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Crisis Data Management: A Forum Guide to Collecting and Managing Data About Displaced Students
NCES 2010-804
February 2010

Appendix B: Understanding Relevant Federal Laws

This appendix provides an overview of four important federal laws that affect displaced students. (The information was obtained from the cited websites.)

Family Educational Rights and Privacy Act (FERPA)

FERPA (20 U.S.C. 1232g; 34 CFR Part 99) is a Federal law that protects the privacy of student education records. It affords parents the right to access and amend their children's education records, and gives them some control over the disclosure of the information in these records. Students and their parents entrust schools with their personal information with the expectation that this information will be used by the schools to serve the needs of the students effectively and efficiently. School districts maintain and use personal information for a variety of educational purposes while students are in school. To protect the privacy of students and their families, school staff are legally and ethically responsible for safeguarding the information collected about and from students.

In an emergency, FERPA permits school officials to disclose without consent education records, including personally identifiable information from those records, to protect the health or safety of students or other individuals. At such times, records and information may be released to appropriate parties such as law enforcement officials, public health officials, and trained medical personnel. See 34 CFR 99.31(a)(10) and 99.36. This exception is limited to the period of the emergency and generally does not allow for a blanket release of personally identifiable information from a student's education records.

Generally, schools must have written permission from the parent or eligible student in order to release any information from a student's education record. However, FERPA allows schools to disclose those records, without consent, to the following parties or under the following conditions (34 CFR 99.31):

  • school officials with legitimate educational interest;
  • other schools to which a student is transferring;
  • specified officials for audit or evaluation purposes;
  • appropriate parties in connection with financial aid to a student;
  • organizations conducting certain studies for, or on behalf of, the school;
  • accrediting organizations;
  • 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.

Schools may disclose, without consent, "directory" information such as a student's name, address, telephone number, date and place of birth, honors and awards, and dates of attendance. However, schools must tell parents and eligible students about directory information, and allow parents and eligible students a reasonable amount of time to request that the school not disclose directory information about them. Schools must notify parents and eligible students annually of their rights under FERPA.

McKinney—Vento Act

The McKinney—Vento Homeless Assistance Act protects the educational rights of students experiencing homelessness. It provides legal protections so that children and youth in homeless situations can enroll in, attend, and succeed in school and preschool programs. It also establishes procedures to enroll children quickly, assess their needs, and provide services. Finally, the McKinney—Vento Act requires that every school district designate a local homeless education liaison; the local liaison is the district's point person for addressing needs that derive from loss of housing and is, therefore, a key contact for relief agencies. Students who are displaced by a crisis are generally covered by the McKinney—Vento Act.

The following is the policy of the Congress:

  1. Each state educational agency shall ensure that each child of a homeless individual and each homeless youth has equal access to the same free, appropriate public education, including a public preschool education, as provided to other children and youths.
  2. In any state that has a compulsory residency requirement as a component of the state's compulsory school attendance laws or other laws, regulations, practices, or policies that may act as a barrier to the enrollment, attendance, or success in school of homeless children and youths, the state will review and undertake steps to revise such laws, regulations, practices, or policies to ensure that homeless children and youths are afforded the same free, appropriate public education as provided to other children and youths.
  3. Homelessness alone is not sufficient reason to separate students from the mainstream school environment.
  4. Homeless children and youths should have access to the education and other services that such children and youths need to ensure that such children and youths have an opportunity to meet the same challenging state student academic achievement standards to which all students are held.

The term "homeless children and youths"

  1. means individuals who lack a fixed, regular, and adequate nighttime residence [within the meaning of section 103(a)(1)]; and
  2. includes
    1. children and youths who are sharing the housing of other persons due to loss of housing, economic hardship, or a similar reason; are living in motels, hotels, trailer parks, or camping grounds due to the lack of alternative adequate accommodations; are living in emergency or transitional shelters; are abandoned in hospitals; or are awaiting foster care placement;
    2. children and youths who have a primary nighttime residence that is a public or private place not designed for, or ordinarily used as, a regular sleeping accommodation for human beings [within the meaning of section 103(a)(2)(C)];
    3. children and youths who are living in cars, parks, public spaces, abandoned buildings, substandard housing, bus or train stations, or similar settings; and (iv) migratory children (as such term is defined in section 1309 of the Elementary and Secondary Education Act of 1965) who qualify as homeless for the purposes of this subtitle because the children are living in circumstances described in clauses (i) through (iii).

Health Insurance Portability and Accountability Act (HIPAA)

In 1996, Congress enacted the Health Insurance Portability and Accountability Act (HIPAA) to ensure continued health insurance coverage to individuals who change jobs, and to establish standards regarding the electronic sharing of health information. For purposes of HIPAA, "covered entities" include health plans, health care clearinghouses, and health care providers that transmit health information in electronic form in connection with covered transactions (45 CFR 160.103).

Technically, schools and school systems that provide health care services to students may qualify as "covered entities" under HIPAA. However, the final regulations for the HIPAA Privacy Rule exclude information considered "education records" under FERPA from HIPAA privacy requirements. This includes student health records and immunization records maintained by an education agency or institution, or its representative; as "education records" subject to FERPA, these files are not subject to HIPAA privacy requirements. In addition, school nurse or other health records maintained on students receiving services under the Individuals with Disabilities Education Act (IDEA) are considered "education records" and also subject to that Act's confidentiality provisions. Consequently, these records are subject to FERPA and not the HIPAA Privacy Rule. Nevertheless, certain activities, when performed by a school, could be subject to other provisions of HIPAA that concern electronic transactions. According to the preamble to the December 2000 final rules, "the educational institution or agency that employs a school nurse is subject to our (HIPAA) regulation if the school nurse or the school engages in a HIPAA transaction." HIPAA transactions are defined in the Code of Federal Regulations (CFR) as "the transmission of information between two parties to carry out financial or administrative activities related to health care," including submitting claims. However, consent must still be secured under FERPA before the records are disclosed.

US Department of Education'S Hurricane Recovery Act and Emergency Impact Aid for Displaced Students

The mission of the Impact Aid Program is to disburse Impact Aid payments to local educational agencies that are financially burdened by federal activities and to provide technical assistance and support services to staff and other interested parties. The Hurricane Recovery Act authorized three grant programs to assist school districts and schools in meeting the educational needs of students displaced by Hurricanes Katrina and Rita and in helping schools that were closed as a result of the hurricanes to reopen as quickly and effectively as possible. Under this program, the Department awarded emergency Impact Aid funding to SEAs. SEAs provided assistance to LEAs for the cost of educating students enrolled in public and nonpublic schools who were displaced by Hurricanes Katrina and Rita during the school year 20052006.