an IEP or any hearing - and in no case more than 45 days after the request has been made" (§300.562 (a)).

Right to access under both FERPA and IDEA also includes the right to "reasonable requests for explanations and interpretations of records" and to have a representative of the parent "inspect and review the records" (§300.562 (b)).

OSEP Clarification: The Department of Education’s Office of Special Education Programs (OSEP) has similarly defined test protocols as education records, and has noted that "because these tests are education records, an educational agency or institution must give parents a right to inspect and review the test questions as well as the student’s response to the questions" (EHLR, 1987; see Reschly & Bersoff, 1999).

Professional Standards: Both APA’s Ethical Standards for Psychologists (1992) and NASP’s Principles of Professional Ethics (2000a) require that psychologists/school psychologists "maintain test security" as well as comply with all laws and regulations regarding release and storage of test information. Further, NASP’s revised Guidelines for the Provision of School Psychological Services (2000b) require service units to develop policies on school records that are "consistent with state and federal rules and laws" (Guideline 4.4) and specify that "parents may inspect and review any personally identifiable data relating to their children that were collected, maintained or used in his/her evaluation". School psychologists protect test security and observe copyright restrictions" (Guideline 4.5).

NASP’s ethical principles also address the IDEA ‘97’s provision for parents’ "reasonable requests for explanations and interpretations" of test data by requiring us to "adequately interpret information" and to report "findings and recommendations in language readily understood by the intended recipient" (NASP, 2000a, Principle IV-D). 

Test Security and Copyright Laws: How can school psychologists guarantee both a parent’s right to inspect all school records while also ensuring test security? The parents’ legal rights supersede concerns for test security (e.g., Jacob-Timm & Harsthorne, 1998; Reschly & Bersoff, 1999); yet it would seem that full disclosure of test items and responses would potentially compromise the value and validity of standardized tests.  School psychologists should consider the significant difference between actual release (copies) of test protocols (discussed below) and the review of test materials in the presence of a qualified professional. Disclosure of test items in the context of a review of a child’s performance is not only permitted under law, but, under appropriate circumstances, might be encouraged as a means of facilitating communication with parents (e.g., Beeman, 2000). 

As further protection against test security breeches, federal laws do not require that parents have access to "non-identifying information" that is, parents are not guaranteed access to test manuals and stimulus materials that are not part of the individual student’s record or protocol.  While some states have "freedom of information" laws, tests used for educational purposes are usually excluded from such state statutes" practitioners need to understand their own state’s regulations and respond accordingly.

In misguided efforts to protect test security, some school psychologists have intentionally hidden or destroyed test protocols upon completion of the assessment and report. This practice has been cited by the Office of Civil Rights as a violation of Section 504 and would also appear to violate those sections of FERPA and IDEA ’97 that guarantee parents access to all school records (Reschly & Bersoff, 1999). (Part II of this series will further address destruction of test protocols.)

Copying Test Protocols for Parents

Q. Do schools have to provide copies of test protocols to parents?

A. Rarely, in most states

One of the more controversial issues regarding release of school psychologists’ records concerns the actual copying of test protocols - for parents, other professionals or attorneys. The act of photocopying would seem contrary to copyright laws; the release of test questions and responses would seem to compromise test security. Further, professionals are ethically bound to prevent  "misuse" of data by unqualified individuals. While there may be pressure to comply with such requests (e.g., Canter, 1990), fortunately, federal laws require release of copies of test protocols only under specific and unusual circumstances. However, there is no means to prevent disclosure of test protocol data in relevant legal proceedings and states may adopt more inclusive mandates under "freedom of information" laws.

Legal Mandates: IDEA ’97, mirroring FERPA, notes that parents have "the right to request that the agency provide copies of the records". if failure to provide those copies would effectively prevent the parent from exercising the right to inspect and review the records" within 45 days (§300.562(b)(2)). Further, long-standing Bureau of the Education for the Handicapped (BEH) policy provides only two circumstances in which the school would have to release actual copies of protocols or other school records: 1) if the parents can not come to the school to review records within 45 days due to serious illness, extended travel or "related reasons" or (2) if the parent or agency requests a due process hearing that will involve the introduction of test items as evidence (BEH policy letter, 1979).  Thus a parent’s request for a copy of a test protocol can be denied, as long as the school provides the parent the reasonable opportunity to review the materials within 45 days, and as long as the conditions cited by BEH are not relevant.

It should be noted that "copying protocols" is not limited to photocopying, but to any reproduction of questions and responses, including any handwritten notes taken by parents during the review of test materials that in essence "copy" the test items.

Professional Standards and Test Security:  As noted by Psychological Corporation (Harcourt) Senior Counsel, Yvette Beeman (2000), "psychologists have an ethical duty to protect the integrity of secured tests by maintaining the confidentiality of questions and answers to the test and by releasing such tests only to professionals who have the same duty." NASP (2000a) ethical standard IV-E-1 requires that "school psychologists maintain test security, preventing the release of underlying principles and specific content that would undermine the use of the device. School psychologists are responsible for the security requirements specific to each instrument used." 

Maintenance of test security not only protects the public from unauthorized use of these procedures, but also helps maintain the value of these procedures to the profession. The debate regarding the value of standardized tests not withstanding, clearly practices that compromise test security decrease whatever validity and confidence we can otherwise attribute to these procedures.

Copyright vs. Fair Use Exception. When school psychologists and test publishers cite copyright infringement as one prohibition against copying protocols, the "Fair Use Exception" (Section 107 of the federal copyright law) might be used as a counter-argument (Reschly & Bersoff, 1999).  This exception is often cited to allow single copies of copyrighted documents, if four conditions of "fair use" are considered: 1) the nature of the use of the material (for commercial or nonprofit educational use); 2) the nature of the copyrighted material (including test security concerns); 3) the amount of copyrighted work used; and 4) the effect of using the material in a potential market. The Psychological Corporation, among others, has argued that copying test protocols should not be permitted under the Fair Use Exception on the basis of factors 2, 3 and 4 (Beeman, 2000).

Copying Protocols for Other Professionals

Q. Is it permissible to release copies of protocols to other psychologists?

A. Yes, assuming appropriate consent is obtained.

Neither FERPA nor IDEA prevent the release of school records (including protocols) to other individuals with parent/guardian authorization. The Psychological Corporation, for example, does not oppose the release of a copy of completed test protocol to another professional (one similarly obligated to follow ethical principles for test security), provided that the materials "pass directly from professional to professional and not through the hands of the parents or their attorney" (Beeman, 2000).  NASP’s ethical standards (2000a) also remind school psychologists that they "do not condone the use of psychological or educational assessment techniques, or the misuse of the information these techniques provide, by unqualified persons in any way"(Standard IV-C-5).  Thus school psychologists must assume responsibility for assuring that any copies of protocols (or other data) are released only to appropriately trained and credentialed individuals.

Do test protocols reflect privileged communication between the school psychologist and student? Most (not all) states extend the concept of privileged communication to psychologists, and in some states this includes school psychologists. However, there are significant limitations on the use of "privileged communication" and it is unlikely that information recorded on a test protocol will be regarded as a confidential communication between the school psychologist and student, given that this information in most cases has already been disclosed as part of the special education assessment process. Further, school psychologists are reminded that the client can waive privilege (the psychologist would then be required to disclose) and judges often have the power to waive privilege as well (Jacob-Timm & Hartshorne, 1998).

While generally a court order or subpoena must be honored, school psychologists are not otherwise obligated to release copies of protocols to nonqualified individuals, such as attorneys, case workers or pediatricians. If a court order requires release of protocols, the district might still be able to take some precautions to minimize any compromise of test security (see below).

Cautions Regarding Electronic Transmission: Although not the focus of this discussion, school psychologists and their service units should also consider issues of confidentiality in the manner of release of copies of protocols to other legitimate parties. With rampant changes in the use of technology in schools and other agencies, considerable caution must be taken when using electronic (fax, scan) transmission of test protocols and other materials that identify the student and family or that could compromise test security if intercepted by unqualified individuals. Both NASP ethical principle IV-E (NASP, 2000a) and Unit Guideline 4 (NASP, 2000b) address appropriate safeguards in the use of technology for communication and storage of confidential records including test protocols. However, technology is evolving far faster than our professional standards can anticipate; thus it is essential that districts develop policies and safeguards that can adapt quickly.

Implications for Best Practice

School psychologists and School Psychological Service Units that have established clear and professionally sound policies to guide practice should seldom find themselves facing the dilemma of releasing test protocols to parents, attorneys or hearing officers.

Communicating with parents: When parents request the opportunity to review test protocols, the school psychologist has both the ethical responsibility and the critical opportunity to teach as well as inform. We can help parents better understand the purpose and limitations of our testing procedures as well as better understand their own child’s strengths and needs. This will hopefully help to demystify the testing process itself, which in turn may reduce or eliminate the need to review specific test data in the future.

Frequently, requests to review the protocols from a psychological evaluation can be rendered moot through ongoing, constructive communication with parents at all phases of the assessment, from the planning meeting through the feedback conference. Parents are not generally seeking to review the specific questions asked or answers given, but are seeking to understand the evaluation process, the nature of information gathered and what it means in the educational planning for their child. If the parent further requests more specific information about the tests given, inspecting and discussing the test protocols under the supervision of the school psychologist meets requirements of FERPA and IDEA; parents may be satisfied with a review of sample items that help them understand the nature of the procedures used.

Further, school psychologists are more generally obligated to develop appropriate collaborative relationships with parents at all stages of service delivery (NASP 2000a, Principle III-C). As noted by Jacob-Timm and Hartshorne (1998), "practitioners may be able to avoid parent requests to inspect protocols by establishing a good collaborative relationship early in the assessment process, by explaining the conflict between their professional obligation to maintain test security and the parents’ right to review records, and by communicating assessment findings in a manner that satisfies the parents’ need for information about their child" (p.64).

Minimizing damage in litigation: How can school psychologists and their districts minimize test security breeches when protocols are subpoenaed and their contents divulged in the course of a hearing or trial? The Psychological Corporation generally requests the following: 1) that no additional copies of copyrighted material be made; 2) that all copyrighted materials are returned to the originating professional at the conclusion of the hearing; 3) that copyrighted materials are not made part of the public record of the case (or that such records are sealed); 4) that testimony which discloses test item content be sealed and not referenced in any related filings unless absolutely necessary; and 5) that the judge/hearing officer’s opinion not include descriptions or quotes of items or responses (Beeman, 2000).

Components of district policy: FERPA requires schools to provide annual notice to parents and eligible students of their rights to review (and request changes to) school records; and on request, schools must also provide parents with a written copy of procedures and policies regarding the review, amendment and storage of school records, including the types of records maintained and their location.  Similar requirements are included in IDEA ’97 (§300.565). School psychologists should be familiar with their district’s policies regarding school records and assist in expanding or revising these policies to assure the best possible integration of parents’ rights, copyright protection and professionally ethical practice.

Harvey (in Canter, 1990), proposed that policies concerning school records, and specifically test protocols, include the following elements:

1)      Protection of a test’s security, validity and value;

2)      Assurance that parents and students can obtain a full understanding of the decision-making (assessment) process;

3)      Protection of the parent and student against "redundant testing" by allowing access to a second opinion (e.g., release to other professionals)

Harvey further noted that appropriate review of test results with a qualified professional, using sample test items rather than actual protocols, would typically provide the parent with the desired understanding of the assessment process and its results to insure informed participation in their child’s educational program.  A copy of the "face sheet" (protocol cover which generally includes only identifying data and a score summary) will often suffice for conveying information to another psychologist when sent with the psychologist’s report, reducing the likelihood of a request for a full copy of the protocol. District policy should also address the handling of a request and signed consent for a copy of a protocol to be released to another professional - such as a policy directing that copies of protocols only be sent directly to the professional rather than through the parents.

In addition to outlining specific actions and procedures, the district’s policy on the review and release of school records should reflect standards for ethical professional practice, including specific standards that apply to district personnel. Although there may be some conflict at times between strict adherence to these standards and compliance with legal mandates, the district should expect its school psychologists and other professional staff to strive to meet standards that define "best practice."

Summary

The legal and ethical dilemmas that can confront the delivery of quality assessment services do not end at the feedback conference.  Requests to review and copy test protocols present school psychologists and their administrators with significant conflicts among the sacred tenets of test security, ethical standards of practice and laws governing copyright protections, data privacy and due process rights.  Understanding the requirements and limitations of relevant laws, and considering how to balance mandates and due process protections with professional standards, are essential to the development of appropriate and flexible district policies regarding the review and release of school records. Most critical to resolving these dilemmas is not the application of law, but the implementation of "best practice": By establishing collaborative relationships with parents throughout our service delivery system, we can teach rather than confuse and inform rather than confront, thus reducing the probability that parent requests will challenge our professional or legal sensibilities.

References

American Psychological Association (1992). Ethical principles of psychologists. Washington, DC: Author.

Beeman, Y. (2000, Spring). Issues regarding security of tests and protocols. NHASP Protocol, p. 8 (New Hampshire Association of School Psychologists).

Bureau of Education for the Handicapped (1979, January 9). Policy letter.

Canter, A. (1990, October). Policy needed for handling parents’ requests for protocols (ethical dilemma).  Communiqué, 19 (2), 2.

Jacob-Timm, S. (1999). Ethically challenging situations encountered by school psychologists. Psychology in the Schools, 36, 205-217.

Jacob-Timm, S. & Harsthorne, T. S. (1998). Ethics and law for school psychologists (third edition). New York: Wiley.

John K. and Mary K. v. Board of Education for School District #65, Cook County, 504 N.E. 2d 797 (Ill. App. 1 Dist. 1987).

National Association of School Psychologists (2000a). Principles for professional ethics (revised). Bethesda, MD: Author. (available online at www.nasponline.org)

National Association of School Psychologists (2000b). Guidelines for the provision of school psychological services (revised). Bethesda, MD: Author. (available online at www.nasponline.org).

Reschly, D.J. & Bersoff, D. N. (1999). Law and school psychology. In C.R. Reynolds & T.B. Gutkin (Eds.), Handbook of school psychology (3rd edition) (pp. 1077-1112). New York: Wiley.

Thomas, A. (2000, June). School psychology 2000: What is average? Communiqué, 28 (8), 34.

Part II of this series (June 2001) will address the storage and disposal of psychological records including test protocols. Thanks to Susan Jacob-Timm for providing several key resources for this article, and to Kathy McNamara, Michael Forcade, Fred Grossman and Ted Feinberg for their helpful suggestions.

Andrea Canter, Ph.D., NCSP, is Editor of Communiqué and intern supervisor for the Minneapolis Public Schools. This article was written as part of her assignment to NASP as "Consultant for Special Projects."