Jeanne M. Kincaid, Esq. Drummond Woodsum & MacMahon 40 Pleasant Street Portsmouth, New Hampshire 03801 603/433-3317 [email protected] .

Jeanne M. Kincaid, Esq.Drummond Woodsum & MacMahon

40 Pleasant StreetPortsmouth, New Hampshire 03801

603/[email protected]

www.dwmlaw.com

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Issues

Records– Disclosure– Access

Privilege

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Records

Family Educational Rights and Privacy Act (FERPA) AKA Buckley Amendment - 20 USC § 1232g and 34 CFR Part 99

State laws may also apply

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What is a Record?

Any information recorded in any way, including, but not limited to, handwriting, print, computer media, video or audio tape, film, microfilm, and microfiche

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Example

An email message is a “record”

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What Is Not An Education Record

Records kept in sole possession of maker and not accessible to others

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Example

Personal notes in your drawer

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Contrast

A file that others may access

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What Is Not An Education Record

Treatment records - made or maintained by:– physician, psychiatrist, psychologist or other

recognized professional or paraprofessional– made, maintained or used only in connection

with treatment and– disclosed only to individuals providing

treatment

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What Is Not Treatment?

Records reflecting remedial educational activities or activities that are part of a program of instruction are education records; not treatment records

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Result

Student has no right to access treatment records

FERPA does not govern privacy of treatment records– State privacy laws likely do

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Query?

Is a learning disabilities assessment forwarded to the disability services office a treatment record?

NO!– Impact – it is an educational record

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Contrast

A psychological assessment received by the university’s counseling center of a client it is providing therapy

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Observations

Personal observations may be discussed with others if not based on information contained in a student record - consent of student not required

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Conduct in Educational Records

Educational records may contain information concerning disciplinary action taken against the student for conduct that posed a significant risk to the safety or well-being of that student, other students or other members of the school community

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What is Disclosure?

To permit access to or the release, transfer, or other communication of personally identifiable information contained in education records to any party, by any means, including oral, written, or electronic means

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Examples

Email communication Phone call Fax

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If the information you wish to disclose comes from an educational record, FERPA applies

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Record Disclosure Is it an education record?

• Records maintained by institution or its agent

• Compare treatment records

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When Is Consent Not Required?

institution discloses to school officials, including teachers, that it has determined have a “legitimate educational interest”

disclosure is in connection with a health or safety emergency when necessary to protect student or others

disclosure is to another institution where the student seeks or intends to enroll or where s/he is actually enrolled

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Disclosure to Teachers The Act does not prohibit disclosure of

such information to teachers and school officials who have legitimate educational interests in the student’s behavior

The Act does not prohibit disclosure of such information to teachers or school officials in other schools who have legitimate educational interests in the student’s behavior

Health or Safety Emergency

Standard: In light of the “totality of the circumstances”, institution determines there is an “articulable and significant threat to the health or safety of a student or other individuals”, disclosure is permitted to anyone deemed necessary to prevent the harm.

Record of disclosure must be kept

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Parental Disclosure

If student is 18 or attends a postsecondary institution, disclosure to the parent is only permitted if – consent of student

– student is claimed as dependent on parent’s income tax forms, or

– Health or safety emergency Disclosure is permissible - not required

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Rights of Student Inspect and review education records Seek amendment of records believed to be

inaccurate, misleading, or otherwise in violation of student’s privacy rights– Right to hearing

Consent to disclosure– But note the exceptions

Copy of records disclosed that student authorized, if requested

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Institutional Responsibility

Define who is considered a “school official”– You may want to define this phrase very

broadly, to include third parties not directly employed by the institution

What is meant by “legitimate educational interest”

Annual notice to include above and when disclosure is permitted to other institutions

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Other Laws

Section 504 - contains explicit confidentiality requirement

ADA– Titles II & III are silent– Title I (employment) contains strict

requirements

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Section 504 Preadmission inquiries are generally

prohibited– Affirmative action exception

“. . . after admission, may make inquiries on a confidential basis as to [disabilities] that may require accommodation.”

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ADA Title I Requirements

Separate files Disclosure only permitted to:

– Supervisors [restrictions & accommodations]– First aid personnel [if disability might require

emergency treatment]– Government officials

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Other Laws

State law privilege– Dictated by position (e.g., psychologist)– Most providers of disability services have no

privilege

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What Does a Privilege Do?

Restricts disclosure of communications made between the parties– much broader than “records”

Many states have exceptions based on imminent harm to persons and/or property

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Tips for Disability Service Providers

Check to make sure your college has defined who is a school official and what is a legitimate educational interest

If the student signs a consent form to release information, you are home free– But even then - carefully consider what

information should be disclosed

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Tips for Disability Service Providers

If the record is an educational record and the student refuses to authorize its release– Is the disclosure to a “school official”?– Does the official have a legitimate educational

interest?– Is there a health or safety emergency justifying

disclosure

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Tips for Disability Service Providers

Lock and key - keep information locked up and ensure information is protected to maximum extent

Check catalogs and brochures - do not guarantee confidentiality - you may not be able to honor it

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Suggested Language

The Office for Students with Disabilities is committed to keeping disability-related information confidential in accordance with state and federal laws

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Tips for Disability Service Providers

Remember that access to records need not be immediate

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Final Thought

Do not make these decisions alone When in doubt, consult supervisor or

institution’s legal counsel