Medical Records
TO: Deans, Directors, Department Chairs, AARCs, DLRs
FROM: Melany S. Newby, ADA Coordinator
DATE: May 1, 1995
RE: Medical Records under the ADA
In dealing with requests from individuals for reasonable disability accommodations,
medical records pertaining to that individual are often provided and kept
by the institution. Therefore, it is important to know what regulations
apply to those medical records, or, in the absence of regulations, what
guidelines to follow to avoid a claim of breach of confidentiality or
violation of a right of privacy.
I. Employees.
The ADA specifically addresses how employee medical records should be handled, where they should be stored, who may see them, and when employees must divulge medical information. See 29 CFR 1630.14 (b), (c) and (d), a copy of which is attached for reference. In addition, each of the employment policies (for faculty, academic staff and classified employees) covering individual requests for a disability accommodation and the recently distributed "Employment Provisions of the Americans With Disabilities Act: UW-Madison Guidelines for Compliance" include information on the confidentiality of medical records and should be consulted for guidance.
II.Students.
The ADA, Federal Education Rights and Privacy Act (FERPA), and other state or federal statutes do not specifically address student medical records. Therefore, existing case law and commentary must be looked to for guidance; those sources offer the following as guiding principles.
A. Student medical records are entitled to confidential treatment.
All commentators agree that student medical records, just like "educational records" covered by FERPA, should be confidential. Courts also have been willing to recognize a right to privacy in a student's medical records, although the student's right to privacy must still be balanced against the university's need to know the information.
B. A student must provide documentation of a disability when putting the disability at issue.
A student who puts his/her disability at issue must disclose the nature of the disability and provide verifying documentation of the disability. Students most often put their disability at issue in two situations. The first is during the admissions process, when a student may offer his/her disability as an excuse for prior poor academic performance. The second situation is when a student requests a reasonable accommodation. In each of these situations, the student must disclose and provide documentation of the disability.
C. The institution may seek additional medical documentation.
If the student-provided documentation is incomplete or inconclusive,
the institution may request that the student provide additional, more-specific
documentation, at the student's expense. The institution may also seek
medical confirmation or a second medical opinion at the institution's
expense. Medical records received as a result of the above must be accorded
the same confidential treatment as the student's original documentation.
D. The disability may be disclosed to those individuals with a need to know.
In general, a student's disability and medical information may be disclosed, without the student's express permission, to university employees with a need to know. This need to know must be balanced against the student's interest in keeping his/her medical records private. The "need to know" exception is analogous to one of the stated exceptions for educational records under FERPA. Although there should be no general availability of student medical records to faculty or others, the departmental Access and Accommodation Resource Coordinators (AARCs) would logically be included in the need to know group.
Regardless of to whom the university plans to disclose student medical records, the university should inform students that disclosure may be necessary to selected employees, perhaps specifying school or college liaisons and/or AARCs. Students also should be provided the reasons for which disclosure may be necessary, i.e., to assess the reasonableness of a requested accommodation. It should also be made very clear to those who may receive access to the medical records that this access is restricted to them personally and any further disclosure is impermissible. The requirement to maintain the confidentiality of medical records remains in effect even after a student no longer is enrolled in the university.
Finally, disclosure to individuals outside of the university should not be made without appropriate waivers. In Wisconsin, the university must have the student's informed consent before releasing the medical record unless the requestor of or purpose for the medical record request falls within an exception listed under secs. 146.82 and 51.30, Stats.
E.There is no requirement as to where the records are maintained.
There is no definitive authority on where the records should be kept. As long as the records remain confidential, we presumably have satisfied any legal requirements. However, it may be prudent that all student medical records be maintained at the McBurney Center. It is recommended that, in any event, any student medical records, associated with a disability accommodation request or otherwise, be maintained apart from other records regarding the student, preferably in a separate file clearly marked "confidential."
MSN/ddl
xc: Trey Duffy
Peggy Lewis
Nancy Malz
Casey Nagy
Lisa Massman
History
Promulgated by original memorandum dated March 17, 1995 and then revised by ADA Coordinator Melany Newby on May 1, 1995.