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

JOHN CORNYN 

September 12,2002 

Ms. Cathy L. Hendricks 

Executive Director 

Texas Board of Architectural Examiners 

333 Guadalupe, Suite 2-350 

Austin, Texas 7870 l-3942 

Opinion No. JC-0555 

Re: Confidentiality of disability information 

collected by the Texas Board of Architectural 

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 John Cornyn, 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. CODE ANN. $3 121 .OlO-.Ol 1 (Vernon 2001). 

3See TEX. BD. OFARCHITECTURALEXAM’RS, DISABILITY ASSESSMENTFORM, attached to Hendricks Brief, supra 

note 1, also avaiZabZe at http://www.tbae.state.tx.us/HOME/testaccommodations.pdf (last visited July 29, 2002) 

(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 l12 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]); W are 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. CODE ANN. 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. ORD641 (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). S ee 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 ‘I Bd. 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. 

JO !!I 

L 

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