The U.S. Department of Education’s (DoE) Office of Special Education and Rehabilitative Services (OSERS) issued a dear colleague letter on August 24 reiterating its commitment that children with disabilities and their families have successful early intervention and educational experiences for the 2021-22 school year.
As it did last year in a Q&A document released on September 28, 2020, OSERS asserts that “with few exceptions” there is no authority vested in DoE to waive IDEA requirements. The only “notable” exception identified by OSERS relates to waiving maintenance of effort funding requirements. The lack of requirement waivers applies regardless of the primary instructional delivery approach – both virtual and in-person learning are held to the same standard.
The letter reports that “the Department expects that all [school districts] will provide every student with the opportunity for full-time, in-person learning for the 2021-2022 school year.” Both the letter and accompanying Q&A document indicate a focus on the transition from remote to in-person learning. While the vast majority of Ohio students made this transition at some point during the 2020-2021 school year as vaccines became available, in some other states it is happening for the first time this fall. A successful transition includes ensuring that IEPs are in effect for children with disabilities at the start of the school year, and all other rights of children with disabilities under IDEA are protected.
The guidance reaffirms the importance of appropriate implementation of IDEAS’s child find obligations, which requires the identification, location, and evaluation, of all children with disabilities in the states, including those enrolled in homeschool. An effective child find system is an ongoing part of each state’s responsibility to ensure that FAPE is made available to all eligible children with disabilities. The Q&A document provides some specific ideas related to child-find during the pandemic, including a warning to “not rely solely on referrals by parents” as the primary child find tool, and the precaution that traditional child find strategies may not be adequate during remote learning. Increased community outreach and education is strongly encouraged by OSERS.
A theme underlying much of the guidance, and one emphasized by recent Department of Education actions, is that COVID precautions are “of utmost importance.” Not only does COVID pose a direct threat to individual students – especially disabled students with medical fragility – but the fear of COVID may result in parents turning to private schooling and homeschooling for perceived safety. This can make IDEA compliance more challenging. As a result, OSERS looks to COVID precautions as key element of IDEA compliance. The letter points to the CDC recommendation that everyone in K-12 schools wear a mask indoors, including teachers, staff, students, and visitors, regardless of vaccination status. The guidance encourages schools to put in place layered prevention strategies including promoting vaccination and proper universal mask-wearing.
What does this mean for your district?
Adjustments to “normal” IDEA compliance, such as child find procedures, will be essential during this school year as OSERS increases its expectations while continuing to assert that no waivers will be issued. While the initial Q&A focuses on child find, OSERS has indicated that additional guidance will be forthcoming. As was the case last school year, the new guidance is expected weeks or months after school resumes. Unfortunately, schools cannot point to this delay by OSERS as a defense against any alleged IDEA violations. As a result, careful planning and informed, proactive legal guidance are key.
School resource officers (SRO) play a vital role in ensuring that schools are safe and welcoming places where all students can learn. So how much information do they really need to know about school records of the children for which they serve? The answer may seem obvious, but let’s take a look into the fine print of FERPA.
SPPO acknowledged that a district may nonconsensually disclose education records to school officials who have a legitimate educational interest in the records, but noted that, in this instance, the district had not designated a SRO or any other law enforcement officer as a “school official.” Since the disclosure did not fall under the exceptions to the parental consent rule or any other applicable exception, they determined that the district did violate FERPA laws.
The district made assurances to the SPPO that it had scheduled training for its administrators and officials from law enforcement agencies who work with the district on FERPA’s privacy and nondisclosure provisions and the complaint was closed.
What does this mean for your district?
If your district hires a law enforcement official or contracts with local law enforcement for its SRO(s), consider including your SRO in individuals who have a legitimate educational interest in student records. That way, the district may disclose personally identifiable information to the SRO without parental consent if there is an altercation or serious disciplinary incident on campus. It’s not unreasonable to assume SROs should be privy to student records, but laws are tricky. It is even advisable to train SROs and building administration on appropriate access to student records and information. If you’re ever in doubt, don’t hesitate to reach out to an Ennis Britton attorney for further clarification.
Students’ education records are protected under FERPA. The term “education records” is defined, with certain exclusions, as those records that are directly related to a student and which are maintained by an educational agency or institution, or by a party acting for the agency or institution, to which funds have been made available under and program administered by the Secretary of Education.
Under FERPA, a school is prohibited from disclosing personally identifiable information from a child’s education records, without consent, unless the disclosure meets an exception to FERPA’s general consent requirement.
Any complaint must:
be filed by a parent who maintains FERPA rights over the education records which are the subject of the complaint;
be submitted to the SPPO within 180 days of the date of the alleged violation or of the date that the complainant knew or reasonably should have known of the alleged violation; and
contain specific allegations of fact giving reasonable cause to believe that a violation of FERPA has occurred.
Ultimately, the parents failed to establish that the teacher’s recording qualified as part of the student’s education record and SPPO ruled that the videos did not violate FERPA. The SPPO maintained that the recordings did not focus on a specific student, but instead showed students participating in school activities without highlighting a particular student. They further noted that the SPPO has not issued formal guidance on the use of personal devices by school officials and the FERPA regulations do not specifically address this issue.
What Does this Mean for Your District?
While the SPPO determined that the recordings in this case were not prohibited under FERPA, SPPO did indicate that other laws protecting the confidentiality of information in general or personally identifiable student information could come into play. Great caution and care should be exercised by school officials when making recordings or taking photographs in a classroom to ensure that prior consent is obtained to ensure that no federal or state laws are violated.
In January 2020, we reported to you that the Second Appellate District Court in Ohio ruled that the death of a student does not remove the legal protections of the confidentiality of student records. Find more details from the January 2020 report here. State ex. rel CNN, Inc. v. Bellbrook-Sugarcreek Local School Dist., 2019-Ohio-4187.
This case was appealed to the Ohio Supreme Court, who issued a decision on November 5, 2020. In brief summary, CNN and other local and national media organizations sought student records regarding a deceased adult former student who killed nine people and injured 27 others in a mass shooting in Dayton, Ohio on August 4, 2019. The Ohio Supreme Court specifically found that school districts are “prohibited from releasing any personally identifying information about [a student] without … consent.” The Court determined that there was no exception provided for in Ohio’s Student Privacy Act, R.C. 3319.321, to permit the release of personally identifiable information when the student is deceased. While the Court mentioned the Family Educational Rights and Privacy Act (FERPA), it found that it did not need to consider the federal law as state law prohibited the disclosure of the requested record.
As a result, the Second Appellate District Court’s decision was affirmed, through the Court’s finding that the Ohio Student Privacy Act “unambiguously forbids disclosure of the requested records.”
State ex rel. Cable News Network, Inc. v. Bellbrook-Sugarcreek Local Schools, 2020-Ohio-5149 (Nov. 5, 2020)
Your school district may be getting public records requests, and/or requests for health information concerning students, and you may have questions about how your school district may share information with parents, with public health authorities, and the media.
Let’s break it down in understandable bytes. The federal law on the confidentiality of student records is the Family Educational Rights and Privacy Act (FERPA) and Ohio’s student confidentiality law is found at Ohio Revised Code 3319.321. The issues that may come up during this pandemic are what records may be shared, with whom, when you may have students, staff, and their family members who may be affected by the COVID-19 virus.
FERPA generally protects the confidentiality of personally identifiable student information. That means schools must not release personally identifiable information about students without the consent of the parents of students under 18 years of age, and of students themselves who are over 18 and a legal adult. Directory information may be released if the student/parent has not opted out of such disclosures.
There are exceptions to FERPA. One of these is the “health and safety emergency” exception, which allows certain disclosures of personally identifiable information under certain circumstances to certain individuals or entities that are relevant during this pandemic.
If a school district determines there is a health and safety emergency; that is, an emergency in which it is necessary to protect the health or safety of students or other individuals, that requires the release of personally identifiable student information without consent, it may make disclosures of the personally-identifiable information of those students to address the emergency on a case-specific basis. The district must evaluate the need for such disclosures and to whom such disclosures should be made.
There are some important considerations in the guidance. The first thing to remember is that the health and safety exception to FERPA is a limited exception and when using it, schools need to decide whether a release of normally-confidential information is warranted on a case-by-case basis.
Another way of saying this is that if there is a health and safety emergency (which the school district may determine in its reasonable discretion), FERPA allows disclosures to persons or entities that need that information for the purpose of protecting health and safety of a student or another individual. It is not, however, a blanket release of information to all entities or persons equally. The guidance also states that these disclosures are “…limited in time to the period of the emergency and generally does not allow for a blanket release of PII from student education records.”
To whom may we disclose information during a health and safety emergency?
There are some different ways this may come up. The first and probably easiest issue is the public health authority asking the school district for disclosures of personally identifiable information of students to track exposure and possibly for the purpose of notifying people who need to self-quarantine or who may have been exposed.
May the District disclose personally-identifiable information if the health department asks for it?
The guidance says generally, yes. The guidance states “Public health officials may be considered ‘appropriate parties’ by an educational agency or institution under FERPA’s health or safety emergency exception, even in the absence of a formally declared health emergency. Typically, public health officials and trained medical personnel are among the types of appropriate parties to whom PII from education records, may be non-consensually disclosed under FERPA’s health or safety emergency exception.”
May the District release contact information for students and their parents to the public health department if asked by the health department to do so?
Yes, if that information is needed and the district has made a determination that there is a health and safety emergency that requires such disclosure.
What about the media requesting lists of how many students are affected by the illness or the numbers of absences the district may have been seeing prior to schools being closed?
The guidance generally says no. Disclosures to the media of personally-identifiable information of students affected by COVID-19 are not appropriate under this limited exception. It describes the media as not generally an “appropriate party” under FERPA’s health and safety exception. “Appropriate parties” are those who provide “…specific medical or safety attention, such as public health or law enforcement officials.” If all identifying information has been removed (and disclosure would not allow a person to determine individual students affected) and the district has such a record, it may be able to comply with some requests for information. Consult counsel if you receive such requests.
If students are affected by COVID-19 and are out sick, may the District disclose information to parents of other students?
The Department answered that some information could be disclosed only if the information was not personally identifiable. Consent would not be needed to disclose information that is not personally identifiable (although the district should make a case-by-case determination that disclosing the information will not allow people to identify the student who is absent due to COVID-19.)
The Department does state in the FAQ that in “rare situations during a health and safety emergency” that disclosure of the identifiable information about a specific student may be warranted. The FAQ uses an example of a wrestler who had close contact with other students, school officials might determine it was necessary to disclose the student’s identity to the parents of other students. This determination of whether the disclosure is “absolutely necessary” is made on a case-by-case basis dependent upon the situation.
The Department suggests making consent forms available to parents that specifically allow such disclosures to obtain consent to release personally-identifiable information in these circumstances. In a health and safety emergency as determined by the District, the exception would allow non-consensual disclosures of personally identifiable information. During these times, obtaining such consent may not be a priority crisis response. These consent forms could be implemented as part of emergency planning in the future, however. A sample form is available with the guidance should districts choose to attempt to obtain consent from parents.
If a school employee has the illness, could the district notify parents and students or the media?
The Department notes that FERPA applies only to student records. Other state privacy laws may impact this issue, however, so a release of a school official or employee’s name to the public or the media should be made only in consultation with board counsel. Please note that the health department is not releasing personal information about people affected in its reports, only their general geographic area and sometimes their age.
However, disclosures of the identity of school employees affected to the health department would generally be authorized so that the health department may track contacts and notify those who may need to self-quarantine or be tested. The district itself also may communicate with parents and students about possible exposure to an individual affected by COVID-19, but should protect the privacy of the individual’s identity to the extent possible.
Does the District need to document when these disclosures are made and to whom?
Yes. School districts that make such disclosures of personally identifiable information are required to make and maintain records of the disclosures that are made and the reasons for such disclosures. Schools must record the reason for the basis of the disclosure (i.e., “the articulable and significant threat to the health or safety of a student or other individual that formed the basis for the disclosure and the parties to whom the agency or institution disclosed the information”) and to whom the disclosures were made in the student’s record, for each student for whom information was disclosed.
These disclosures must be retained in the education record as long as the records are maintained. Parents and eligible students (over 18) may view the educational records so they would see if such disclosures were documented.
Public records requests will need to be handled generally in the same way as would be ordinary for your office. You will still need to respond to records requests within a reasonable time, but what is reasonable under these circumstances may vary based on the ability of the district to have adequate staff available during this crisis to respond. Please call to discuss these issues with our office. All of our attorneys are well-versed in public records law.