NASET Q & A Corner
Questions and Answers on Parent Rights to Confidentiality and Access to Student Records
Introduction
IDEA and other federal laws protect the confidentiality of a child’s education records. These safeguards address the following three aspects:
- the use of personally identifiable information
- who may have access to a child’s records
- the rights of parents to inspect their child’s education records and request that these be amended to correct information that is misleading or inaccurate, or that violates the child’s privacy or other rights.
The focus of this issue of NASET’s Q & A Corner will be to address confidentiality and access to student records for parents
What is Personally Identifiable Information?
Personally identifiable information refers to information that includes:
- the name of the child, parent, or other family member
- the child’s address
- a personal number (such as the social security number or a student number)
- a list of personal characteristics or other information that would permit the child’s identification with reasonable certainty.
With some exceptions, a parent must give consent before the school system may disclose a child’s personally identifiable information. These exceptions are specified by policies in the state in keeping with the regulations at §99.31 of FERPA, the Family Educational Rights and Privacy Act. IDEA’s confidentiality regulations refer directly to FERPA. Parents have the right to know the policies used in their state regarding the collection, storage, disclosure to third parties, and destruction of their child’s personally identifiable information. Parents should be able to obtain this information from the director of special education in their school district or from the State Department of Education.
Who Has Access to a Child’s Records?
Access to the educational records of their children is often a concern of parents. In keeping with the requirements of FERPA, only certain individuals, in addition to parents, may have access to their child’s records. These individuals may include, for example, teachers or administrators of the school or state who have a legitimate interest in the records. The school or other participating agency is obligated to keep a record of all interested parties who have accessed a child’s educational records that are collected, maintained, or used under Part B of IDEA (with the exception of parents and authorized employees of the agency). This record must include the name of the person who had access to the child’s records, the date, and the purpose for which the person was authorized to use the records.
What are Parents’ Right to Inspect Their Child’s Records?
IDEA guarantees parents the right to inspect and review any educational record of their child that the school system (or other participating agency) collects, maintains, or uses with respect to the identification, evaluation, and educational placement of the child, and the provision of FAPE (a free appropriate public education).
Here are the specifics of IDEA’s regulations.
Parent Rights
- Parents can inspect and review educational records with respect to their child’s evaluation, identification, and placement; and the provision of FAPE. [§300.501(a)]
- Parents can request explanations and interpretations of the records. [§300.613(b)(1)]
- Parents can request copies of the records if not receiving copies would effectively prevent the parents from exercising their right to inspect and review those records. [§300.613(b)(2)]
- Parents can request that their representative be given access to inspect and review the records. [§300.613(b)(3)]
What are the Schools’ Rights and Responsibilities?
Schools must comply with a parent’s request to inspect and review records without unnecessary delay before any meeting—regarding an IEP, a hearing or resolution session, and in no case more than 45 days after the request has been made. [§300.613(a)]
Schools must respond to reasonable requests for explanations and interpretations of the records. [§300.613(b)(1)]
Schools can charge a fee for copies of records made for parents, if the fee does not effectively prevent the parents from exercising their right to inspect and review those records. [§300.617(a)]
Schools may not charge a fee for searching for, or retrieving, a child’s records for parents. [§300.617(b)]
What are the Parents’ Right to Ask that the Records Be Amended?
If parents believe that the information contained in their child’s records is inaccurate or misleading or that the information there violates the privacy or other rights of their child, they may ask the school system that maintains the information to amend it. The agency must decide, within a reasonable amount of time, if it is going to comply with the parents’ request or not. If the agency decides to refuse the request, it must inform the parents of that decision and indicate their right to ask for a due process hearing on the matter.
If parents decide to dispute the school system’s decision in a due process hearing, they have the right to present evidence that demonstrates why they think the information in their child’s records should be amended. They also have the right (at their own expense) to be assisted or represented by one or more individuals selected by the parent, including an attorney. The hearing must be conducted by an individual who has no direct interest in its result.
After the hearing, the educational agency must issue its determination in writing within a reasonable amount of time. That determination must be based solely on the evidence presented in the hearing and must include a summary of the evidence and the reasons for the determination. If the result of the hearing is favorable to the parent, the school system must amend the child’s records and inform the parent in writing that it has done so. On the other hand, if the result of the hearing is that the information about the child is not inaccurate or misleading, or does not violate the child’s privacy or other rights, then the school system must inform parents that they have the right to add a statement to their child’s records commenting on the information that has been under dispute and presenting the reasons they do not agree with it. The district must attach their statement to the records and maintain it there as long as the agency maintains the records. If their child’s records (or the part that’s under dispute) are disclosed by the agency to any other person, their statement must also be disclosed to that person.
IDEA adds another provision regarding educational records and the inclusion of discipline information in them. The state can require the school system to include in a child’s records a statement of any disciplinary action (current or past) taken against the child. This statement must be transmitted to the same extent that disciplinary information would be included in, and transmitted with, the school records of children without disabilities. [§300.576(a)] The statement may include:
- a description of the child’s conduct that gave rise to the disciplinary action
- a description of the disciplinary action that was taken
- any other information that is pertinent to the safety of the child and others involved with the child.
If the state adopts such a policy, and the child moves from one school to another, the transmission of any of the child’s records must include the current IEP of the child and any statement of current or past disciplinary action taken against the child.
