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SPECIAL EDUCATION RECORDS

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Understanding Special Education Records

Area Education Agencies and school districts are legally mandated to create and maintain records for students eligible to receive special education services. These records are required to ensure that students receive a free appropriate public education and to demonstrate compliance with federal and state special education laws. Each AEA and LEA must meet specific requirements for accessing, maintaining, and destroying special education records.

Defining Personally Identifiable Information

Family Educational Rights and Privacy Act (FERPA) requires all public agencies to protect personally identifiable information (PII) of students and set clear guidelines for how and when any PII information may be shared.

“Personally identifiable information” is information that contains:

  • The name of the child
  • The name of the child’s parent or other family members
  • The address of the child
  • A personal identifier such as social security number, student number, or biometric record (e.g., fingerprints; retina and iris patterns; voiceprints; DNA sequence; facial characteristics; handwriting)
  • Other indirect identifiers, such as the student’s date of birth, place of birth, and mother’s maiden name
  • Other information that alone or in combination, is linked or 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
  • Information requested by a person who the educational agency or institution reasonably believes knows the identity of the student to whom the education record relates

AEAs and LEAs Must Maintain Confidentiality

Each AEA and LEA must:

  • Designate one official to assume responsibility for ensuring the confidentiality of PII at the collection, storage, disclosure, and destruction stages.
  • Ensure training on maintaining student records in accordance with legal requirements for all persons.

Note: Training must include all professional and support staff who collect and/or use student records.

Types of Records

There are several different types of student records which may be maintained by schools, AEAs, and staff members.

Record

A “record” means any information recorded in any way, including, but not limited to, handwriting, print, computer media, video or audio tape, film, microfilm, and microfiche.

Educational Records

“Education records” are records that are directly related to a student and maintained by an educational agency, or institution, or by a party acting for the agency or institution.

Education records may include, for example:

  • The cumulative file stored in the principal’s or counselor’s office
  • Attendance records in the district’s computer system
  • Free and reduced-price meal financial information in the business office
  • Health Records in the nursing office
  • Special education records, regardless of their location (e.g., a student’s classroom, in the district’s special education coordinator’s office, etc.)
  • Specialized transportation procedures in the transportation office
  • Special dietary directives in the food service office
  • Email messages on the principal’s or teacher’s computer which were sent back and forth between home and school

Special Education Records

“Special education records” comprise all information that:

  1. Is recorded in any way
  2. Is directly related to a student
  3. Is maintained by the AEA or school
  4. Relates to the evaluation, identification, or placement of an eligible individual or the provision of FAPE to an eligible individual

Special education records do include progress monitoring data collected during an intervention carried out as part of an evaluation and data collected in the course of IEP progress monitoring.

Sole Possession Record

A “Sole Possession Record” is a record that is kept in the sole possession of the maker, is used only as a personal memory aid, and is not accessible or revealed to any other person except a temporary substitute for the maker of the record.

In most cases, staff members are not required to provide their sole possession records unless the record or personally identifiable information in the record has been shared.

Procedures for Special Education Records

The special education records contain essential information to support IEP teams in their efforts to ensure appropriate services and programming for eligible individuals. Thus, AEAs and LEAs must have procedures for accessing, maintaining, destroying, and handling requests to change special education records.

Guidance on the Disclosure of Student Records

In general, written consent must be given by a parent or eligible student to release student records or to disclose the personally identifiable information contained in those records to other persons and agencies.  Written consents must state which records are released, to whom they are released, and the reason for the release.  Below you will find information on when written consent is required for disclosure of records and the exceptions when written consent is not required.  

Disclosures That Require Parent(s) or Eligible Student Consent

In general, written consent must be given by the parent(s), legal guardian, or eligible students to release student records or disclose the personally identifiable information contained in those records to other persons or agencies.

Written consent must state which records are released, to whom they are released, and the reason for the release.

Authorization for Exchange of Information

The Authorization for Exchange of Information form is used by most agencies and allows multiple agencies to exchange information.

Agencies providing any type of medical services may be covered under the rules of the Health Insurance Portability and Accountability Act (HIPAA). In order to comply with the HIPAA regulations, those agencies may require that their release forms be used. Therefore, if medical information is needed, an additional release from the medical facility may be required. If acceptable to a medical professional or institution, the Authorization for the Release of Health and/or Educational Information may be used. It is advisable for IEP teams to check with the medical professional or institution in advance regarding acceptable disclosure consent documentation.

Disclosure to a Parent Representative Through a Personal Visit

A representative of the parent(s) or eligible student may, with appropriate consent, inspect and review the records. 

Upon presentation of documented consent and proper identification, a request for information via personal visit shall be honored under the following conditions:

  1. The visit is scheduled at a mutually agreed upon time or the AEA or LEA determines it is able to accommodate an unscheduled visit
  2. The parent(s) representative is properly identified
  3. The purpose of the request is clearly stated
  4. The type of information required is expressly stated
  5.  Prior written consent is given by the parent(s) (Any form of written consent meeting these requirements is acceptable. The AEA or school cannot insist upon the Authorization for Exchange of Information or other specific form or document.)
  6. A professional staff member shall be present during the entire in-person visit and be available to interpret the data to the parent(s)representative
  7. A record of the visit shall be made

Parental Consent: NonPublic Schools

IDEA regulations require parental consent before personally identifiable information is released between an LEA (or AEA) where a child resides and an LEA (or AEA) in which an accredited nonpublic school where a child attends is located.

Notes

  • This release of information requirement does not apply if the accredited nonpublic school is located in the same LEA and AEA where the parent(s) resides.
  • This applies only to students with disabilities.

Withholding Information

If there is reasonable doubt regarding any aspect of a request for records or the personally identifiable information contained in records or a concern about the authorization to process,  the AEA staff member may withhold all or part of the information until such time as the question or questions are resolved.

Disclosures That Do Not Require Parent(s) or Eligible Student Consent

FERPA and IDEA describe a variety of circumstances when parent(s) consent is not required to transfer records or disclose personally identifiable information (PII).  As related to special education, these includes: 

Disclosing with Specific Individuals

  • AEA and school district staff who have a legitimate educational interest in the personally identifiable information (PII) contained in records
  • Iowa Vocational Rehabilitation Services (IVRS) staff who have a legitimate educational interest in the personally identifiable information (PII) contained in records. IVRS is a part of the Iowa Department of Education, thus K-12 education records may be disclosed.
  • Contractors, consultants, volunteers, or other parties to whom an AEA or school has outsourced services or functions may be considered a “school official” according to FERPA regulations. Such individuals may have access to educational records to the extent necessary to carry out their function for the AEA or school. For example, a contracted physical therapist would have access to the individual educational records needed to provide services.

Disclosing during Transitions and Transfers

  • Transfer of records to a new AEA and/or school
    • Records may be transferred to an AEA or school “where the student seeks or intends to enroll, or where the student is already enrolled so long as the disclosure is for purposes related to the student’s enrollment or transfer.”
    • At a minimum, a copy of the most recent evaluation and IEP from the special education record for the student should be sent to the new district and/or area education agency when a student transfers.
    • If requested by the new district, a copy of the most recent IEP is legally required to be sent.
  • Transition from Early Intervention/Early ACCESS (Part C) services (birth through age 2) to Special Education (Part B) services ( age three to 21)
    • Records may be transferred from early intervention service providers to special education service providers with legitimate educational interest without parental consent.

Disclosing in Specific situations

  • During a health & safety emergencies
    • If an AEA or school “determines that there is an articulable and significant threat to the health or safety of a student or other individuals, it may disclose information from education records to any person whose knowledge of the information is necessary to protect the health or safety of the student or other individuals.”
  • During child abuse investigations
    •  A school district or AEA may provide personally identifiable information (PII) contained in student records to the Department of Human Services (DHS) investigators or law enforcement officers in conjunction with a child abuse investigation without obtaining parental consent. 

NOTES: 

  1. This rule applies to children of all ages and without regard to whether a child is a child with a disability or is nondisabled. Disclosure is allowed because the Child Abuse Prevention and Treatment Act (CAPTA) requires that schools provide information to child abuse investigators that FERPA would otherwise protect from disclosure.
  2. When AEA/LEA staff are collaborating and working with DHS in other situations, signed consent is required. For example, a signed consent/release is required to share information with foster parents unless they have been assigned as the surrogate parents for the child. 

  • Per judicial orders or lawfully issued subpoenas
    • Disclosure of personally identifiable information to law enforcement officers for reasons other than health and safety emergencies or child abuse investigations requires a judicial order or subpoena.
    • Unless a judicial order or subpoena specifies that the parent(s) or age-of-majority student is not to be informed of the disclosure, the parent(s) or age-of-majority student must be informed before records are disclosed in order to afford them the opportunity to take legal action to bar the subpoena or judicial order.