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WHAT IS FERPA

The Family Educational Rights and Privacy Act (FERPA) is a federal law that affords parents the right to have access to their children’s education records, the right to seek to have the records amended, and the right to have some control over the disclosure of personally identifiable information from the education records. When a student turns 18 years old, or enters a postsecondary institution at any age, the rights under FERPA transfer from the parents to the student (“eligible student”). The FERPA statute is found at 20 U.S.C. § 1232g and the FERPA regulations are found at 34 CFR Part 99.

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BASIC UNDERSTANDING OF FAMILY EDUCATIONAL RIGHTS AND PRIVACY ACT (FERPA)

FERPA provides parents the right to:

inspect and review education records;
seek to amend education records; and
consent to the disclosure of personally identifiable information from education records, except as provided by law.

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PERSONALLY IDENTIFIABLE INFORMATION (PII)

Name
Address
Date of birth/Place of birth
Social Security Number
Mother’s maiden name
Name of parents or other family members

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WHAT IS PERSONALLY IDENTIFIABLE INFORMATION (PII) UNDER FERPA?

PII is information from education records that would make the student’s identity easily recognized (by itself or in combination with other factors). • Some examples of PII:

Full Name
Student ID Number
Grade Level AND Race/Ethnicity

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PERSONALLY IDENTIFIABLE INFORMATION (PII) (CONTINUED)

FERPA - 99.3 (PII)

Info. that, alone or in combination, is linkable to a specific student that would allow a reasonable person in the school community, who does not have personal knowledge of the relevant circumstances, to identify the student with reasonable certainty.
Info. requested by a person who the educational agency or institution reasonably believes knows the identity of the student to whom the education record relates.

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PII WHAT IDEA SAYS

IDEA Part C	IDEA Part B
IDEA Part C - 303.32 PII definition refers to FERPA PII definition Except: Student 🡪 child School 🡪 EIS provider	IDEA Part B - 300.29 List of personal characteristics or other information that would make it possible to identify the child with reasonable certainty

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PART B OF THE INDIVIDUALS WITH DISABILITIES EDUCATION ACT (IDEA)

“The Secretary takes appropriate action, in accordance with section 444 of GEPA [FERPA], to ensure the protection of the confidentiality of any personally identifiable data, information, and records collected or maintained by the Secretary and by SEAs and LEAs pursuant to Part B of the Act, and consistent with §§ 300.611 through 300.627.”

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PART C OF THE INDIVIDUALS WITH DISABILITIES EDUCATION ACT (IDEA)

“The Secretary takes appropriate action, in accordance with section 444 of GEPA [FERPA], to ensure the protection of the confidentiality of any personally identifiable data, information, and records collected or maintained by the Secretary and by lead agencies and EIS providers pursuant to part C of the Act, and consistent with §§ 303.401 through 303.417. The regulations in §§ 303.401 through 303.417 ensure the protection of the confidentiality of any personally identifiable data, information, and records collected or maintained pursuant to this part by the Secretary and by participating agencies, including the State lead agency and EIS providers, in accordance with [FERPA].”

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PARTICIPATING AGENCY

IDEA Part C	IDEA Part B	FERPA
Participating agency • Any individual, agency, entity, or institution that collects, maintains, or uses personally identifiable information to implement the requirements in part C. • Includes any individual or entity that provides any part C services. • Does not include primary referral sources or public agencies or private entities that act solely as funding sources for Part C services.	Participating agency • Any agency or institution that collects, maintains, or uses personally identifiable information, or from which information is obtained under Part B.	Educational agency or institution • Any public or private agency or institution that provides educational services and/or instruction to students; or is authorized to direct and control public elementary or secondary, or postsecondary educational institutions; and • to which funds have been made available under any program administered by the Secretary

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FUNDING AND FERPA

Elementary and secondary schools that receive funds under any program administered by the Secretary of Education are subject to FERPA.
Postsecondary institutions that receive funds under any program administered by the Secretary of Education are subject to FERPA.
Most private schools at the elementary, secondary levels do not receive such funds and are, therefore, not subject to FERPA.

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FUNDING AND FERPA

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STUDENT RECORDS THROUGH THE LENS OF IDEA

IDEA Part C	IDEA Part B
Inspect and review any early intervention records … collected, maintained, or used by the agency …without unnecessary delay and before any meeting regarding an IFSP, or any due process hearing, and in no case more than 10 days after the request has been made. 303.405	Inspect and review any education records …that are collected, maintained, or used by the agency …without unnecessary delay and before any meeting regarding an IEP, or any due process hearing, or resolution session, and in no case more than 45 days after the request has been made.

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STUDENT RECORDS THROUGH THE LENS OF IDEA (CONTINUED)

IDEA Part C	IDEA Part B
Participating agency -- May charge a fee for copies of records that are made for parents under this part if the fee does not effectively prevent the parents from exercising their right to inspect and review those records, except as provided in paragraph (c) of this section. May not charge a fee to search for or to retrieve information. Must provide at no cost to parents, a copy of each evaluation, assessment of the child, family assessment, and IFSP as soon as possible after each IFSP meeting. Must make available at no cost an initial copy of early intervention record.	Participating agency May charge a fee for copies …unless imposing a fee effectively prevents a parent or eligible student from exercising his or her rights to inspect and review education records. May not charge a fee to search for or to retrieve the education records of a student.

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PROCEDURES FOR AMENDING EDUCATION RECORDS - FERPA

School must decide within reasonable period of time whether to amend as requested.
If school decides not to amend, school must inform parent or eligible student of right to a hearing.
After a hearing, if decision is still not to amend, parent or eligible student has a right to insert a statement in the record.

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PROCEDURES FOR AMENDING EDUCATION RECORDS – IDEA PARTS C AND D

A parent who believes that the information in the record is inaccurate, misleading, or violates the privacy or other rights of the child can request that the record be amended.
The agency must decide whether to amend the information within a reasonable period of time.
If the agency refuses to amend the information, it must inform the parent of the refusal and advise the parent of right to a hearing. • After hearing, if decision is still not to amend, parent has a right to insert a statement in the record.

303.410 (Part C) & 300.618 (Part B)

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RECORD ACCESS - FERPA

Contains recordkeeping requirements for both schools and SEAs.

Be maintained as long as record is maintained; Include parties who requested or received information; and Include legitimate interest the parties had in receiving information. Exceptions include parents, school officials, those to whom parent provided consent and more.

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RECORD ACCESS – IDEA PARTS C AND B

Contain recordkeeping requirements for participating agencies.

Keep a record of parties obtaining access to records collected, maintained, or used under IDEA (except for parents and authorized employees, and for Part C, authorized representatives); Include name of party, day access given, and purpose for which the party is authorized to use the records.

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RECORD RETENTION - FERPA

An educational agency or institution, or SEA or its component, shall not destroy any education records if there is an outstanding request to inspect and review the records.

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RECORD RETENTION – IDEA PARTS C AND B

The participating agency:

Must inform parents when PII collected, maintained, or used is no longer needed to provide services. Must destroy information at parent’s request (once it is no longer needed). May keep permanent record with child’s name, contact and other info. -- Part C: DOB, exit data and names of service coordinator and EIS provider; Part B: grades, attendance, classes, and grade level and year completed).

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RIGHT TO CONSENT TO DISCLOSURES UNDER FERPA

Except for specific exceptions, a parent or eligible student shall provide a signed and dated written consent before a school may disclose education records.
The consent must:

specify records that may be disclosed;
state purpose of disclosure; and
identify party or class of parties to whom disclosure may be made.

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EXCEPTIONS TO GENERAL CONSENT -FERPA

To school officials with legitimate educational interests (defined in annual notification);
To schools in which a student seeks or intends to enroll;
To state and local officials pursuant to a state statute in connection with serving the student under the juvenile justice system;
To comply with a judicial order or subpoena (reasonable effort to notify parent or student at last known address);
To accrediting organizations;

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EXCEPTIONS TO GENERAL CONSENT –FERPA (CONTINUED)

To parents of a dependent student;
To authorized representatives of federal, state, and local educational authorities conducting an audit, evaluation, or enforcement of education programs;
To organizations conducting studies for specific purposes on behalf of schools; • In a health or safety emergency;
To child welfare agency or tribal organization for those children in foster care; and
Directory information.

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1^ST MISCONCEPTION ABOUT FERPA

FERPA applies to all information about our students.

FERPA governs the disclosure only of "records" and information from "records," not information generally. Personal knowledge is not subject to FERPA, and its disclosure is therefore not prohibited by FERPA, even if it also happens to be recorded.

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2^ND MISCONCEPTION ABOUT FERPA

Parents have access to all documents that mention their student.

Well, most documents, but actually, not all. Records that are kept in the “sole possession” of the maker, and not shared with any other person, are not considered “education records” under FERPA, regardless of the nature of the information they contain. This means that notes kept by a teacher, or a related service provider, regarding the implementation of modifications and/or accommodations, or notes kept by persons attending IEP team or Section 504 meetings, so long as not shared with or accessible by others, are not covered by FERPA. Since this information is not considered to be FERPA-protected “education records,” it is not automatically accessible by parents.

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3^RD MISCONCEPTION ABOUT FERPA (HIPPA CONNECTION)

HIPAA applies to schools.

Nope. Educators worry about the confidentiality of all student information, particularly the data relied upon in developing and implementing IEPs and Section 504 plans, often on account of “HIPAA” protection concerning diagnostic and medical records. Such concern is helpful and motivating, because virtually all information regarding students – certainly doctor notes and evaluations – are protected from disclosure and review by anyone without “legitimate educational interests”, but those protections are not because of HIPAA.

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4^TH MISCONCEPTION ABOUT FERPA

We can’t call the doctor who wrote the student note without a signed release.

FERPA, the Family Educational Rights and Privacy Act of 1974 (also known as the “Buckley Amendment”), ensures access by parents and students and protects against the non-approved disclosure of “personally identifiable information” about students. That information includes virtually all information you collect and maintain on an enrolled student, certainly including the contents of the special education and Section 504 files. But when you call a doctor to confirm that she authored a note that your Section 504 committee is considering, or to ask a question about a diagnosis for purposes of IEP drafting, or to confirm a medically excused absence, usually you’re not sharing information about the student. You are not disclosing “personally identifiable information” protected by FERPA. Rather, you’re asking for information from the doctor or the doctor’s office. A parent, guardian, or adult student need not permit you to call the doctor. You have that right.

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5^TH MISCONCEPTION ABOUT FERPA

Students can’t see other students’ grades under FERPA.

Typically, grades are “personally identifiable information” set forth in education records which are protected from unauthorized disclosure under FERPA. But in the seminal case of Owasso Independent School District v. Falvo, 534 U.S. 426 (2002), the United States Supreme Court held (in favor of a school district) that students scoring each other’s tests and calling out the grades does not violate FERPA. The Court found that those grades were “pre” grade book and not yet within education records, thus not protected. (To the relief of elementary teachers nation-wide.). So, the practice of “peer grading” is acceptable. But don’t interpret that to mean that teachers may disclose student grades without consent.

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6^TH MISCONCEPTION ABOUT FERPA

FERPA prohibits paraprofessionals/teacher aides from seeing IEPs and Section 504 plans.

FERPA prohibits the disclosure of personally identifiable information regarding students contained in education records by schools to third-parties without written consent (typically provided by parent or guardian). But FERPA does not require written consent when “school officials” with “legitimate educational interest” review student records. Such access does not require prior notice to parents or guardians, other than the usual, annual FERPA notice provided by schools. So, who are “school officials” with authority to review this information? And what is a “legitimate educational interest?” These terms are not defined by the law. Schools are required to define them in policy or regulation, and that information needs to be noted in the annual notice. Typically, these terms may be defined by asking the question, “What’s the need to know?” or “What’s the job duty?” that requires access to the information? If the answer involves the delivery of instruction, or the implementation of modifications or accommodations or related service provided in an IEP or Section 504 plan, then access to the record is likely permissible. However, if the answer is curiosity, or some purpose unrelated to education, access is prohibited.

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ADHERENCE OR �NON-COMPLIANCE?

The school’s star basketball player is being scouted by a well known college. The college scout has asked the secretary to look at the player’s cumulative folder. The secretary wants to help the player see his dreams come true, so she shares the cumulative folder with the scout. Under FERPA, was the secretary following the guidelines or not?

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ADHERENCE OR �NON-COMPLIANCE?

A special education student was recently placed in a temporary foster care home. The foster care parents want to be involved in the child’s education. The parents contact the school to review all files related to the student, which includes the child’s IEP. The school shares all information with the foster care parents. Is the school in adherence or in non-compliance?

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ADHERENCE OR �NON-COMPLIANCE?

A student has recently relocated with her family into another state. When enrolling the student the parents tell the new school their child had special educational services in the last school. After a couple weeks, the school still has not received an documentation noting towards an IEP. Concerned, the parent contacted the child’s last school about where to send the IEP. A week later the new school has all documentation from the previous school. Is the former school in adherence or non-compliance? Was the parent contacting the former school for the information in adherence or non-compliance?

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ADHERENCE OR �NON-COMPLIANCE?

A teacher is hanging out with some colleagues at a local restaurant. During supper, a student’s former teacher asks the current teacher if she has thought about placing this certain student in special education. The current teacher tells her colleague that the process has already started and believes the student will qualify, and shares examples of in class work which would lean towards qualification. Are these teachers in adherence or non-compliance?

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ADHERENCE OR �NON-COMPLIANCE?

A student has been missing an unacceptable amount of school days. The parent has been calling the student out, stating they have been going to doctor appointments to alleviate a sickness. When the student does come to school, the student doesn’t present any signs of sickness. The teacher asks the student what is going on, but the student doesn’t want to share. The teacher remembers that this student also goes to their child’s doctor. The teacher calls up the doctor probing for information. Is this teacher in adherence or non-compliance?