    OFFICE    OF THE ATTORNEY    GENER.+L   . STATE OF TEXAS

   JOHN        CORNYN




                                                  September     12,2002



Ms. Cathy L. Hendricks                                         Opinion No. JC-0555
Executive Director
Texas Board of Architectural          Examiners                Re:     Confidentiality of disability information
333 Guadalupe, Suite 2-350                                     collected by the Texas Board of Architectural
Austin, Texas 7870 l-3942                                      Examiners, and related questions (RQ-0529-JC)


Dear Ms. Hendricks:

        The Texas Board of Architectural Examiners (“the Board”) asks about its duty or authority
to maintain the confidentiality of medical information about disabled candidates for registration who
request accommodations for the registration exam.’ The Board recognizes that the requirements of
the Texas Public Information Act, chapter 552 of the Governrnent Code, will apply to requests for
such information, even if the information is confidential by statute and ultimately must be withheld
from public disclosure.       It seeks this opinion to determine whether it should reconsider the
information it asks such candidates to submit as evidence of their need for accommodations.        See
Hendricks Brief, supru note 1, at 5.

         The Board administers the statutes governing the registration of architects, landscape
architects, and interior designers. See’generally TEX. OCC. CODE ANN. chs. 105 l-1053 (Vernon
2002). Applicants for registration in these areas must take a professional licensing exam. See id.
9 8 105 1.304,1052.153,    1053.154. To comply with the federal Americans with Disabilities Act, see
42 U.S.C. @j 12101-12213 (2000) (the “ADA”), the Board arranges for accommodations               for
examinees with disabilities, requiring each examinee who has requested accommodation to submit
evidence of disability. See generaZZy Tex. Att’y Gen. Op. No. JC-0050 (1999) at 4-5 (authority of
licensing board to require examinee to provide documentation            of disability and need for
accommodations).2      For this purpose, the Board uses a disability assessment form consisting of
questions to be answered by “an appropriate licensed health care professional.“3


            ‘See Letter Brief from Cathy L. Hendricks, Executive Director, Texas Board of Architectural Examiners, to
Honorable     JohnCornyn, Texas Attorney General (Apr. 3,2002) (on file with Opinion Committee) [hereinafter Hendricks
BriefJ.

           2You do not ask whether Human Resources Code sections 121 .OlO and 121 .Ol 1, which relate to testing
individuals with disabilities, apply to the Board. See TEX. HUM. RES. CODEANN. $3 121 .OlO-.Ol 1 (Vernon 2001).

            3SeeTEX. BD. OFARCHITECTURALEXAM’RS,
                                              DISABILITY
                                                       ASSESSMENTFORM,
                                                                    attached to Hendricks Brief, supra
                                                                         (last visited July 29, 2002)
note 1, also avaiZabZe at http://www.tbae.state.tx.us/HOME/testaccommodations.pdf
                                                                                                         (continued...)
Ms. Cathy Hendricks         - Page 2              (JC-0555)




         You ask whether information that the Board receives on the disability assessment form is
confidential under chapter 159 of the Texas Occupations Code, which governs physician-patient
communications.     See Hendricks Brief, supra note 1, at 4. Information about the identity, diagnosis,
evaluation, or treatment of a patient provided to the Board by a physician is confidential under
chapter 159 of the Occupations Code, and the Board may not disclose it except to the extent that
disclosure is consistent with the authorized purposes for which it was obtained. See TEX.OCC. CODE
ANN. 5 159.002 (Vernon 2002). A disability assessment form may also include an examinee’s
answer to an optional question, and such information, provided directly to the Board by the
examinee, is not confidential under chapter 159 of the Occupations Code and will be excepted from
public disclosure under the Public Information Act only if another exception applies to it. You also
ask “[wlhether the privacy provisions in title I of the ADA apply by analogy to information regarding
examinees’ medical histories and medical conditions obtained by the Board under title II and title
III of the ADA.” See Hendricks Brief, supra note 1, at 4. The privacy provisions in title I of the
ADA do not apply to medical information obtained by the Board under title Il and title III of the
ADA.

        Attorney General Opinion JC-0050 addressed the effect of the ADA on licensing
examinations administered by the Texas Board of Professional Engineers. We quote from the
overview of the ADA provided by this opinion:

                  Title I of the ADA prohibits employment discrimination on the basis
                  of disability, see [42 U.S.C.] 85 12111-12117; title II prohibits
                  discrimination on the basis of disability by public entities, see id. $0
                  12 13 l-121 65; and title III prohibits discrimination on the basis of
                  disability in places of public accommodation,        see id. $8 12 18 l-
                  12 189. The federal Equal Employment Opportunity Commission has
                  promulgated rules enforcing title I of the ADA, see 29 C.F.R. pt.
                  1630 (1998), and the United States Department of Justice . . . has
                  promulgated rules implementing titles II and III, see 28 C.F.R. pts. 35
                  (implementing title II, subchapter A) & 36 (1998), and has published
                  extensive commentary to those rules, see 28 C.F.R. pt. 35, App. A to
                  pt. 35 (1988) (Section-by-Section Analysis) . . . pt. 36, App. B. to pt.
                  36 (1998) (Section-by-Section Analysis and Response to Comments).

Tex. Att’y Gen. Op. No. JC-0050 (1999) at 1-2.

          State agencies are subject to the ADA, in particular title II and regulations promulgated under
title II. See 42 U.S.C. 5 12132 (2000); 28 C.F.R. pt. 35 (2001). See also Tex. Att’y Gen. Op. No.
JC-0050 (1999) at 2. In addition, title III provides in section 12189 that any person that offers
professional licensing examinations must offer such examinations “in a place and manner accessible
to persons with disabilities or offer alternative accessible arrangements for such individuals.”


           3(...continued)
[hereinafter Disability Assessment   Form].
Ms. Cathy Hendricks     - Page 3                (JC-0555)




42 U.S.C. 4 12 189 (2000). This provision applies to public entities that administer examinations for
licensing and credential purposes and to private entities that administer examinations used by public
entities. See Agranoff v. Law Sch. Admission Council, Inc., 97 F. Supp.2d 86 (D. Mass. 1999) (Law
School Admissions Test [LSAT]); Ware v. WyomingBd. ofLaw Exam’rs, 973 F. Supp. 1339,1353
(D. Wyo. 1997), afd, 16 1 F.3d 19 (10th Cir. 1998) (bar examination); D ‘Amico v. New York State
Bd.ofLawExam’rs,813F.Supp.217,221(W.D.N.Y.l993)(b                 ar examination). See also Tex. Att’y
Gen. Op. No. JC-0050 (1999) at 2.

         The Board itself administers the examination for licensing as a landscape architect and
contracts with other entities to administer the examinations for licensing as an architect or interior
designer. See Hendricks Brief, supra note 1, at 1. You state that the Board, as required by law,
provides reasonable accommodations for disabled individuals taking these exams and requires the
applicant to provide reasonable proof of disability. See id. See also 42 U.S.C. 5 12189 (2000); 28
C.F.R. 4 36.309(a),(b) (2001); Tex. Att’y Gen. Op. No. JC-0050 (1999). The Board’s disability
assessment form requires an appropriate licensed health care professional to describe the “specific
diagnosis of the examinee’s disability, its effect on major life activities, and the anticipated duration
of the impairment”[;] to describe specific limitations on the examinee’s ability to evaluate written
material, to complete graphic sections of the examination, and to complete computerized sections
of the examination; to provide information on whether the examinee’s disability limits the amount
of time the examinee can spend on specific examination tasks; and to describe how the disability can
best be accommodated. See Disability Assessment Form, supra note 3. An optional question allows
the health care professional and the examinee to provide additional information, and the form is
signed by both persons. See id. at 2.

        You ask whether the information recorded on the disability assessment form is confidential
under section 159.002(b) of the Texas Occupations Code. See Request Letter, supra note 1, at 4.
Section 159.002 of the Occupations Code provides as follows:

                         (a) A communication       between a physician and a patient,
                relative to or in connection with any professional services as a
                physician to the patient, is confidential and privileged and may not be
                disclosed except as provided by this chapter.

                         (b) A record of the identity, diagnosis, evaluation, or
                treatment of a patient by a physician that is created or maintained by
                a physician is confidentiaz and privileged and may not be disclosed
                except as provided by this chapter.

                         (c) A person who receives information from a confidential
                communication or record as described by this chapter, other than a
                person listed in Section 159.004 who is acting on the patient’s behalf,
                may not disclose the information except to the extent that disclosure
                is consistent with the authorized purposes for which the information
                was first obtained.
Ms. Cathy Hendricks     - Page 4                (JC-0555)




                        (e) The privilege of confidentiality   may be claimed by the
                patient or by the physician. . . .

TEX. Oct. CODE ANN. 8 159.002 (Vernon 2002) (emphasis           added).

          Chapter 159 of the Occupations Code applies to patient records created or maintained by a
physician, that is, a person licensed to practice medicine in Texas. See id. 9 15 1.002( 12). The
Board’s disability assessment form, however, is to be completed by “an appropriate licensed health
care professional,” a category that may include nonphysicians.       See, e.g., TEX. HEALTH & SAFETY
CODE ANN. 5 3 11.0025(d)(l) (V emon 2001) (concerning audits of hospital billing and defining
health care professional); TEX. OCC. CODE ANN. 5 453.001(9) (V emon 2002) (defining health care
professionals who may refer a person for health care services). Because your brief indicates that the
disability assessment form is generally completed by a physician, see Hendricks Brief, supra note
1, at 3, we limit our discussion accordingly. We note, however, that the patient communications and
records of certain other health care professionals are confidential by statute. See, e.g., TEX.HEALTH
& SAFETY CODE ANN. 5 611.002 (Vernon 1992) (mental health records within Health and Safety
Code); TEX. OCC. CODE ANN. $8 201.401-.405 (Vernon 2002) (chapter 201 subchapter I,
chiropractors-patient    confidentiality). The form also includes an optional question that the examinee
may answer, and we will deal separately with information that the examinee provides to the Board
in answering it.

          If the Board receives “information from a confidential communication             or record” as
described by chapter 159 of the Occupations Code, it may not disclose the information “except to
the extent that disclosure is consistent with the authorized purposes for which the information was
first obtained.” TEX. OCC. CODE ANN. 8 159.002(c) (Vernon 2002). See also Tex. Att’y Gen.
ORD-565 (1990) at 7 (overruled in part on issue unrelated to this opinion).               The disability
assessment form asks the physician to state the diagnosis of the examinee’s disability and to evaluate
its effects on the examinee from various perspectives.       It is a record of “the identity, diagnosis,
evaluation, or treatment” of the patient created by the physician. TEX.OCC. CODEANN. 8 159.002(b)
(Vernon 2002). Such information is excepted from disclosure to the public under the Public
Information Act, chapter 552 of the Government Code, and is subject to release only in accordance
with chapter 159 of the Occupations Code. See id. ; see generaZZy Tex. Att’y Gen. ORD-565 (1990)
at 7 (overruled in part on issue unrelated to this opinion). When the physician has completed a
disability assessment form by answering the questions, the form will contain information that is
confidential pursuant to section 159.002 of the Occupations Code, and the Board will not be
authorized to disclose the information except as necessary to assess disabilities for purposes of
providing accommodations at the examinations. See TEX. OCC. CODE ANN. 8 159.002(c) (Vernon
2002).

        The optional question allows the examinee as well as the physician to provide information
concerning the examinee’s disability and the accommodations he or she needs for the examination.
Chapter 159 of the Occupations Code does not apply to information that the examinee provides
Ms. Cathy Hendricks     - Page 5                 (JC-0555)




directly to the Board in answering the optional question. Information provided by the examinee will
be excepted from public disclosure under the Public Information Act only if it is within an exception
to the Act, which will depend on the specific item of information. See generaZZy Indus. Found. of
the S. v. Tex. Indus. Accident Bd., 540 S.W.2d 668,682 (Tex. 1976) (stating test for information that
is private under Act). See also Tex. Att’y Gen. ORD-475 (1987), ORD-470 (1987) (overruled in part
on issue unrelated to this opinion), ORD-455 (1987) (considering whether medical information about
an individual or information indicating specific disabilities is protected from public disclosure by
a constitutional or common-law right of privacy).

         You also ask “[wlhether the privacy provisions in title I of the ADA apply by analogy to
information regarding examinees’ medical histories and medical conditions obtained by the Board
under title II and title III of the ADA, thus requiring the Board to maintain this information in
separate files and to treat such information as confidential medical records.” Hendricks Brief, supra
note 1, at 4. Title I prohibits discrimination in employment and limits the extent to which an
employer subject to the ADA may require applicants and employees to provide information
concerning disabilities. See 42 U.S.C. $5 12101-12117 (2000). See also Tex. Att’y Gen. ORD-641
(1996) at 3. During the job application phase, an employer generally is prohibited from requiring
an applicant to undergo a medical examination or to answer medical inquiries. See 42 U.K.              5
 12112(d)(2)(A) (2000); 29 C.F.R. pt. 1630 App. B, at 367 (2001). See also Tex. Att’y Gen. ORD-
641 (1996) at 3. After a job offer is made, an employer may require an applicant to have a medical
examination and may condition the job offer on the results of the examination. See 42 U.S.C. 9
 12112(d)(3) (2000). The employer may also collect from applicants information about medical
condition or history after a job offer has been made. Id. “[Mledical condition or history”
information collected on applicants after an employment offer is made and accepted must be
“collected and maintained on separate forms and in separate medical files and . . . treated as a
confidential medical record.” Id. 5 12112(d)(3)(B). See also 29 C.F.R. 5 1630.14(b)(l) (2001)
(providing that this information “shall be collected and maintained on separate forms and in separate
medical files and be treated as a confidential medical record”). Information “regarding the medical
condition or history of any employee” obtained as part of a work-site based health program also must
be maintained on separate forms, in separate files, and be kept confidential.             42 U.S.C. 8
 12 112(d)(4)(C) (2000). S ee also 29 C.F.R. 8 1630.14(d)( 1) (2001) (p roviding that this information
“shall be collected and maintained on separate forms and in separate medical files and be treated as
a confidential medical record”).

         Title I and the rules promulgated thereunder expressly provide that medical information
collected on applicants and employees shall be maintained in separate medical files and shall be
treated as confidential medical records. There are no comparable provisions in title II, title III, or
the rules promulgated thereunder. See Doe v. Nat ‘IBd. ofbled. Exam ‘rs, 199 F.3d 146, 158 (3d Cir.
1999) (no provision of title III of the ADA explicitly requires confidentiality from providers of
public accommodation, in contrast to title I, which requires employers to protect the confidentiality
of employees with disabilities, with certain specific exceptions). We find no authority applying the
confidentiality requirements of title I to title II or III of the ADA. It is a matter for the United States
Congress or for the Department of Justice acting under rule-making authority to decide whether
medical records obtained under titles II and III should be subject to federal confidentiality provisions.
Ms. Cathy Hendricks      - Page 6                 (JC-0555)




Information you collect pursuant to title II or title III is not subject to the confidentiality requirements
of title I. Accordingly, the Board must rely on state law as discussed in this opinion to protect
applicants’ medical information from disclosure to the public pursuant to a request under the Public
Information Act.



                                           SUMMARY

                          Pursuant to the federal Americans with Disabilities Act, the
                Texas Board of Architectural Examiners considers prospective
                examinees’ requests for special accommodations      in the exams the
                Board requires for licensure as an architect, landscape architect, or
                interior designer. The Board uses a disability assessment forrn to
                determine whether an examinee who requests accommodations has
                a disability and the nature of accommodations needed as a result of
                disability.

                         Information about “the identity, diagnosis, evaluation, or
                treatment” of an applicant placed on a disability assessment form by
                his or her physician is confidential under chapter 159 of the
                Occupations Code and subject to release only under its provisions.
                See TEX. OCC. CODE ANN. 5 159.002 (Vernon 2002).                 Such
                information is excepted from disclosure to the public under the Public
                Information Act, chapter 552 of the Government Code.

                         A disability assessment form may also include an examinee’s
                or a non-physician’s      answer to an optional question, and such
                information, provided directly to the Board by the examinee, may be
                excepted from public disclosure under the Public Information Act if
                it is within an exception to that Act.

                        The privacy provisions in title I of the ADA do not apply to
                medical information obtained by the Board under title II and title III
                of the ADA. The Board must rely on state law to protect applicants’
                medical information from disclosure to the public pursuant to a
                request under the Public Information Act.




                                                                L
                                                  JO !!I N CORNYN
                                                  Attorney General of Texas
Ms. Cathy Hendricks   - Page 7              (JC-0555)




HOWARD G. BALDWIN, JR.
First Assistant Attorney General

NANCY FULLER
Deputy Attorney General - General Counsel

SUSAN DENMON GUSKY
Chair, Opinion Committee

Susan L. Garrison
Assistant Attorney General, Opinion Committee
