Confidentiality Records Data Sharing under IDEA Part C

Confidentiality, Records & Data Sharing under IDEA Part C & FERPA September 16, 2013 Dale King Director FPCO Frank Miller Management and Program Analyst FPCO Jessica Spataro Program Specialist OSERS Kala Surprenant Team Lead Attorney OGC

Three Confidentiality Hot Topics

Confidentiality Hot Topics 1. IDEA Part C Overview 2. FERPA Overview 3. Uninterrupted Scholars Act (USA)

Handouts § FPCO Letter to Edmunds (2012) § Joint DOE and HHS letter (2013) § Power. Point of today’s presentation

FPCO Letter to Edmunds (2012) § “Early intervention records” is the same as “education records” for purposes of the confidentiality protections under IDEA Part C and FERPA. § If early intervention records are covered under FERPA and IDEA Part C, those records are exempt as PHI under the HIPAA Privacy Rule. 5

IDEA & FERPA § As between IDEA Part C and FERPA, the more specific provisions in the Part C regulations apply to early intervention records. § Keep in mind IDEA Part B section 619 preschool programs must comply with the IDEA Part B confidentiality provisions in 34 CFR §§ 300. 610 through 300. 627 as well as the FERPA regulations. 6

Part C Confidentiality Requirements Apply Who: State lead agency and EIS providers & other “participating agencies” (§§ 303. 401(b) & 303. 403(c)) What: Prohibit disclosure of personally identifiable information(PII) (§§ 303. 401(b) & 303. 414) When: A child is referred to Part C until the child’s early intervention records are no longer maintained or required to be maintained (§ 303. 402(c)(2))

Two Important Definitions § Participating agency = State lead agency and EIS provider but not primary referral sources or public agency/private entity that act solely as funding sources for Part C services § Early intervention records = All records regarding a child that are required to be collected, maintained, or used under IDEA Part C (§ 303. 403(c))

Parent Right to Access & Inspect Early Intervention Record § Each participating agency must permit parents to inspect and review any early intervention records relating to their children that are collected, maintained, or used by the agency under this part (§ 303. 405) § without unnecessary delay and before any meeting regarding an IFSP, or any hearing pursuant to §§ 303. 430(d) and 303. 435 through 303. 439, and in no case more than 10 days after the 9

Parent Right to Access & Inspect Early Intervention Record (Cont. ) § The access and inspection provisions include the right to: § a response from the participating agency to reasonable requests for explanations and interpretations of the early intervention records; and § have a representative of the parent inspect and review the early intervention records. 10

Part C Agency Responsibility: Record of Access § Keep a record of parties, excluding parents and representatives/employees of the participating agency, who obtained access to early intervention records collected, maintained, or used under Part C of IDEA; (§ 303. 406) § Include name of party, date access given, and purpose for access. 11

Additional Part C Agency Responsibilities § IDEA Part C states that if records contain information on more than one student/child, the parent may inspect, review, or be informed of, only the specific information about his or her child’s education records. § 303. 407 12

Charging a Fee for Copies § Each participating agency may charge a fee for copies of records if the fee does not effectively prevent the parent from exercising their right to inspect and review those records, except § 303. 409 § a participating agency must provide at no cost to parents a copy of each evaluation, assessment of the child, family assessment, and IFSP as soon as possible after each IFSP meeting, and § this fee may not include charges to search for, or to retrieve, the information. 13

Parent Right to Request Amendment of Early Intervention Record § IDEA Part C gives parent(s) that believe the information in their child’s early intervention record is inaccurate, misleading, or violates their or their child’s privacy or other rights, may request the participating agency amend the information. 14

Part C Agency Responsibility When Parent Requests Amendment § The participating agency must decide to either amend the information “within a reasonable period of time” or refuse to amend the information, and subsequently inform the parent(s) of the refusal. 15

Dispute Resolution Options § If disagreement about amending the record, parents have 3 options: § State Complaint (§§ 303. 432 – 303. 434) § Mediation (§ 303. 431) § Due Process Hearing (§ 303. 430)

Parent Consent for Disclosures § Parental consent must be obtained before any PII is disclosed by the participating agency, except to authorized representatives and officials of the participating agency, unless permitted by IDEA Part C and/or FERPA. (§ 303. 414) 17

IDEA Part C Exceptions to Consent 2 Types of Exceptions— § Part C Exception – such as transition Notification when child exits Part C. § Exceptions under FERPA 18

Family Educational Rights and Privacy Act (FERPA) § Statute: 20 U. S. C. § 1232 g (§ 444 of the General Education Provisions Act (GEPA)) § Regulations: 34 CFR Part 99 19

FERPA and IDEA early childhood programs § IDEA Part C and IDEA Part B, Section 619 have similar, but slightly different, confidentiality provisions. § FERPA applies the same requirements to both IDEA programs. 20

How FERPA terms apply to IDEA Part C § IDEA Part C, in § 303. 414(b)(2), includes the following translation provisions for FERPA terms: 1. Education record = Early intervention record 2. Education = Early intervention 3. Educational agency or institution = Participating agency 4. School official = Qualified EIS personnel/Service Coordinator 5. State educational authority = Lead agency 6. Student = Child under IDEA Part C 21

What are education records under FERPA? “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. § 99. 3. 22

Primary Rights of Parents Under FERPA § Right to inspect and review education records (§ 99. 10) § Right to seek to amend education records (§§ 99. 20, 99. 21, and 99. 22); and § Right to consent to the disclosure of personally identifiable information from education records, except as provided by law (§§ 99. 30 and 99. 31). 23

Personally Identifiable Information (PII) “Personally identifiable information” includes, but is not limited to: § The student’s name; § Name of the student’s parent or other family members; § Address of the student or student’s family; § A personal identifier, such as a social security § number, student number, or biometric record; Other direct identifiers, such as the student’s date of birth, place of birth, and mother’s maiden name 24

Personally Identifiable Information (PII), cont. § 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 with reasonable certainty; or § 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. 25

Annual Notification of Rights § § 99. 7 of FERPA requires schools to annually notify parents and eligible students in attendance of their rights under FERPA. 26

Exceptions to Consent § 99. 31 some common FERPA exceptions: § To respond to a health or safety emergency. § 99. 31(a)(10) & § 99. 36. § To comply with a judicial order or subpoena. § Must make reasonable effort to notify parent before complying with subpoena or court order. § 99. 31(a)(9). 27

Exceptions to Consent, cont. §§ 99. 31(a)(3) & 99. 35 Federal, State, and local officials listed in § 99. 31(a)(3) may have access to education records only – § In connection with audit or evaluation of Federal or State supported education programs, or § For the enforcement of or compliance with Federal legal requirements which relate to those programs. 28

Exceptions to Consent, cont. § Information must be protected from disclosure and destroyed when no longer needed § Except that further disclosures may be made on behalf of an educational agency or institution in accordance with § 99. 33(b). § Recent amendments to FERPA regulations define “authorized representative” and “education programs” 29

Exceptions to Consent, cont. Uninterrupted Scholars Act (USA) New exception to the general consent rule under FERPA enacted on January 14, 2013: § Permits disclosure of PII from education records of children in foster care to: “agency caseworker or other representative” of a State or local child welfare agency (CWA) who has the right to access a student’s case plan under State or tribal law. § Disclosure permitted when: the CWA is “legally responsible … for the care and protection of the student. ” § Provisions for tribal organizations as well. 30

Participating Agency Responsibility Once Disclosure is Made Under the USA § Participating Agency Under Part C must document the disclosure in the Record of Access under § 303. 406. 31

Limitations on CWA Once Disclosure is Made Under the USA § The CWA can disclose (or redisclose) the PII from the records to “an individual or entity engaged in addressing the student’s education needs. ” 32

Additional Exception to Consent § Uninterrupted Scholars Act amended the notification requirement in FERPA’s subpoena or judicial order exception (§ 99. 31(a)(9)) when the parent is a party to a court proceeding involving child abuse, neglect, or dependency and the court order is issued in the context of that court proceeding. 33

“This is all so very confusing. ” 34

FPCO Contact Information § For technical assistance and advice to school officials: Family Policy Compliance Office U. S. Department of Education 400 Maryland Avenue, SW Washington, DC 20202 -8520 (202) 260 -3887 Telephone (202) 260 -9001 Fax § For informal requests for technical assistance, email us at: FERPA@ed. gov § FPCO Web site: www. ed. gov/fpco 35

OSEP Contact Information § For technical assistance and advice to school officials: Office of Special Education Programs (OSEP) U. S. Department of Education 400 Maryland Avenue, SW Washington, DC 20202 -8520 (202) 245 -7629 Telephone (202) 245 -7614 Fax § OSEP Web site: http: //www 2. ed. gov/about/offices/list/osers/osep/ind ex. html 36