This section explores other federal laws that relate to the privacy and confidentiality of records, including the Individuals with Disabilities Education Improvement Act (IDEIA), the Protection of Pupil Rights Amendment (PPRA), the Federal Child Abuse Prevention and Treatment Act (CAPTA), the Juvenile Justice and Delinquency Prevention Act (JJDPA), and the Indian Child Welfare Act (ICWA).
The Individuals with Disabilities Education Improvement Act (IDEIA)
The Individuals with Disabilities Education Improvement Act (IDEIA) came into effect in 2005, superseding its predecessor, the Individuals with Disabilities Education Act (IDEA), originally enacted in 1975 (though the 2005 law is often still referred to as IDEA).
In exchange for federal funding, IDEIA requires states to provide school-age children with “free, appropriate public education” in the least restrictive environment. Part B of the act sets forth the process for providing such education, including evaluations for services, eligibility determinations, IEPs, educational placements, and procedural safeguards. Part B also contains provisions regarding the confidentiality of these special education records. The IDEIA confidentiality regulations incorporate FERPA provisions and include some provisions that apply only to special education records.
The release of any special education information that is contained in a child’s education record as defined under FERPA—that is, files, documents, and other materials that contain information directly related to a student and that are maintained by a school or a person acting for the school—is governed by FERPA rules.[1] In general, schools need parental consent to release a child’s education records, but there are exceptions to the rule, as described here. Consistent with FERPA, IDEIA regulations allow parents to have access to their child’s special education records.[2] Moreover, IDEIA regulations specifically provide for the release of personally identifiable information in the education record, without parental consent, to personnel participating in providing the special education.[3] Thus, for example, parental consent is not needed for a student’s IEP to be shared with school officials involved in implementing it. IDEIA regulations do, however, require parental consent before personally identifiable information can be released to officials and agencies providing “transition” services, that is, services to assist youth in transitioning to postsecondary education, as part of the child’s IEP.[4]
IDEIA limits the conditions under which schools may share documents that are part of a student’s evaluation or IEP development process. IDEIA regulations state that parental consent is required for all releases of personally identifiable information that is not part of the education record; such information cannot be released under any of the FERPA exceptions to parental consent.[5] For example, if a parent provides a school official with a copy of a child’s neurological examination performed at a hospital, IDEIA regulations require the school official to obtain parental consent before sharing this report with others who are not involved in providing special education to the child.
The Protection of Pupil Rights Amendment
The Protection of Pupil Rights Amendment (PPRA) requires schools receiving U.S. Department of Education (ED) funding[6] to notify parents at least annually at the beginning of the school year of their rights under PPRA, including the right to consent prior to their child’s participation in any survey, analysis, or evaluation funded in whole or in part by ED that reveals information concerning any of the following:
- Political affiliations
- Mental and psychological problems potentially embarrassing to the student and his or her family
- Sexual behavior and attitudes
- Illegal, anti-social, self-incriminating, or demeaning behavior
- Critical appraisals of other individuals with whom respondents have close family relationships
- Legally recognized privileged or analogous relationships, such as those with lawyers, physicians, and ministers
- Religious practices, affiliations, or beliefs of the student or student’s parents
- Income (other than that required by law to determine eligibility for participation in a program or to receive financial assistance under such a program)[7]
The parental notice must also include the right to opt out of any survey—regardless of who funds it—that contains questions from one or more of the eight protected areas listed above. In addition, PPRA directs schools to develop policies, in consultation with parents, to ensure student privacy and to specify parents’ access to survey and evaluation instruments prior to their administration.[8]
The Federal Child Abuse Prevention and Treatment Act
The Federal Child Abuse Prevention and Treatment Act[9] contains some provisions regarding the confidentiality of child welfare records. The act mandates that as a condition of receiving federal funding, a state must enact laws and regulations that specify when, with whom, and under what circumstances a child welfare agency may share information contained in case records.[10] Therefore, each state has its own rules governing release of and access to child welfare records (see State Laws).
The Juvenile Justice and Delinquency Prevention Act
States receive federal funding through the Juvenile Justice and Delinquency Prevention Act[11] to provide services and programming. As a condition of the funding, states must establish procedures to protect the privacy rights of individuals who participate in services funded under the act.[12]
The act stipulates that unless a disclosure is authorized by state law, personally identifiable information may not be released without the juvenile’s consent.[13] The act also provides federal funding for programs to assist runaway and homeless youth, and prohibits such programs from releasing personally identifiable information without consent from the youth in question.[14]
The Indian Child Welfare Act (ICWA) is a federal law enacted in 1978 in response to the alarmingly high rate of American Indian children placed in out-of-home care, either in foster care or through adoption. ICWA applies to children who are members of federally recognized American Indian tribes who are in a state’s child welfare system. The law is intended to keep American Indian families together and to give tribes a voice in child placement decisions. While ICWA does not contain provisions that address children’s school records, it does provide for states and tribes to enter into agreements on how the law will be carried out. Some states, counties, and tribes have memoranda of understanding or agreements that specify how child welfare matters involving Indian children will be handled. Some of these agreements take into consideration how data involving Indian children will be shared. School officials should consult their school district’s legal counsel to determine whether such an agreement is in effect in their state.
[1] 34 C.F.R. §§300.611(b); 300.622; 300.623(c).
[2] 34 C.F.R. §300.613.
[3] 34 C.F.R. § 300.622(a).
[4] 34 C.F.R. § 300.622(b).
[5] 34 C.F.R. § 300.622(a).
[6] 20 U.S.C. § 1232h. PPRA also requires schools to allow parents to inspect materials used in connection with any survey, analysis, or evaluation in which their children participate.
[7] 20 U.S.C. § 1232h(b); 34 C.F.R. § 98.4.
[8] 20 U.S.C. § 1232h(c).li 42 U.S.C.A. § 5101, et seq.
[9] 42 U.S.C. § 5101, et seq.
[10] 42 U.S.C. § 5106a.
[11] 42 U.S.C. § 5601, et seq.
[12] 42 U.S.C. § 5633.
[13] 42 U.S.C. § 5676.
