Like attorneys, psychologists are bound by a multitude of ethical obligations. Two of those – the release of psychological test data and maintaining test security – have recently become the subject of litigation within the Office of Administrative Law Judges (OALJ) in a case arising under the Longshore and Harbor Workers’ Compensation Act.
Kabaale v. Reed, Inc.
In Kabaale v. Reed, Inc., Administrative Law Judge Timothy J. McGrath ruled on a motion to quash a subpoena served on defense expert, Dr. Epker. The subpoena requested Dr. Epker provide not only his expert disclosures but also records and correspondence provided by the employer and carrier, along with “testing materials and testing results, including but not limited to, Test of Memory Malingering (TOMM), Morel Emotional Numbing Test for PTSD (MENT), and Miller Forensic Assessment of Symptoms Test (MFAST).”
The employer and carrier subsequently filed a motion to quash the subpoena on the grounds that (1) Dr. Epker would be violating his ethical obligations under the American Psychological Association guidelines if he released the test answers and other raw test data to someone other than a licensed psychologist; and (2) Dr. Epker would not only be violating his ethical obligations, but also copyright laws, if he released the test questions. In support of the motion was a letter from Dr. Epker himself, which set forth Ethical Standards 9.04 and 9.11 of the American Psychological Association’s Ethical Principles of Psychologists and Code of Conduct:
9.04 Release of Test Data
(a) The term test data refers to raw and scaled scores, client/patient responses to test questions or stimuli, and psychologists’ notes and recordings concerning client/patient statements and behavior during an examination. Those portions of test materials that include client/patient responses are included in the definition of test data. Pursuant to a client/patient release, psychologists provide test data to the client/patient or other persons identified in the release. Psychologists may refrain from releasing test data to protect a client/patient or others from substantial harm or misuse or misrepresentation of the data or the test, recognizing that in many instances release of confidential information under these circumstances is regulated by law.
(b) In the absence of a client/patient release, psychologists provide test data only as required by law or court order.
9.11 Maintaining Test Security
The term test materials refers to manuals, instruments, protocols, and test questions or stimuli and does not include test data as defined in Standard 9.04, Release of Test Data. Psychologists make reasonable efforts to maintain the integrity and security of test materials and other assessment techniques consistent with law and contractual obligations, and in a manner that permits adherence to this Ethics Code.
Using these two standards, Dr. Epker concluded that he would not release the test data or materials to claimant.
Judge McGrath, however, disagreed with Dr. Epker and noted that pursuant to Subsection (b) of Ethical Standard 9.04, “there are no ethical constraints upon a psychologist providing test data to a claimant and his attorney pursuant to a court order. When a court order requires the production of test materials, including raw data and test questions, a doctor is no longer in danger of violating ethical standards by producing the materials.” As for maintaining testing security, Judge McGrath also noted that producing test questions and answers pursuant to a subpoena does not violate Ethical Standard 9.11. For these reasons, Judge McGrath denied the employer and carrier’s motion.
The fight to protect test data and materials from being released has not stopped since Judge McGrath ruled on the motion in Kabaale in November 2020. Rather, the issue is still being litigated. While some Administrative Law Judges have followed Judge McGrath’s ruling to a T, others have ordered the parties enter into a protective order, releasing the data and materials only to a licensed psychologist of the claimant’s choice, out of respect of the defense expert’s ethical obligations and concerns.
Like many issues in law, this issue may become one where courts become split. We will continue to follow this issue and report as new developments occur.
 ETHICAL PRINCIPLES OF PSYCHOLOGISTS AND CODE OF CONDUCT, http://www.apa.org/ethics/code2002.html (emphasis added).
 Judge McGrath also opined that the employer and carrier’s motion failed on its merits in relation to standing issues. However, “for the sake of clarity,” Judge McGrath addressed the merits of the motion.