Confidentiality in Higher Education

Students with disabilities are enrolling in institutions of higher education 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 the comprehensive documentation from an appropriate source that persons with disabilities must provide to establish the existence of their disability and their need for accommodation or consideration.

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 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.

What Does That Mean for Postsecondary Institutions?

One office or individual on campus should be assigned the responsibility for collecting and holding disability related documentation for students with disabilities.

The information regarding a student's disability should be shared by those who hold the documentation on a limited basis, and then only when there is compelling reason for such disclosure. This may mean sharing with faculty only the information that a student has a documented disability and need for accommodations(s). In the U.S. the department of Justice has indicated that a faculty member generally does not have a need to know what the disability is, only that it has been appropriately verified by the individual (or office) assigned this responsibility on behalf of the institution. Thus, faculty would have no legal right to demand access to the actual documentation, including testing scores, dates or names of professionals providing such documentation.

Administrators may have a need to collect data such as how many students are being served, the nature of their disabilities and recommended accommodations. Under typical circumstances, however, they do not have a need for personally identifiable information about who those students are for purposes of statistical or survey reporting. One way to protect the confidentiality of students with disabilities is by being careful to see that their names do not appear on general listings that may be circulated throughout the institutional community in other contexts.

As postsecondary institutions become increasingly computerized in their record keeping and communication functions, it is important to note that information regarding someone's disability or their status as a person with a disability is sensitive and should be managed carefully. Interoffice correspondence regarding the need of a student with a disability should not be placed in shared files without password protection. The same memo sent to a number of students with disabilities by computer with a multiple address listing, may lead to a violation of confidentiality by revealing the names of those students to each other.

The need to share disability information may change with time and circumstances. If a student with a disability resulting from a health-related condition moves into university housing, the residence hall staff may need to know about the condition in order to provide emergency accommodations. If a student files a grievance regarding treatment by a faculty member, the administrator charged with handling the concern may need to know the specifics of the individual's disability and history within the institution.

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