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Family Educational Rights Family Educational Rights and Privacy Act (FERPA)and Privacy Act (FERPA)

Title 34, Title 34, Code of Federal Code of Federal Regulations, Regulations, Part 99Part 99

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A. Key Provisions/Defs.A. Key Provisions/Defs.SCOPE & APPLICATION – SCOPE & APPLICATION – what are what are

these and why do they matter?these and why do they matter?• C A RC A R : Challenge, Access, Release : Challenge, Access, Release• Federal law/rules on “education records” Federal law/rules on “education records”

that apply to any K-12 school that that apply to any K-12 school that receives federal funds from U.S.D.E. in receives federal funds from U.S.D.E. in any mannerany manner

• ““Hammer” = U.S.D.E. has authority to Hammer” = U.S.D.E. has authority to pull funding for ‘policy or practice’ that pull funding for ‘policy or practice’ that violates FERPA.violates FERPA.

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A.A. Key Provisions/Defs.Key Provisions/Defs.OverviewOverview

• Divided into 5 subpartsDivided into 5 subparts• Initial key is to apply crucial definitions Initial key is to apply crucial definitions

to fact set to determine if FERPA to fact set to determine if FERPA applicableapplicable

• *educational agency/institution?*educational agency/institution? *education record?*education record? *personally identifiable information?*personally identifiable information? *directory information? *directory information?

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B. Student & Parent Rights B. Student & Parent Rights under FERPAunder FERPA

• CCAAR- a R- a parent parent mustmust be given the be given the opportunity to inspect and review the opportunity to inspect and review the education records of their child.education records of their child.

-copies, fees-copies, fees -time (state vs. FERPA)-time (state vs. FERPA) -interpretations/explanations-interpretations/explanations -students’ rights (state vs. FERPA)-students’ rights (state vs. FERPA) -former students-former students

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C. School/district duties & C. School/district duties & responsibilities under FERPAresponsibilities under FERPA

• Annual parental rights Annual parental rights notificationnotification -parent-parent -notify-notify -disclosures within school system-disclosures within school system

• Directory information designationDirectory information designation

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D. Issue of access to/release of D. Issue of access to/release of student education recordsstudent education records

(C(CAR)AR)• The First Commandment: A school The First Commandment: A school

cannot disclose cannot disclose personally identifiable personally identifiable informationinformation from an from an education recordeducation record (PIIFER) of a student w/o the written (PIIFER) of a student w/o the written consent of the consent of the parentparent /eligible student* /eligible student*

*Subject to over 20 exceptions in FERPA*Subject to over 20 exceptions in FERPA

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D. Access to/release of recordsD. Access to/release of records-Disclosure w/o consent (the -Disclosure w/o consent (the

exceptions)exceptions)• FERPA FERPA permits permits 20+ instances of 20+ instances of

disclosure of PIIFER without the required disclosure of PIIFER without the required consent, consent, BUT BUT state law (79-2,104) state law (79-2,104) used used to to prohibit prohibit disclosure to all but a narrower disclosure to all but a narrower category of persons category of persons untiluntil passage of LB passage of LB 549 in 2009.549 in 2009.

• - Consider possibility of redaction first- Consider possibility of redaction first

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D. Access to/release of recordsD. Access to/release of records-Disclosure w/o consent (the -Disclosure w/o consent (the exceptions)exceptions)a)a) School officials within your institution with School officials within your institution with

legit. educational interestlegit. educational interestb)b) Officials of another school/postsecondary inst. Officials of another school/postsecondary inst.

where the student seeks to enroll/has enrolledwhere the student seeks to enroll/has enrolledc)c) U.S. Atty. Gen, U.S. Secretary of Ed., U.S. Atty. Gen, U.S. Secretary of Ed.,

state/local education authorities state/local education authorities but but only when only when these offices need PIIFER in connection with an these offices need PIIFER in connection with an audit or evaluation of a publicly supported audit or evaluation of a publicly supported education program, or for enforcement of legal education program, or for enforcement of legal requirements of such program.requirements of such program.

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D. Access to/release of recordsD. Access to/release of records-Disclosure w/o consent (the -Disclosure w/o consent (the exceptions)exceptions)• For individual student aid purposes For individual student aid purposes

where the student has applied for aidwhere the student has applied for aid• To organizations (private and public) To organizations (private and public)

conducting certain types of studies for conducting certain types of studies for or on behalf of educational agencies or on behalf of educational agencies

• In response to a lawfully issued In response to a lawfully issued subpoena or court order, but must first subpoena or court order, but must first notify parent/eligible student in writingnotify parent/eligible student in writing

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D. Access to/release of recordsD. Access to/release of records-Disclosure w/o consent (the -Disclosure w/o consent (the exceptions)exceptions)• To a court if the school initiates action against To a court if the school initiates action against

parent/student or if parent or student initiates parent/student or if parent or student initiates action against schoolaction against school

• Directory informationDirectory information• To parents of an eligible (18+) student when that To parents of an eligible (18+) student when that

student still a dependent for IRS tax purposes.student still a dependent for IRS tax purposes.• To student themselvesTo student themselves• Appropriate parties in health or safety emergency Appropriate parties in health or safety emergency

when necessarywhen necessary• *NEW – “USA” amendment eff. 1/4/13 – can *NEW – “USA” amendment eff. 1/4/13 – can

release to child welfare workers w/o consent or release to child welfare workers w/o consent or prior notice.prior notice.

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D. Access to/release of recordsD. Access to/release of records3. Death3. Death• USDE takes position that FERPA USDE takes position that FERPA

rights die with student, but what rights die with student, but what about when student dies a minor and about when student dies a minor and parents survive student, is parental parents survive student, is parental consent needed? Probably (FPCO & consent needed? Probably (FPCO & at least one case).at least one case).

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D. Access to/release of recordsD. Access to/release of records Re-disclosure Re-disclosure• Party to whom PIIFER disclosed cannot in Party to whom PIIFER disclosed cannot in

turn disclose without consent again turn disclose without consent again unless unless at time of first disclosure there was a at time of first disclosure there was a written understanding between the parties written understanding between the parties that the recipient may make further that the recipient may make further disclosures, to whom the disclosure may be disclosures, to whom the disclosure may be made, and what their educational interest made, and what their educational interest is. Also, re-disclosure must be a disclosure is. Also, re-disclosure must be a disclosure allowed by FERPA consent exceptions.allowed by FERPA consent exceptions.

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D. Access to/release of recordsD. Access to/release of records3. School level procedures3. School level procedures

• Designate a ‘data steward’Designate a ‘data steward’• Written policiesWritten policies• Advance written consent for known Advance written consent for known

future disclosures that are not or future disclosures that are not or may not be within FERPA exceptions may not be within FERPA exceptions

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D. Access to/release of recordsD. Access to/release of records 4. Maintaining a record of 4. Maintaining a record of access access • Must record all disclosures w/o Must record all disclosures w/o

consent in that student’s file (name, consent in that student’s file (name, legit. ed. interest, date, who legit. ed. interest, date, who disclosed and who recording)disclosed and who recording)

• Should record even disclosures with Should record even disclosures with consent and record denials +keep consent and record denials +keep written consents and your written written consents and your written denials on filedenials on file

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D. Access to/release of recordsD. Access to/release of records 5. FERPA & SPED5. FERPA & SPED

• FERPA incorporated into SPED ActFERPA incorporated into SPED Act• Additional privacy protectionsAdditional privacy protections• Unlike FERPA, provides for a Unlike FERPA, provides for a privateprivate

right of action ($law suit) for right of action ($law suit) for unauthorized disclosures.unauthorized disclosures.

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D. Access to/release of recordsD. Access to/release of records55. . NCLB ChangesNCLB Changes

• Required transfer of disciplinary Required transfer of disciplinary records for public schoolsrecords for public schools

• Military recruiters get names, Military recruiters get names, addresses and ph. #’s regardless of addresses and ph. #’s regardless of d.i. policy, but ‘opt-out’ appliesd.i. policy, but ‘opt-out’ applies

• Annual notice about military recruiter Annual notice about military recruiter provisionsprovisions

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E. Process for Amending an ed. E. Process for Amending an ed. record (record (CCAR)AR)• Parent or eligible student has right to ask Parent or eligible student has right to ask

for amendment based upon belief a record for amendment based upon belief a record is (i) inaccurate; (ii) misleading; (iii) in is (i) inaccurate; (ii) misleading; (iii) in violation of privacy rights.violation of privacy rights.

• Must respond in ‘reasonable’ amount of Must respond in ‘reasonable’ amount of timetime

• What this does not include (grades per se)What this does not include (grades per se)• If denied, must inform of right to hearingIf denied, must inform of right to hearing

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E. E. Enforcement of FERPAEnforcement of FERPA

• USDE’s FPCOUSDE’s FPCO• ““policy or practice” of violating FERPA, policy or practice” of violating FERPA,

but FPCO indicates lesser standardbut FPCO indicates lesser standard• Penalties: withhold further funding, Penalties: withhold further funding,

cease and desist order, terminate all cease and desist order, terminate all federal fundingfederal funding

• State: Rule 27State: Rule 27• No private right of action under FERPANo private right of action under FERPA

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• 28-728. Legislative findings and intent; child abuse and neglect investigation 28-728. Legislative findings and intent; child abuse and neglect investigation team; child advocacy center; child abuse and neglect treatment team; powers team; child advocacy center; child abuse and neglect treatment team; powers and duties.and duties.       (1) The Legislature finds that child abuse and neglect are community       (1) The Legislature finds that child abuse and neglect are community problems requiring a cooperative complementary response by law enforcement, child problems requiring a cooperative complementary response by law enforcement, child advocacy centers, prosecutors, the Department of Health and Human Services child advocacy centers, prosecutors, the Department of Health and Human Services child protective services division, and other agencies or entities designed to protect children. It protective services division, and other agencies or entities designed to protect children. It is the intent of the Legislature to create a child abuse and neglect investigation team in is the intent of the Legislature to create a child abuse and neglect investigation team in each county or contiguous group of counties and to create a child abuse and neglect each county or contiguous group of counties and to create a child abuse and neglect treatment team in each county or contiguous group of counties. treatment team in each county or contiguous group of counties.

                        (3) Each county attorney or the county attorney representing a contiguous group of (3) Each county attorney or the county attorney representing a contiguous group of counties is responsible for convening the child abuse and neglect investigation teamcounties is responsible for convening the child abuse and neglect investigation team and and ensuring that protocols are established and implemented. A representative of the child ensuring that protocols are established and implemented. A representative of the child advocacy center assigned to the team shall assist the county attorney in facilitating case advocacy center assigned to the team shall assist the county attorney in facilitating case review, developing and updating protocols, and arranging training opportunities for the review, developing and updating protocols, and arranging training opportunities for the team. Each team must have protocols which, at a minimum, shall include procedures for: team. Each team must have protocols which, at a minimum, shall include procedures for:

•             (a) Conducting joint investigations of child abuse and other child abuse and neglect (a) Conducting joint investigations of child abuse and other child abuse and neglect matters which the team deems necessary; matters which the team deems necessary;

•             (b) Ensuring that a law enforcement agency will participate in the investigation; (b) Ensuring that a law enforcement agency will participate in the investigation; •             (c) Conducting joint investigations of other child abuse and neglect matters which the (c) Conducting joint investigations of other child abuse and neglect matters which the

team deems necessary; team deems necessary; •                       (e) Reducing the risk of harm to child abuse and neglect victims; (e) Reducing the risk of harm to child abuse and neglect victims; •             (f) Ensuring that the child is in safe surroundings, including removing the perpetrator (f) Ensuring that the child is in safe surroundings, including removing the perpetrator

when necessary; when necessary; •             (g) Sharing of case information; (g) Sharing of case information; •             (h) How and when the team will meet; and (h) How and when the team will meet; and •             (i) Responding to drug-endangered children. (i) Responding to drug-endangered children. •             (4) Each county attorney or the county attorney representing a contiguous group of (4) Each county attorney or the county attorney representing a contiguous group of

counties is responsible for convening the child abuse and neglect treatment teamcounties is responsible for convening the child abuse and neglect treatment team and and ensuring that protocols are established and implemented.  ensuring that protocols are established and implemented.  

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• 28-730. Records and information; access; disclosure; limitation; 28-730. Records and information; access; disclosure; limitation; review of cases; immunity; violation; penaltyreview of cases; immunity; violation; penalty..       (1)       (1) Notwithstanding Notwithstanding any other provision of law regarding the confidentiality of records and any other provision of law regarding the confidentiality of records and when not prohibited by the federal Privacy Act of 1974, as amendedwhen not prohibited by the federal Privacy Act of 1974, as amended, juvenile court records and any other pertinent information that may be in the pertinent information that may be in the possession of school districtspossession of school districts, law enforcement agencies, county attorneys, the Attorney General, the Department of Health and Human Services, child advocacy centers, and other team members concerning a child whose case is being concerning a child whose case is being investigated or discussed by a child abuse and neglect investigation team investigated or discussed by a child abuse and neglect investigation team or a child abuse and neglect treatment team shall be shared with the or a child abuse and neglect treatment team shall be shared with the respective team members as part of the discussion and coordination of respective team members as part of the discussion and coordination of efforts for investigative or treatment purposes. Upon request by a team, efforts for investigative or treatment purposes. Upon request by a team, any individual or agency with information or records concerning a any individual or agency with information or records concerning a particular child shall share all relevant information or records with the particular child shall share all relevant information or records with the team as determined by the team pursuant to the appropriate team team as determined by the team pursuant to the appropriate team protocolprotocol. Only a team which has accepted the child's case for investigation or treatment shall be entitled to access to such information.

•             (2) All information acquired by a team member or other individuals pursuant to (2) All information acquired by a team member or other individuals pursuant to protocols developed by the team shall be confidential and shall not be disclosed protocols developed by the team shall be confidential and shall not be disclosed except to the extent necessary to perform case consultations, to carry out a except to the extent necessary to perform case consultations, to carry out a treatment plan or recommendations, or for use in a legal proceeding instituted by a treatment plan or recommendations, or for use in a legal proceeding instituted by a county attorney or the Child Protection Division of the office of the Attorney General. county attorney or the Child Protection Division of the office of the Attorney General. Information, documents, or records otherwise available from the original sources Information, documents, or records otherwise available from the original sources shall not be immune from discovery or use in any civil or criminal action merely shall not be immune from discovery or use in any civil or criminal action merely because the information, documents, or records were presented during a case because the information, documents, or records were presented during a case consultation if the testimony sought is otherwise permissible and discoverable. Any consultation if the testimony sought is otherwise permissible and discoverable. Any person who presented information before the team or who is a team member shall person who presented information before the team or who is a team member shall not be prevented from testifying as to matters within the person's knowledge. not be prevented from testifying as to matters within the person's knowledge.

•                       (4) A member of a team who publicly discloses information regarding a case (4) A member of a team who publicly discloses information regarding a case consultation in a manner notconsultation in a manner not consistent with sections 28-728 to 28-730 shall be consistent with sections 28-728 to 28-730 shall be guilty of a Class III misdemeanorguilty of a Class III misdemeanor. .

•            Source: Laws 1992, LB 1184, § 3; Laws 1996, LB 1044, § 75; Laws 2006, LB 1113, § 26. Source: Laws 1992, LB 1184, § 3; Laws 1996, LB 1044, § 75; Laws 2006, LB 1113, § 26.

New state law 2013New state law 2013Approved by the Governor April 3, 2013Approved by the Governor April 3, 2013Introduced by Cook, 13.Introduced by Cook, 13.LEGISLATIVE BILL 262LEGISLATIVE BILL 262FOR AN ACT relating to education; to amend section 79-2,104, Revised StatutesFOR AN ACT relating to education; to amend section 79-2,104, Revised StatutesCumulative Supplement, 2012; to provide duties relating to sharingCumulative Supplement, 2012; to provide duties relating to sharingof student data, records, and information; to provide for rules andof student data, records, and information; to provide for rules andregulations; and to repeal the original section.regulations; and to repeal the original section.(4(4) The Legislature finds and declares that the sharing of student) The Legislature finds and declares that the sharing of studentunits, learning communities, and the State Department of Education, to theunits, learning communities, and the State Department of Education, to thefullest extent practicable and permitted by law, is vital to advancingfullest extent practicable and permitted by law, is vital to advancingeducation in this state. Whenever applicable law permits the sharing of sucheducation in this state. Whenever applicable law permits the sharing of suchstudent data, records, and information, each school district, educationalstudent data, records, and information, each school district, educationalservice unit, and learning community shall comply unless otherwise prohibitedservice unit, and learning community shall comply unless otherwise prohibitedby law. The State Board of Education shall adopt and promulgate rules andby law. The State Board of Education shall adopt and promulgate rules andregulations providing for and requiring the uniform sharing of student data,regulations providing for and requiring the uniform sharing of student data,records, and information among school districts, educational service units,records, and information among school districts, educational service units,learning communities, and the department.learning communities, and the department.

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