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."