Re: Medical documentation guidelines and accommodation
I am writing to all public colleges and universities in Ontario about medical documentation guidelines and accommodation for post-secondary students with mental health disabilities.
The Ontario Human Rights Commission (OHRC) recently intervened in an Application before the Human Rights Tribunal of Ontario which alleged that a university’s requirement that students disclose their Diagnostic and Statistical Manual (DSM) diagnosis to register for mental health accommodations and supports was discriminatory.
We intervened in the case to help bring all post-secondary institutions’ approaches to medical documentation and accommodation in line with the Ontario Human Rights Code (the Code), our Policy on preventing discrimination based on mental health disabilities and addictions (the Mental Health Policy) and the recommendations in a provincially-funded report entitled Recommendations for Documentation Standards and Guidelines for Post-Secondary Students with Mental Health Disabilities (the Academic Accommodations Report).
The OHRC worked with the university and the student who filed the discrimination claim to develop new documentation guidelines to access academic accommodations. The revisions remove potential barriers experienced by students with mental health disabilities while ensuring that the university gets appropriate medical documentation to help determine academic accommodations.
The OHRC is now contacting all of Ontario’s public colleges and universities to ask that they follow suit. This is in keeping with the OHRC’s mandate to identify, prevent, and eliminate discrimination, and to promote human rights within the province using a range of powers under the Code, including the power to conduct inquiries in the public interest and initiate Applications before the HRTO.
An evolving approach to medical documentation
We recognize that post-secondary institutions have been working hard to make their services accessible to, and better accommodate, increasing numbers of students with mental health disabilities.
I believe your institution and the OHRC have the shared goal of eliminating barriers and ensuring students with mental health disabilities will be able to access the accommodations and supports that they need to succeed.
The OHRC recognizes that requesting some form of diagnostic information, often a DSM diagnosis, has been the norm across post-secondary institutions for a number of years. However, the time has come to revisit that approach. As service providers, post-secondary institutions have obligations under the Code. Failing to meet these obligations may result in human rights applications being filed with the Human Rights Tribunal of Ontario.
To ensure compliance with the Code and the OHRC’s Mental health policy, students with mental health disabilities should no longer have to disclose a DSM diagnosis to receive accommodations and supports. All of your institution’s medical documentation guidelines and procedures should be reviewed and, if necessary, updated to make sure that this is not a requirement.
In addition, recent research and consultation in this area has identified several other systemic barriers related to accommodating the needs of students with mental health disabilities. If you have not already done so, these barriers should also be addressed. These are explained further in Appendix A.
As a result, the OHRC seeks your commitment that by September 6, 2016, the start of the next academic year, your institution will have medical documentation guidelines, medical documentation forms and procedures in place across all divisions and faculties that:
- Do not require students to disclose their mental health disability diagnosis to register with your Office for Students with Disabilities (OSD), or receive accommodations or supports;
- Make it clear that students may request interim accommodations for mental health disabilities pending receipt of medical documentation;
- Make it clear that both temporary and permanent mental health disabilities will be accommodated;
- Do not state or imply that requests for accommodation after a deadline, test or course completion (i.e. retroactive accommodation) will not be considered;
- Do not require students to reveal their private medical information to, or seek accommodation directly from, their professors, instructors, teaching assistants, etc.; and
- Are clearly communicated to all students, faculty and staff.
A detailed checklist explaining what is required to fully implement these six measures is found in Appendix B to this letter.
In addition to these six measures, I also encourage your institution to review the Academic Accommodations Report and, where necessary, implement the other recommendations and best practices identified therein.
Please respond to this letter by April 30, 2016 to confirm that your institution has already implemented or will commit to implementing these six measures across all divisions and faculties, and what steps will be taken to do so, by September 6, 2016. I am also asking that on or before September 6, 2016, you provide written confirmation that the six measures have been implemented in accordance with the checklist in Appendix B to this letter; advise of any other steps you have taken to implement recommendations in the Academic Accommodations Report; and send the OHRC copies of your new or amended documentation guidelines, medical documentation forms and procedures.
If you would like to discuss this further, please do not hesitate to contact my office. OHRC staff are also available to assist with any questions. Your staff may contact Reema Khawja, a lawyer in our Legal Services and Inquiries Branch at 416-326-9870.
I look forward to hearing from you before April 30, 2016.
In keeping with the OHRC’s commitment to public accountability and its duties in serving the people of Ontario, this letter and the responses received may be made public.
Renu Mandhane, B.A., J.D., LL.M.
cc: The Honourable Reza Moridi
Minister for Training, Colleges and Universities
College Committee on Disability Issues
Heads of Student Affairs
Ontario Committee on Student Affairs
Interuniversity Disability Issues Association
Appendix A – Background
The Code and the Ontario Human Rights Commission’s Mental Health Policy
Asking people to reveal their disability diagnosis or provide medical information beyond what is needed to provide an accommodation or verify eligibility for a targeted benefit or service raises human rights and privacy concerns. The ability to maintain control of and privacy over sensitive medical information is particularly important for people with mental health disabilities because of the considerable social stigma still associated with these disabilities. Requiring a DSM diagnosis impacts on a student’s autonomy and dignity and may deter students from requesting accommodation.
The OHRC’s Mental health policy has a section dealing with medical information to be provided when seeking accommodation. It states that a person is generally required to provide confirmation of a disability or medical condition, limitations and types of accommodations being requested. However, the accommodation provider does not generally have the right to know a person’s confidential medical information, including a diagnosis. The Mental health policy states that a diagnosis should only be requested in rare circumstances such as where a person’s needs are complex, challenging or unclear and more information is needed or where the information clearly relates to the accommodation being sought. In such situations, the accommodation provider must be able to clearly justify why the diagnosis is needed.
Students with mental health disabilities should not have to disclose a DSM diagnosis to receive accommodations and supports. Rather, the focus should be on determining functional restrictions and limitations due to mental health disability.
There are a number of reasons for this. The definition of disability under the Code is flexible and encompasses novel disabilities and disabilities for which a precise diagnosis is unclear or has not yet been determined. Students may have difficulty accessing mental health services in a timely way. Reaching a conclusive diagnosis may take up to 18 months or may never be possible. However, a student may have functional limitations connected to a mental health disability requiring accommodation notwithstanding the fact that a DSM diagnosis may not have been determined.
A DSM diagnosis is neither sufficient nor necessary to indicate what a student’s functional limitations are or what accommodations are needed. Knowledge of a diagnosis, as opposed to functional limitations, does not permit the accommodation provider to better determine what accommodations are needed. Instead, knowledge of a diagnosis can lead an accommodation provider to improperly focus on whether a person’s functional limitations match the DSM diagnosis.
The OHRC recognizes that colleges and universities are competitive environments and that there may be concerns about verifying that requests for accommodation are legitimate to safeguard “academic integrity”. However, an alternative way to ensure that a student is eligible for accommodation and preserve “academic integrity” is to ask a medical practitioner to confirm that the student experiences a functional limitation due to a mental health condition or diagnosed disability. This can be done without requiring identification of the DSM diagnosis.
The OHRC is also aware that at the present time students who are applying for the Ontario Student Assistance Program (OSAP) Bursary for Students with Disabilities (BSWD), the Canada Student Grant for Persons with Permanent Disabilities and the Canada Student Grant for Services and Equipment for Persons with Permanent Disabilities (the Canada Student Grants) must provide a DSM diagnosis to establish eligibility for those grants. However, this does not support the need for a diagnosis in all instances. Suggestions for how this can be addressed are provided in the checklist in Appendix B. As well, the OHRC is in the process of writing to the Ministry of Training, Colleges and Universities (MTCU) to ask that this requirement be removed altogether.
In addition to requiring a diagnosis, the OHRC has identified several other barriers experienced by students with disabilities which are also inconsistent with the Code and Mental health policy.
An institution’s obligations under the Code include the provision of interim accommodations pending receipt of medical documentation. A student may have functional limitations connected to a mental health disability requiring accommodation notwithstanding the fact that a diagnosis may not have been determined. Therefore, where a student is waiting to be assessed by a health care professional, post-secondary institutions should provide interim accommodations using the best information they have available, including how the student identifies their own needs, pending the assessment.
Under the Code, there is a duty to accommodate the needs of persons with disabilities to ensure equal access to education services. All disabilities whether temporary, permanent, minor or significant must be accommodated to the point of undue hardship. An institution’s accommodation materials should not suggest otherwise but rather should clearly state that temporary mental health disabilities will be accommodated.
In some cases, the nature of a mental health disability may leave a student unable to identify that they have a disability or that they have accommodation needs. A student may be experiencing a disruption in their functioning but may not be able to follow the institution’s process for arranging accommodation. In these circumstances, if a student has failed to meet performance expectations in a test, exam or assignment, the institution has an obligation to consider accommodation retroactively. An institution’s information on accommodation should not state or imply that requests for accommodation after a deadline, test or course completion will not be considered. Rather, it should be clear that all requests for accommodation will be meaningfully considered as they arise.
The Mental health policy emphasizes the importance of maintaining confidentiality for people with mental health disabilities. Therefore, students should not be required to seek accommodation directly from, or provide medical information or documentation to, their professors, teaching assistants, university administrative staff, etc. Accommodation should all be handled through the Office for Students with Disabilities. OSDs should take steps to maintain strict confidentiality and safeguard privacy, for example by keeping medical documentation in locked filing cabinets and/or in password protected computer databases or files. A students’ involvement with the OSD, including the fact that he or she has received academic accommodations, should not be identified on test results, student records, transcripts or graduation documentation.
The Academic Accommodations Report
In addition to the above, the MTCU funded Academic Accommodations Report contains recommendations for documentation standards for post-secondary students with mental health disabilities which the OHRC urges post-secondary institutions to review and implement.
The Report recommends that post-secondary institutions in Ontario:
- Use functional limitations and not diagnosis the basis for academic accommodations
- Provide interim accommodations while a student is waiting to be assessed by a health care professional
- Provide information about temporary disabilities in their literature and develop a process for accommodating temporary disabilities
- Consider requests for retroactive accommodation (requests for accommodation after a scheduled test, exam or assignment has taken place and where the student has failed to meet performance expectations due to a disruption in their mental health)
- Have their Offices for Students with Disabilities (OSDs) and not the student communicate about accommodations with professors
- Have clear policies and procedures for accommodating students with disabilities
- Improve awareness and communication of available services
- Implement effective training for faculty on issues related to mental health and faculty’s role in the accommodation process
- Create a process for dealing with accommodation appeals
- Establish Accommodation Advisory Committees for each school/faculty to advise the Dean on matters related to accommodation trends and the need for accommodation-related resources
- Establish accommodation teams made up of professionals with different areas of expertise to deal with complex accommodations
- Use student satisfaction surveys for students registered with OSDs to determine what is working and what needs improvement
- Have OSDs act as resource hubs offering academic and social activities for students with disabilities
The final recommendation is that the MTCU, in collaboration with the College of Psychologists of Ontario, create a task force to look at diagnostic standards for Learning Disabilities and Attention Deficit Hyperactivity Disorder.
Appendix B – Checklist
The Academic Accommodations Report provides a sample Functional Limitations Assessment Form (Sample Form) that can be completed by a medical practitioner and given to the post-secondary institution to receive academic accommodation. Instead of a diagnosis, the Sample Form asks for other relevant information about the disability and needs, such as whether the person has been diagnosed with a disability or is being monitored to determine a diagnosis, whether symptoms are continuous or episodic, and the particular impact on academic functioning. The Sample Form also makes it clear that permanent disabilities and temporary disabilities are included.
This Sample Form can be used for both physical and mental health disabilities but may not be suitable for learning disabilities or Attention Deficit Hyperactivity Disorder.
Adopting this Sample Form addresses many of the six measures that the OHRC is asking every public post-secondary institution to commit to. Whether you choose to use this Form or not, you should check to make sure that your medical documentation guidelines, medical documentation forms and procedures comply with the following requirements.
With respect to diagnosis and gathering information, documentation guidelines, forms and procedures should:
- Clearly state that under the Ontario Human Rights Code, students are not required to disclose their disability diagnosis to register for OSD services and access accommodations and supports.
- Make providing a diagnosis voluntary and not apply any explicit or implicit pressure to disclose a diagnosis. This includes not implying that accommodations will be better or quicker if a diagnosis is provided. Your form may allow students to opt into consenting to provide a diagnosis on a completely voluntary basis. It can also explain that the student may need to consent to provide a diagnosis if he or she applies for certain federally or provincially-funded bursaries and grants and privately-funded external scholarships and financial awards.
- Not stipulate that only a psychologist or psychiatrist can complete the form (any appropriate licensed medical professional such as a family doctor, psychiatrist, psychologist or psychological associate should be able to complete the form).
- Ask the medical professional to confirm that the student has a disabilityOR is being monitored or assessed to determine a diagnosis.
- Focus on requesting information about functional limitations due to a health condition that impairs the student’s academic functioning while pursuing post-secondary studies. The form may also ask medical professionals to suggest appropriate accommodations.
- Not indicate in any way that only permanent disabilities or significant temporary disabilities will be accommodated. All disabilities that give rise to functional limitations that impair academic functioning should be accommodated.
- If asking about medication, ask only about the effects of medications on academic functioning and not about the details of the medication prescribed.
- Not require students to give blanket consent to release of additional medical information or subsequent discussion with the medical professional. If further information is justifiably needed to make an accommodation, the student can be asked to provide express and voluntary informed consent to release that information.
- Ask for updated medical information where a disability is identified as temporary or where academic accommodations need to be re-visited over time to ensure that they continue to meet the student’s needs appropriately.
With respect to interim and retroactive accommodations, documentation guidelines, forms and procedures should:
- Confirm that assistance will be provided to students who require interim accommodation pending receipt of medical documentation.
- Establish a process to address interim accommodations in situations where a student self-identifies accommodation needs or it becomes apparent to staff in the Office for Students with Disabilities that a student may have an undiagnosed health condition with accompanying functional limitations that impair the student's academic functioning.
- Take into account the realities of any challenges that may be involved with a student obtaining an appointment or series of appointments with a medical professional in order to be diagnosed with a disability or have medical documentation forms completed. If time limits must be contemplated, they should be determined on a case-by-case basis in consultation with the student.
- Remove any statement that suggests that retroactive accommodations (i.e. after failing to meet performance standards on a test, assignment or exam or during a course due to a disability) will not be considered. Instead, include a statement that the institution will consider requests for retroactive accommodation on a case-by-case basis.
- Establish a process to meaningfully consider requests for retroactive accommodation or, if a process already exists, provide clear information
to students, faculty and staff about that process.
With respect to privacy and confidentiality, documentation guidelines, forms and procedures should:
- Not require students to request accommodation directly from, or share any medical information with, their professors, instructors, teaching assistants, etc. Students should also not be required to deliver accommodation letters directly to professors, instructors or teaching assistants. Offices for Students with Disabilities should communicate with professors, instructors and teaching assistants about accommodations.
- Ensure that all information provided to the Office for Students with Disabilities is kept confidential. This includes maintaining documentation in locked filing cabinets and on encrypted and password protected databases that can only be accessed by staff in the OSD who need access to the information.
- Clearly state that a student’s involvement with disability services and the fact that the student has received academic accommodations will not be identified on the student’s official university records, test results, academic transcripts or graduation documentation.
Communication to students, faculty and staff about the documentation guidelines, forms and procedures should:
- Include in-depth training on the documentation guidelines, forms and procedures for staff in the Office for Students with Disabilities.
- Include effective and ongoing training for full-time faculty and part-time faculty, instructors and teaching assistants on mental health and accommodation. This includes training on general mental health awareness; information on interacting with a student who may have a mental-health related issue; and understanding their role in the accommodation process including their responsibilities under the Code. Some of the resources listed above may be helpful in this regard.
 The following criteria should be used for determination of a disability: the student experiences functional limitations due to a health condition that impairs the student’s academic functioning while pursuing post-secondary studies.
 For example if the student’s accommodation needs are complex or where there is a need to clarify the information that has been provided regarding functional limitations.