THE RUNDOWN OF FACTS:
In response to a complaint filed by parents of a child with a history of violent behaviors including grabbing and hitting his teacher, the Family Policy Compliance Office (“FPCO”) agreed with a school district’s disclosure of personally identifiable information from their son’s education records without their consent. Subsequent to an incident involving the student hitting teachers and aides, district officials and other members of the IEP team met with the parents to discuss out-of-district placements. The District was concerned that it was unable to meet the student’s needs as a result of the increase in his physically aggressive behaviors and did not want to find itself in a due process hearing over Free and Appropriate Public Education (“FAPE”) (or the allegation of a lack thereof). Without having first obtained parental consent to discuss and/or release personally identifiable information, the District’s Director of Special Education discussed the student with several potential placements.
In its Opinion, FPCO began with the acknowledgement that, generally, districts must have written parental consent prior to sharing personally identifiable information about a student with a third party. However, FPCO also acknowledged that there are certain exceptions to this requirement. One exception in particular permits a district to disclose information from a student’s education records, without parental consent, to another school where the student seeks to enroll. 34 CFR §99.31(a)(2). In conjunction with its reliance on this exception, FPCO wrote:
The sending school may make the disclosure if it includes a statement in its annual notification of rights that it discloses education records for this purpose, or if it makes a reasonable attempt to notify the parent in advance of the disclosure (emphasis added).
The student in this case was not applying to the out-of-district school, and therefore, did not personally seek to enroll in the out-of-district school. However, FPCO interpreted 34 CFR §99.31(a)(2) to permit nonconsensual disclosure of information from education records in connection with educational placements under IDEA. Based on its interpretation of its own Regulations, FPCO concluded that:
[A]n educational agency or institution that is subject to FERPA may disclose personally identifiable information from a student’s education records to a third party (such as another school) in order to make an educational placement under [IDEA]. Based on the information you provided, it appears that [ ] disclosed information from the Student’s education records in an attempt to make an educational placement for the Student under [IDEA]. Accordingly, there is no basis for this office to investigate your allegation that the District improperly disclosed personally identifiable information from the Student’s education records.
As noted hereinabove – and perhaps is obvious to this blogger’s readership – districts must generally obtain written parental consent prior to sharing personally identifiable information from a student’s education file with a potential school placement. 34 CFR §99.30. However, there are certain limited exceptions. As illustrated in this instance, districts do not need parental consent to share personally identifiable information about a student enrolled in the district if the disclosure is:
[T]o officials of another school, school system, or institution of postsecondary education where the student seeks or intends to enroll, or where the student is already enrolled so long as the disclosure is for purposes related to the student’s enrollment or transfer. 34 CFR §99.31(a)(2).
All that said, when making a disclosure pursuant to 34 CFR §99.31(a)(2), certain conditions apply. Specifically, the sending school district must:
- Make a reasonable attempt to notify the parent or eligible student at the last known address of the parent or eligible student of the disclosure, unless:
- The disclosure is initiated by the parent or eligible student; or
- The sending district’s annual notification of rights includes specific notice that the district forwards education records to other agencies or institutions that have requested the records and in which the student seeks or intends to enroll or is already enrolled so long as the disclosure is for purposes related to the student’s enrollment or transfer;
- Give the parent or eligible student, upon request, a copy of the record that was disclosed; and
- Give the parent or eligible student, upon request, an opportunity for a hearing. 34 CFR §99.34(a).
Not expressly made clear, based on FPCO’s decision, is whether in this case, the District sent applications to potential placements, or whether the district official merely spoke to potential placements about the child. However, based on the following, that appears to be a distinction without a difference, as:
“[t]he sending school may make the disclosure if it includes a statement in its annual notification of rights that it discloses education records for this purpose, or if it makes a reasonable attempt to notify the parent in advance of the disclosure.”
Thus, FPCO has clarified that, under limited circumstances, when seeking an out-of-district placement pursuant to IDEA, parental consent is not required prior to disclosing a student’s personally identifiable information to the placement. While FPCO has taken this position, no federal or State court decision adopting such a position is locatable. As such, despite FERPA’s exception, it is best practice for schools to always obtain parental consent prior to sending applications under IDEA to out-of-district placements. Otherwise, your District may find itself the “guinea pig” for this issue.