The Family Educational Rights and Privacy Act (FERPA) primary purpose is to ensure parents’ have the right to view their children’s education records, to seek to amend inaccurate information in the records and to decide, within certain parameters, which entities or individuals can access their child’s records. FERPA changes with U.S. Supreme Court cases, new statutory acts such as the USA Patriot Act, tragic school events, social landscape changes and evolving technology. Even though the majority of school counselors are not responsible for education records, as an advocate and member of the school community, school counselors want to know that their school is complying with FERPA. The law applies to all schools that receive funds under an applicable program of the U.S. Department of Education.
- Schools must notify parents and eligible students annually of their rights under FERPA. The actual means of notification (special letter, inclusion in a PTA bulletin, student handbook, or newspaper article) is left to the discretion of each school.
- Not all the information collected and maintained by schools and school employees about students is subject to the access and disclosure requirements under FERPA. One of the six categories exempt from the definition of “education records” under FERPA is records made by teachers, supervisors, school counselors, administrators and other school personnel that are kept in the sole possession of the maker of the record and are not accessible or revealed to any other person except a temporary substitute for the maker of the record. A sole-possession record is a memory jogger note, not your official case records, and only memory joggers fall under sole-possession records.School counselors do not usually keep prolific notes, as the reality in the course of a school counselor’s day is that they do not have time to write detailed case notes.
- In January 2013, FERPA was amended to include the Uninterrupted Scholars Act, which permits schools to disclose a student’s education records, without parental consent, to a representative of a state or local child welfare agency or tribal organization who has the right to access a student’s case plan (as defined and determined by the state or tribal organization), is engaged in addressing the student’s education needs and is authorized by the agency or organization to receive such records, when such agency or organization is legally responsible (in accordance with state or tribal law), for the care and protection of the student. Under the Child Abuse Protection and Treatment Act, Child Protective Services workers have had access for decades to all school records without prior written parental consent if they are investigating a case of child abuse, neglect and maltreatment. Now with the Uninterrupted Scholars Act foster care case worker also have access.
- FERPA guidelines delineate who may have access to education records without parental permission. School counselors and other educators who have legitimate educational interest (LEI) can access education records. Legitimate educational interest generally means you may access an education record for the purpose of:
- Performing appropriate tasks within your job description;
- Performing a task related to a student’s education;
- Performing a task related to discipline; or
- Providing a service or benefit related to the student or to the student’s family such as counseling, health care or job placement.
- FERPA helps you advocate for student confidentiality as it says school districts must “use reasonable methods to ensure that school counselors, teachers and other school officials obtain access to only those education records – paper or electronic – in which they have legitimate educational interests.”
- FERPA doesn’t prevent you from advocating for students in cases where you feel the student may be suffering in some way.
- Schools may disclose, without consent, “directory” information such as a student’s name, address, telephone number, date and place of birth, honors and awards, and dates of attendance. However, schools must tell parents and eligible students about directory information and allow parents and eligible students a reasonable amount of time to request that the school not disclose directory information about them.
- FERPA: The Ever-Changing Federal Statutue (ASCA School Counselor article)
- How FERPA applies to school counselors (Magnus Health)
- Family Educational Rights and Privacy Act (USDOE)
- HIPAA & FERPA: What They Are, And How They Apply
- FERPA and HIPAA: 2008 joint letter from DOE and HHS on HIPAA and FERPA interactions
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