Confidentiality and

Public Information ActLISD Special Education Department

Training

SY 2012-2013

Goals of training

• Know the basic laws regarding confidentiality and public information

• Understand the basic confidentiality and public information requirements

• Demonstrate awareness of confidentiality and public information practices

Legal Basis

FERPA• Passed in ’74, amended 9

times with the most recent on 12-9-08

• Also known as “The Buckley Amendment”

• Applies to all schools that receive federal monies

IDEA• Passed in ’75• Reauthorized last in ’04

(As IDEIA)• Applies to all schools

that receive federal monies

Public Information Act – formerly known as the Open Records Act – located in chapter 552 of the Government Code.

HIPAA

• OCR has clarified the relationship of FERPA, IDEA, and HIPAA.

• HIPAA excludes those education records covered by FERPA, including those records under Parts B, C, and D of the IDEA.

Example:• Individually identifiable

health information, of students under the age of 18, created by a nurse in a primary or secondary school that receives federal funds and that is subject to FERPA is an education record, but not protected health information.

HIPAA

• Federally mandated privacy protection of personal health information.

• Access to individual health information is forbidden without proper releases

• Access within the organization is restricted to those persons who have had confidentiality training and who have legitimate ‘need to know’.

Educational Records• Those records, files, documents and other materials which

contain information directly related to a student and are maintained by LISD, or by a person acting for LISD.

• Sole Possession records can also be considered educational records according to federal law if they are maintained by an institution. The Texas Attorney General has ruled that personal does not mean private and that personal notes are not necessarily excluded.

• Since Texas has a higher standard all records are educational records. That means a parent has access to all records (including sole possession).

• Examples of records subject to disclosure: test scores, attendance records, counseling records (intervention records), email or anything that contains “information directly related to the student.”

Directory Information

• Information contained in an education record of a student that would not generally be considered harmful or an invasion of privacy if disclosed

• Authority - (20 USC 1232g)(a)(5)(A))

Directory Information• Student’s name• Student’s address• Student’s telephone

number• Student’s date and place

of birth• Student’s major field of

study

• Participation in officially recognized sports and activities

• Student’s weight, height if member of athletic team

• Dates of attendance

• Degree, awards received

• Most recent or previous education institution or agency attended

Directory Information may be disclosed if:

• Parents annually given public notice of the types of information designated as directory information

And

• Given opportunity to refuse release

• Parents are given a reasonable time-frame for response to notice

Annual Written Notification of Rights

Effectively informs parents of

• Procedural safeguards

• Student handbook

• Annual notice

• Public notice-directory information

• In primary language

• For all eligible students

• 18 years of age

• Attends post-secondary institution

• Marries (regardless of age in Texas

• Severity of handicapped

Right to Inspect and Review Records

• Within a reasonable period of time after written request

• Right to have representative review records

• Right to response to requests for explanation and interpretation of records

• Right to inspect only information related to own child if they are requesting student specific info

• Rights extend to both parents unless otherwise indicated by law

• Right to obtain copies of records

• No right to copies of protocols (may view them with Diag present)

Amendment of Records

• Annual notification of right to request amendment of records

• Right to request amendment of records if information is inaccurate, misleading or in violation of privacy rights

Amendment of Records

• If agency decides to amend – notify parent in writing

• If agency refuses to amend – notify parent of refusal and inform parent of right to a hearing

• Results of hearing: Records can be amended – parent notified in writingRecords not amended – parent informed to place statement in

fileAny parent explanation of disagreement with records must be

maintained with records and be disclosed with the record.

Consent for Disclosure

• Annual written notification of right to consent to disclosure

• Written consent signed and dated including specification of records disclosed, purpose of disclosure, and parties to whom disclosure is made

• Copy of disclosed records provided to parent on request

• Third party disclosure prohibited without written consent of parent

Conditions Where Prior Consent Not Required

• Disclosure within agency with legitimate education interest

• Transfer records• Directory information• Audit purposes• Subpoenas or court

order

• Related to disciplinary actions

• Financial aid• Health and safety

emergencies

Record of Access

Agency maintains record which indicates:

• Name of party having access

• Date access given• Purpose

Maintained as long as student record maintained

Record may be inspected by:

• Parents• School officials• Auditors

Right to file a complaint

• Annual written notification of rights

• Address of U.S. Department of Education

SAFEGUARDS

• Confidentiality is protected at 4 stages:– Collection– Storage– Disclosure– Destruction

• One official assumes responsibility• All personnel receive training• Agency maintains list, for public inspection, of

persons (names and positions) within agency who have access to personally identifiable information

Destruction of Information

• Records are not destroyed if there is an outstanding inspection request

• Parents are informed when information no longer needed

• Information no longer needed may be destroyed at parents’ request

• Permanent record maintained – LISD maintains a DVD of all student records even after the paper copy is destroyed

Computer Confidentiality• Close reports and SEAS before

leaving computer unattended • Never give out your

password(s)• Use only the most basic info

when sending e-mail (student name may be used since emails are subject to records request – initials recommended)

• MDT “working” reports should be completed in ARM

Email and Internet Use

• Email and listing of internet sites visited on a district computer are subject to Public Information Act disclosure.– Do not forward or respond to any email that is inappropriate or not

directly related to school business– Do not use district computers for personal email– Do not visit or attempt to visit any site that is not job related

• Since all data is now archived by the technology department it will be provided and considered for disclosure under Public Information Act if a request is made

Confidentiality in practice

• Awareness of confidentiality laws and requirements

• Complying with procedures regarding written educational records

• Being sensitive to violations of confidentiality in verbal exchanges with others (e.g., lounge, Wal-Mart, etc.)

Confidentiality may be violated

• When staff discuss a child in inappropriate places or situations

• When staff repeat gossip or rumors about a child or his family

Confidentiality in practice

who what

wherewhy

Self-fulfilling prophecy