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Forum Guide to Protecting the Privacy of Student Information: State and Local Education Agencies

2.D. FERPA and Special Education Records

IDEA protects the privacy of students who are receiving special education services

In addition to the requirements of FERPA, the Individuals with Disabilities Education Act (IDEA) provides additional privacy protections for students who are receiving special education and related services. The privacy protections under Part B of the IDEA are found at 34 CFR 300.560–300.577.

Part B of the IDEA incorporates and cross-references FERPA. For example, under Part B, the term “education records” means the type of records covered by FERPA as implemented by its regulations in 34 CFR Part 99. Under § 99.3 of FERPA, “education records” is broadly defined to mean those records that are related to a student and are maintained by an education agency or institution. Part C (34 CFR 303.460) permits states to adopt or develop policies that the states will follow to ensure the confidentiality of personally identifiable information. However, these policies and procedures under Part C must meet the Part B requirements of 34 CFR 300.560–300.576.

In addition to the FERPA provisions and IDEA-specific provisions that restate the FERPA requirements, the IDEA regulations also include some additional protections tailored to special confidentiality concerns for children with disabilities and their families. Public agencies must inform parents of children with disabilities when information is no longer needed and, except for certain permanent record information, that information must be destroyed at the request of the parents (34 CFR 300.573). If a state transfers the IDEA rights of parents to children at the age of majority, the parents’ rights under the IDEA regarding educational records also transfer, but the public agency must provide any notice required under the due process procedures of the IDEA to both the student and the parent (34 CFR 300.574). The state education agency must give public notice about the collection of personally identifiable information in the state and a summary of the policies and procedures that public agencies must follow regarding storage, disclosure to third parties, and retention and destruction of personally identifiable information (34 CFR 300.561). Each public agency must have one official who is responsible for ensuring the confidentiality of any personally identifiable information, must train all persons who are collecting or using personally identifiable information regarding the state’s policies about confidentiality and FERPA, and must maintain for public inspection a current listing of the names and positions of individuals within the agency who have access to personally identifiable information (34 CFR 300.572).

FERPA provisions apply to all students receiving special education services

The provisions of FERPA apply to all students receiving special education and related services under the IDEA. In addition, FERPA serves as the foundation for the additional confidentiality provisions of Part B of the IDEA at 34 CFR 300.560–300.577. Moreover, Congress has stressed that the FERPA provisions apply under the IDEA. The Senate and House Committee Report on the 1997 Amendments of the IDEA state that “nothing in this bill shall supersede any parental access rights under the Family Educational Rights and Privacy Act of 1974 or foreclose access to information otherwise available to parties” [S. Rep. No. 105–1 7, p. 27 (1997); H. Rep. No. 105–95, p. 107 (1997)].

OSEP and FPCO work closely to resolve possible conflicts in applicable legislation

The Office of Special Education Programs (OSEP) and FPCO, both of the U.S. Department of Education, have worked together to ensure that the provisions of the two statutes are interpreted without conflict. In the past when issues arose and there appeared to be a possible conflict between the two statutes, the two offices have worked together to ensure that the privacy rights of parents and students receive full protection under FERPA and the IDEA, while ensuring that the other requirements of the IDEA are met.

IDEA privacy protections apply to private schools under special circumstances

While the IDEA does not directly apply to private schools, the law does apply to all students with disabilities who are placed in or referred to a private school or facility by a public agency as a means of providing a free appropriate public education. In this situation, the records of such students are protected by FERPA and the placing public school district is responsible for complying with the requirements of FERPA and the IDEA relative to these students’ records.

The IDEA also applies to the special education and related services that a public agency provides to students with disabilities who are enrolled by their parent in a private school or facility and who have been chosen by the public agency to receive certain special education and related services. In these situations, the education records of such students that are collected, maintained, or used by the public agency are subject to FERPA and the IDEA, and the public agency is responsible for complying with the requirements of FERPA and the IDEA relative to these records.

In addition, the child find provisions of the IDEA—provisions that require states and school districts to identify, locate, and evaluate children who may have disabilities and be in need of special education—apply to both public and private school children. The provisions of FERPA and the IDEA apply to education records of public agencies resulting from child find activities.