Amendment to Family Educational Rights and Privacy Act (FERPA)

On January 14, 2013, President Obama signed the Uninterrupted Scholars Act, which amends FERPA. As amended, FERPA now provides that personnel of a state or federal agency responsible for the care and protection of a child and who have the right to access the child’s case permanency plan to have access to personally identifiable information in student records without the need for parent consent. The amendment also allows child welfare personnel to re-disclose those records only to the extent necessary to address the child’s educational needs. The amendment also provides that parents no longer need to be given notice when a school or AEA responds to a court order for disclosure of records when (1) the court proceedings involve abuse and neglect and (2) the disclosure order is issued pursuant to those proceedings. In order to help clarify this message, the following Q & As are provided: 

Q: Who are the state agencies responsible for the care and protection of a child and that have access to the child’s case permanency plans? 
A: This is most commonly the Department of Human Services (DHS) and Juvenile Courts. Other state agencies may meet this requirement. According to the rules, in order to determine if a state agency meets this requirement, AEAs/LEAs may request proof of the child’s case permanency plan before disclosing educational records. 

Q: What is a case permanency plan, how would I know if I saw one and should I ask for one? 
A: These are detailed plans that commonly include living arrangements and custody information. DHS has assured us that all students with an open case through DHS are expected to have a case permanency plan. You may request a copy of the plan if there is any question about whether or not a plan is in place. When created by DHS, the document is titled “Case Permanency Plan.” A copy of the case permanency plan should always be requested from any agency other than DHS prior to sending requested records. If you receive a student file or a plan and have further questions about the existence of a case permanency plan, please contact Sara Mercer, School Psychologist, at smercer@aea11.k12.ia.us. 

Q: Does this change the status of DHS or foster parents acting in the role of “parent” as stated in the Procedures Manual? 
A: No. This amendment does not mean that DHS workers may act as the child’s parent for FERPA purposes. This amendment does not change the rights or responsibilities of foster parents under FERPA. Dept. of Education Director Jason Glass previously provided a ruling stating that guardians ad litem meet FERPA’s definition of “parent.” This ruling remains valid. 

Q: Does DHS still have to have consent to release information to AEAs/LEAs? 
A: DHS still needs to obtain parental consent to release information to LEAs/AEAs as per their current rules and regulations. 

Q: If an agency meeting the requirements of this rule (most commonly DHS) requests records do we provide everything we have including medical records and/or records containing physical or mental health records? And would doing so violate HIPPA? 
A: The full educational record should be shared upon request. Once information is placed into a child’s educational record, it is no longer under the purview of HIPPA but rather FERPA rules apply. As a result, releasing medical, physical or mental health records would not be a violation of HIPPA rules. 

Q: How is this is different than our common practice? 
A: This release of records information is only for the state or federal agencies responsible for the care of a child with access to the case permanency plan as stated above (most commonly DHS.) Release of records to any other party still requires parental consent as stated in the statewide Procedures Manual.