ED Issues Guidance Letter on FERPA Issues regarding SES Providers

The U.S. Department of Education (ED), Office of Innovation and Improvement (OII), recently issued a guidance letter stating that it is not a violation of the Family Educational Rights and Privacy Act (FERPA) for supplemental educational services (SES) providers to contact parents and guardians of students served in SES programs in previous years. The issue of FERPA and SES providers arose because an anonymous school district contacted OII with a concern about this issue.

The school district sent a memorandum to OII, in which it cited FERPA as possibly prohibiting SES providers from contacting parents and guardians of the district’s students served in SES programs last year or in previous years. OII’s letter states that FERPA does not prohibit SES providers from using contact information for parents of students they previously served to contact those parents again regarding their services. However, FERPA does not permit a provider to disclose to third parties the identity of any student who is receiving services under the SES program, without the written consent of the student’s parent.
Under 34 CFR § 99.33(a)(2), information disclosed to third parties, such as SES providers, may be used only for the purposes for which the disclosure was made. For an SES provider, the information is disclosed for the purpose of providing educational services to students. In its memorandum to OII, the school district stated that “[A] small number of [SES providers] may be in violation of [FERPA] which states that the disclosed information cannot be used for any other purpose than the purpose disclosed and [contacting parents] are ‘other purposes.’” The school district opined that recruitment of students could be considered an “other purpose” than providing educational services.
However, OII interpreted the intent of that regulatory provision as ensuring that personally identifiable information from student’s education records is not redisclosed to other parties for other purposes. OII does not interpret this to mean that a third party, such as an SES provider, may not use the information it legally obtained under FERPA to contact parents in regard to the services it provides. As a result, it concluded that the school district “has no legal basis in saying that FERPA does not permit SES providers to utilize the information they received from [the District], with parental consent, to contact the parents for the purposes of recruitment.”
OII also gave an alternative explanation for its rationale. OII noted that § 99.33(a) clearly states that the recipient of education records may not redisclose the information to any other party without the prior consent of the parent or eligible student. A parent or eligible student does not have to consent for information to be provided to them. Because a parent or eligible student is not a third party, there is no redisclosure. As a result, OII concluded that no improper disclosure would take place when a party contacts a parent or eligible student.
Resources:
http://www.ed.gov/policy/gen/guid/fpco/ferpa/library/ses081007.html
Author: CWP