Understanding Confidentiality Requirements

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Readers ask often about protecting the privacy and confidentiality of students in the classroom. “Protecting student confidentiality” issues seem to get more ridiculous month by month.

Most parents think…because many schools tell them… that because of the law (FERPA) schools must protect the confidentiality of students in the classroom.

Family Education Rights and Privacy Act (FERPA)

The privacy rights in the Family Education Rights and Privacy Act (FERPA) relate to education records, not to an individual’s personal privacy.

Parents should take the time to learn what FERPA protects. Learn how the law defines “education records.”

Balancing Student Privacy and School Safety: A Guide to the Family Educational Rights and Privacy Act for Elementary and Secondary Schools October 2007 states:

Images of students captured on security videotapes that are maintained by the school’s law enforcement unit are not considered education records under FERPA. Accordingly, these videotapes may be shared with parents of students whose images are on the video and with outside law enforcement authorities, as appropriate.

Info from personal knowledge or observations can also be shared.

FERPA does not prohibit a school official from disclosing information about a student if the information is obtained through the school official’s personal knowledge or observation, and not from the student’s education records.

For example, if a teacher overhears a student making threatening remarks to other students, FERPA does not protect that information, and the teacher may disclose what he or she overheard to appropriate authorities.

More Information and Resources

Privacy, Confidentiality, and Education Records

Balancing Student Privacy and School Safety: A Guide to the Family Educational Rights and Privacy Act for Elementary and Secondary Schools (October 2007) about how to balance these two issues and discusses videos and school staff knowledge and observations.

Understanding the Confidentiality Requirements Applicable to IDEA Early Childhood Programs Frequently Asked Questions (FAQS) (October 2016)

IDEA/FERPA Confidentiality. Includes IDEA/FERPA Confidentiality Side by Side – Compares Part B of IDEA, Part C of IDEA, and FERPA. (See p. 8-11)

  1. For the second time in just about a month, my foster son’s school has shared confidential documents of other students. First time it was a psych eval attached to his calendar event for his IEP meeting. This caused the document to be emailed every time something changed with the event. When it was ultimately canceled and rescheduled, the coordinator attached it again! As I work in the same district I showed grace and asked if she needed help taking it off, naming documents, etc. Today I received another student’s IEP meeting summary with all of his testing attached in his backpack. Suggestions what steps to take? I’m livid and wondering how they might have done this with my son’s documents.

  2. Hi….I was hired to help out a kid who was in a car accident and has brain damage but he understands everything and can type out questions. the diagnosis said he could hear but, he typed to me that he could not hear at all. The school told me his health records were confidential and my training was 20 minutes and beside that very vague. I am a TA and not an aide and took this on to be flexible and accommodating plus I really wanted to help this kid. I have worked in the school system for over 4 years at a different school. Within a week in this position I was fired from it- but they still have me subbing and said they are investigating this. I was called into the EC directors office and was told, I was not allowed to write to the kid about anything other than what was being taught in the class. I asked him if he could hear me at all? because the other aide-TA helping him told me the typed to her that He could not hear anything. We had been encouraged to type out conversations with him and all the kids were doing that in google doc. I also asked if he remembered being in an accident…and he responded NO and wanted to know when it happened. I said a year ago and I could find out when and let j=him know if he wanted. I was barely trained and had no idea that this was not allowed….Did I violate any laws? please advise

  3. I have a child that has an IEP. One teacher has refused to comply with giving him paper assignments instead of assignment through one of the platforms they use on the computer. She also went to members of the school board without our knowledge and discussed our son, his behavioral issues that stem from his diagnosis, without us being there. She also went behind the superintendent to do this. Since our son has an IEP should we not have been included in this meeting? Does it not violate our sons confidentiality?

  4. Is a school principal or other staff and administrative personnel allowed to know and discuss IEP and crisis student information with school social worker?

    It seems there may be a breach of confidentiality if those not involved in the students IEP or crisis issues have access and use that information that does not involve “education” records or information.

    • I don’t understand your question. Why wouldn’t a principal or other admin NOT be allowed to have access to IEPs, especially if a child is in crisis?

    • Can a parent sit in on a regular ed classroom? In most states, the answer is yes. Parents often accompany their child’s regular / general ed class on field trips, etc.

      Kids with disabilities do not have additional rights re: confidentiality or parents in the classroom.

  5. Concerned Parent… we have purposely chosen not to tell our second grade daughter that she has Cerebral Palsy yet. Her case Is extremely mild and we have always taught her about diversity. Everyone is different whether it’s race, size, or the way someone walks. It’s our choice to talk to her when she can understand CP and brain damage. Anyway, her second Grade teacher asked our second grader (who I don’t believe can give permission) if she could talk to her class about the way she walks. Our daughter told her yes. The teacher then told her, the class, and her twin brother who’s in the class that she has a disability and that she has Cerebral Palsy. Is this a violation of FERPA?

  6. Is it a FERPA violation if education diagnostician and a principal are talking about my childs current speical education evaulation in an open front office? Also in front of my 3rd grader.

  7. If an administrator sends an email to different teachers k-12, administrators, and secretaries that contains a screenshot of a list of special education students and their disabilities, grade level, and birthday, is this is a breach of confidentiality? The other teachers on the email have no educational relationship with the students on the list.

    • Same exact question. We got a list of every student in our school with a 504 plan – sent to the whole staff. We are supposed to check our list of 150 students to see who is on the list.

  8. Is there a confidentiality issue if a special education teacher allows her biological child to wait before or after school in the special education classroom/office, both supervised and unsupervised?

    • I don’t see where it would be. Schools frequently allow teacher’s children to remain in their rooms (at my school, teachers report at 7 but students don’t enter until 7:20. Teachers are allowed to have their children in their rooms so they are not sitting outside the school unsupervised).

  9. If a teacher shares information about a student with her own child at home, and then puts the kids in touch (who are not in the same school), would that be a violation of FERPA. This is something I’ve observed, and it feels highly inappropriate…along with some other behaviors…on a number of levels. Trying to figure out if I should report.

  10. My child who has a 504 plan was interviewed as a witness by a departmental employee who was investigating a school employee. Can the school do that without my consent? Can my childʻs statement along with her full name be published in a report to be seen by other employees and possibly non-employees who are unknown to me without my consent?

    • From your description, someone did interview your child. Not clear if the interviewer was law enforcement or school employee. You can and should object to this and your child’s full name being used in a report. Your objections need to be in writing, with CCs to the district superintendent, school board chair, school principal.

      I suggest you contact your state Dept of Ed to discuss the situation with them, ask for their help.

      You may want to look into filing a complaint with the Office for Civil Rights. This document will walk you through the process: https://www2.ed.gov/about/offices/list/ocr/docs/howto.pdf

  11. The school hired a consultant to review student IEPs & make decisions about their placement program. They’re bringing OOD students back to District & labelling the report under Attorney Confidentiality b/c consultant is an attorney. The parents were not notified, found out accidentally. Can parent refuse consent for BOE to release IEP to attorney citing the IEPs intent is for use by child’s educational team and is private for the purposes of facilitating a study or litigation that has not been announced? This attorney/consultant seeks to supplant IEP process and determine if any litigation would be successful no doubt. Best way to stop this? I know FERPA allows consultants, but usually it’s to benefit the child, not for cost savings or Administrative convenience. In NJ. Thanks!

  12. my school accidently mailed my childs iep to someone else and their iep to me, what are the implications

  13. The special education teacher created an email listing of all the special education students (first, last name) in the building, with the type of services they are getting next to their name: self-contained (Autism room), speech therapy, indirect services. The email was sent to the entire faculty in the school. The purpose of the email was so that all building teachers can identify special education students. Is it a breach of confidentiality considering that not all the teachers in the building have these students in their classrooms or have anything to do with them at all?

  14. I am asking out of curiosity as a school-based occupational therapist. I am very careful to maintain confidentiality when discussing a student with a colleague or group of therapists–to brainstorm intervention ideas, for example. My question is not “Are we required to maintain student confidentiality”, rather, “Are therapists in the schools required to be HIPAA compliant?” As a former medical based OT, I understand HIPAA left and right as it applied to me in those settings, but schools are not considered a “covered entity” under HIPAA. There are several therapists in a discussion I am participating in who state that HIPAA applies to us in the schools. I’d be interested to hear what is actually the case. Thanks!

    • Michelle – yes, FERPA and HIPPA are two different things.

      FERPA is a federal statute to (1) ensure that parents have access to their children’s educational records and to (2) protect the privacy rights of parents and children by limiting access to these records without parental consent. https://www.wrightslaw.com/info/ferpa.index.htm

      Here is the US Department of Education (2014) Guide to IDEA/FERPA Confidentiality Side by Side. https://www2.ed.gov/policy/gen/guid/ptac/pdf/idea-ferpa.pdf

      HIPPA Privacy Rule is not part of this discussion.

      In order to answer your colleagues’ question, you may want to refer to this Joint Guide (Department of Health and Human Services and Department of Education, 2008) especially Question IV – “Where FERPA and HIPAA May Intersect.”

      https://www.wrightslaw.com/info/ferpa.jointguide.doe.pdf

      Is there any professional code of ethics guidance from AOTA re HIPPA / FERPA / IDEA in schools? If you have some, please share, and we will post for others.

  15. My child’s year- end IEP report was inadvertently mailed to the wrong address. It happened to be to a parent who I am of acquaintance with, and whose son is a peer/friend to my son.
    Fortunately, she saw to it that I received the documents.
    Is this legally a breach of privacy? It certainly feels as if it is, and could have had such a different outcome.

  16. Is it a FERPA violation if a teacher and a principal are talking about private information about students in the principal’s office, with the door open, and one of the students overhears?

    • In my opinion, talking about “private information” in a place where others could potentially overhear is a breach of FERPA. The private information being talked about is an educational record.

  17. At our school site, our Administration is insisting that a Special Education classroom be used for an after school program for general education students. At other sites in our district, this is not allowed because even though all Special Education classrooms hold IEPs in a locked filing cabinet, there is still student information up on the walls of the classroom (as well as IEP documents which are in progress of being revised for upcoming meetings) which could potentially constitute a breech of privacy for students with special needs. Is there a law that the teacher of this Special Education classroom could show her Administrator to allow her classroom to be exempt from a general education after school program?

  18. Hello-

    I am wondering if anyone can point me in the direction of any regulations around classroom spaces and confidentiality. In a school with an open space learning design (floor to ceiling glass walls, etc) are there laws that pertain to whether or not this visibility would break special education confidentiality laws? If parents, teachers, students etc., walk by and see a special education teacher instructing, does that identify those students on IEP’s? I hope that my question makes sense and I appreciate any feedback. Take care.

    • Confidentiality under federal special ed law deals with the sharing of records. There could be state rules about what you describe, but I doubt it, because it would be impossible to enforce.

    • Beth, there are no regulations that I know of off the top of my head. I don’t think you base identifying a students on an IEP based on a Special Education Teacher teaching. Hopefully this helps if not hopefully someone can point us both in the rights direction.

  19. I requested to see videos involving my child and how the school mishandled the situations, etc. Would you please explain the meaning of the following: Educational records of “individual students are not “public records” and are excluded from release under the _________ Freedom of Information Act (FOIA) per the federal Family Educational Rights and Privacy Act (FERPA) (20 U.S.C. § 1232g; 34 CFR Part 99). For example, video that shows other students cannot be released because that video would be part of those students’ educational records and thus prohibited by FERPA from being released.” Thank you!

  20. I am a high school special education teacher. Is it legal for teachers to use the full name of a special education student in an email containing sensitive information about that student? I need to be able to cite a law or regulation to this teacher. I requested she use only the initials and she insisted there is nothing wrong with using the full name of the student.

    • What is the concern with using the student’s actual name? Who is the teacher sending these emails to? I have heard this concern in the past, but can’t recall the reasoning, If someone (the email recipient) can (needs to) figure out who the student is by initials, what layer of protection does using initials give?

  21. At my son’s high school in Oregon, the special ed program (Social Skills) is a graded, credit “class” and appears on high school transcripts. This seems a violation of his privacy/civil rights to me. Can I request removal of this from his transcript (I’m ok with it as a record)?

  22. I am a teacher in a building where both of my special needs children’s first names and last initials were put on a “data wall” showing if they were on/above/below grade level for reading along with an identifying mark showing they are special education (all personnel in the building have access to this room). Is this wrong? I’m upset as a parent, but was told if I didn’t work in the building, I would not have known. Also, picture was taken by a county official and put on twitter where names are visible. Is there anything I can do?

    • I believe that displaying this information is inappropriate and violates FERPA. According to FERPA, only those with an educational need to know should have access to this information.

  23. I have a client (Kindergarten) who occasionally elopes. The parents have put an “Angel Sense” GPS on his person so they can track where he is throughout the day. This device also allows them to hear what is occurring in his environment, but does not record. The district has stated that he may not wear this device because it violates the privacy of his peers in the classroom. Would appreciate feedback on this.

    • Unless this is a violation of state laws, it does not sound like a violation of privacy. I suggest that the parent write to the principal, & special ed director or other administrator stating the need for the device & requesting approval of its use. If the school says no, ask for a letter from the school attorney stating that this is a violation of privacy.

    • The SLP is correct. She can only discuss your child with you and cannot name any other child to protect their confidentiality. You can ask your child who he sits with.

    • I’ve had the same issue in Florida. I received a copy of the bullying investigation report, it was practically blank. Cited FERPA. I’d like to know what the school knows so that I can advocate for my child.

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