NASET Q & A Corner
Questions and Answers on Confidentiality of Information for Students with Disabilities
Introduction
IDEA 2004 and the Family Education Rights and Privacy Act (FERPA) contain provisions that protect the confidentiality of student records. These laws also provide parents the right to review and inspect records. The district will assume that each parent has the right to inspect and review their child’s educational records unless the district has received legal documents limiting parent access to those records.
The focus of this month’s issue of NASET’s Q & A Corner will be to address issues surrounding confidentiality of information for students with disabilities.
What is confidentiality of information?
As used under the heading Confidentiality of Information:
“Destruction” means physical destruction or removal of personal identifiers from information so that the information is no longer personally identifiable.
“Education records” means the type of records covered under the definition of ‘‘education records’’ in 34 CFR Part 99 (the regulations implementing the Family Educational Rights and Privacy Act of 1974, 20 U.S.C. 1232g (FERPA)).
“Participating agency” means any school district, agency or institution that collects, maintains, or uses personally identifiable information, or from which information is obtained, under Part B of the IDEA.
What does “Personally Identifiable” mean?
Personally identifiable (34 CFR § 300.32) means information that has:
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the child’s name, the name as the parent, or the name of another family member;
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the child’s address;
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a personal identifier, such as the child’s social security number or student number; or
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a list of personal characteristics or other information that would make it possible to identify the child with reasonable certainty.
What notice must be given to parents regarding confidentiality?
The State Educational Agency must give notice that is adequate to fully inform parents about confidentiality of personally identifiable information, including:
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A description of the extent to which the notice is given in the native languages of the various population groups in the State;
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A description of the children on whom personally identifiable information is maintained, the types of information sought, the methods the State intends to use in gathering the information (including the sources from whom information is gathered), and the uses to be made of the information;
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A summary of the policies and procedures that participating agencies must follow regarding storage, disclosure to third parties, retention, and destruction of personally identifiable information; and
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A description of all of the rights of parents and children regarding this information, including the rights under the Family Educational Rights and Privacy Act (FERPA) and its implementing regulations in 34 CFR Part 99.
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Before any major identification, location, or evaluation activity (also known as “child find”), the notice must be published or announced in newspapers or other media, or both, with circulation adequate to notify parents throughout the State of the activity to locate, identify, and evaluate children in need of special education and related services. 34 CFR § 300.612
What rights do parents have to review educational records of their children?
The participating agency must permit parents to inspect and review any education records relating to their child that are collected, maintained, or used by their school district under Part B of IDEA. The participating agency must comply with parental request to inspect and review any education records on your child without unnecessary delay and before any meeting regarding an IEP, or any impartial due process hearing (including a resolution meeting or a hearing regarding discipline), and in no case more than 45 calendar days after you have made a request.
Parents’ right to inspect and review education records includes:
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a response from the participating agency to their reasonable requests for explanations and interpretations of the records;
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a request that the participating agency provide copies of the records if the parents cannot effectively inspect and review the records unless they receive those copies; and
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to have the parents’ representative inspect and review the records.
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The participating agency may presume that parents have authority to inspect and review records relating to their child unless advised that they do not have the authority under applicable State law governing such matters as guardianship, or separation and divorce. 34 CFR § 300.613
Do school districts have to maintain records of access?
Yes. Each participating agency must keep a record of parties obtaining access to education records collected, maintained, or used under Part B of IDEA (except access by parents and authorized employees of the participating agency), including the name of the party, the date access was given, and the purpose for which the party is authorized to use the records. 34 CFR § 300.614
What if an education record includes information on more than one child?
If any education record includes information on more than one child, the parents of those children have the right to inspect and review only the information relating to their child or to be informed of that specific information. 34 CFR §300.615
Do school districts have to provide parents with a list of the types and locations of education records?
Yes. On request, each participating agency must provide you with a list of the types and locations of education records collected, maintained, or used by the agency.
Can school district charge a fee for copies of records?
Each participating agency may charge a fee for copies of records that are made for parents under Part B of IDEA, if the fee does not effectively prevent parents from exercising their right to inspect and review those records.
A participating agency may not charge a fee to search for or to retrieve information under Part B of IDEA. 34 CFR § 300.617
What if parents believe that the education records of their child are inaccurate, misleading, or violates the privacy or other rights of their child?
If parents believe that information in the education records regarding their child collected, maintained, or used under Part B of IDEA is inaccurate, misleading, or violates the privacy or other rights of their child, they may request the participating agency that maintains the information to change the information.
The participating agency must decide whether to change the information in accordance with parental request within a reasonable period of time of receipt of their request. 34 CFR § 300.618
Do parents have an opportunity for a hearing to challenge information in education records?
The participating agency must, on request, provide parents an opportunity for a hearing to challenge information in education records regarding their child to ensure that it is not inaccurate, misleading, or otherwise in violation of the privacy or other rights of their child. 34 CFR § 300.619
What law dictates hearing procedures of educational records?
A hearing to challenge information in education records must be conducted according to the procedures for such hearings under FERPA. 34 CFR § 300.621
What happens if a hearing finds the education records to be inaccurate, misleading or otherwise in violation of the privacy or other rights of the child?
If, as a result of the hearing, the participating agency decides that the information is inaccurate, misleading or otherwise in violation of the privacy or other rights of the child, it must change the information accordingly and inform the parents in writing.
If, as a result of the hearing, the participating agency decides that the information is not inaccurate, misleading, or otherwise in violation of the privacy or other rights of the child, it must inform the parents of their right to place in the records that it maintains on their child a statement commenting on the information or providing any reasons the parents disagree with the decision of the participating agency.
Such an explanation placed in the records of the child must:
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Be maintained by the participating agency as part of the records of the child as long as the record or contested portion is maintained by the participating agency; and
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If the participating agency discloses the records of the child or the challenged portion to any party, the explanation must also be disclosed to that party. 34 CFR §300.620
Is parental consent for disclosure of personally identifiable information required?
Yes. Unless the information is contained in education records, and the disclosure is authorized without parental consent under FERPA, parental consent must be obtained before personally identifiable information is disclosed to parties other than officials of participating agencies. Except under the circumstances specified below, parental consent is not required before personally identifiable information is released to officials of participating agencies for purposes of meeting a requirement of Part B of IDEA. 34 CFR § 300.622
Parental consent, or consent of an eligible child who has reached the age of majority under State law, must be obtained before personally identifiable information is released to officials of participating agencies providing or paying for transition services.
If a child is in, or is going to go to, a private school that is not located in the same school district the parents reside in, parental consent must be obtained before any personally identifiable information about the child is released between officials in the school district where the private school is located and officials in the school district where the parents reside.
What safeguards are in IDEIA to protect personally identifiable information?
Under 34 CFR §300.623, safeguards regarding personally identifiable information include:
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Each participating agency must protect the confidentiality of personally identifiable information at collection, storage, disclosure, and destruction stages.
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One official at each participating agency must assume responsibility for ensuring the confidentiality of any personally identifiable information.
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All persons collecting or using personally identifiable information must receive training or instruction regarding the State’s policies and procedures regarding confidentiality under Part B of the IDEA and the Family Educational Rights and Privacy Act (FERPA).
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Each participating 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.
What does IDEIA require regarding destruction of information?
A school district must inform parents when personally identifiable information collected, maintained, or used is no longer needed to provide educational services to your child. 34 CFR § 300.624
The information must be destroyed at parent request. However, a permanent record of their child’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.
