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

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Call for Changes to FERPA and HIPAA in Wake of Virginia Tech Shootings

A federal report on the Virginia Tech shootings considers the misunderstanding of federal and state privacy laws to be a “substantial obstacle” to the information sharing needed to protect students. “Throughout our meetings and in every breakout session, we heard differing interpretations and confusion about legal restrictions on the ability to share information about a person who may be a threat to self or to others,” states the Report to the President on Issues Raised by the Virginia Tech Tragedy, released Wednesday, June 13th, and compiled by the U.S. Departments of Education, Health and Human Services and Justice. Fears of violating state privacy laws, statutes designed to prevent discrimination of people with mental illness — and, of course, the federal Health Insurance Portability Accountability Act (HIPAA) Privacy Rule and the Family Educational Rights and Privacy Act (FERPA) — can serve to “chill legitimate information sharing,” the report reads.

A federal report on the Virginia Tech shootings considers the misunderstanding of federal and state privacy laws to be a “substantial obstacle” to the information sharing needed to protect students. “Throughout our meetings and in every breakout session, we heard differing interpretations and confusion about legal restrictions on the ability to share information about a person who may be a threat to self or to others,” states the Report to the President on Issues Raised by the Virginia Tech Tragedy, released Wednesday, June 13th, and compiled by the U.S. Departments of Education, Health and Human Services and Justice. Fears of violating state privacy laws, statutes designed to prevent discrimination of people with mental illness — and, of course, the federal Health Insurance Portability Accountability Act (HIPAA) Privacy Rule and the Family Educational Rights and Privacy Act (FERPA) — can serve to “chill legitimate information sharing,” the report reads.
“It was almost universally observed that these fears and misunderstandings likely limit the transfer of information in more significant ways than is required by law,” the report says. “Amen,” Sheldon E. Steinbach, a lawyer in the higher education practice at the Washington firm Dow Lohnes, said Wednesday. “That may actually be an understatement. Excessive paranoia about compliance with FERPA and HIPAA greatly impedes essential communications on campus that would provide for greater safety for students, employees and the entire college community.”
“There was an immediate hue and cry after Virginia Tech to change the privacy laws,” added Jennifer Mathis, deputy legal director for the Judge David L. Bazelon Center for Mental Health Law. “I think that there was a lack of understanding of the [emergency] exceptions that already exist.”
The perceived constraints on information sharing have been major points of concern since the April 16 shootings, with a Virginia panel appointed by Gov. Tim Kaine fixating on the tension between privacy and protection at a day-long meeting at George Mason University Monday.
The federal study, based on feedback from meetings between federal delegations and state, local, mental health, education and law enforcement leaders from across the nation, finds that while participants in the meetings were aware of both HIPAA and FERPA, “there was significant misunderstanding.” For instance, in some discussions, “participants reported circumstances in which they incorrectly believed that they were subject to liability or foreclosed from sharing information under federal law.”
In response, the report recommends that federal agencies develop and widely disseminate additional guidance clarifying how information can legally be shared — including with parents — under HIPAA and FERPA. “In addition, the U.S. Departments of Education and Health and Human Services should consider whether further actions are needed to balance more appropriately the interests of safety, privacy, and treatment implicated by FERPA and HIPAA,” the report states.
Source: Inside Higher Ed, June 14, 2007, Elizabeth Redden, available at http://insidehighered.com/news/2007/06/14/vt
Author: CWP

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Two FERPA Amendments Proposed

Two bills were recently introduced in the U.S. House of Representatives to amend the Family Educational Rights and Privacy Act (FERPA) of 1974. With some exceptions, FERPA prohibits educational agencies or institutions that receive federal funds from having a policy or practice of releasing the education records of a student without the written consent of the student or parents. FERPA also requires that educational agencies and institutions that receive federal funds provide parents with access to the educational records of their children.

H.R. 128, the David Shick Honesty in Campus Justice Act, would amend FERPA in order to improve the access of victims of crimes to information concerning the outcome of disciplinary proceedings by institutions of higher education. The proposed change would make access to this information for victims of crimes mandatory. Presently, it is at the discretion of institutions of higher education whether to disclose the outcome of disciplinary proceedings to victims, but not required.
H.R. 2220, the Mental Health Security for America's Families in Education Act of 2007, would amend FERPA in order to allow educational institutions to disclose certain information to parents of students who may pose a significant risk to their own safety or well-being, or to the safety or well-being of others. The bill contemplates allowing parents access to their children’s mental health records in these types of cases.
Source: Jody Feder, The Family Educational Rights and Privacy Act (CRS Report for Congress: May 15, 2007).
Author: CWP

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