Confidentiality/Records Access

The Individuals with Disabilities Education Act (IDEA) and other federal laws such as the Family Educational Rights and Privacy ACT (FERPA) protect the confidentiality of students’ educational records. Confidentiality is one of the rights afforded to parents of students with disabilities. All district personnel must be aware of the laws and regulations ensuring that student educational records and information will be kept secure and remain confidential. District employees are required to annually view the FERPA Confidentiality of Records video. This video addresses training needs relating to student education records and covers important legal terms related to FERPA, the general responsibilities of staff members under FERPA, FERPA's rules regarding confidentiality and disclosure, and the rights of parents and adult students to access and inspect the educational records of the student kept by the school.

In order to provide students with appropriate educational services, Greenville County Schools must maintain accurate records. In recognition of the confidential nature of student records, the district will only grant access to a student’s school record in accordance with the provisions of the Family Educational Rights and Privacy Act (FERPA) and other applicable State and Federal laws and regulations, such as the IDEA. (See District Policy JR)

Greenville County Schools’ Parent Handbook to Special Education (Procedural Safeguards) document details the confidentiality provisions afforded parents under the IDEA and is provided to parents at least one time annually, usually along with the Notification of Meeting document when scheduling an Annual Review. This document is also provided in the following circumstances:

• upon initial referral or a request for evaluation;


• upon receipt of a parent’s first State complaint under 34 CFR §§300.151 through 300.153 and upon receipt of a parent’s first due process complaint under §300.507 in a school year;


• when a decision is made to take a disciplinary action against a student that constitutes a change of placement; and


• upon parent request. [34 CFR §300.504(a)]

Annual Notification of Parent Rights

Each school annually notifies parents of their rights under FERPA. These rights are provided to the parents at the beginning of the school year. If the parent does not come to the school for student registration or another event at the beginning of the school year, these written notifications are sent home with the student on the first day of school.

• Notification of Rights under the Protection of Pupil Rights Amendment


• Family Educational Rights and Privacy (FERPA) Notification


• Student Directory Information Annual Notice to Parents & Guardians

The district shall effectively notify parents who have a primary or home language other than English (34 CFR § 99.7). This notice should adequately inform parents prior to any identification, location, or evaluation activity taking place. In addition to the rights listed in District Policy JR, the parents or adult students must be informed that they have the right to:

• Consent to disclosures of personally identifiable information contained in the student's education records, except to the extent that § 99.31 of FERPA authorizes disclosure without consent; and


• File a complaint under §§ 99.63 and 99.64 of FERPA concerning alleged failures by the educational agency or institution to comply with the requirements of FERPA.

Definitions

Definitions of terms used are as follows (34 CFR § 300.32):

• Personally identifiable means information includes information such as the name of the child, child's parents, or other family member; address; personal identifier such as the child's social security number or student number; or list of personal characteristics or other information that would make it possible to identify the child.


• Destruction means physically destroying the medium on which information is recorded or removing all personal identifiers from the information so no one can be identified.


• Educational records means any document or medium on which information directly related to one or more students is maintained by a participating agency.


• Participating agency means any educational agency or institution that collects, maintains,or uses personally identifiable student information to provide special education and related services to children with disabilities.

Access to Records

Access to the educational records of their children is often a concern of parents. In keeping with the requirements of FERPA, only certain individuals, in addition to the parent, may have access to student records. These individuals may include, for example, teachers or administrators of the school or state who have a legitimate interest in the records. Greenville County Schools is obligated to keep a record of all interested parties who have accessed educational records that are collected, maintained, or used under Part B of IDEA (with the exception of parents and authorized employees of the district). This record must include the name of the person who had access to the child’s records, the date, and the purpose for which the person was authorized to use the records. Additionally, the District’s Office of Information Assurance provides instructional information for principals to share with faculty and staff regarding access to educational records by school officials.

The FERPA and federal and state special education laws and regulations require schools to have reasonable policies in place to allow parents to review and inspect their child's records. An education record means those 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.

Educational records may include, but not limited to:

• academic work completed and level of achievement


• attendance data


• scores and test protocols of standardized intelligence, aptitude, and psychological tests


• interest inventory results


• health data


• family background information


• information from teachers or counselors


• observations and verified reports of serious or recurrent behavior patterns


• IEPs


• documentation of notice and consent

Under certain circumstances, a teacher's working file would not be considered to be part of the child's record. FERPA regulation 34 CFR § 99.3, states that the term "education records" does not include records that are kept in the sole possession of the maker, are used only as a personal memory aid, and are not accessible or revealed to any other person except a temporary substitute for the maker of the record.

The district must prevent the disclosure to any unauthorized person of personally identifiable information pertaining to all students. Disclosure is the release, transfer or other communication of records, or the personally identifiable information contained in those records, to any party, by any means, including oral, written, or electronic.

The FERPA allows parents to inspect and review all education records of their children maintained by an educational agency that receives federal funds. This includes all districts and private schools that accept federal funds. The school must comply with a request to inspect records within a reasonable time, not to exceed 45 calendar days.

Records Requiring Consent for Release

Consent from the parent or adult student is required before education records may be released (34 CFR § 300.622). Some examples of when parent consent is required include:

• If a child is enrolled, or is going to enroll in a private school that is not located in the parent’s district of residence, parental consent must be obtained before any personally identifiable information about the child is released between officials in the district where the private school is located and officials in the district of the parent’s residence (34 CFR § 300.622(a)(3)).


• Parental consent must be obtained before personally identifiable information is released to officials of participating agencies providing or paying for transition services according to an IEP.


• Additionally, parent consent is required when a school accesses reimbursement from Medicaid or private insurance for special education services. To bill Medicaid, the school must release to the Medicaid billing agency personally identifiable information, such as the student's name, social security or other student number, category of disability, and other pertinent information.


• Consent for use of private insurance and Medicaid: The district must obtain a one-time written consent from the parent, after providing written notification of the intent to bill, but before accessing the child’s or the parent’s public benefits or insurance for the first time. This consent must specify (a) the personally identifiable information that may be disclosed (e.g., records or information about the services that may be provided to a particular child); (b) the purpose of the disclosure (e.g., billing for services); and (c) the agency to which the disclosure may be made (e.g., Department of Health and Human Services). The consent also must specify that the parent understands and agrees that the public agency may access the child’s or parent’s public benefits or insurance to pay for services.


• In addition to the requirement to provide written notification prior to accessing the child’s or the parent’s public benefits or insurance for the first time and prior to obtaining the one-time parental consent, the district must continue to provide written notification annually to the child’s parents before accessing the public benefits or insurance. The written notification must explain all of the protections available to parents under Part B of the IDEA, as described in 34 C.F.R. § 300.154(d)(2)(v) to ensure that parents are fully informed of their rights before a public agency can access their or their child’s public benefits or insurance to pay for services under the IDEA. The notice must be written in language understandable to the general public and in the native language of the parent or other mode of communication used by the parent, unless it is clearly not feasible to do so.

An educational agency or institution must use reasonable methods to ensure that school officials obtain access to only those education records in which they have legitimate educational interests. An educational agency or institution that does not use physical or technological access controls must ensure that its administrative policy for controlling access to education records is effective and that it remains in compliance with the legitimate educational interest requirement.

Some situations which require parental consent and the Greenville County forms used for documentation include, but are not limited to, the following:

• Sharing information with officials of participating agencies providing or paying for transition services according to an IEP. This consent is documented on the Request to Release or Secure Confidential Information form.


• Sharing/Requesting information with outside agencies, medical professionals, private service providers, or private schools. This consent is documented on the Request to Release or Secure Confidential Information form.


• Accessing reimbursement from Medicaid for special education services. This consent is documented on the Consent for Medicaid Reimbursement form obtained by health services.

Releasing Information without Consent

The FERPA regulations allow some exceptions to the requirement to obtain parent consent before releasing records. All of these exceptions also apply to the confidentiality requirements in the federal special education regulations (34 CFR § 300.622(a)). For example, FERPA allows the school to release records to authorized individuals, such as:

• other school officials, including teachers at the school where the student attends, who have a legitimate educational interest (34 CFR § 99.31(a)(1));


• a contractor, consultant, volunteer, or other party to whom the district has outsourced institutional services or functions provided the outside party:
  
  
  1. performs a service or function for which the agency or institution would otherwise use employees;
  
  
  2. is under direct control of the district with respect to use and maintenance of education records; and
  
  
  3. is subject to requirements governing the use and redisclosure or personally identifiable information from education records
  
  
• officials of another school, district, or postsecondary educational institution where the student is enrolled or seeks or intends to enroll, If (a) the district's annual notice included a notice that the district forwards education records to other agencies that request records and in which the student seeks or intends to enroll; or (b) the district makes a reasonable attempt to notify the parents or the student of the disclosure at the last known address (34 CFR § 99.31(a)(2)), however no notice is required if the disclosure is initiated by the parent or adult student;


• authorized representatives of the US Comptroller General, US Secretary of Education, and State Educational Agencies in connection with an audit or evaluation of Federal or State supported programs, or for the enforcement or compliance with Federal legal requirements related to those programs (34 CFR § 99.31(a)(3));


• disclosure in connection with financial aid for which the student has applied or received to determine eligibility, amount, or conditions of the aid or to enforce the terms and conditions of the aid (34 CFR § 99.31(a)(4));


• disclosure to State and local officials to whom the information is specifically allowed to be reported pursuant to State statute (34 CFR § 99.31(a)(5));


• disclosure to organizations conducting studies for educational agencies to develop, validate or administer predictive tests; administer student aid programs; or improve instruction, but only if the study does not allow personal identification of parents and students to anyone other than representatives of the organization conducting the study, and if the information is destroyed when no longer needed for the purposes for which the study was conducted (34 CFR § 99.31(a)(6));


• disclosure to accrediting organizations to carry out their functions (34 CFR § 99.31(a)(7));


• disclosure to a parent of a student who qualifies as a dependent under section 152 of the Internal Revenue Service Code (34 CFR § 99.31(a)(8));


• disclosure of relevant educational records to a court in a legal action initiated by the district against a parent. Also, disclosure to comply with a judicial order or subpoena. However, these disclosures may be made only if the district makes a reasonable effort to notify the parents or eligible student of the order or subpoena in advance of compliance with the order or subpoena, unless the order or subpoena states that the existence or contents of the order or subpoena not be disclosed (34 CFR § 99.31(a)(9));


• disclosure in connection with a health or safety emergency, if knowledge of the information is necessary to protect the health or safety of the student or other individuals (34 CFR § 99.31(a)(10));


• disclosure of directory information. This is information contained in an education record of a student which would not generally be considered harmful or an invasion of privacy if disclosed. It includes, but is not limited to, the student's name, address, telephone listing, date and place of birth, major field of study, participation in officially recognized activities and sports, weight and height of members of athletic teams, dates of attendance, degrees and awards received, and the most previous educational agency or institution attended (34 CFR § 99.31(a)(11));


• disclosure to the adult student or student of any age if attending a postsecondary school, or to the parents of a student who has not reached 18 years of age and is not attending an institution of postsecondary education (34 CFR § 99.31 (a)(12)); and


• disclosure of the results of any disciplinary proceeding conducted by an institution of postsecondary education against an alleged perpetrator to an alleged victim of any crime of violence, as defined by § 16 of Title 18, United States Code (34 CFR § 99.31 (a)(13)); or


• disclosure to a parent of a student attending an institution of post secondary education regarding the illegal use of alcohol (34 CFR § 300.622(a)).

District Requirements for Protection of Education Records

To ensure protection of education records, the district must:

• Obtain written consent before disclosing personally identifiable information to unauthorized individuals. A parent must provide consent if the child is under 18 years of age (unless one of the exceptions listed above applies).


• Designate and train a records manager to assure security of confidential records for students with disabilities.


• Keep a record or log of all parties obtaining access to education records, including the name of the party, the date access took place, and the purpose of the authorized use.


• Maintain for public inspection a current listing of names and positions of employees who may have access to personally identifiable information.


• Ensure the confidentiality of personally identifiable information at collection, storage, disclosure, and destruction stages.


• Ensure that, if any education record includes information on more than one student, a parent of a child must have the right to inspect and review only the information relating to his or her child, or to be informed of that specific information.


• Ensure that each person collecting or using personally identifiable information receives training or instruction regarding the policies and procedures governing confidentiality of personally identifiable information. The district must maintain a record of the training provided, the person or persons providing the training, dates of the training, those attending, and subjects covered.


• Provide a parent, upon request, a list of the types and locations of records collected, maintained, or used by the district.


• Respond to any reasonable request made by a parent for an explanation and interpretation of a record.


• Provide a parent, upon request, access to the child's records, and under certain circumstances, a copy of the records (34 CFR § 300.613). Most districts copy records for parents without charge. However, the law does allow for fees for copies of records made for a parent if the fee does not prevent a parent from exercising the right to inspect and review those records. A fee may not be charged to search for or retrieve information.

Transfer of Records

Education records include personally identifiable information, and may not be released to another agency or organization without parent consent. However, when a student transfers to another district, education records may be forwarded without student or parent consent if the annual FERPA notice to parents includes a statement that these records will be forwarded to the receiving school. Schools are permitted to disclose a student's education records to officials of another school, school system, or institution of postsecondary education where the student seeks or intends to enroll. Immunization records are included in the educational records (under the annual notification exception) that may also be shared with a receiving school without student or parent consent.

Greenville County schools should respond to requests for records in a timely manner. The sending district is to transfer copies of the original school record to the requesting district. South Carolina special education regulations require the sending district to immediately transfer the IEP, and any additional educationally relevant information regarding a child with a disability, to the receiving district.

Greenville County Schools use reasonable methods to ensure that school officials obtain access to only those education records in which they have legitimate educational interests.

Parents have the right to request that their child's education records be changed if something is inaccurate, misleading, or in violation of the student’s rights of privacy. If the school does not agree that the education records should be changed, staff must provide an opportunity for a hearing, following FERPA requirements. The hearing officer would be the school's hearing officer, not a special education due process hearing officer (34 CFR § 300.618).

Age of Majority

In South Carolina, the age of majority is 18. Students who are 18 years or older, unless they have a guardian appointed under State law, have the right to grant or withhold consent, have access to records, to amend records, and to file a complaint, etc. In Special Education, when a student turns 18 years old, or enters a postsecondary institution at any age, the rights under FERPA transfer from the parents to the student, and he or she is known as an “eligible student” under FERPA.

Test Protocols

Test protocols are typically protected by the publisher through copyright law. The Office of Special Education and Rehabilitative Services (OSERS) has noted that if a document is copyrighted, the IDEA’s inspection and review rights generally do not implicate copyright law. Since IDEA and FERPA generally do not require the distribution of copies of an education record, but rather parental access to inspect and review, Federal copyright law generally should not be implicated under these regulations. However, when a test protocol contains personally identifiable information directly related to a particular student, that protocol is an education record. If Case Managers receive requests for records which include requests for copies of test protocols, the Case Manager shall contact the Special Education Specialist for support regarding this request.

Discipline Records

Districts reporting a crime are allowed to forward the student's special education and disciplinary records to the appropriate authorities only if they have parent consent or if one of the following FERPA exceptions to the consent requirement applies (34 CFR § 300.535(b)).

FERPA exceptions which apply include disclosure, without consent, to the following parties or under the following conditions (34 CFR § 99.31):

• To comply with a judicial order or lawfully issued subpoena;


• Appropriate officials in cases of health and safety emergencies; and


• State and local authorities, within a juvenile justice system, pursuant to specific State law.

In addition, other federal and state requirements are as follows:

• When districts send records of students to other districts, they are also required to include the discipline records.


• If district employees are required to make a report to a law enforcement agency, they may be charged with failure to report if they do not comply.


• If district employees report a crime, the district may not impose sanctions on them.


• If district employees report a crime in good faith, they have immunity from civil liability.

Private School Students

Generally, most private and parochial schools at the elementary and secondary levels do not receive funds under any program administered by the Department of Education and are, therefore, not subject to FERPA. However, if a student is placed in a private school under IDEA, the placing public agency (typically the district) remains responsible under FERPA for that specific student’s records and compliance with FERPA.

Destruction of Records

Federal auditing requirements necessitate the availability of education records for identified students for 5 years after they exit from special education services. After that period of time, districts may destroy records. The District publishes a public notice in the local newspaper and online newspaper regarding students who graduated or left school five years previously. The notice is addressed to students and guardians, advising them of the proposed destruction of records and asking them to contact the district if they object to the destruction. The parents are also informed of destruction of records in the Parent Handbook to Special Education (Procedural Safeguards).

Parents may also ask that their child's records be destroyed. However, a permanent record of the following information may be maintained without time limitation:

• A student's name, address, and phone number;


• His or her grades;


• Attendance record;


• Classes attended;


• Grade level completed; and


• Year completed.