A recent settlement agreement [Settlement Agreement between the Justice Department and the University of Tennessee Health Sciences Center] entered into between the Educational Opportunities Section of the U.S. Department of Justice (DOJ), Civil Rights Division, and the University of Tennessee provides some useful insight into what provisions should be included in any policy used to place students with a mental health disability on a mandatory medical leave of absence. The agreement was entered into after a student who suffered a mental health crisis (but who had not previously disclosed her PTSD and ADHD diagnoses to the University) alleged that the University failed to make necessary reasonable modifications to its policies, practices, and procedures when it placed her on a mandatory medical leave of absence without first considering options for her continued enrollment. 

Although the complaint that gave rise to this settlement agreement was based upon Title II of the Americans with Disabilities Act (ADA), which only applies to public higher education institutions, the settlement agreement offers helpful guidance for both public and private institutions alike because the U.S. Department of Education’s Office for Civil Rights (OCR) typically interprets and applies Section 504 of the Rehabilitation Act of 1973, applicable to both private and public institutions that receive federal financial assistance, in a manner that is consistent with Title II of the ADA. And, because the DOJ’s regulations implementing Title II of the ADA were revised in 2011 to define “direct threat” as limited to a significant risk to the health or safety of others, the legality of institutions to rely on evidence that a student poses a serious risk of harm to self in taking action to withdraw or remove a student involuntarily has been unclear. Among other things, the OCR has stopped applying the “direct threat” analysis when investigating and resolving complaints filed by students who have been involuntarily withdrawn, removed, or otherwise disciplined because they have engaged in suicidal or other self-harming conduct.  In the absence of any formal guidance from the OCR about how to respond to situations involving students who engage in conduct that presents a serious risk of harm to themselves, institutions have been left to glean what they can from various OCR resolution agreements and other agreements like the one recently entered into by the University of Tennessee.

As part of that settlement agreement, the University of Tennessee agreed to amend its current policies to state that, prior to placing a student with a mental health disability on a mandatory medical leave of absence for reasons relating to that disability, the University will:

• conduct an individualized assessment of each student and give careful consideration to the opinions and recommendations of the student’s health care provider(s), along with the opinions and recommendations of the health care professional(s) consulted by the University, and any other information the student wishes to provide;
• respect the student’s confidentiality and only require the student to provide a medical release for access to the student’s health records as reasonably necessary to complete an individualized assessment;
• determine on an individualized basis whether and what reasonable modifications can be made that would be effective to allow the student to continue to attend classes and participate in the educational programs offered by the institution while seeking treatment for, or recovering from, any health condition(s); and
• require a student to take an involuntary medical leave only if: (a) the University concludes after conducting an individualized assessment that the student’s continued participation would require modifications that would be unreasonably or fundamentally alter the nature of the educational programs; (b) the student rejects all reasonable modifications offered and cannot meet the essential eligibility requirements of the programs; or (c) even with all reasonable modifications offered, the student cannot meet the essentially eligibility requirements of the programs.

In addition, the agreement specifically states that nothing in the agreement shall be construed to prevent the University (i) from engaging in a process to identify and assess whether a student poses a threat to the health or safety of themselves or others or (ii) from taking disciplinary action against a student who violates its code of student conduct, with the understanding that the University must “reasonably modify policies, practices, and procedures where necessary to avoid discrimination against students with disabilities.”  This appears to be an acknowledgement that, regardless of whether institutions can rely on the direct threat defense to defend adverse actions taken against a student with a mental health disability who only poses a threat to oneself, a student who poses a threat to oneself may not be able to meet the essential eligibility requirements of his or her educational program and/or may be subject to disciplinary action for violating a code of student conduct that applies to disabled and non-disabled students alike.

The recent settlement agreement with the University of Tennessee indicates that institutions can have carefully crafted (and carefully applied) mandatory leave policies that apply to students with mental health disabilities who pose a serious risk of harm to themselves.  Nonetheless, this continues to be an area where more guidance would be useful and where the risk of possible legal action remains high, despite the best intentions of institutions to address conduct that poses serious health and safety risks.  The policy language required under the University of Tennessee settlement agreement provides an opportunity for institutions to revisit their mandatory medical leave of absence or involuntary withdrawal policies to ensure that they are consistent with the most recent guidance in this challenging and evolving area.