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NCAA Drug Testing and Students with an ADHD Diagnosis [Higher-Ed/College Athletics Best Practices Alert (First Quarter 2015)]

Author: Brian Davis (Higher-Education Consultant)

In 2009, the NCAA altered its drug testing regulations and protocol, which created an immediate effect on student-athletes who are prescribed medications that fall under the “banned substances” list and guidelines. A large segment of the effected student-athlete population are undoubtedly those who have a diagnosis of Attention Deficit Hyperactivity Disorder (ADHD), which is one of the fastest growing patient groups in our society.

As a result of these changes in protocol, student-athletes with appropriate medical documentation and verifiable prescriptions must self-identify to their respective institutional sports medicine staff in order for those professionals to provide the necessary documentation to the NCAA.  Why is this necessary?  In short, if a student with a valid prescription for a substance listed on the NCAA “banned drug” list is subjected to NCAA drug testing, a subsequent “positive” test can result in the student-athlete’s loss of eligibility.  Therefore, it is imperative that college and university personnel are aware of the NCAA requirements, as well as the identity of student-athletes on their respective teams who fall under this provision.

It is understandable that some students, athletes or not, are not comfortable with self-identifying their status regarding ADHD diagnosis. However, in regard to higher education and Individualized Educational Plan (IEP)/504 plans, most colleges and universities require updated testing to verify specific needs in order for individual students to receive the appropriate academic accommodations. [Note: An IEP is a plan or program developed to ensure that a child who has a disability identified under the law and is attending an elementary or secondary educational institution receives specialized instruction and related services. A 504 Plan is a plan developed to ensure that a child who has a disability identified under the law and is attending an elementary or secondary educational institution receives accommodations that will ensure their academic success and access to the learning environment. See http://www.washington.edu/doit/what-difference-between-iep-and-504-plan.] These accommodations, as required by federal law, can range from extended time and distraction-free environments during testing to providing note takers, recorded lectures, or other approved and appropriate methods of assistance.  As a result, it is common for many student-athletes with an ADHD diagnosis to self-disclose to their academic support personnel, preferably before they matriculate to the college or university of their choice.

FERPA, Meet HIPAA

On the U.S. Department of Health & Human Services website (http://www.hhs.gov/ocr/privacy/hipaa/understanding), the federal government clearly defines the provisions of the Health Information Portability and Accountability Act of 1996 (HIPPA) and emphasizes the privacy of patients:

Understanding Health Information Privacy

The HIPAA Privacy Rule provides federal protections for individually identifiable health information held by covered entities and their business associates and gives patients an array of rights with respect to that information. At the same time, the Privacy Rule is balanced so that it permits the disclosure of health information needed for patient care and other important purposes. 

The Security Rule specifies a series of administrative, physical, and technical safeguards for covered entities and their business associates to use to assure the confidentiality, integrity, and availability of electronic protected health information. 

Sports medicine personnel, as well as coaches and administrators, must adhere to these guidelines as it pertains to student-athletes.  An individual’s “need to know” must be a prime factor; this, of course, means that a medical condition that has a non-medical impact (academics) requires synergy between sports medicine and athletic academic support staffs.  Similarly, sports medicine personnel can benefit in their own practice by knowing the behaviors and outcomes of student-athletes in the academic arena.

As a result, both medical and academic practitioners needs to be cognizant of HIPAA and the Family Educational Rights and Privacy Act  (FERPA). In fact, the U.S. Department of Education (DOE) website (http://www2.ed.gov/policy/gen/guid/fpco/ferpa/index.html) provides guidance in this area:

The Family Educational Rights and Privacy Act (FERPA) (20 U.S.C. § 1232g; 34 CFR Part 99) is a Federal law that protects the privacy of student education records. The law applies to all schools that receive funds under an applicable program of the U.S. Department of Education. FERPA gives parents certain rights with respect to their children's education records. These rights transfer to the student when he or she reaches the age of 18 or attends a school beyond the high school level. Students to whom the rights have transferred are "eligible students”.

As one can see from the brief description from the DOE website regarding FERPA rules and regulations, the right to privacy regarding academic/educational information is similar to HIPAA, and has an emphasis on academic administrators and other personnel regarding a “need to know.”

It is not uncommon for institutional athletic academic personnel to notice key behaviors or educational outcomes that indicate a need for screening for what the NCAA refers to as “Education-Impacting Disabilities,” including ADHD.  As a result, academic personnel must work in concert with sport medicine staffs to ensure that any diagnostic testing is done within institutional, state, and federal guidelines, and subsequent results are handled within the parameters of HIPAA and FERPA.  This synergy produces a positive outcome for the student-athletes, the team, the athletic department, and the institution to pro-actively ensure that not only NCAA guidelines are adhered to, but that the well-being of the student-athlete remains the primary mission.

Contact Brian Davis (954-941-1844; bdavis@bucknersportslaw.com) for more information pertaining to athletics academic issues.