Confidentiality and Disability Guidelines for Faculty
This information is taken from a brochure prepared by the Association on Higher Education and Disability (AHEAD), the international professional organization that serves as a resource for colleges and universities to assist them in providing support for students with disabilities.
Student with disabilities are protected from discrimination under Section 504 of the Rehabilitation Act of 1973 and the Americans with Disabilities Act of 1990.
Recognizing that discrimination often occurs as a result of attitudinal barriers and misconceptions regarding the potential of persons with disabilities, these mandates presume the U.S. constitutional right to privacy, whether articulated in the form of guidance or specific regulations as applied to the treatment of disability related information.
Best Practices Regarding Confidentiality:
Treat disability-related information the same way as medical information with the new HIPPA Law requirements this has specific meanings and serious legal and financial penalties for not following the provisions of the law which was designed specifically to protect the privacy of medical records and the patients they pertain to. The information includes documentation required to provide proof of disability and to request accommodations.
Disability-related information should be collected and maintained on separate forms from other forms at the college/university. It should be kept in secure files with limited access. Thus, faculty have no right to demand access to the actual documentation, test scores, counseling records, dates, or the names of the professionals who provided such information.
The disclosure of unnecessary, specific disability-related information to those without a legal right to know may have the unintended consequence of increasing the institution's and/or individual faculty member's or administrator's vulnerability to charges of retaliation, harassment, or animus (hostility).
If data re being collected such as how many students are being served, types of disabilities and accommodations used, etc., personality identifying information on the students does not need to be included with the data.
Be careful that listings of students with disabilities are not circulated throughout the institution.
Related to computer records, information regarding the disability needs of a student should be managed carefully; shared files need to have password protection.
Do not send out memos to students with disabilities via a multiple address listing: it could lead to a violation of confidentiality by revealing the names of students with each other.
Regarding FERPA (the Buckley Amendment), faculty may have access to students' educational records, but treatment and disability records are exempt from that requirement.
What if there is a real need to know about a disability?
The need and the extent of the disclosure of the disability may need to be evaluated when issues related to safety of the student or the impact of the disability on others' safety is at issue. If a student has a need for accommodation in on-campus housing, information about that need may be shared with those who need to know there is a valid request being made. The director of the health center and the person in residence life who place students in medical single rooms, for example, need to have this information. Does the student assistant or RA on the floor or in the suite need to know all of the details? Absolutely they do not. The student with a disability has a right to privacy as well as to having support for the housing needs.
In a classroom setting, a student may request additional time to take an exam or to have a test read or to have it scribed or to use a computer to write an essay exam. The professor does not need to see the documentation related to the disability or the test scores or medical reports that were used as documentation for the testing accommodations. If the student discloses the type of disability he or she has and its impact on how he/she learns best, that is fine and helpful for the professor. However, if the student does not wish to do this, it is not necessary that the faculty know specifically what the student's disability is to provide assistance.
Some students have disabilities that are life-threatening or potentially fatal, such as AIDS or Hepatitis C. The concept of universal precautions means that we treat all students, not just those with disabilities, as if they had these diseases. We would require safety precautions in labs and classes where cuts and infections would possibly impact others' health. Laws protect these students' confidentiality to such an extreme that record-keeping is very carefully proscribed. The health center staff has the expertise to provide faculty with assistance in devising universal precaution guidelines if they are not in place.
This is a very confusing area that makes many faculty nervous about how and what they can do to provide assistance safely and impartially. Access, not necessarily guaranteed success academically, is the heart of the student with a disability's needs. Respecting that personal privacy and working with the staff in the disability services office that have obtained the documentation and signed releases to discuss student requests on a need to know basis foster a collaborative spirit that can only be helpful. Communication and support are useful tools we all can use.
