Overview of FERPA Confidentiality Guidelines

Presented by

Jessica S. Sanchez-Solares, Esq. Udall Shumway P.C.

Part I

The Family Educational Rights and Privacy Act (FERPA)

Handling Student Records

In general, all student records should be handled with confidentiality. Schools should take care to take proper precautions to secure records and keep them out of view of the general public or others who have no legitimate purpose in viewing the records.

FERPA

n The Family Educational Rights and Privacy Act of 1974 was enacted to protect the privacy interests of student records.

n FERPA is located at 20 U.S.C. 1232g et seq. with the implementing regulations found at 34 C.F.R. 99 et seq.

FERPA Mainly Accomplishes the Following Objectives:

n  The right for parents to access and review the education records of their children, and the right for eligible students to inspect and review their own records;

n  The right for parents and eligible students to challenge any records that they feel are inaccurate, misleading, or in violation of their privacy rights;

n  The right for parents and eligible students to give prior consent before a third party can have access to any education records; and

n  The right to be informed of the rights granted by FERPA and the procedures for exercising those rights.

To Which Agencies Does FERPA Apply?

FERPA applies to educational agencies and

institutions that receive funds from the U.S. Department of Education and that provide educational services, instruction, or both, to students. FERPA also applies to those agencies authorized to direct and control public K-12 schools, or any postsecondary educational institutions.

Who Has Rights Under FERPA?

“Parents” and “eligible students” are entitled to certain rights under FERPA which will be discussed in the next section, but mainly include: n  Right to Access Records n  Right to Amend and Challenge Records n  Right to Give Prior Consent Before Records Can be Released to a Third Party n  Right to Receive Notice of FERPA Rights

Who Has Rights Under FERPA…cont.

n  “Parent,” for the purposes of FERPA is defined as a

“natural parent, a guardian, or an individual acting as a parent in the absence of a parent or a guardian.”

n  Therefore, aunts, uncles, grandparents, family

friends, siblings, etc. would not have the right, under FERPA, to access records, request amendments, or consent to the disclosure of records unless they are the legal guardian of the student, or are acting as the guardian in the absence of a parent or guardian.

Who Has Rights Under FERPA…cont.

n  Once a student turns 18 or begins attending a post-secondary institution, they are considered to be an “eligible student.”

n  At this point, all FERPA rights transfer from the parents to the eligible student. Some limited exceptions apply e.g. dependent students, incapacitated students, etc.

n  An eligible student’s FERPA rights do not expire and continue on into their adult life even after they have left the educational institution.

n  Their rights remain in existence for as long as their records are being maintained by any school they have attended.

What Are “Education Records?”

n  A “record” is “information recorded in any way , inc luding but not l imited to, handwriting, print, computer, media, video or audio tape, film, microfilm and microfiche.”

n  An “educational record” is defined as “those records, files, documents, and other materials which…contain information directly related to a student; …and are maintained by an educational agency or institution or by a person acting for such agency or institution.”

What is Not an Education Record? The following are explicitly excluded by FERPA from

being classified as “educational records:”

n  Sole Possession Records n  Law Enforcement Records n  Employment Records n  Alumni Records n  Medical records (but only the records of a student

who is OVER 18, and only if the records are NOT part of an IEP)

n  Peer-graded papers BEFORE they are collected and recorded by the teacher.

What is “Personally Identifiable Information?”

Personally identifiable information is information contained in the education records that directly relates to the student, for example, grades, testing scores, pictures, address, phone number, social security number, student identification number, biometric record, etc. This information is generally considered confidential and must be handled pursuant to the requirements of FERPA.

What is “Directory Information?”

•  Directory Information is information that would not generally be considered harmful if disclosed.

•  E.g. name, address, telephone number, date and place of birth, major fields of study, weight and height, participation in activities, sports, dates of attendance and degrees and awards, and most recent school attended.

•  Directory Information does NOT include o  Social security; or o  Student ID numbers or other unique personal identifiers,

IF the number can be used to access student records without one or more factors that authenticate the user’s identity

What Amounts to a “Disclosure?”

“Disclosure” means “to permit access to or the release, transfer, or other communication of personally identifiable information contained in education records by any means, including oral, written, or electronic means to any party except the party identified as the party that provided or created the record.”

Parent’s Rights Under FERPA

Parent’s Rights Under FERPA

n  The right to access their children’s education records;

n  The right to challenge the accuracy of the records, and request an amendment;

n  The right to require that schools/educational agencies obtain their prior consent before releasing education records or personally identifiable information to others;

n  The right to file a complaint with the U.S. Department of Education if they feel their FERPA rights have been violated; and

n  The right to receive notice of their FERPA rights each year

ACCESS

n  Parents must be given access to their child’s educational records.

When a Parent Requests Records:

n Verify the parent’s identity n Respond within reasonable time (< 45 days) n Redact information about other children n Provide a translator if needed n Reasonable requests for explanation OK n Do not destroy documents

Special Considerations Regarding Parent Access

n  Parents are generally not entitled to “copies” of records, only to access records.

n  FERPA permits schools to charge a reasonable fee for copies of records, but not for the administrative time spent locating the records.

Special Considerations Regarding Parent Access…cont.

n  If a parent is not able to come to the school’s location to review records due to “circumstances that effectively prevent” their ability to obtain access, the school should provide copies of the requested records.

n A parent’s request to access records does not have to be in writing.

AMENDMENT

n  Parents have the right to challenge the accuracy of their child’s records and to amend those records if they are inaccurate, misleading, or in violation of the student's rights of privacy.

Amendments to Grades

n Parents cannot use FERPA as a vehicle to challenge their child’s grades unless they believe the grade is inaccurate due to, e.g., a computational error or a mistake in the recording of the grade.

Parents can challenge records at a hearing if the school refuses to

amend the records Many school districts have policies or procedures that specifically

address how FERPA hearings will be conducted, for example, the process of selecting a hearing officer, or specific grievance steps and timelines, etc. FERPA only mandates the following minimum requirements:

n  The educational agency or institution shall hold the hearing within a

reasonable time after it has received the request for the hearing from the parent.

n  The educational agency or institution shall give the parent or eligible student notice of the date, time, and place, reasonably in advance of the hearing.

n  The hearing may be conducted by any individual, including an official of the educational agency or institution, who does not have a direct interest in the outcome of the hearing (e.g. a superintendent’s designee, a district level administrator, a principal from another school, etc.).

FERPA Hearing…cont. n  The educational agency or institution shall give the

parent a full and fair opportunity to present evidence relevant to the issues raised. The parent may, at their own expense, be assisted or represented by one or more individuals of his or her own choice, including an attorney.

n  The educational agency or institution shall make its decision in writing within a reasonable period of time after the hearing.

n  The decision must be based solely on the evidence presented at the hearing, and must include a summary of the evidence and the reasons for the decision.

CONFIDENTIALITY

n  A student’s records generally can not be released without the written consent of the parent.

I CONSENT I DO NOT CONSENT

To Comply With FERPA, Written Consent Should Be:

n Signed and dated. – Electronic Signature is acceptable so long as it

is in a form that identifies and authenticates the person giving consent.

n Specifies the records to be disclosed. n States the purpose of the disclosure. n  Identifies the parties to whom the

disclosure is to be made.

Written Consent (example)

I, Jessica Sanchez, parent/guardian of Kobe Sanchez give consent for ABC Middle School to release information about my son to:

Chandler Pediatric Professionals, P.C.

Information will be released for the purposes of completing an independent educational evaluation.

Jessica Sanchez 5-19-13

Exceptions to Prior Written Consent Requirement:

• Directory information; • Teachers/district officials with a legitimate need to know; • Officials at another school system where student seeks to

enroll; • State juvenile justice systems or their officials; • State and federal educational authorities; • Subpoena; • Organizations conducting studies for, or on behalf of

educational agencies and institutions; • Health and safety emergency; and • An agency case worker or other representative of a state,

local, or tribal child welfare agency who has the right to access the student’s case plan and who is legally responsible for the care and protection of the student.

Exceptions to Prior Written Consent Requirement…cont.

Special Considerations: Directory Information •  Schools must inform parents what information they have

designated as “directory information” before they can utilize this exception under FERPA, and provide parents the option of excluding their child’s directory information.

•  While educational agencies are permitted to release directory information, they are not required to release directory information absent some other statutory requirement to do so e.g. a freedom of information laws and/or public record’s laws.

•  Schools should still exercise good judgment when releasing directory information. For example, school staff should not release a student’s address and phone number to just anyone who asks for the information.

•  Schools should also make sure that they do not inadvertently release personal information when they disclose directory information.

Exceptions to Prior Written Consent Requirement…cont.

Special Considerations: Release of Records to Teachers and Other District Officials •  Education records and personally identifiable information can be released to other teachers or officials with a legitimate educational interest or need for the information. •  If there is no legitimate reason for releasing the information then parent consent is required before the information can be disclosed. •  Contractors, volunteers, etc., are “district officials” if they:

o  Are performing the functions for which the district would otherwise use employees;

o  Are under the direct control of the district; and o  Agree not to re-disclose the information and only use the information for

the specific reasons for which they had access.

Exceptions to Prior Written Consent Requirement…cont.

Special Considerations: Release of Records to Another School or District

FERPA permits the disclosure of records to any school where the student seeks or intends to enroll, or where the student is already enrolled so long as the disclosure is for the purposes of the student’s enrollment.

Exceptions to Prior Written Consent Requirement…cont.

Special Considerations: Release of Records Pursuant to a Judicial Order or Lawfully Issued Subpoena.

School officials are under no obligation to object to an order or subpoena for student records, however, districts are obligated to notify parents of their receipt of the subpoena or order prior to the release of any student information. If the parents wish to object to the release of their child’s information, they may make a motion to the court or other issuing agency to quash or modify the subpoena.

Exceptions: 1) No need to provide notice to the parent if the subpoena relates to a proceeding child abuse on the part of a parent or a dependency proceeding. 2) No need to provide notice of if the subpoena comes from a grand jury or law enforcement agency and the subpoena specifies that the school should not notify the parents.

Exceptions to Prior Written Consent Requirement…cont.

Special Considerations: Release of Records Pursuant to a Health and Safety Emergency.

School officials may disclose personally identifiable information to appropriate parties in connection with an emergency if knowledge of the information is necessary to protect the health or safety of the students or other individuals. This provision is to be strictly construed and school officials must assess the circumstances carefully to determine whether it is appropriate to utilize this exception.

Filing a Complaint

n  Parents may file an administrative complaint with the Family Compliance Office of the U.S. Department of Education if they feel that their FERPA rights have been violated

Filing a Complaint

Parents may file a complaint with: Family Policy Compliance Office U.S. Department of Education 400 Maryland Avenue, S.W. Washington, DC 20202-5920

FERPA Enforcement

n  The Family Policy Compliance Office (FPCO) is the office within the Department of Education that receives, investigates, and adjudicates violations of FERPA

n  Ultimately, if an educational agency or institution violates the provisions of FERPA, the Department of Education is authorized to withhold further federal funding, compel compliance through a cease-and-desist order; or terminate eligibility to receive federal funding all together.

n  In most cases, violations will result with the Family Policy Compliance Office counseling the individual school official or agency, and a resolution will be reached without the need to withhold or terminate federal finding.

FERPA Enforcement…cont. n  The FPCO provides a number of resources for school officials

to further the goal of compliance with FERPA and the PPRA (discussed infra). The FPCO publishes guidance to school officials who inquire in writing about applications and interpretations of the law. The FPCO also disseminates guidance through model notification letters, and information is also available online from the FPCO and the Department of Education at: http://www.ed.gov.

n  FERPA does not create a private cause of action or a private remedy for violations committed by school officials. In other words, schools cannot be sued under FERPA for money damages. However, certain FERPA violations may indirectly implicate a private cause of action under other laws which allow the recovery of punitive and compensatory damages from school districts.

School District’s Obligations Under FERPA

School’s Obligation Under FERPA

Aside from complying with the rights of parents and students enumerated earlier, school districts must annually notify parents (including non-custodial parents) of their FERPA rights. At a minimum, the notice must inform parents that they have the right to:

n  Inspect and review their child’s education records. Schools must

also inform parents of the process to inspect and review records. n  Seek amendment of their child’s education records if those records

are believed to be inaccurate, misleading, or otherwise in violation of the student's privacy rights. Schools must also inform parents of the procedures for requesting an amendment;

n  Consent to disclosures of personally identifiable information contained in the student's education records, except to the extent that FERPA allows for an exception to this rule (e.g. to school officials with a legitimate need to know, health and safety emergency, etc.).

School’s Obligation Under FERPA…cont.

n  Be made aware of who is classified as a “school official” and what constitutes a legitimate educational interest;

n  Be made aware of what the school will classify as “directory information.”

n  File a complaint with the Family Policy Compliance Office concerning any alleged violations of their FERPA rights by the educational agency or institution.

The FERPA statute and rules do not elaborate on exactly how

school officials are required to give notice, only that the means must be reasonable to inform parents of their rights. A newsletter or letter mailed to the parents is likely a sufficient way to inform them of their rights.

Part II

Federal Laws Impacting FERPA

.

No Child Left Behind (NCLB)

The No Child Left Behind Act (NCLB) is a

f ede ra l l aw a imed a t improv ing performance and accountability in our public schools. A complete discussion of NCLB is outside the scope of this presentation. However, the law does contain a few provisions that effect the management of student records.

NCLB and Military Recruiters n  Both the No Child Left Behind Act (NCLB), and the

National Defense Authorization Act contain a provision not found in FERPA.

n  Under these statutes, if access to directory information or school property is granted to persons who inform pupils of educational or occupational opportunities, the same access to directory information and to school property shall be provided on the same basis for official recruiting representatives of the armed services of the United States for the purpose of informing pupils of the opportunities available in the armed services.

n  No Child Left Behind mandates that schools provide parents the ability to opt out of being listed on any directory list that is given to military recruiters.

NCLB and Discipline Records

FERPA permits the transfer of school records from the sending school to the school where the student seeks to enroll. NCLB mandates that the sending school transfer any disciplinary records with respect to suspensions or expulsions to any private or public elementary or secondary school for any student who is enrolled, seeks, intends, or is instructed to enroll, on a full or part-time basis in the school.

HIPPA

The Health Insurance Portability and Accountability Act of 1996 (HIPAA) applies to health care providers who engage in functions or activities that allow for the disclosure of individually identifiable health information. Transactions covered under HIPPA typically include items such as bi l l ing, claims processing, benefit management, etc.

HIPPA and Student Records

HIPAA typically does not apply to any transactions or records conducted by K-12 educational agencies. Nurse’s Records and immunization records are considered “education records” under FERPA because they consist of recorded information about a student and are maintained by the school district or agents of the school district. Medical Services Provided Pursuant to a student’s IEP are also considered “education records” and subject to both FERPA and IDEA requirements.

The USA Patriot Act

The U.S.A. PATRIOT Act of 2001 amended

FERPA to allow the U.S. Attorney General, or their designee to access relevant education records in connection with the investigation and prosecution of terrorist activities.

Section 504 of the Rehabilitation Act of 1973

n  Section 504 does not explicitly address confidentiality of student records.

n  The regulations mandate that schools enact a system of procedural safeguards that includes “an opportunity for the parents or guardian of the person to examine relevant records.”

n  Section 504 does not define the term “relevant records,” one could infer a right to view any records related to the student receiving services under Section 504.

n  In any event, any records directly related to the student maintained by the school pursuant to Section 504, would likely constitute an “education record” under FERPA implicating all FERPA protocols.

The Individuals With Disabilities Education Act

n  IDEA, as it pertains to student records, mandates confidentiality of any personally identifiable information collected, used or maintained for the purposes of providing services under IDEA.

n  IDEA basically reiterates the same protocols for the access, amendment, and confidentiality of education records, and expands some of the parent rights and the district’s obligations.

IDEA and Student Records

Transfer of Records: n  FERPA permits the transfer of records from

one school to another where a student seeks to enroll.

n  The implementing regulations of the IDEA state

that schools should coordinate as necessary, a student who is being evaluated for special education services who transfers schools during such evaluation.

IDEA and Student Records

Timelines for Review of Records:

n  FERPA and IDEA both confer a right for parents to inspect and review any education records relating to their children upon request and in no case more than 45 days after such request.

n  IDEA potentially shortens time allowed to fulfill a request, and requires that such requests be fulfilled “without unnecessary delay” before any IEP meeting, due process hearing, resolution session, mediation, or discipline hearing.

IDEA and Student Records

Copies of an Individualized Education Plan (IEP):

n  Like FERPA, IDEA permits schools to provide copies of special education records if the parent is otherwise unable to inspect and review the records and may charge a fee for copies.

n  Under IDEA, parents are entitled to copies of their child’s IEP and any evaluations that are done pursuant to IDEA at no charge.

IDEA and Student Records

Review by representative:

n  IDEA allows for parents to have a representative (e.g. an attorney or an advocate) inspect and review the records whereas FERPA only confers this right onto the parents and legal guardians.

n  Note: It is still a good idea to obtain written parent consent before releasing records to a third party.

IDEA and Student Records

Request for destruction:

n  Under IDEA, educational agencies must inform parents when personally identifiable information collected, maintained, or used for purposes of IDEA are no longer needed to provide educational services to the child.

n  This information must be destroyed at the request of the parents. (Note: There is no FERPA right to destroy records).

n  A permanent record of a student's name, address, and

phone number, his or her grades, attendance record, classes attended, grade level completed, and year completed may be maintained without time limitation.

IDEA and Student Records

Training: n  IDEA, unlike FERPA, requires that all persons

collecting or using personally identifiable information receive training in FERPA, IDEA, and any applicable state requirements governing the confidentiality and management of student records.

n  Each agency must maintain, for public inspection, a current listing of the names and positions of those employees within the agency who may have access to personally identifiable information.

Public Records and Freedom of Information Act Requests

n  Most records created and maintained by school districts

are subject to public inspection.

n  When it comes to student records, the confidentiality requirements of FERPA would prohibit access to third parties without parent consent.

n  One exception may be with directory information. If a

school district utilizes directory information, they may be required to produce directory information pursuant to a public records request. If a school district determines that the release of directory information is appropriate, they should take care to redact from that list, any student whose parents have excluded their information from directory information.

Part III

Question and Answer .

Thank You Very Much!