1	"Jeanne M." Jeanne M. Kincaid, Esq. Drummond Woodsum & MacMahon 245 Commercial Street Portland, Maine 04104 207/772-1941 jkincaid@dwmlaw.com www.dwmlaw.com
2	Issues Records Disclosure Access Privilege
3	Records Family Educational Rights and Privacy Act (FERPA) AKA Buckley Amendment - 20 USC § 1232g and 34 CFR Part 99 State laws may also apply
4	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
5	Example An email message is a “record”
6	What Is Not An Education Record Records kept in sole possession of maker and not accessible to others
7	Example Personal notes in your drawer
8	Contrast A file that others may access
9	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
10	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
11	Result Student has no right to access treatment records FERPA does not govern privacy of treatment records State privacy laws likely do
12	Query? Is a learning disabilities assessment forwarded to the disability services office a treatment record? NO! Impact – it is an educational record
13	Contrast A psychological assessment received by the university’s counseling center of a client it is seeing
14	Observations Personal observations may be discussed with others if not based on information contained in a student record - consent of student not required
15	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
16	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
17	Examples Email communication Phone call Fax
18	"If the information you wish..." If the information you wish to disclose comes from an educational record, FERPA applies
19	Record Disclosure Is it an education record? Records maintained by institution or its agent Compare treatment records
20	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 in order to protect student or others disclosure is to another school where the student seeks or intends to enroll
21	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
22	Parental Disclosure If student is 18 or attends a postsecondary institution, disclosure to the parent is only permitted if consent of student or student is claimed as dependent on parent’s income tax forms Disclosure is permissible - not required
23	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
24	Institutional Responsibility Define who is considered a “school official” What is meant by “legitimate educational interest”
25	Other Laws Section 504 - contains explicit confidentiality requirement ADA Titles II & III are silent Title I (employment) contains strict requirements
26	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.”
27	ADA Title I Requirements Separate files Disclosure only permitted to: Supervisors [restrictions & accommodations] First aid personnel [if disability might require emergency treatment] Government officials
28	Other Laws State law privilege Dictated by position (e.g., psychologist) Most providers of disability services have no privilege
29	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
30	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
31	Tips for Disability Service Providers If the record is an educational record and the student refuses to authorize its release Does the official have a legitimate educational interest? Is there a health or safety emergency justifying disclosure
32	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
33	Suggested Language The Office for Students with Disabilities is committed to keeping disability-related information confidential in accordance with state and federal laws
34	Tips for Disability Service Providers Remember that access to records need not be immediate
35	Final Thought Do not make these decisions alone When in doubt, consult supervisor or institution’s legal counsel