I. INTRODUCTION
In 1927, the U.S. Supreme Court, speaking through Justice Oliver Wendell Holmes, Jr., condoned and applauded the states’ forced sterilization of disabled persons.Footnote 1 Holmes considered disabled persons a blight on society, likening forced sterilization to vaccination.Footnote 2 For Holmes, denying disabled persons bodily autonomy was the price to pay for eradicating “incompetence” and those who “sap the strength” of society from our gene pool.Footnote 3 In Holmes’ opinion, due to the burden they wrought, disabled persons owed society the “sacrifice” of putting an end to their own kind.Footnote 4 While today Holmes’ opinion may shock the conscience of the average reader, at the time, Holmes’ extreme dehumanization of disabled persons was commonplace.Footnote 5 From the 1920s to the mid-1970s, state governments across the country forcibly sterilized 70,000 people without informed consent, most of whom were considered disabled.Footnote 6 Today, due to stigma, accessibility barriers, and lack of disability cultural competency, on average, disabled persons continue to receive substandard medical care when compared to their non-disabled peers.Footnote 7
To say the least, disabled persons maintain a complicated and, at times, painful relationship with the medical profession. Significantly, the medical profession wields an enormous amount of power over disabled persons—they are more likely to need frequent care and rely on their practitioners to verify needs for government rendered social supports, and in the context of education, accommodation verification requests.Footnote 8 In effect, the legal and higher education communities have placed the medical community in a position of authority over disabled persons, casting providers in the role of “keeper of the keys” to disability personhood—one of the pitfalls of staunch obedience to the medical model of disability as opposed to a more holistic approach.Footnote 9 Thankfully, there are signals that legislators are moving away from the medical model.Footnote 10 The Americans with Disabilities Act, as amended (“ADA” or the “Act”) does not require the examination of medical evidence as a prerequisite to making a disability status determination.Footnote 11 Unfortunately, despite the statutory text, post-secondary accommodation interactive process frameworks often require the production of medical documentation as a prerequisite to securing accommodations.Footnote 12 This is almost certainly due to the absence of a robust regulatory regime outlining and limiting the interactive process to inquiries of reasonable scope.Footnote 13 As they stand now, regulations do little to prevent onerous and intrusive medical documentation requests, which are sometimes used to stigmatize disabled persons, contorting disability identity into a mark of inferiority.Footnote 14
The current regulatory scheme inadequately defines the boundaries of permissible medical inquiry, resulting in unwieldy documentation requests that intrude upon students’ medical privacy and demean their personhood. These practices indicate near sole reliance on the medical model of disability which is not appropriate for the higher education setting; these practices fail to incorporate other disability models and theories (e.g., social model, interactionist model, social justice model, and disability justice model) and as a result is injurious to disabled personhood.Footnote 15
Despite the persistent ableist structures in higher education institutions, self-disclosure of disability status has increased steadily since the 1990s.Footnote 16 As enrollment of disabled persons in higher education increases, the absence of medical inquiry boundaries demands the attention of disability education advocates. In 1999, approximately nine percent of undergraduate students reported having a disability.Footnote 17 By 2012, eleven percent.Footnote 18 In 2015, nineteen percent.Footnote 19 Under the ADA framework, student disclosure triggers statutory obligations.Footnote 20 More specifically, once a student discloses disability, the institution is required to engage in the “interactive process.”Footnote 21 As the numbers stand, almost one in five students trigger interactive process obligations, but the Department of Justice (“DOJ”) has not promulgated regulations governing appropriate medical inquiry within the interactive process.Footnote 22
Twenty-eight percent of students with a previously identified disability disclosed their status to their higher education institution.Footnote 23 Of those who disclosed, only seventy percent received accommodations.Footnote 24 Momentarily leaving aside the issue of non-disclosure, the story behind the thirty percent of students who disclose a disability but do not receive accommodations requires more attention. To be sure, a portion of those students do not receive accommodations because their disability does not require one. Frustratingly, currently there is no way of knowing what proportion of the thirty percent figure those students occupy. It is not possible to regulatorily address the likely systemic phenomenon of overbroad, injurious, and stigmatizing medical record requests without data collection investigating the practices of covered entities. Recent litigation suggests that overbroad medical record requests tend to screen out persons with disabilities from higher education programs and are thus impermissible under Titles II and III of the ADA.Footnote 25
First, this Note defines the danger of overbroad medical record requests and explains how such requests risk undermining the language and statutory intent of the ADA. Part II examines the history of inclusive education by evaluating statutory and case law developments. Part III examines the value and procedural based complications present in the current disability education law framework that lead to overbroad medical record requests which tend to screen out students with disabilities. Part IV presents a solution in the form of reporting requirements such that the DOJ and private party litigants alike may better understand the documentation request practices of universities.
II. PROBLEM: THE NOT SO INTERACTIVE PROCESS – ACCOMMODATION ELIGIBILITY EVALUATIONS AND OVERBROAD MEDICAL RECORD REQUESTS IN HIGHER EDUCATION
As the ADA Congress recognized, the promise of societal equity for persons with disabilities necessarily includes the opportunity to fully participate in higher education programs.Footnote 26 As it stands now, the higher education accommodations process relies upon affirmative student disclosure and takes for granted good faith inquiries by covered institutions.Footnote 27 Recent litigation illustrates that, left to their own devices, higher education institutions and testing organizations can abuse the power dynamic between themselves and students seeking accommodation by requesting unreasonable testing, burdensome demands on students’ medical practitioners, and broad record requests that tend to embarrass the student or delay the interactive process to the student’s detriment.Footnote 28 This practice not only harms the individual student requesting accommodations, but can chill others from seeking accommodations as well.Footnote 29 Currently, Title II and III regulations only address the proper scope of documentation requests in the context of an initial disability status determination.Footnote 30 Unfortunately, any regulations regarding the permissible scope of medical inquiry during the accommodation crafting process itself is notably absent. The only word from the DOJ on this subject exists in the form of “technical guides” speaking to the outer limits of medical inquiry for entrance examination companies (e.g., the Law School Admissions Counsel or “LSAC”) and professional licensure organizations (e.g., a state bar association).Footnote 31 Confusingly, the guides do not address the permissible scope of medical inquiry for colleges or universities engaging in the same type of accommodation based medical inquiries. Even if the guide did address medical inquiry boundaries within higher education programs, the non-compliance risk would remain intolerably high as technical guides, unlike duly promulgated regulations, lack the force of law.Footnote 32 Essentially, courts have greater liberty to ignore technical guidance, and indeed have done so within the context of the ADA.Footnote 33 With no clear regulation outlining the outer bounds of medical documentation requests, covered entities are more likely to inappropriately invade upon students’ medical privacy. A recent settlement agreement between the DOJ and Northern Michigan University confirms the DOJ’s view that overly broad or unduly burdensome medical record requests for readmission after medical leave may violate a covered entity’s accommodation obligations by placing an undue burden on academic program access.Footnote 34 This Note posits that, in the same vein, students pressured to release large volumes of medical information may be dissuaded from applying for and accessing academic accommodations.Footnote 35 While recent settlement agreements give us a general idea about the proper legal scope of medical documentation, these decisions are only legally binding unto the parties to the settlement, and therefore, are an inappropriate replacement for regulation.
III. HISTORICAL GLOSS: DISABILITY RIGHTS AND EDUCATION IN THE UNITED STATES
A. Equal Education in Primary & Secondary School
In 1954, the case of Brown v. Board of Education finally solidified the undeniable truth that separate education is not equal education.Footnote 36 The ADA mirrored Brown’s recognition that society is inherently unequal as there are intangible social benefits that cannot be replicated in a separate environment.Footnote 37 In other words, without full and unfettered access to all aspects of public life, people with disabilities are denied their full citizenship and humanity. Brown acknowledged that without an integrated education model, societal equity is not achievable.Footnote 38 The remnants of wholly segregated education systems linger and disabled people continue to face equal education barriers due to stigma hampering disability disclosure and the unreasonable denial of accommodations.Footnote 39 When disabled students matriculate without individually necessary reasonable accommodations, they endure a substandard, second-class form of education.Footnote 40
In 1973, Congress enacted Section 504 of the Rehabilitation Act (“Section 504”) barring any program receiving federal funding from discrimination on the basis of disability.Footnote 41 Section 504, however, did not specify the obligations of public schools concerning the education of students with disabilities, and did not allocate funding to the state for compliance purposes, so the act, as a stand-alone vehicle, was largely ineffective at curing inequities in primary and secondary education. By contrast, the Individuals with Disabilities Education Act (“IDEA”) requires public primary and secondary schools that received federal funding to educate children with disabilities and provides additional federal funding to aid in IDEA compliance.Footnote 42 Educational institutions subject to IDEA must abide by six mandates which facilitate the development of comprehensive special education programs, and the identification and accommodation of disabled students.Footnote 43
B. Post-Matriculation Educational Program Accommodations
Until the passage of the ADA in 1990, Section 504 served as the only source of statutory protection for students with disabilities in higher education.Footnote 44 Section 504 still provides protection for individuals seeking accommodations in higher education—the drafters of the ADA based much of its original language on the text and intent behind Section 504.Footnote 45 Section 504 prohibits discrimination on the basis of disability in programs and activities, public and private, that receive federal financial assistance.Footnote 46 Additionally, Section 504 and its regulations mandate that covered entities provide comparable education to both disabled and non-disabled students—often achieved by the granting of reasonable accommodations.Footnote 47
In 1990, Congress expanded disability rights via the passage of the ADA.Footnote 48 In so doing, Congress expressed concern for disability rights—recognizing the barriers that exist for disabled people to access the world around them (physically, emotionally, and intellectually).Footnote 49 Congress admonished the historical isolation of persons with disabilities, recognizing that, while improvements had been made, disability discrimination stubbornly persisted.Footnote 50 Unfortunately, not long after the Act’s passage, the courts stymied Congress's vision by substantially narrowing the definition of disability and the class of disabled persons able to sue for relief under the Act.Footnote 51
C. Judicial Backlash: Narrowing the Definition of Disability
Under the ADA, a person is considered “disabled” if they have a “record” of a “physical or mental impairment that substantially limits one or more [of the individual’s] major life activities.”Footnote 52 In 1999, the Supreme Court resolved a definitional dispute around the term “substantially limits.”Footnote 53 The agencies failed to promulgate regulations adequately defining the term, allowing the Court to adopt its own definition via a series of opinions known as the “Sutton Trilogy.”Footnote 54 The trilogy stood for the proposition that “mitigating measures” (e.g., mobility assistive devices and medication) must be taken into consideration when determining if a person is “substantially limited” in one or more of their major life activities.Footnote 55 In so doing, the Court refused to follow Equal Employment Opportunity Commission (“EEOC”) guidance supporting the opposite conclusion because, according to the Court, the “plain language” of the statute necessitated the consideration of mitigating factors.Footnote 56 By narrowing the definition, the Court slashed the number of disabled persons able to achieve standing under the Act. In fact, before the passage of the ADA Amendments Act (“ADAAA” or “the Amendments Act”), most claims against employers were summarily dismissed on a definitional basis.Footnote 57 Defining “disability” to exclude those whose impairments are mitigated “enough” by corrective devices, medication, mobility aids, etc. eliminated accessibility protections for millions of disabled Americans.Footnote 58 The narrowed definition was particularly problematic with regard to more fluid and “flaring” disabilities that do not have a stagnant relationship to mitigating devices or medications (e.g., Irritable Bowel Disorders).Footnote 59
The circuit courts are split as to their interpretation of the Sutton decision.Footnote 60 The Second Circuit stated the ability to “self-accommodate” was relevant to assessing disability status, but was not by itself determinative.Footnote 61 In Bartlett v. New York State Board of Law Examiners, the Second Circuit applied a more individualized assessment, focusing on how a condition impacts a person’s major life activities and processes.Footnote 62 In Bartlett, the petitioner was dyslexic and sued the New York State Bar because it refused to grant bar examination accommodations.Footnote 63 In determining the petitioner's disability status under the ADA, the court concluded that it was proper to consider the petitioner's ability to self-cope in the past as a mitigating factor.Footnote 64 The court clarified, however, that the ability to self-cope, or any one mitigating factor for that matter, is not determinative as to whether a person is disabled within the meaning of the ADA.Footnote 65 Unfortunately, the Bartlett court’s individualized approach did not permeate other courts’ jurisprudence.Footnote 66 The Fourth Circuit doubled down on definitional status determinations. The court audaciously stated that one’s ability to self-cope is a determinative factor weighing heavily against disability classification under the ADA.Footnote 67 Until Congress passed the ADAAA in 2008, courts who followed the Fourth Circuit approach severely limited ADA protections for disabled persons.Footnote 68
D. Congress’ (Slow) Retort: Overriding the Jurisprudential Mutilation of the ADA & the Restoration of Disability Rights Oriented Litigation
It took Congress nearly a decade to restore the definition of disability via the ADAAA, reversing the definitional death knell of the Sutton Trilogy.Footnote 69 Specifically, Congress overturned Sutton and forbade the consideration of ameliorative effects when determining whether a person is disabled under the ADA.Footnote 70 Additionally, Congress reinforced the definition by clarifying that persons with conditions in remission, or that oscillate in severity and restriction, are considered disabled if the condition, when active, “would substantially limit a major life activity.”Footnote 71 Lastly, Congress laid out its explicit intent for courts to construe disability broadly, leading some courts to default to a finding of disability status.Footnote 72
Eventually, the main issue in ADA litigation evolved from establishing definitional standing to the actual merits of discrimination cases.Footnote 73 The definitional issue surrounding the term “substantially impaired” did not reach the circuit courts again until 2014. In Summers v. Alarum, the Fourth Circuit considered the validity of duly promulgated EEOC regulations that established employees with a temporary disability (a substantially debilitating condition that lasts for six months or less) fits within the restored definition of “substantially limiting” under the ADA, as amended.Footnote 74 In Summers, the defendant employer did not grant a temporarily disabled employee accommodations because the employer found the employee was not “substantially limited” under the Act.Footnote 75 The employer claimed the EEOC incorrectly interpreted the ADA and erroneously included those with temporary disabilities within the definition of “disabled” under the Act.Footnote 76 The Fourth Circuit disagreed. Citing Congress' clearly stated intent to construe disability broadly, the court upheld the EEOC’s regulations.Footnote 77 It is unlikely that under pre-ADAAA case law, the employee would have survived the motion to dismiss stage.Footnote 78 The Summers decision has broader implications outside of the employment realm as the definition of disability is stagnant across all Titles of the ADA.Footnote 79
IV. MODERN FRAMEWORK: THE OBLIGATIONS OF HIGHER EDUCATION INSTITUTIONS AND TESTING ORGANIZATIONS UNDER THE AMERICANS WITH DISABILITIES ACT
Title II and Title III of the ADA, and Section 504, command covered entities to provide access for disabled persons to higher education programing.Footnote 80 Providing access frequently requires that higher education programs provide reasonable accommodations to disabled students.Footnote 81 While regulations under Section 504 are only triggered if a higher education program receives federal funding, practically, Section 504 and ADA regulations apply in any context discussed in this Note (aside from private testing company accommodations, though they are covered by the ADA Title II) as most higher education programs across the country receive federal funding.Footnote 82 As is explained infra, and indeed is the problem identified by this Note, regulatory guidance regarding the permissible scope of medical documentation requests during the interactive process is limited. ADA jurisprudence and settlement agreements more explicitly comment on the scope of permissible medical documentation requests and, as such, are the framework used for this Note.
There are two main stages to the higher education accommodations process: (1) the initial coverage determination and (2) the interactive process.Footnote 83 The first component involves making a determination of a student’s baseline eligibility for accommodations under the ADA.Footnote 84 Once the institution “verifies” that a student has a disability as defined by the ADA, the school is then required to make reasonable modifications to the degree program.Footnote 85 The ADA is far more informative regarding medical documentation requests in the first stage, but is relatively silent regarding the second. Upon making a disability determination, the ADA permits, but does not require, the collection of medical information from students.Footnote 86 Title II and III regulations provide that ascertaining one's disability status will “usually … not require scientific, medical, or statistical evidence.”Footnote 87 For the second stage, except in the realm of entrance examination testing, there are no regulations governing the permissible scope of medical documentation requests when crafting accommodations as part of the interactive process.Footnote 88 Case law minimally elucidates the murky regulatory regime that underlies the interactive process within the context of higher education.
Interestingly, until the case of Guckenberger v. Boston University, it was not clear whether the interactive process applied to higher education accommodation procedures.Footnote 89 Even still, the interactive process has not been formally enshrined in Title II or III regulations and is commonly referenced within the context of employment accommodations governed by EEOC regulations.Footnote 90 For purposes of analysis, this Note assumes the interactive process is a mandatory component of higher education accommodation as is declared in Guckenberger. The closest we have to an explicit regulation barring unreasonable medical documentation requests during said process is an overarching regulation that prevents covered entities from imposing eligibility criteria that screen out persons with disabilities.Footnote 91 If an accommodation framework intentionally or unintentionally screens out disabled students, it violates existing regulations.Footnote 92 Indeed, the Guckenberger court used the anti-screening provision to invalidate several of Boston University’s medical documentation request practices during the interactive process.Footnote 93
As mentioned above, private entrance examination and professional licensure testing agencies must adhere to a somewhat anomalous and more rigorous accommodation framework under Title III.Footnote 94 During the interactive process, testing agencies must reasonably tailor medical record requests so that they are “limited to the need for the modification.”Footnote 95 Furthermore, informal guidance instructs testing agencies to give considerable weight to non-medical documentation such as proof of prior testing accommodations.Footnote 96
A. Scrutinizing Higher Education’s Reliance on Medical Documentation to “Confirm” Disability & Exploring Other Disability Models
In the context of the ADA, the term “disability” is a legal construction rather than a medical diagnosis.Footnote 97 Yet, the higher education accommodations framework casts medical professionals into a role that requires legal sophistication.Footnote 98 Certainly, medical professionals can offer valuable perspectives as to how a student’s diagnosis alters the way in which the student performs major life activities, but the current framework asks medical professionals to step out of the diagnostic realm into the realm of legal judgment and construction. The extreme reliance on medical professionals in a capacity for which they are not formally trained strains the physician-patient relationship, renders an undeserved endorsement of the medical model of disability, and tends to screen out disabled persons from accessing full and equal education.Footnote 99 Additionally, over-reliance on the medical model fuels overbroad medical record requests. These requests are not just a nuisance—they operate as a disabling practice that both signals to students that they lack expertise and reliability when it comes to their own lived experiences and commands disabled students to explain the extent of their “non-normalcy.”Footnote 100 Deirdre Smith, a professor at the University of Maine School of Law, explains that medical professionals are often cast as “gatekeepers” of disability rights.Footnote 101 Supposedly, medical documentation preserves the integrity of post-secondary programs and entrance examinations by reserving accommodations for students with authentic disabilities.Footnote 102 The belief, of mythic proportions, that able-bodied students fake disabilities is problematic because it punishes disabled students with procedural hurdles due to their peers’ alleged lack of candor.Footnote 103 In 2016, the DOJ reportedly uncovered no evidence that students feign disability at any sort of significant rate.Footnote 104
Higher education is not an appropriate “home” for the medical model.Footnote 105 It wholly pathologizes disability, ignoring the social, environmental, and political barriers which are ever present in educational institutions. Other disability models deemphasize the role of the medical community and look toward the broader universe of the variables present in the disabled experience.Footnote 106 For example, the social model of disability stands for the proposition that people have impairments and, by and large, various aspects of society disable them.Footnote 107 Put simply, having an impairment does not make one disabled, rather, physical, social, and pedagogical barriers inhibit access to aspects of society, in this case education.Footnote 108 Social model adherents observe that disability is a social construct, not an innate or inevitable state of being.Footnote 109 The social model asserts that it is society that disables, not one’s diagnosis. Disability theorists fairly criticize the reductionist nature of the social model—observed too strictly, it erases the experiences of those who, for example, suffer from chronic disease or illness.Footnote 110 Nevertheless, the social model importantly relays that sometimes, the institution, rather than one’s medical impairment, is the causal factor in a students’ perceived limitation in the educational setting. No one model of disability is a panacea for crafting inclusive policy and regulation, and the social model is no exception.
An emerging model known as the disability justice model, which arose out of conversations between disabled queer women of color, expands upon the disabled experience in a way the social model neglects.Footnote 111 In explaining the disability justice model, conceptualizers build off the words of Aurora Levins Morales, who states that “[t]here is no neutral body from which our bodies deviate … no body stands outside the consequences of injustice and inequality … [w]hat our bodies require in order to thrive, is what the world requires.”Footnote 112As Mia Mingus, one of the founders of the disability justice model explains, “ableism is connected, tied up with and mutually dependent on other systems of oppression” that will persist unless we also “[end] white supremacy, economic exploitation, colonization, and gender oppression.”Footnote 113 Disabled lives are complex, and societal constructs do not have a one-size-fits-all effect. The disability justice model makes room for a holistic examination of the way ableism shows up in our institutions for persons of varied intersecting identities. Ableist institutional practices affect disabled persons with intersecting marginalized identities differently, and usually, harm disproportionately.Footnote 114
Applying the disability justice model to the higher education accommodations procedure highlights how a university’s overreliance on medical documentation tends to screen out less-privileged disabled persons from accessing full and equal education.Footnote 115 For instance, disabled students with more wealth, racial, and class privilege are usually able to access more resources to navigate ableist aggression, for instance, seeing a discriminatory or otherwise non-cooperative medical provider, and having the emotional, economic, or social resources to switch medical providers.
1. The Guckenberger Case: The Medical Model and Procedural Ableism in Higher Education
In 1997, ten students with learning disabilities filed a class action suit against Boston University challenging unreasonable neuropsychological testing requirements.Footnote 116 In Guckenberger, the court examined Boston University’s overzealous accommodation evaluation protocols impeding access to accommodations.Footnote 117 In January of 1996, Boston University changed their disability accommodation eligibility policy due to University President John Westling’s skepticism regarding the validity of learning disabilities.Footnote 118 Ironically, Westling believed accommodations robbed students of a robust educational experience and believed the learning disability movement did a disservice to unwitting students, stating that the movement “is a great mortuary for the ethics of hard work, individual responsibility, and pursuit of excellence, and also for genuinely humane social order.”Footnote 119 Westling delivered speeches and published pieces in major news outlets riddled with blatant eugenic statements, including proclamations that learning disabled students were “a plague” and a “silent genetic catastrophe.”Footnote 120 Westling’s assistant, another ableist member of the administration, referred to the students as “draft dodgers.”Footnote 121 Reflecting such viewpoints, on January 8, 1996, Westling and his staff enacted the following medical documentation policy:
(1) Students whose documentation was more than three years old ‘must be reevaluated in order to continue to receive services and accommodations through the LDSS office;’ (2) Students must submit to LDSS documentation of a learning disability that has been prepared by ‘a licensed psychologist, clinical psychologist, neuropsychologist, or reputable physician.’ [Students with current testing performed by an evaluator with a master’s degree need to be retested by an M.D. or Ph.D.]Footnote 122
Plaintiffs asserted Boston University’s new policies imposed “eligibility criteria that screen[s] out or tend[s] to screen out … individual[s] with a disability … from fully and equally enjoying” the educational services offered by the university's programming.Footnote 123 Furthermore, plaintiffs alleged that Boston University could not prove the new policies were a necessary component of the accommodations process.Footnote 124 The court confirmed that a blanket requirement mandating students with static learning disabilities (e.g., dyslexia) to undergo fresh testing imposes significant additional burdens in the way of cost and securing an appointment that screens out or tends to screen out persons with disabilities.Footnote 125 During the course of litigation, however, Boston University augmented their policy to allow students to waive out of retesting if a “physician or licensed psychologist” explains why retesting is unnecessary.Footnote 126 The court found that inclusion of an exemption clause rendered the policy unlikely to screen out students with disabilities because retesting is decided on a “student-by-student” basis.Footnote 127 The court, however, also found that the requirement that the waiver procurement come from a provider with a doctorate degree was unreasonable and tended to screen out students with some learning disabilities.Footnote 128 Frustratingly, the court left the requirement to procure an evaluation from a provider with a doctorate degree, rather than a master’s degree, intact for students getting tested for the first time.Footnote 129 Despite the court’s assurances, the partially invalidated practice places undue deference and pressure on medical providers, stigmatizes students with confirmed and suspected learning disabilities, and reinforces the medical profession's questionable role as “gatekeeper” in the disability rights space.Footnote 130 Covered entities and the courts’ devotion to medical documentation to prove disability status is indicative of our society's persistent tendency to categorize disability as a “pathology” rather than a reflection of “externally imposed barriers” to which not everyone is able to acclimate.Footnote 131
Today, injurious policies persist at schools across the country, including Boston University. For instance, a common accommodation for disabled students is an in-class note-taking assistant.Footnote 132 Troublingly, Boston University requires students with an in-class note-taker accommodation to connect with the note-taker directly, thereby exposing ones identity and, by simple deduction, disability status to a classmate.Footnote 133 This practice places a disabled student in a position where the student must choose between disclosing their disabled identity to a peer or forgoing an accommodation to which they are legally entitled.Footnote 134 Additionally, because the note-taker is not permitted to furnish notes to a student who misses a class session, Boston University’s policy instructs that a student note-taker must monitor the accommodated student’s attendance.Footnote 135 This practice subordinates an accommodated student, places a peer note-taker in a position of supervisory power over that student, and reinforces ableist hierarchical dynamics in the classroom. By contrast, other universities employ an anonymous note-taking procedure (e.g. utilizing an online cloud note repository) such that a disabled student does not have to choose between “outing” themselves to a peer or accessing their note-taking accommodation.Footnote 136 Accommodations protocols that chill the use of granted accommodations exacerbates the preceding injurious accommodation application process, and widens the chasm between disabled students and meaningful access to higher education.
2. The Northern Michigan University Case: The DOJ’s Role in Regulating and Monitoring the Scope of Medical Record Requests
In 2018, the DOJ processed a claim submitted by several disabled students at Northern Michigan University (the “University”) who, after taking psychiatric medical leave, objected to the University’s discriminatory treatment as they sought readmission.Footnote 137 The DOJ resolved the claim with a Settlement Agreement (the “Agreement”).Footnote 138 The Agreement contains a model medical information inquiry form—referenced in the settlement as the “Treatment Provider Form,” which limits the scope of initial medical inquiry during the readmission process.Footnote 139 Now, whenever the University evaluates a student for readmission after psychiatric medical leave, administrators must use the form to request any medical documentation.Footnote 140 Before the Agreement, the University engaged in a discriminatory pattern of behavior against students with psychiatric disabilities.Footnote 141 For instance, when the University had concerns about a student's psychiatric health, the University compelled the student to undergo a mandatory psychiatric evaluation—a report of which the school required access.Footnote 142 Additionally, the University required students to sign behavioral agreements that banned discussion of suicide or other psychiatric concerns with other members of the school’s community.Footnote 143 The University claimed they acted pursuant to the “direct threat” provision of the ADA, which allows them to conduct an individualized assessment of a student who they reasonably believe is a direct threat to the safety or welfare of others.Footnote 144 If a student is a direct threat, then the school is not required to allow the student to participate in their degree program.Footnote 145 For purposes of this Note, the more interesting implication of the Agreement is not whether a student was a direct threat or not, but rather the steps a school is permitted to take in determining the acuteness of the perceived threat based on a student’s medical status. While the Agreement does not explicitly explain why an agreed-upon form is required, intuitively, the DOJ might include such a form to eliminate the danger of overbroad medical record requests.Footnote 146 The form itself begins as follows:
Dear Provider: You have been asked to complete this form as part of the process by which students returning from extended time away from campus are transitioned back into the university. We want to ensure that students are able to participate in Northern Michigan University’s campus community, with or without reasonable accommodations, and that we put in place all that is necessary to help students be successful. Your assessment and recommendations are an integral part of this process.Footnote 147
The form then asks the provider to record treatment dates and detail concerns the provider may have, particularly in the areas of self-care, risk to self, and risk to others.Footnote 148 The form is notably devoid of any diagnosis-related questions and does not ask for supporting documentation.Footnote 149
There are a couple of ways to interpret the Agreement: a narrow conception that rejects the notion that “Attachment A” is a marking of any boundary related to reasonable accommodation requests, or a broader reading that “Attachment A” suggests the acceptable scope of medical inquiries for more administrative processes like reasonable accommodation requests.Footnote 150 Each interpretation requires a fair amount of conjecture, further establishing the need for detailed regulations that increase the predictability of ADA complaint and litigation outcomes. Admittedly, a settlement agreement is an imperfect metric to evaluate the legality of another similar but markedly different inquiry. For example, unlike the readmission process, in the reasonable accommodation process, a student is requesting that the school affirmatively make changes on their behalf. Conversely, in the readmission process, a student is asking to participate in a more general sense, but not necessarily under accommodated conditions.
For issues capable of repetition, like discrimination during the reasonable accommodation evaluation process, administrative regulations are necessary to provide clear guidance to higher education institutions about evaluative procedures and to provide students with the ability to hold institutions accountable when they render a program inaccessible because of a failure to conduct a fair inquiry into their accommodation needs.Footnote 151 That being said, the Agreement likely has implications beyond the readmission context. At a minimum, the Agreement suggests the DOJ is open and willing to process claims regarding overbroad medical requests, such that it benefits universities to self-examine for potentially violative processes.
If one reads the medical inquiry implications of “Attachment A” in a limited way, then any prospective implications only apply to re-admission after a medical leave.Footnote 152 A broader reading of the language of the Agreement, however, tells a different story. Specifically, it illustrates that the form is inherently linked to the reasonable accommodation record request protocol—and by implication has a much further reach than just to psychiatrically disabled students attempting to gain readmission after a voluntary leave.Footnote 153 There are several parts of the Agreement that support a broader interpretation and application. First, in subsection IV, entitled “Title II Obligations and Actions to be taken by NMU,” the DOJ underscores the University’s responsibility to make reasonable modifications when “necessary to avoid discrimination on the basis of disability.”Footnote 154 Additionally, the model form references the possibility that a student may require accommodations upon readmittance.Footnote 155 The reference to accommodations within the form supports the hypothesis that schools may not engage in unnecessarily expansive inquiry when evaluating the need for accommodation. The section of the Agreement that instructs the University to create an “ADA/Non-discrimination policy,” subpart (a)(iv)-(v), details the method in which reasonable modification decisions must be made:
“(iv) For all reasonable modification determinations, NMU will conduct an individualized assessment and case by case determination as to whether and what modification(s) can be made to allow a student with a disability to participate in the services, programs, and activities at NMU, and to continue to participate in and benefit from [NMU] … ; and
(v) NMU will not impose or apply eligibility criteria that screen out or tend to screen out an individual with a disability or any class of individuals with disabilities from fully and equally enjoying any service, program, or activity, unless such criteria can be shown to be necessary for the provision of the service, program, or activity being offered.”Footnote 156
The italicized portion of the quote elucidates the reality that cumbersome disability record requests have a chilling effect on those that require fair evaluations.Footnote 157
V. SOLUTION: MANDATORY REPORTING REQUIREMENTS FOR HIGHER EDUCATION PROGRAMS
The scope of permissible medical documentation requests within the interactive process is far more explicit in the employment context than it is in the higher education context.Footnote 158 In part, the clarity derives from explicit statutory language outlining the acceptable forms and functions of medical examinations and inquiries.Footnote 159 The two contexts, employment and education, however, are similar but not analogous. As is detailed in this section, the Title I interactive process framework is complex and it is not feasible to map the framework directly onto Title II and III. Rather, this Note proposes an intermediary step—reporting requirements—to better understand what the current practice of covered higher education institution mandates with regard to medical record requests.
Additionally, reporting requirements may reveal other methods, aside from medical documentation collection, that covered entities find sufficient to verify one's disability and one's accommodation needs. Decreased reliance on the medical community to verify disability and requisite accommodations reflects a consciousness that people with disabilities share a complicated history with the medical community and that the need for medical documentation can act as a barrier for students who are unable to access medical care or shop around for physicians willing to listen to and fully address their concerns.
A. Title I: An Example of a Comprehensive Medical Record Request Framework
Title I prohibits private employers from discriminating against qualified applicants and employees based on their disability status.Footnote 160 According to the EEOC regulations, employers are liable for discrimination under the ADA when they prevent qualified disabled employees from enjoying the equal opportunity to participate in the workplace based, at least in part, on animus stemming from the employee’s perceived or actual disability.Footnote 161 When an employer denies an employee’s reasonable accommodation request, without demonstrating undue hardship, the employer is denying an equal level of access to the essential functions of a position and thereby committing an act of discrimination.Footnote 162 A reasonable accommodation may include “making existing facilities used by employees readily accessible to and usable by individuals with disabilities” or “job restructuring, part-time or modified work schedules, reassignment to a vacant position, acquisition or modification of equipment or devices, appropriate adjustment or modifications of examinations, training materials or policies, the provision of qualified readers or interpreters, and other similar accommodations for individuals with disabilities.”Footnote 163 The EEOC enforces Title I by processing claims against employers and promulgating regulations.Footnote 164 Unlike Titles II and III, no private right of action exists for employees aggrieved by an employer’s violation.Footnote 165 Rather, aggrieved employees must submit complaints to the EEOC and engage in the administrative adjudication process.Footnote 166 In certain cases, employees may remove their case from the EEOC to federal court.Footnote 167
The scope of permissible medical documentation requests is far more explicit in the employment context than it is in the higher education context.Footnote 168 In part, the clarity derives from explicit statutory language outlining the acceptable forms and functions of medical examinations and inquiries.Footnote 169 The permissible scope of the inquiry by an employer varies depending on the stage of the application process or employment.Footnote 170 There are three stages that correspond with different permissible scopes of inquiry and certain conditions that may trigger a medical documentation inquiry.Footnote 171 The three stages are: (1) pre-employment, (2) post (conditional) offer, but prior to the start of employment, and (3) post-employment.Footnote 172
In the pre-employment stage, an employer may not inquire or conduct a medical examination to determine if an applicant is disabled.Footnote 173 An employer is permitted, however, to make a pre-employment inquiry into “the ability of an applicant to perform job-related functions.”Footnote 174 In other words, employers must phrase pre-employment questions without reference to disability.Footnote 175 In the post-offer/pre-employment stage, an employer can require the prospective employee to submit to a medical examination, and may condition employment on a certain result, so long as every employee is subject to the same examination and requisite result.Footnote 176 Unlike post-employment medical examinations, medical examinations during the post-offer/pre-employment stage “do not have to be job-related [or] consistent with business necessity.”Footnote 177 If the standard medical inquiry screens out potential employees with disabilities, however, the inquiry must be related to the job and “consistent with business necessity.”Footnote 178
During employment, medical inquiries are generally not permitted with a few exceptions. The following conditions may trigger a medical examination or inquiry because they are “job-related and consistent with business necessity.”Footnote 179 If during the course of employment, the employer develops a reasonable belief that an employee has a medical condition that will interrupt the employee's ability to perform essential job functions or that the employee has a medical condition that represents a “direct threat” to the workplace, the employer may initiate a medical inquiry.Footnote 180 Additionally, an employer is permitted to conduct a medical inquiry if the employee is engaged in a profession that implicates public safety (e.g., firefighter).Footnote 181 Finally, if an employee requests a reasonable accommodation, the employer is permitted to conduct a medical inquiry through the “interactive process.”Footnote 182 The interactive process is an information-gathering process that occurs, in good faith, between the employee and employer whereby the parties work together to evaluate requests for reasonable accommodations.Footnote 183 The last of these conditions is analogous to a student asking a post-secondary institution or testing agency for an accommodation.
If an employee asks for a reasonable accommodation, an employer may, but is not required to, ask for medical documentation if a disabled employee requests accommodations, but only if a disability is “not known or obvious.”Footnote 184 If an employee’s disability is non-apparent, employers are permitted, but are not required to, request medical records.Footnote 185 In fact, the EEOC explains that employee requestors are often able to provide sufficient information substantiating the existence of a disability without medical documentation.Footnote 186 The scope of the record request is limited to documents related to the accommodation request.Footnote 187 Under EEOC guidance, complete medical record requests are impermissible—complete records will almost certainly contain information unrelated to the accommodation request.Footnote 188 Not only does the interactive process encourage an open form of communication with the employee, but it also establishes a productive framework to interact with medical professionals. For instance, if the employer requests information from a medical professional but is not satisfied with the record received, the employer may inquire with the medical professional again, but must specify insufficiencies and explain why the employer requires additional information.Footnote 189
The EEOC’s framework demonstrates the value in careful, context driven, medical documentation requests, rather than the solicitation of medical data dumps. The same attitude and ideals are not prominently featured in Title II and III regulations. Aside from brief mention in settlement agreements, the DOJ has no informal guidance or formal regulation guidance requiring schools or testing agencies to engage in staged and cautious medical inquiry. Higher education institutions may take issue with the increased level of involvement demanded by the interactive process. But this concern is easily outweighed when compared to the value of maintaining medical privacy and the reduction of the chilling effects wrought by unreasonable medical record requests.Footnote 190
B. Reporting Requirements for Entities Collecting Students’ Medical Records as a Component of the Interactive Process
Reporting requirement regulations should gather information about the accommodation procedures employed by covered entities. Specifically, schools should report their current accommodation procedure and to what extent that procedure relies on medical documentation collection to the agencies which enforce Title II and III: the Department of Justice, the Department of Education, or the Department of Health and Human Services. If an accommodation request is granted, the reporting institution should record the type of documentation (medical or otherwise) deemed adequate to establish a record of impairment. When an institution denies a student's request, the institution should detail the reasons for the rejection. If the issue cited by the institution implicates insufficient medical documentation, the institution must report exactly what was deficient about the information provided, what steps were employed to attempt to obtain adequate documentation, and if additional testing (such as neuropsychological examinations) were requested of the student. As described infra, the proposed reporting framework somewhat mirrors what is expected of employers under Title I of the ADA pursuant to the EEOC’s recommended procedures for the interactive process.Footnote 191 Therefore, the proposed reporting procedure is in line with the interpretation of covered entities’ obligations under Titles II and III.Footnote 192 Currently, however, the dearth of on-point regulation makes it difficult for students and schools to craft a compliant interactive process framework. The data gathered by the reporting framework will help the DOJ understand the scope and depth of medical record requests and lead to well-informed regulation development that facilitates an interactive process that does not affirmatively disable or demean students. The regulatory framework as it stands now leaves too much room for documentation requests that chill access and stigmatize disabled students who are already facing numerous other oppressive societal structures and norms.
VI. CONCLUSION
The promise of equal education is stymied by procedural ableism which to date is largely unchecked in the realm of higher education. Augmenting or amending regulations will not heal the deep wounds caused by exclusionary accommodations practices, but by reigning in overzealous documentation procedures, the chances of disabled persons successfully matriculating through higher education increases.Footnote 193 When we have more disabled persons in education spaces, the community can begin to heal itself and influence the programs to fit their needs, thereby better reflecting the needs of larger society. Disabled students have a toehold in higher education spaces and regulatory agencies, such as the DOJ, must implement regulations that safeguard this progress and support disabled persons as they try to build upon it. If they persist, overbroad, intrusive, expensive, and otherwise burdensome medical requests will set back the disability education inclusion movement. These reporting requirements would arm the regulatory agencies with information about how private and public higher education institutions have implemented the interactive process. From there, the agencies can craft more specific regulations around the boundaries of legally compliant medical documentation requests and ban institutions from soliciting and collecting medical information to which they are not entitled under the interactive process. Regulators can and should curb abuses of power during the accommodations process through comprehensive regulatory reform, increased reporting, and renewed committed to compliance by way of enforcement actions and proceedings. As disabled persons continue to matriculate into higher education spaces, the pressure mounts for regulatory agencies to halt overly burdensome medical information gathering procedures present in higher education institutions.
