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Frequently Asked Questions Pertaining to FERPA

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FERPA is a federal law that protects the privacy of student education records. The law applies to all educational agencies and institutions that receive funds under any U.S. Department of Education program.

Q: To what entities does FERPA apply?

A: FERPA applies to educational agencies and institutions that receive funds under any program administered by the U.S. Department of Education. This includes virtually all public schools and school districts, and most private and public postsecondary institutions, including medical and other professional schools.

Private and religious schools at the elementary and secondary school levels generally do not receive funds from the U.S. Department of Education and, therefore, are not subject to FERPA.

Q: Does an interagency agreement with partners such as the state or local health department enable a school to non-consensually disclose education records?

A: No. Interagency agreements do not supersede the consent requirements under FERPA. Although an interagency agreement would be a helpful tool for planning purposes, schools must comply with FERPA’s requirements regarding the disclosure of PII from students’ education records.

Q: Under the health or safety emergency exception, may a school non-consensually disclose PII from a student’s education records to the media?

A: No, you generally may not disclose FERPA-protected information to the media. While the media play a role in alerting the community of a health epidemic or a violent incident outbreak, they generally do not have a role in protecting the health or safety of individual students or others at the school.

Q: When would the health or safety exception apply?

A: Under FERPA, an emergency means a situation in which there is an articulable and significant threat to the health or safety of students or other individuals. This determination must be made by the school.

Q: Do I need to tell parents and eligible students or otherwise document when I have disclosed PII from their education records without consent under a health or safety emergency?

A: Within a reasonable period of time after a disclosure is made under the health or safety exception, a school must record in the student’s education records the articulable and significant threat that formed the basis for the disclosure, and the parties to whom the information was disclosed. Parents and eligible students have a right to inspect and review the record of disclosure, but do not need to be proactively informed that records have been disclosed.

Q: Can members of our threat assessment team have access to student education records?

A: School officials with legitimate educational interests may have access to a student’s education records. Members of a threat assessment team who are not school employees may be designated as such if they are under the direct control of the school with respect to the maintenance and use of PII from education records; are subject to the requirements of 34 CFR § 99.33(a) governing the use and redisclosure of PII from education records; and otherwise meet the school’s criteria for being school officials with legitimate educational interests.

Members of a threat assessment team who are considered school officials with a legitimate educational interest generally cannot non-consensually redisclose PII from a student’s education records to which he or she was privy as part of the team. However, if a threat assessment team determines that a health or safety emergency exists, members may non-consensually redisclose PII from a student’s education records on behalf of the school to appropriate officials under the health or safety emergency exception.

For example, a representative from the city police who serves on a school’s threat assessment team generally could not redisclose, without consent, PII from a student’s education records to the city police during the initial discussions about a particular student. However, once the threat assessment team determines that a health or safety emergency exists, as defined under FERPA, the representative may redisclose, without consent, PII from a student’s education records on behalf of the school to appropriate officials.

Q: How does FERPA interact with the Health Insurance Portability and Accountability Act of 1996 (HIPAA)?

A: The U.S. Department of Education and the U.S. Department of Health and Human Services jointly developed guidance on the application of FERPA and HIPAA. This guidance explains that records that are protected by FERPA are exempt from the HIPAA Privacy Rule. Accordingly, school officials must follow the requirements of FERPA with regard to the disclosure of records protected by FERPA. Please see the guidance at http://www2.ed.gov/policy/gen/guid/fpco/doc/ferpa-hipaa-guidance.pdf for more information.

Q: Who should I contact for more information related to FERPA?

A: The U.S. Department of Education’s Family Policy Compliance Office is available to respond to any questions about FERPA. For quick responses to routine questions, please e-mail the Department of Education at FERPA@ed.gov. For more in-depth technical assistance or a more formal response, you may call the Family Policy Compliance Office at 202-260-3887 or write to them at

Family Policy Compliance Office
U.S. Department of Education
400 Maryland Ave. SW
Washington, DC 20202-8520

Q: What are some of the other federal and state laws relating to emergency management planning that are relevant to access to and sharing of information about students?

A: Schools may also be subject to federal and state civil rights laws that protect the disclosure of information about students. Schools and their community partners should review guidance from the U.S. Departments of Education and Justice on any applicable civil rights or other statutes governing privacy and information sharing and discuss their implications for emergency management and related planning processes. At a minimum, in determining what constitutes an “emergency,” schools and their partners must base their decisions on actual risks and not on assumptions, stereotypes, fears, or myths about people with disabilities (including mental health-related disabilities) or people of a particular race, color, ethnicity, national origin, religion, or sex.14, 15

FERPA Guidance and Resources

The Family Policy Compliance Office (FPCO) at the U.S. Department of Education administers FERPA. FPCO has developed, and continues to develop, extensive guidance pertaining to the implementation of FERPA and emergency situations. For more detailed information or additional guidance, please visit the FPCO website at www.ed.gov/fpco.

 

Source: Guide to Developing High-Quality School Emergency Operations Plans, U.S. Department of Education (2013)

 

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