FERPA+Changes+June+2,+2014

We write to notify you of the new guidance document on the Uninterrupted Scholars Act (USA) (Public Law 112-278), which was signed into law by President Barack Obama on January 14, 2013, and which amends Section 444 of the General Education Provisions Act (20 U.S.C. //§// 1232g) (commonly known as the Family Educational Rights and Privacy Act (FERPA)). These amendments to FERPA also affect the confidentiality provisions in 20 U.S.C. § 1417(c), which apply to Parts B and C of the Individuals with Disabilities Education Act (IDEA) under the circumstances set forth in the USA and the guidance. The Family Policy Compliance Office (FPCO) in the U.S. Department of Education (Department) administers FERPA, and the Department’s Office of Special Education and Rehabilitative Services (OSERS) administers Parts B and C of the IDEA. Accordingly, FPCO and OSERS are issuing the guidance to provide State educational agencies, local educational agencies, schools, State lead agencies, early intervention service programs and providers, State and local child welfare agencies, tribal organizations, parents and eligible students and children with disabilities, and other interested parties with information to implement the changes made by the USA to FERPA. The USA amends FERPA in two ways. First, the USA amends FERPA to permit educational agencies and institutions to disclose a student's education records, without parental consent, to a caseworker or other representative of a State or local child welfare agency or tribal organization authorized to access a student's case plan when such agency or organization is legally responsible, in accordance with State or tribal law, for the care and protection of the student. Second, the USA also allows educational agencies and institutions to disclose a student's education records pursuant to a judicial order without requiring additional notice to the parent by the educational agency or institution in specified types of judicial proceedings in which a parent is involved. These changes to FERPA (and, consequently, to the confidentiality provisions applicable to Parts B and C of the IDEA) help in improving educational and developmental outcomes for children in foster care by providing those agencies that are legally responsible for such children access to specific information that is maintained by those agencies that provide early intervention or educational services to such children. The Department has not yet amended the FERPA regulations, codified at 34 CFR Part 99, or the IDEA regulations, codified at 34 CFR Parts 300 and 303, to incorporate the provisions of the USA. However, over the last year, the Department has collaborated with the Administration for Children and Families within the U.S. Department of Health and Human Services to provide information, including joint webinars and other presentations, regarding how the FERPA amendments may help child welfare agencies meet certain Federal child welfare requirements. Additionally, the Department has held conferences for, and made presentations to, the IDEA communities regarding the impact of the USA.

 The guidance is a question and answer document that consists of four sections: (1) General requirements related to the Uninterrupted Scholars Act; (2) State educational agency and the Uninterrupted Scholars Act; (3) Individuals with Disabilities Education Act and the Uninterrupted Scholars Act; and (4) Scenarios. The first section explains how the USA amends FERPA and its interplay with other FERPA requirements. The second section addresses redisclosure by a State educational agency, on behalf of its local school districts, of the education records of students in foster care placement to the students’ child welfare agency. The third section provides direction regarding the impact of the USA on the IDEA, specifically the confidentiality of information provisions in Part B and Part C respectively. The final section includes several scenarios to enhance the understanding and implementation of the USA.  We encourage you to continue building interagency collaboration at the local and state levels between education, early intervention, and child welfare agencies to ensure continued access to services for children in foster care. We also urge child welfare and educational agencies and institutions to work together this summer to develop policies and procedures that permit the disclosure of the education records of students in foster care placement to the students’ child welfare agency in the upcoming school year. Thank you for your continued efforts to ensure successful early intervention and educational outcomes for all children.  Sincerely,  Kathleen M. Styles  Chief Privacy Officer  Privacy, Information, and Records Management Services  Michael K. Yudin  Acting Assistant Secretary  Office of Special Education and Rehabilitative Programs