FERPA for Behavioral Intervention Teams
This training delves into FERPA regulations relevant to Behavioral Intervention Teams, focusing on educational records, internal/external communications, and exceptions. Gain clarity on what constitutes an educational record and learn about the impact of FERPA on BITs' information sharing practices.
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Presentation Transcript
FERPA FOR BEHAVIORAL INTERVENTION TEAMS BY: Brett Sokolow, JD President, NCHERM www.ncherm.org 1
This training is designed to teach behavioral intervention team members about the privacy of student information flowing to and from a BIT What is an Educational Record? Internal Communication External Communication 2
This training is not intended as a comprehensive review of FERPA. Is it non-technical, non-legalistic, and just focuses on how FERPA impacts on BITs What is an Educational Record? Internal Communication External Communication 3
What is an Educational Record? FERPA starts with the simple concept that it applies only to student education records An educational record is anything that personally identifies a student that is kept in a written or recorded medium by college officials Also includes anything that could easily lead to the personal identification of a student 4
What is an Educational Record? One of the most important understandings to have about FERPA is that what a college official sees, hears, experiences or personally observes is not governed by FERPA AT ALL unless it is drawn from a written or recorded record or it is subsequently memorialized in a written or recorded form At which point, only release of information from the written or recorded version is governed by FERPA What the official saw, heard or observed can still be shared with anyone the official wants. It is not part of an educational record 5
What is an Educational Record? Example: Standing outside the library, you see a female student (Jane), hit a male student (Jack) Who can you tell about what you just witnessed? Anyone. The press, police, the BIT. There are no limits under FERPA If you write up a report of the incident, what then? The report is an educational record under FERPA Release from that document must meet FERPA requirements You can still share what you witnessed without limitation 6
What is an Educational Record? Exceptions -- FERPA explicitly excludes certain written or recorded records from the definition of an educational record Such records are therefore outside of the FERPA privacy requirements For BIT purposes, four exclusions are pertinent: Sole possession records Health records Counseling records Law enforcement records 7
What is an Educational Record? Exceptions Sole Possession Records Those written or recorded records about a student that a college official keeps and maintains for their own private recollection, in their own handwriting or on a computer whose access is not shared As long as these records are never shared with anyone but their creator, they are except from FERPA Once they are shared with anyone else, they are subject to FERPA 8
What is an Educational Record? Exceptions Sole Possession Records The notes you take at a BIT meeting can be sole possession records if you do not share them, and you did not draw on educational records to create them Otherwise, the notes and records created by the BIT at its meetings and in case management will be subject to FERPA and will be considered part of a student s educational record The student is entitled to see them, and release to third parties is governed by FERPA 9
What is an Educational Record? Exceptions Health Records & Counseling Records Written records and recorded media that personally identify a student but relate to that student s status as a client of a counseling center or patient of a health center are exempt from the definition of an educational record when they are kept and maintained by the counseling or health service for a counseling or health care purpose, and not shared outside of those services 10
What is an Educational Record? Exceptions Health Records & Counseling Records FERPA does not govern the privacy of those records, but state laws and professional ethical rules do HIPAA may govern as well, but rarely applies to campus counseling and health services When personally identifiable information about a student is released by a health service or counseling service to campus officials, including the BIT, that given copy of the record becomes subject to FERPA 11
What is an Educational Record? Exceptions Campus Law Enforcement Records Records that personally identify a student that are kept and maintained by a campus law enforcement unit for a law enforcement purpose, and are not shared with other departments, are exempted from FERPA If campus police stop a student for a conduct code violation, the records created are subject to FERPA, because code enforcement is not a law enforcement purpose. 12
What is an Educational Record? Exceptions Campus Law Enforcement Records If campus police share records with a Dean of Students or a BIT, the copy that is shared becomes subject to FERPA Records shared by the Dean or BIT with campus law enforcement are subject to FERPA if they were part of a student s educational record when maintained by the Dean or BIT 13
What is an Educational Record? So now we should know, for BIT purposes at least, what is and what is not part of a student s educational record, and therefore whether FERPA applies. Test yourself. The BIT uses a database to track student case management. Students are named, or identifiers are used. All team members have access to the database. Does FERPA govern those entries? Yes. 14
Internal Release It makes sense to divide release of information under FERPA into internal and external release discussions, because different rules apply. First, keep in mind that the student owns their records, and has a right to see them upon request So, internal sharing with the record owner is guaranteed by the FERPA statute The simplest way to release any information internally or externally from a student s education record is 15
Internal Release The simplest way to release any information internally or externally from a student s education record is with the explicit written permission of the record owner, the student Note what is to be shared, with whom, and for what purpose A record of the release should (not required by FERPA) be kept with the record itself in the office from which the record was released 16
Internal Release Luckily, release internally under FERPA is quite straightforward College officials may release information from a student s educational record internally to any other college official who has a legitimate educational interest in the information contained in the record No student consent or notice is needed, no documentation is required 17
Internal Release What is legitimate? That is not defined by the regulations, but instead left to the discretion of the releasing official Fortunately, the Family Policy Compliance Office (FPCO), which enforces FERPA, is deferential to campus officials determination of what is legitimate, and they are unlikely to second guess a decision to share records internally 18
Internal Release What is legitimate? A coach asks the campus conduct officer the outcome of a hearing involving one of her athletes Is that legitimate? Sure But, if the same coach wants to know about the outcomes from non-athletes, that is unlikely to be legitimate A professor wants to know the outcome of a complaint he brought alleging academic misconduct against a student Is that legitimate? Of course 19
Internal Release What is legitimate? A campus counselor wants information on a client-student from the BIT Is that legitimate? Probably The BIT wants information from a campus counselor on her client-student Is that legitimate? Trick question. The records are not governed by FERPA if they were made in the context of a therapeutic course of treatment. Thus, the counselor can only release if professional ethics and/or federal/state law permit it 20
External Release External release of information from a student s educational record to third-parties under FERPA is much more complex than internal release 21
External Release There are several applicable provisions, in order from broadest to narrowest: Emergency Health & Safety Permission of the student Dependency Conduct Outcomes Sexual assault/harassment Crime of Violence Guilty Not-guilty Alcohol/Drug Violation Subpoena 22
External Release Emergency Health and Safety Exception When there is a credible threat to the health and/or safety of a student, or the campus, or any member of the campus community, FERPA authorizes college officials to release whatever they need to from any educational records, to anyone necessary, to avert the threat Prior to Virginia Tech, this provision was construed narrowly, but subsequent changes to FERPA have relaxed this stance. The FPCO will now be hands-off, showing deference to college officials determination of what is an emergency and what needs to be released to whom 23
External Release Permission of the student is still a simple way to release information, as long as there is a signed consent that is specific as to what is to be released and to whom Dependency When a student is a dependent, most information from that student s educational record MAY be shared with the claiming parent(s) without consent of the student Dependency (which may persist up to age 24) is determined by tax records, financial aid records, and/or by a verification by the student of dependency status 24
External Release Dependency A student can be claimed by only one parent, or by both if filing jointly If the parent of a dependent student should call seeking information about the student s conduct record, BIT status or grades, institutional officials may share that information with the parents upon verification of dependency Parents can fax a copy of their tax records You can check your registrar s or financial aid records Recent relaxation of FERPA regulations also allows us to ask students at registration to indicate if they are dependents, and if so, for us to release accordingly 25
External Release Conduct Outcomes Under amendments made in 1992 and 1998, FERPA has exceptions for the release of conduct outcomes Under amendments made pursuant to the Clery Act by the Campus Sexual Assault Victim s Bill of Rights, colleges are required to provide to victims/complainants the outcomes and sanctions of complaints they bring of sexual assault or sexual harassment No conditions may be placed on a victim s right to this information. It is absolute Notification should be made in writing, though law does not require it 26
External Release Conduct Outcomes Redisclosure restrictions In a sexual assault hearing in which the accused student is found not to have violated the code of conduct, FERPA places redisclosure restrictions on a victim s ability to share that information Colleges do not enforce redisclosure violations. That is the responsibility of FPCO In a sexual assault hearing in which the accused student is found in violation of the code of conduct, the victim may release that information publicly and without limitation There are no redisclosure restrictions 27
External Release Conduct Outcomes -- Crimes of Violence Another set of exceptions governs release of conduct hearing outcomes for the code equivalents of sixteen statutorily defined crimes of violence Not all of which are actually violent If a student is found in violation for an offense equivalent to one of these sixteen crimes, the college MAY release publicly: The name of the student accused The alleged violation(s) The finding(s) The sanction(s) There are no redisclosure restrictions 28
External Release Conduct Outcomes -- Crimes of Violence Where a student is found to not be in violation, recent changes to FERPA now require the college to release the outcome to the victim/complainant No public release is permitted Redisclosure restrictions apply 29
External Release Alcohol/Drug Violations Colleges may, under 1998 amendments, make parental notification under FERPA for alcohol or drug violations by a student The student must be under the age of 21 at the time of the notification to the parent or guardian Subpoena Finally, colleges can make lawful release from a student s educational record pursuant to a lawfully issued subpoena Colleges must notify the student of their intent to satisfy the subpoena so that the student can attempt to quash it 30
FERPA in Context There are no FERPA police Since FERPA was enacted, no college or university has ever been fined for violating FERPA You cannot be sued for violating a student s FERPA rights The FPCO is helpful and not adversarial to colleges 31
FERPA in Context FPCO will provide guidance if we screw up, and require changes in our practices to prevent future mistakes The Bottom Line if your choice is between protecting your community and worrying that you might violate FERPA, protect your community and worry about the FERPA consequences later. 32
