Confidentiality in Higher Education
Students with disabilities are enrolling in institutions of higher education in increasing numbers. These students are protected from discrimination under Section 504 of the Rehabilitation Act of 1973 and the Americans with Disabilities Act of 1990 in the United States, and under the Canadian Charter of Rights and Freedoms of 1985 in Canada. Recognizing that discrimination often occurs as a result of attitudinal barriers and misconceptions regarding the potential of persons with disabilities, these government mandates for nondiscrimination carry within them rules regarding the confidential treatment of disability related information. The intent of this brochure is to provide information about how these rules impact day-to-day activities in postsecondary institutions and to suggest appropriate practices to follow.
It should be noted that some states and provinces have separate rules regarding the confidentiality of files and information regarding disability. Some have incorporated interpretations of these statutes that may vary from what you will read here. This information is offered as technical assistance and should not be considered legal advice.
What are the Rules Regarding Confidentiality?
Disability related information should be treated as medical information and handled under the same strict rules of confidentiality as is other medical information. This includes any supplemental reports that persons with disabilities may provide to establish their need for accommodation.
Disability related information should be collected and maintained on separate forms and kept in secure files with limited access.
Disability related information should be shared only on a limited basis within the institutional community. It may be shared only when there is a compelling reason for the individual from the institution seeking information regarding some specific aspect of this confidential information.
Why Do We Need These Rules?
Some disability related information is clearly medical in nature, and as such, must remain confidential as noted. Other disability related information may trigger negative connotations about the person with the disability. People whose disability is a result of HIV, seizure disorder or psychiatric illness, for example, deserve and expect to have their privacy protected by having this information handled in a highly confidential manner. The government statutes regarding persons with disabilities hold the promise that they will provide the same level of protection for any one individual, or class of individuals, with a disability than they do for another. Therefore, since some disability related information must be guarded closely, keeping all such information equally protected is a conservative, safe and legally acceptable practice.
But Doesn’t FERPA Give Faculty the Right to More Information?
In the U.S., the Family Educational Rights and Privacy Act of 1974, also known as the Buckley Amendment, provides faculty with access to educational information in institutional files regarding students with whom they are working. Disability related records provided by a physician, psychiatrist, psychologist, or other recognized professional are not subject to free access under FERPA. The Act exempts such disability related records that are used for support of the student and are available only to service providers and other professionals chosen by the student.
Note that there are individual state and provincial laws that may provide additional protection of confidentiality for medical and mental health records.
For further information contact:
In Canada: The Provincial Human Rights Commission for your province or the appropriate Provincial Professional Licensing Agency.
Association on Higher
Education and Disability
P.O. Box 21192
Columbus, OH 43221-0192
(614) 488-4972 (V/TT)
(614) 488-1174 (FAX)