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Friday, January 31, 2014

“There is a thin line that separates laughter and pain, comedy and tragedy, humor and hurt.” Erma Bombeck


After spending two days with my extended family this week, there is much to share. However, this blog post is not about that. Set the way back machine to December 2013, and the issue of chemical disclosure. During the meeting,  Blue Ridge Environmental Defense League and others raised concerns related to a "gag" order on medical professionals. Mining and Energy Commissioners Jim Womack, Dr. Ray Covington, and Dr. Marva Price dismissed these concerns, apparently functioning under the mistaken perception that the Health Insurance Portability and Accountability Act (HIPAA) would pre-empt any "Trade Secrets" claim. 

Thinking back on my Human Services training, I remembered something about this:  

HIPAA Link here: Health Information Privacy
(e) PROTECTION OF TRADE SECRETS.--Except as otherwise required by law, a standard adopted under this part shall not require disclosure of trade secrets or confidential commercial information by a person required to comply with this part. 


Caveon Test security

Tests typically are protected by copyright law, and test authors and publishers are reluctant to give permission to release test data. Of critical importance to these parties is the maintenance of the integrity of the test so that it will continue to be a valid and useful tool. Authors and publishers explain that the dissemination of record forms (which may disclose test questions and answers) may result in the “next” patient having knowledge of test content prior to testing.  This may lead to invalid recommendations. To explain further: when the client has knowledge of the content or the underlying constructs, and/or perhaps the responses, that person is no longer comparable to a naïve normative group. As a result, decisions, and diagnostic and treatment recommendations for this patient may no longer be valid when based on the normative distribution.
In past years, instances of exposure of test materials have been reported. The advent of the Internet has increased this risk through its ease of publishing and disseminating information to a broad audience. At times the exposed test content has been accompanied by coaching and hints so that clients could prepare their responses before being tested and thus have a better chance at winning a child custody case or qualifying for workman’s compensation or another program. After such exposure of the test, the practitioner is left not knowing whether or not his client is a naïve test taker, and thus, whether the comparisons to normative and research data are valid.
Protection of copyrighted material is addressed by The Standards for Educational and Psychological Testing and the Ethics Code."

In a letter to their customers, Psychological Assessment Resources, Inc. advised:
Link to statement here: PRA HIPAA Statement

"The wide spread dissemination of test materials (which may disclose test items and answers) 
would violate restrictions on health care providers’ use of PAR’s test materials, and would 
render test instruments invalid and therefore useless to the professional community and the 
general public. The U.S. Department of Health and Human Services (HHS), which is 
responsible for HIPAA, recently provided clarification related to this matter and stated in a letter 
that:  “Any 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.” 

While interpretation of the trade secret clause under HIPAA is complex, on its face it appears that if a medical provider signs a confidentiality agreement-the yet to be revealed "Form X3"- with a manufacturer, vendor or service company, HIPAA itself may prevent that provider from disclosing business confidential information to their patient. What is crystal clear: when information is allowed to be withheld from the public we cannot take anything for granted, or laugh at concerns raised by communities who will be adversely affected by such subterfuge. We all know what assuming does.

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