ACSAEvery Child Counts Symposium Best Practices, Best Solutions

Marsha A. BedwellSally Jensen Dutcher

Meghan Covert Russell

January 16-18, 2013

SACRAMENTO • ROSEVILLE • WALNUT CREEK • BAKERSFIELD • SAN LUIS OBISPO

Leaving a Paper-Trail

Best Practices for District Retention and Disclosure of Documents

Today’s Topics Overview of State Laws Regarding

Student Records Key concepts under FERPA & IDEA

regarding records Successful Documentation/Avoiding

Pitfalls

FERPAFamily Educational and Privacy Rights

Act FERPA is the federal law the protects a

student’s privacy interest in “education records” Education records include: records, files, documents,

and other materials, which (i) contain information directly related to a student, which are (ii) maintained by an educational agency or institution or acting for such agency or institution.” [20 U.S.C. 1232g(a)(4) and 34 CFR 99.3]

FERPA guidelines are state in 34 CFR Part 99 are available on line at www.gpo.gov

Key Protections Given Parents* Under FERPA

To inspect and review student records maintained by the school [fees may be charged for copies]

To request that records be correct when parents believe them to be inaccurate or misleading

Generally, to limit disclosure of educational records without written permission

To receive annual notice of parental rights under FERPA *parental rights transfer to student at age 18 years

Disclosure Allowed by FERPA without parental consent

To school officials with legitimate educational interest To other schools to which a student is transferring To specified officials for purposes of audit or evaluation purposes Appropriate parties in connection with financial aid applications Organizations conducting certain studies on behalf of the school Accrediting organizations To comply with a judicial order or lawful subpoena Appropriate officials in case of health and safety emergency To juvenile justice authorities, pursuant to state law

“Directory” Information

FERPA allows disclosure of “directory” information such as: student name, date and place of birth, honors and awards, and dates of attendance

Parents must be told about directory information and be given an opportunity to refuse disclosure

Parents must be given annual notice of their rights under FERPA (for example, in the Student Handbook)

IDEA IDEA guarantees confidentiality of student records in accordance with

FERPA Parents have a right to inspection and review “without unnecessary

delay” To request amendment of inaccurate or misleading student records Parents must consent to discolure of personally identifiable

information unless disclosure without consent is permitted under FERPA

District staff must safeguard information at all times, in collection, storage, disclosure, and destruction and designate one person responsible for ensuring confidentiality

California Statutes and RegulationsTrack FERPA

Parents have “absolute” right of access to their students records District has duty to establish, maintain, and destroy records as

specified in State Board of Education rules (Title 5, California Code of Regulations)

Annual Notice of Parental Rights Required Parents consent to release of student records, except as specified

by statute

Education Code sections 49060 through 49070.7 apply

Disclosure Without Consent Under State Statute

“Directory” information about a student may be released without consent

Annual Notice of categories of directory information, planned releases and recipients

District Policy regarding student records, including directory information required

Release of telephone numbers without parental consent is to be minimized

Records may be released pursuant to lawful subpoena-but district must make reasonable effort to notify parents before release

Public Access to Records California voters amended the state’s constitution to

declare: “The people have the right of access to information concerning the conduct of the people’s business, and therefore, the meetings of public bodies and the writings of public officials and agencies shall be open to public scrutiny.”

California Constitution, Article I, Sec. 3(b)(1)

California Public Records Act California Government Code requires school districts and other

public entities to disclose records that not exempt from disclosure upon request

All records are disclosable unless there is a specific exemption

Records include any writing containing information relating the conduct of the public’s business prepared, owned, used or retaining by any state of local agency regardless of physical form or characteristics. (Gov. Code section 6252(d).)

California Public Records Act Unless otherwise exempt, records maintained in electronic format

are public records and subject to disclosure This would include records stored in electronic data basis,

including e-mail communications Student records made confidential by state and federal statute are

generally exempt from disclosure, but when a request is made for records under the Public Records Act, the procedures called for by that Act should be observed

Procedures call for initial response within 10 days; where possible, non-confidential portions of records must be segregated and released

Special Education RecordsEducation Code section 56504

Gives parents right to inspect and receive copies of student records within 5 days of oral or written request

District may charge “cost of production” On request, District must provide a list of the types and

locations of school records collected, maintained and used Failure to provide records can be a procedural violation of

the IDEA and a denial of FAPE OAH may hear complaints regarding failure to provide

records

Special Education Records Require Close and Frequent

Attention Special Education requires the creation of a large volume of

documents on a regular basis

Programs are subject to regular review for compliance, complaint resolution, and due process procedures

Failure to document program activities can result in compliance findings, corrective action directives, and adverse findings from OAH

Frequent attention to policies, procedures and practices related to records is essential to compliance and defense

Practice PointersAccess Log for Special Ed Records District is Required to Maintain a Log of all parties

obtaining access to records collected, maintained or used [34 CFR 300.614]

Need not log access by parents or by authorized employees of the district

Record stays with student file

Practice PointersAccess Log for Special Ed Records

Ensure the log is legibleInclude: Date of Inspection/Release of Record

Name, Title, and Affiliation of Person Inspecting/ Receiving RecordsName/Title of District Representative handling

inspection/releaseManner of Delivery and Address as AppropriatePurpose for which the Party is authorized to use recordsComplete Description of Documents Released

[Consider whether in particular circumstances a duplicate copy of records released should be maintained (including release to parents or their representatives), as when, for example, a due process complaint may be pending or anticipated.]

E-Mail Challenges E-mail communications are “student records” records when they

personally identify a student, are “maintained” and recorded in any way by the district

E-mail communication may be “fleeting” but “frequent” – avoiding the

normal procedures applicable to retaining documents

Electronic format makes confidentiality more difficult to Maintain

Communication can be “informal”

E-Mail Challenges Determining whether an e-mail is “maintained” and thus a student

record can be tricky

CDE and a federal district court held that only e-mails that were kept in the student’s permanent file were a student record [S.A. v. Tulare County Office of Education, U.S. Dist. Court, Eastern Dist., CA 2009]

The Tulare County Office case looked to the U.S. Supreme Court Case, Owasso Indep. Sch. Dist. No. I-011 (2002) for guidance on the question of what it means to “maintain” something: “The word ‘maintain’ suggests FERPA records will be kept in a filing cabinet in a records room at the school or on a permanent secure database..” “…Congress contemplated that education records would be kept in one place with a single record of access” ….”FERPA implies that education records are institutional records kept by a single central custodian, such as a registrar, not individual assignments handled by many student graders in their separate classrooms.”

Practice Pointers for E-Mail Record-keeping practices should ensure that all

information necessary to demonstrate compliance with special education legal requirements are maintained, including, for example, IEP’s, prior written notices, and documents demonstrating progress on goals

Where e-mail is a mode of communication, steps must be taken to ensure that all necessary information is maintained in the student’s file

Practice Pointers for E-Mail Work with IT Department to develop a policy governing retention of e-mail, including

retention time

identify the types of records that are “student records”

Include of retention policy in annual notice regarding records

Avoid categorically excluding e-mail communications from a student file – many include important student-specific information

Obtain specific parental consent to communicate about student via e-mail to a specific e-mail address

Avoid sending e-mail to parent at a work e-mail address as these typically are not private

Establish, communicate and maintain guidelines for proper decorum in all e-mail communications: they may be subject to release via subpoena or pursuant to a PRA request

Beyond E-mail Electronic Record Keeping Saves Time but:

be aware of “auto-fill” hazards in some software

take and complete thorough IEP meeting notes: explain the rationale for decisions (including proposals and rejections of proposals)

Consider supplementing electronic records with paper records when appropriate to documentation: draft goals prepared by parent; evidence of student progress

FERPA Fun and Other Record-Keeping Challenges

Is there a FERPA problem in the following scenario?

Student records are kept in locked files in the school reception area, behind the counter. The school secretary keeps the key to files in her unlocked desk drawer. There’s an unwritten rule that the files are “not to be removed from the reception area,” but pretty much everyone who spends time on-site knows where to get the key if needed. This includes parents. There used to be a log for the files, but no one is sure where it is anymore. The receptionist goes to lunch from 11:30-12:00 everyday. The 6th-grade student of the month is in charge during that time.

Challenge Question #2 District has had a long and protracted conflict with parents over

developing an IEP for their student. Parent is now asserting that they have been denied meaningful participation in the IEP process because 18-months ago they suggested very specific goals in 3 areas of need (reading, writing and attention) that the District did not consider. The IEP notes for the meeting state that “Parents suggested 3 goals. District staff disagreed.” District staff cannot remember the discussion. Also, some of the signatures for attendance aren’t legible.

What additions to the meeting notes would have been helpful?

Challenge Question #3 District received a subpoena for student records.

Approximately 5 days later, the District compiled the records, and sent them out to the subpoenaing party. The student’s parent found out the records released pursuant to the subpoena. Was the release proper?

Challenge Question #4The sixth grade science class at Elm Street Elementary is learning about allergies – what causes them, what the symptoms are, how to treat them and so forth. One of the sixth grade students had a severe allergy to a specific food. The allergy was not generally known to the students in the class. The teacher thought that the class would benefit by hearing first-hand from the affected student about how she coped with her allergy. She asked the student, in front of her classmates, to speak to them about her experience. Is this a problem?

Challenge Question #5 Ms. Jones is a special education teacher. She regularly

assesses a student’s progress on a handwriting goal. To do so, she asks the student to perform a writing excise. Then she evaluates the work sample, and records the results on a notepad. Later she enters a “progress note” into the electronic student special education information system. She then destroys the results in the notepad.

Is this approach satisfactory? Is the notepad and “education record?” Would it be a good idea to retain the notepad?

Challenge #6 The PTA at Elm Elementary is concerned that the current

math curriculum is not meeting student needs. The District has held several meetings to explain the program, but some parents remain concerned. The curriculum is taught both to students with and IEP and those without an IEP. Some have even said that the District is not being forthcoming about how students are really doing in the curriculum, and that some teachers don’t even like it. A parent from the group filed a Public Records Act. They seek “any and all documents, letters, records, writings of any kind, including e-mail, that discuss the curriculum. The District has a large number of communications that fit this description, including e-mail. Some mention specific students. What does it do to respond?