Midwest Education Law

The Family Compliance Policy Office of the U.S. Department of Education, together with the newly-created Privacy Technical Assistance Center, will host a webinar on January 11 to discuss new FERPA regulations.  The webinar will summarize the recent regulatory changes, then focus primarily on new requirements for data sharing.  As we've shared before, these requirements can be very technical and confusing.  Agency officials are expected to share "best practices," which may help navigate these dangerous waters.  In light of the Department's pledge to increase FERPA enforcement efforts, it's important to understand how the agency views schools' obligations under the new regulatory scheme.  More information about the webinar can be found here.   

The U.S. Department of Education will publish its new FERPA regulations today in the Federal Register.  The regulations, together with the appendix, span more than 250 pages and become effective on January 3, 2012.  The appendix, which begins on p. 238 of the regulations, contains answers and forms that provide good information about FERPA and the new regulations.  Changes announced in the regulations include, among other things, guidance on sharing student data for research purposes, increased enforcement authority and creation of the Privacy Technical Assistance Center.  The Department also drafted a helpful overview, which provides a summary of the changes and links to additional resources.  This would be the best starting point for reviewing the impact of the new regulations. 

Late last week, the U.S. Department of Education proposed amendments to regulations implementing FERPA.  The changes are designed to allow use of data gathered in statewide longitudinal data systems (SLDS).  Specifically, the proposed amendments would allow authorized representatives of state governments to access the data for purposes of evaluating academic programs, while still protecting the privacy of education records.  Details of the proposed language and the anticipated impacts can be found here. 

Comments on the proposal must be provided by May 23, 2011.  Instructions for submitting a comment are set forth in the Federal Register at the link above. 

A school district in Texas was recently ordered to pay parents for the cost of an Independent Education Evaluation, after the district was unable to prove that its own evaluation was appropriate.  The reason?  The school had not retained the test protocols or the student's responses to the questions on the various assessments.  According to the hearing officer, this violated IDEA in two ways.  First, it violated the section of IDEA requiring that information obtained from all evaluation sources be documented.  Second, it violated the rights of the parents to participate in the process of developing an IEP.

Schools should probably retain test protocols and student responses until it is clear that the evaluation in question is no longer relevant, e.g., when the student is re-evaluated.  This does not necessarily mean that parents may see the test protocols, since there are often copyright or ethical restrictions prohibiting such documents from being reviewed by persons who are not qualified to interpret them.  (In the Texas case, the parents had retained an expert who said her ability to critique the school's evaluation was hampered by the lack of protocols.)  But they should be available in the event they are needed to show that a school's evaluation is accurate.

Lesson from Texas case: Retain test protocols from evaluators. Neglecting to do so can interfere with a parent’s participation in developing an IEP. Take these steps to obtain test protocols and underscore their importance. (Aug. 31) NEW!

Key points:

· Retain documentation of students’ evaluation responses, scores
· Guard against evaluators’ destroying materials
· Explain usefulness of test protocols to IEP team

Lesson from Texas case: Retain test protocols from evaluators.

Failing to retain documentation of a student’s evaluation responses and scores violates the IDEA and can prove costly, as one Texas district recently learned.

In McKinney Independent School District, 54 IDELR 303 (SEA TX 2010), the district had to pay $6,780 for IEEs obtained by the parents of a student with autism, a speech impairment and undisclosed disabilities. That’s because the district neglected to obtain test booklets with the student’s responses from its evaluator, and the evaluator destroyed them.

The IDEA requires that information obtained from all evaluation sources be documented, the IHO noted. What’s more, the failure to retain these documents interfered with the parents’ participation in developing a program that matched the student’s needs.

“Right now, I wouldn’t be surprised if test protocols are not present at the majority of IEP meetings,” says Joe Hatley, a school attorney with Spencer Fane Britt & Browne LLP in Missouri. He adds, “This decision may lead parents and parent attorneys to make the issue of having evaluation documentation at IEP meetings a bigger deal in the future.”

Follow these steps to obtain test protocols and underscore their importance:

Discuss needed documentation with outside evaluators. Problems can occur when you contract with an outside evaluator to coordinate student assessments, as the district did in McKinney, says school attorney Karen VanDijk of California-based Best Best & Krieger LLP.

“Most district evaluators always file test protocols and know not to destroy them. But outside evaluators might not know about the requirement to retain records,” she says. The best way to inform them -- and to guard against their destroying test protocols -- is to build the requirement into a contract, she says.

“Write in the contract that the evaluator must give you the test protocols at the time he gives you the assessment. Make that a condition of being paid,” she says. This way, the evaluator knows from the outset what to provide the district, and you won’t have to keep sending reminders, VanDijk says.

Explain need for test protocols with team members. IEP teams may not ask for test protocols unless they have questions about the evaluation scores, VanDijk says. Other teams might worry that parents will examine the test protocols for errors.

“But they are entitled to do that if they want,” VanDijk says. “And if you don’t let them, you risk the parent claiming that you interfered with her participation.”

For example, suppose parents say their child struggles in math and writing, but your evaluator finds that the child functions at grade level. “That’s just the conclusion,” says Deborah Mattison, a parent attorney with Wiggins, Childs, Quinn & Pantazis LLC in Alabama. You have to let the parents look at the protocols to determine how the evaluator reached that decision, she says.

Also, VanDijk says, “it will be tough to defend your evaluation and findings if you don’t have anything that supports how you reached your conclusion.”

Consider other uses of test materials. For example, Hatley says, if a student is “right on the border” between being eligible or ineligible for IDEA services, looking at the student’s evaluation responses can sometimes help teams understand why an evaluator made a certain recommendation. Test materials also can help you develop an IEP for a student who is new to the district, Hatley says. “IEP teams don’t have a history of involvement with that child, so evaluation materials can take on a greater significance in these situations,” he says. Team members may want to look at the student’s responses -- not just the scores and recommendations -- to really get an idea of who that student is and what he needs, he says.


Heidi Sfiligoj covers IEP teams and other special education issues for LRP Publications.

August 31, 2010

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