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FERPA: Family Educational Rights and Privacy Act

FERPA: Family Educational Rights and Privacy Act
PJ Winters, EdD
July 1, 2021

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Introduction

I appreciate the opportunity to share with you the Family Educational Rights and Privacy Act (FERPA). It is important not only for educators but for people that work in public schools to understand how the law relates to what they do in their everyday practice. I always tell people working for schools to follow the policies and procedures of their school district. However, it helps if you know the law as it helps you ask better questions as a practitioner, especially if you hear something that you think might be a violation of FERPA. You will want to bring that forward to someone so that you can protect yourself and the school from complaints through the FERPA process.

Presenter Information 

  • Dr. PJ Winters
  • 21 years in education in Oklahoma and Texas, P-16.
  • Currently Director of M.Ed. Programs and Associate Professor at East Texas Baptist University in Marshall, TX.
  • DISCLAIMER! I am not an attorney. I am an informed educator who teaches this material to graduate students. This training is not meant as a substitute for legal advice.

This is some information about me. I am not an attorney. I am an informed educator that teaches this material to graduate students. This talk is not meant as a substitute for legal advice. This is simply how I interpret the law as it relates to educational records and record keeping.

What is FERPA?

  • Federal law passed in 1974
  • FERPA protects student records
  • Gives parents and eventually, students (eligible students) access to educational records
  • Students become eligible at their 18th birthday when the transfer of the rights to them

This is the big question that we are going to try to answer today. Why do we need such a law at the federal level? Back in the 1800s, schools started keeping registers of enrollment and attendance for students. At that time, the educational record was born. This educational record accumulates information from the time the child enters school until they are no longer involved in the educational system.

According to some people, it can destroy the people that it was meant to protect. This record was created to be efficient, but there are times when this process becomes quite inefficient. We live in an age where we want access to information quickly and can do so with smartphones and computers. To be honest, snooping in our society has become the norm. People seek out information about people, even those they do not know. Open TikTok if you do not believe me. Many TikTok videos show people who they feel have wronged them. This is the current culture. This makes protecting students' records just as important now as it was back in 1974 when this federal law was passed.

In the seventies, you could see a personal record if you were official-looking or flashed a badge. If the school secretary believed that a person was part of a government process, they could most likely get access to whatever record they wanted, including things like psychiatric evaluations and medical records. And, it was unlikely that parent or student would even know that this information was being shared. In addition, a parent might be refused access to all of that information due to confidentiality. "No, that is confidential and for the use of the school only." Decisions were being made without parents' permission, and parents also had no access to the information. An example might be a father learning during a routine parent-teacher conference that the teacher commented that his son was interested in girls. We would look at that today and say, "That's not pertinent to his education." However, back then, there was not a lot that we could do to remove that type of information from the record.

The author of FERPA served on the New York City Board of Education's Committee to revise student records. He cited several things as to why FERPA was necessary. These are readily available for you to read. I am going to go through some real-life examples. A secretary at a private tutoring agency called a public junior high school to inquire about a child's reading level. The principal opened the child's record and gratuitously informed the unseen caller that the child had a history of bedwetting. In addition, the mother was an alcoholic, and a different man slept at the home every night. When the disclosures were reported to the Board of Education, the principal denied the incident even happened, and his superiors backed him up. This obviously was an invasion of privacy. Another example was a teacher getting a summary of a student's past academic year with comments such as frequently absent, truant, stubborn, very dull, verbal only about outside topics, states irrelevant facts, can barely read, a huge accomplishment to get this far, have fun, et cetera. As a former principal, these comments shock me. Lastly, there was a Black father who worked for a school system. He had a teacher show him his bright daughter's confidential record. In that record, there was a critique of how his own community activities as a "Black militant" were "causing his daughter to be too challenging in class."

This is the behavior that FERPA was meant to curb; showing records to people that did not really have an educational need to know and people putting down biased opinions about other people in an official record. The Family Educational Rights and Privacy Act is a Federal law that protects the privacy of student educational records. This went into effect in 1974 and applied to public and private schools that received any funds from the U.S. Department of Education. This includes, but is not limited to, public school districts, local school districts, charter schools, and higher education institutions.

It is designed to protect these records from people who do not have an educational need to know and gives parents and eligible students, the right to control who sees what is in their educational records. Parents get control of this until the child's 18th birthday. At that point, the rights are "mostly" transferred to the child. I put in that caveat because if the 18-year old is still carried on a tax return as a dependent, parents can access some of that information. As a worker in higher education, we deal with students over 18 all of the time. As long as the 18-year old has given a parent permission, we share that information with parents.

What Rights Do They Have?

  • Right to inspect and review records maintained by the school
  • Right to request a school correct records they believe are incorrect
  • Right to give permission before schools disclose some information about the student

What rights do the parents have? First, they have the right to inspect and review records maintained by the school. This includes grades, testing, and anecdotal notes. It could be in the official school record or a record that a teacher or therapist keeps on the child. It is important that when a record is going to be kept, we use only facts and not any disparaging opinions. Obviously, as a professional, you will have some opinion based on your assessment, but it should be based on data and not simply your gut feelings about things. It also should not include inflammatory language that is going to cause parents to raise a stink.

These rights apply to both custodial and non-custodial parents unless a court has ordered that the non-custodial parents do not have these rights. The school must have a court order on file. For example, when I was a principal, I had to copy a student's report card every six weeks and send it to her father in North Carolina because he wanted to see it. We will talk about the copying issue later because the law says, "Review and inspect." It does not use the word copy. However, he was the non-custodial parent and had rights to every single educational record that that school kept on file on his child.

Parents have the right to request a correction or amendment to the educational record that he or she believes is incorrect, misleading, or violates the right of privacy. Generally, though, a FERPA amendment process is not used to do things like challenging a grade, a disciplinary decision, or any other substantive decision made by a school official. Those things can be handled locally with local school districts and parents. This does not go through the FERPA process. They have no interest in determining whether your child needed an A or a B in PE. The school has the right to refuse to make the change because remember law says that the parent only has the right to request the change. If the school decides not to make the change, then the school must inform the parent or eligible student of their right to a formal hearing on the matter. The parents or students are allowed to have representation by their attorney at their own expense at the hearing. They must be provided with the opportunity to present evidence at the hearing. The hearing's decision must be written and based solely on the evidence presented. Even after the hearing, the parent's request for amendment of the record could be denied. If that is the case, the parent or eligible student has a right to include a statement in the record why they believe that information contained in the education record is incorrect, misleading, or violates their right to privacy. They could even write a statement that says why they disagree with the hearing decision or both. Even if a parent is denied the right to have it officially changed, they can still have their voice/statement put in that record not to be removed for as long as that record exists.

It is also important to note that under FERPA, a school is not generally required to maintain a particular education record or records that contain specific information. They are only required to provide the privacy protections for the education records that they do maintain. Unless there is an outstanding request by an eligible student to inspect and review education records, FERPA does permit the school to destroy records without notifying the student.

Right to Inspect and Review Records

  • These are records maintained by the school. They could include:
    • Grades
    • Transcripts
    • Class lists
    • Course schedules
    • Health records
    • Financial records
    • Discipline files
    • Supplementary service records
  • Schools are not required to provide copies of the records for inspection.
  • Must provide for inspection within 45 days of receipt of the request

I have listed a few things that are part of FERPA, things like grades/report cards. Grades are recorded on the permanent record. There are also transcripts from any school that the student has attended. Class lists often include the names of other students. We will talk about this a little later. This class list is considered directory information. This may be eligible to be released under FERPA. Parents have the right to know what classes their child is going to and when. Health records like visits to the nurse or outside educational evaluations like with a psychiatrist are also included. Financial records are usually things like financial aid, mostly at the higher education level. We do not see a lot of financial records in public schools. Disciplinary files are also included. Lastly, supplementary service records fall under FERPA, including records from social work, counselors, occupational therapy, et cetera.

FERPA does not require schools to provide an eligible student with access to academic calendars, course syllabus, or general notices and announcements. There is no need for them to retain that type of information in the educational record. Note that under FERPA, schools are not required to provide information that is not maintained, nor is it required to create an educational record in response to an eligible student's request. For example, they are not required to provide a student with updates on their progress in a course unless that report already exists. So, those midterm progress reports that parents often get are not required for the school to maintain. However, if they maintain it, it then becomes part of the record.

Education records may include things like date and place of birth, parents and/or guardian addresses, and where parents can be contacted in case of an emergency. Special education records are also a part of that. Schools must provide the records for inspection within 45 days of the receipt of the request. Of course, we hope that the request is in writing to have a date/time stamp. They have 45 days from the date of this request. Again, many will want the information quickly, but the school has a month and a half to get that information for parents to be able to inspect it. In my experience, schools typically provide that information sooner. However, if a parent has been particularly demanding about something, I have seen schools take every day that they have. I am not saying they should, but it does happen.

FERPA Does Not Include

  • School employee records
  • Teacher personal records
  • Law enforcement records (mostly)

FERPA does not include school employee records. I said earlier that records that the teacher maintains could be considered releasable under FERPA. However, if the teacher is taking anecdotal notes about students in the classroom or having some of these types of notes as a therapist, this is not a part of the educational record and will not be included.

If the school initiates a law enforcement investigation and retains that record at the school, it is covered under FERPA. But if law enforcement comes to the school and they create the record, they do not have to release that record. In this case, FERPA does not apply because that record does not become a part of the educational record. 

Example: Little Sally Sue

  • Little Sally Sue’s mom has requested that her daughter be evaluated for OT services. The district has you perform this evaluation, and during the IEP meeting, you let the team know that Little Sally Sue did not qualify for OT services. The parent decides that she will seek outside private testing for her daughter for a second opinion. She wants copies of all your testing documentation to take to the private company. Does the school have to provide this to her?

This is just a little scenario to talk through. Earlier, I said the law says, "Review and inspect." The law does not cover copying. There are several instances on the U.S. Department of Education's website where they state that schools are not required to provide copies to parents. This goes back to reasonableness. I do not know personally of a school that has refused to provide a copy because really schools are in the business of helping students. Most people tend to have that mindset. The parent is trying to get help for their child. Most would be happy to provide this service, but the law says they are only required to let a parent/child look and inspect it. In this day of smartphones, parents could take pictures.

Records Correction

  • Right to request correction of records they believe are inaccurate or misleading
  • Schools can refuse if they disagree. Then parent has a right to a hearing about the accuracy of the record.
  • If the school prevails, the parent is allowed to add notation to the record stating their disagreement

Under FERPA, a parent has the right to request that inaccurate or misleading information in his or her child's education records be amended. Again, the wording here is important, "The right to request." It does not say they have the right to have it changed. While a school is not required to amend it, the school is required to consider it. We already talked about what happens after we have the hearing. Even if the school prevails and you put a notation in the educational record, a complaint can be filed. We will talk about complaints in a little bit.

The complaint process may not be used to challenge a grade, an opinion, or a substantiative decision. I talked a little bit about opinions earlier. You need to make sure that the opinions you write and that will become part of the educational record are fact-based and that you are not using inflammatory language.

This is where records correction stands. A parent can request a record correction, but the school has the right to say no. Then, the next step is a complaint process.

Release of Records

  • Generally, parents or eligible students must give permission before a school is allowed to give access to the student records. This permission must be in writing.
  • There are some exceptions:
    • School officials with a legitimate educational interest
    • Other schools to which a student is transferring
    • Officials auditing or evaluating the school/district
    • Parties in connection with a student’s financial aid
    • Organizations conducting studies on behalf of the school
    • Accrediting organizations
    • To comply with judicial order or subpoena
    • Officials involved in the case of a health or safety emergency
    • State and local authorities within a juvenile justice system

Under FERPA, a school may not generally disclose personally identifiable information from a minor student's education records to a third party unless that student's parent has provided written consent. There are some exceptions to that rule.

Under these exceptions, schools are permitted to disclose personally identifiable information without consent. One of the exceptions is school officials with a "legitimate educational interest." A legitimate educational interest means that you need this information to help make decisions about the student. For example, if I am a fourth-grade teacher or an occupational therapist and some information might be helpful while I am currently working with this student, then I would not have to go through the approval process to get that information. Access to that information is covered under FERPA. In contrast, if I am a fourth-grade teacher and want to check on a student I absolutely loved and worked hard to get them up to a grade-level performance, I cannot check their eighth-grade record. Out of curiosity, I cannot ask the eighth-grade counselor if I can review their records. I no longer have a legitimate educational interest. My heart might be in the right place, but this FERPA exception is not designed for people who just want to know because they want to know. The school will determine if there is a legitimate educational interest.

They often will make an exception and disclose personally identifiable information to another school in which the student seeks to enroll. For example, if a student is moving from one school to another, the sending school may make the disclosure that they will do that, but they do not have to notify the parents in advance. This is usually done annually, and we will talk more about this in the next topic. If the parent requests, the school must provide the parent with a copy of the records that they sent.

Directory information is defined as information in the educational record that would not generally be considered harmful or an invasion of privacy. The way the law is written says that directory information is probably not harmful. However, there is extensive personal information in there such as the student's name, email address, telephone number, date/place of birth, major field of study, participation in any officially recognized activities and sports, weight and height (members of athletic teams), dates that the student has attended the school, any degrees or awards received, grade level, and sometimes photographs. To release directory information, a school must provide notice to parents what information they are planning to release. This is not specific to each time they release directory information. There is usually a notice that comes at the beginning of the school year that says, "The school collects the following directory information and has the right to release those as they see fit." Parents have a right to opt out of that, but it is usually an all-or-nothing deal. Parents can say, "No, you may not release any directory information of my child." Or, they can say, "Sure, that's fine." Parents do not realize that if they opt out of directory information, that usually means that their child will be excluded from all things. For example, if the school is taking pictures of science fair winners for the local newspaper, their child will not be included. Additionally, their name must be omitted because they are not included in the release of directory information. Oftentimes, this means that the child is not going to appear in the school yearbook either. It can be a double-edged sword for parents on whether or not they want to release directory information. As an example, we fostered a child and adopted him. In the beginning, we did not want him included in directory information. When reminded that this would mean he would not appear in his school yearbook or any releases, we had to discuss that. Was his protection more important than his image being out for multiple people to see?

There are some exceptions. We already talked about school officials with a legitimate educational interest and the other schools to which a student is transferring, but some officials are auditing or evaluating the school districts. Perhaps the school is a failing school, and district officials need to determine what is going on curriculum-wise. They have an obligation to look at those records without parental consent. Parties in connection with a student's financial aid would be privy to that information, and that is protected. Any organization that the school has hired that is conducting a study on the school. Studies can be done for efficiency and effectiveness or be around financial planning. Governing bodies accredit most schools and institutions of higher learning, and they are allowed access to records should they desire them. Any time the school has records subpoenaed would be another instance. The school record is sent immediately, which requires no parental consent. Any time that the child has a health or safety emergency would be another example. Child Protective Services or another social service agency may be involved and need to access a child's records. This is allowed under FERPA. And, any state and local authorities within a juvenile justice system can have access to educational records.

Directory Information

  • Directory information can automatically be disclosed without permission of the parent. However, parents must be given the option to opt out of the release of directory information.
  • The option to opt out must be provided annually and in writing. The method of delivery is a matter of local control.
  • Directory information includes:
    • Name
    • Address
    • Telephone number
    • Date and place of birth
    • Honors and awards
    • Dates of attendance

We already talked about directory information. Remember, the above information is available for schools to disclose without parental permission unless they opt out.

Example: Eli the Eighth Grader

  • You provide speech services to Eli as a contract employee with the school district. Eli is in the eighth grade and has made so much progress you think it may be time to dismiss him. You would like to call his parent and discuss his progress with them. However, the parent has opted out of the release of directory information. Can the school legally give you Eli’s parent’s phone number?

The answer to this is yes. You, as a provider of speech services, have an educational interest in having this information. You need to discuss this with the parents. If the local school policies allow for that, they have to give you that information.

Example: Sara the Second Grader

  • You provided PT services to Sara as a contracted district employee when Sarah was in Kinder and first grade. In the second grade, Sarah came off your caseload and was assigned to another PT. You really enjoyed working with Sara and wanted to touch base with her mom to see how she likes her new provider. Sara’s mom has opted out of the release of directory information. Can the school give you her mother’s phone number?

We talked about a similar scenario earlier. The parent has opted out of the directory information, and you no longer have a legitimate educational interest. The school cannot give that information to you under FERPA. 

Right to File a Complaint

  • Parents and eligible students also have a right to file a complaint with the Department of Education.
  • 180 days post violation or when the complainant should have reasonably known about the violation
  • Can be filed by parent, eligible student, advocate, or attorney acting on behalf of parent or eligible student

The right to file a complaint with the U.S. Government should a parent want to is a big issue. It has been my experience that when people want to file a complaint, they usually want to know that they are right. The response is usually not what they want to hear. They typically want the school to be punished because they have not done what they need or have broken the law. Usually, it does not get to that level of punishment. Oftentimes, it is retraining staff on how to do it correctly the next time. However, parents have the right to file a complaint. It has to be a written complaint. The right to file a complaint can either come from the parent or the student if the student has turned 18 years of age. There are some guidelines to filing a complaint. First, the complainant needs to the FERPA section on the U.S. Department of Ed's website and review all of the guidelines to determine if there has been a FERPA violation. There are many resources on there to think about and discuss before the complaint filing process.

If they have reviewed these materials and still believe that there has been a violation, they have 180 days to post the complaint. The clock starts once the violation happened or once the parent/child reasonably should have known that the violation happened. This is important because the law does not allow something to happen in first grade, and then in fourth grade, the complaint is made. The response is going to be, "If signs of these things were happening since the first grade, you should have known back then."

The complaint is filed online, and there are instructions there for them to do that. Before a FERPA complaint is filed, the U.S. Government likes for these cases to be handled at the local level, if at all possible. They do not want to get involved in a FERPA violation if a reasonable solution can be made at the local level. 

The Privacy Act of 1974 governs the collection and maintenance, and dissemination of information in systems and records by Federal agencies. It prohibits disclosing a record absent the prior written consent of the individual to whom the record pertains. Thus, if you open a complaint with FERPA, they have to have consent for them to release the records they have. Again, there are circumstances where that is not the case. The government can disclose personal information from the complaint form without consent. For example, they may need to reveal personal information to officials at the school to verify facts or gather additional information.

Reasons Complaints Are Filed

  • Student’s personally identifiable information has been disclosed without permission
  • Wrongfully denied access to records
  • Right to request inaccurate information be amended
  • Note: the feds would like all complaints to try and be resolved at the local level before filing a complaint.

These are typical reasons why complaints are filed. The student's personally identifiable information has been disclosed without permission. Parents were wrongfully denied access to records. Oftentimes, this is a timing issue. Remember, schools have 45 days to provide these records for inspection. Sometimes, they take longer than that as school officials can get busy or forget. Other times, schools have denied access to the records or the right to request inaccurate information be amended.

The federal government does three things once a complaint is filed. They will either dismiss the complaint. They will try to mediate between the school and the parent to try to solve the problem. Or, they will find that the school is in violation and try to solve how the school handles record releases and the protection of personally identifiable information. This is usually the extent of what happens with a FERPA violation. There is not a lot of recourse other than to get the schools to shore up their system. I suppose that future legislation could include financial penalties if this becomes problematic, but stiff penalties do not exist in the way FERPA is currently written.

Filing a Complaint

  • All complaints must be submitted in writing to the Department of Education
  • Complaint must include the facts of why the complainant feels a FERPA violation has occurred
  • Resolution: 
    • Dismissal
    • Initiate informal remediation or resolution
    • Initiate a formal investigation
    • If a violation is found, there could be corrective action in the form of revised policies and procedures or mandatory training for the school/district.  

We talked about filing a complaint ad all of these different bullets. It is important to know that the complaint must include why the parent/student feels a FERPA violation has occurred. 

Example: Darrell the Dad

  • Darrell sent his son’s school administrator an email requesting that he be allowed to come to inspect his son’s disciplinary records. His son has quite an extensive record regarding discipline in the schools. The administrator responded that he would get the appropriate staff member to get these records together and will contact him when they are ready for inspection. Time passes, and Darrell realizes that it has been 20 days since his original request to inspect the records. He contacts the school administrator again, who apologizes and says they will get right on that. 10 more days pass without word from the school. Darrell decides to file a complaint with the Department of Education. Has a FERPA violation occurred?

The answer to this question is no. A FERPA violation has not occurred because the school has 45 days to provide those records for inspection. Darrell may think that that is unreasonable as his son goes to a small school, and they could easily make those records available for inspection. However, they have 45 days. He has the right to file a complaint, but it will likely be dismissed at the federal level because it is not a violation.

What Are My Responsibilities?

  • Accurate record keeping; facts not feelings
  • Be careful about disclosure

What are your responsibilities as a therapist, social worker, or someone coming into the school as a contracted employee? It is important to keep accurate records. You want to make sure that everything you report that will be a part of that educational record is true and accurate. You do not want to get into a situation where your records are needing to be amended. This could affect whether or not a school or a third-party employer wants to continue using your services.

Remember to document facts, not feelings. Everything in that record should be based on data. "I'm basing this off of these scores or this assessment." It should not just be, "I've been providing speech services to this child for three years, and he does not do what I tell him at home to practice. There is no need to provide services for him anymore because he won't listen." These statements reflect a lot of feelings and frustration. It would be better to say something like, "I've been working with this student for three years. During this time, he has grown this much or has achieved this much. It is my opinion that he could achieve even more if these things were occurring outside of our speech therapy time." This statement makes some assumptions that he is not doing what he needs to do but removing the negative feelings. We need to take all of that emotional language out of the educational records.

Also, please be careful about disclosure. Oftentimes, this is done innocently without people meaning to do it. It could happen around the water cooler or the coffee pot when talking to a therapy friend. This might be because you need to vent, or you have had a rough day. If you are giving personally identifiable information away about a child, that is a FERPA violation. I am not saying that you should not have an opportunity to vent to your coworkers. We all need an opportunity to blow off a little steam, but you need to do that in such a way that you are not disclosing information.

There is another easy way that is very easy for people to disclose information. I call this sort of the "small town paradox." You run into somebody's aunt at the grocery store. You have known this woman for years, and she is a good friend of yours. She wants to talk to you about her niece and how well her niece is doing with therapy. It is very easy to get caught up in a conversation with a person who is the parent. You have to be very careful that you do not disclose information in the educational record. Even though you are not giving access to the educational record, you are giving that information to someone that is not supposed to have it. 

Review

  • Rights under FERPA
  • Complaints Process
  • What are my responsibilities?

Let's review a little bit, and then we will run through a few more scenarios to wrap up.

What are rights under FERPA? Parents/children (over 18) have the right to review and inspect items in the educational record. They have 45 days from the time that they request that to be able to inspect those records. It is their right to have those records amended if there are inaccuracies like a violation of privacy or paint an incorrect picture of what is happening. The right is simply to request and be heard. School districts do not have to amend the record. If they choose not to, they have to inform the parent of the right to a hearing. This can be a full-blown hearing. Parents can have attorneys at that meeting, and the school district will decide whether or not to amend the record. If they choose not to amend the record, then the parent has the right to put something in the record that states why they disagree with the decision or why they believe the record should have been amended in the first place. It also gives the parent the right to file a complaint against the school.

After a supposed FERPA violation has occurred, hopefully, the parent or eligible student has taken the time to go to the school district to resolve the issue. If it is not resolved to the parent's/child's satisfaction, they can fill out a form on the Department of Education's website. The Department of Education will then review the form and decide whether or not the case has merit. If it does not, they will dismiss the complaint, act as a mediator between the two parties to resolve the situation, or find fault with the district. Then, they will provide the district with either additional training or procedures to shore up their process to prevent future FERPA violations. Remember, it is unlikely that any restitution or violation is going to come from a FERPA complaint. This office is concerned with is how to make practices better.

What are your responsibilities as a therapist or a social worker going into this facility? You need to ensure that your records are accurate and fact-based. Feelings should be kept out of documentation, and all opinions should be based on data. You also need to be very conscious about disclosing personally identifiable information to any non-parent of a student. You can discuss personal information with the child's principal, a counselor, or anyone that is currently dealing with this child in their educational realm. You cannot talk to last year's teacher or an aunt at the grocery store. You have to be very careful about disclosure.

Let's go through a few more scenarios to help tie a lot of this together.

Example: Larry, the Litigant

  • You are providing outside counseling services to a student. After your first counseling session, you had a medical emergency and did not get a formal report typed up from your anecdotal treatment notes. Larry is desperate to get the results of this first session, but you are incapacitated and have taken a leave of absence from the job. He requests to see this record, and 45 days pass. At this time, you are still not able to give him access to the records. Does Larry have a legitimate complaint under FERPA since the school did not provide him with the records he sought in the 45-day time window? 

The answer to this question is yes. Larry does have a valid FERPA complaint. I understand that you might be medically incapacitated or whatever happened that you cannot get this information to him, but that is not a concern of FERPA. In these types of situations, it is best for the school or the company that you work for to assign him to a different caseworker to complete a session and get a record created to avoid a FERPA violation. If there were no anecdotal notes, there might not have been a record to share or a FERPA violation. However, as there were notes, we have to at least provide something that went on. 

Example: Tammy the Therapist

  • She goes into a counselor's office at a junior high school because she is working with a child in physical therapy. She needs to be able to see some things that are in that educational record to help that child during the therapy sessions. Does the counselor have to give her that to her?

This one should be easy. If Tammy is the current therapist, she has a legitimate educational interest. However, she has to be searching for something that will relate to what she is doing in therapy, not whether they were on the honor roll. This is an important distinction. To do her job, is there something in that record that will help her understand the child better to provide optimal physical therapy? If the answer is yes, then absolutely she can have access to those records. Schools have to keep a record of who accesses these records. Tammy would have to sign something to inspect the child's record. It would include how long you had the record and when you returned it.

Example: Henrietta the Helicopter Mom

  • Henrietta, the Helicopter Mom, was appalled that the school published a picture of her child in the newspaper as part of a STEM project in their kindergarten class. She goes to the school and revokes the directory release. Now, the honor roll has been published in the paper, and her child's name is not listed. She is now not happy about that. Does she have a FERPA violation? Does she have a complaint under FERPA?

The answer to that question is no. That should have also been a fairly easy one. If you have opted out of directory information, this means everything. Some schools might allow you to determine what directory information they can release and what they cannot, but they do not necessarily have to. They can say, "Here's what we use for directory information. You tell us if we can use that or not."

Example: Isaac the Investigator

  • Isaac is investigating issues of child abuse. He comes to the school and wants to see the occupational therapy notes. Can he have access to those records?

The answer is yes. Isaac can access those records because it is within the scope of what he is trying to do. He is a part of state and local authorities that are investigating a safety or medical emergency. Schools cannot deny these investigations. They typically go to the school to get those records, not directly to the therapist. This inquiry may not affect the therapist directly.

Example: Gladys the Gossiper

  • Gladys is a gossiper and calls you on the phone to talk about her bad day. She starts telling you about all the children she served and why it caused her to have a bad day. Has she violated FERPA? 

The answer to that question is maybe. If she does not tell you about the students she served that day, she has not violated FERPA. She can tell you all about generic scenarios using names like student A or a fake name. As long as she does not give you the student's real names, she can vent to you. However, if she says, "Oh, you know Missy's child Xavier," now we have a FERPA violation.

Example: Marietta the Messy Student

  • Marietta went into the counselor's office, retrieved an educational record, and posted all this information on social media. Does the school have a FERPA violation?

The answer to that question is yes. The school has a FERPA violation because they did not protect the educational record. If Marietta had not broken into the counselor's office and posted all this from memory, then there would be no FERPA violation. She accessed the student's educational record without the school knowing, and the school failed to protect that educational record. Therefore, that is a FERPA violation. 

References

Available in the handout.

Questions and Answers

How long does a school need to keep educational records?

School records are not governed under FERPA. As far as length is concerned, this is determined by the state legislature. In Texas, it is usually five years for most educational records. Schools should follow the policies of both their state law and whatever organization they are working for as far as record retention.

You mentioned that schools have 45 days to get the records available for the parents to inspect. Is that 45 calendar days, or is that 45 business days?

It is 45 calendar days. They essentially have a month and a half to get that together so that parents can inspect that.

If all the documentation said they have the right to view and inspect, does this include verbal discussion, say in a store?

They are; however, I would caution about doing it in a public place. Be aware of your surroundings. There is one other point of clarification that I should make. I want to stress that the school district is not required to make copies. They are, however, if it is unreasonable for the parent(s) to come and inspect. This goes back to the parent that was in North Carolina. I was required to make those copies because that parent could not get to the school to inspect the record.

That concludes this course. Thank you for participating, and I hope you find the information helpful with your work in the schools. 

Citation

Winters, P.J. (2021). FERPA: Family Educational Rights and Privacy Act. OccupationalTherapy.com, Article 5418. Available at www.occupationaltherapy.com 

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pj winters

PJ Winters, EdD

Dr. PJ Winters is the Director of MEd Programs and Associate Professor at East Texas Baptist University in Marshall, Texas. In his over 20 years in education, Dr. Winters has served as a teacher, assistant principal, principal, and college professor spanning all grade levels, P-16.



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