Connecticut Education Law Blog : Connecticut Education Lawyer & Attorney : Berchem, Moses & Devlin Law Firm : CT Public Schools

Final revisions to the FERPA regulations were published December 9, 2008 in the Federal Register.  Key changes include the following:

• "Attendance" at a school for purposes of protection under FERPA includes attendance in person or by correspondence or electronic means for purposes of students not able to be physically present in the classroom;
• A definition of "biometric record" has been added for purposes of "directory information" that may be disclosed upon prior notification to parents and students - this would include fingerprints, voiceprints, DNA sequence, retinal and facial characteristics and handwriting;
• "Directory information" has been restricted so that it may not include a student's social security number or student ID number, except as specifically provided;
• Directory information may include a student ID number if the student ID number cannot be used to gain access to educational records without the use of another access identifier such as a password or other factor known only by the user;
• "Disclosure" of an educational record does not include disclosure to the party that provided or created the record;

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Recent amendments to the Americans with Disabilities Act (“ADA”) are certain to have a far-reaching impact on employers, as the new amendments expand the ADA’s reach and reverse an employer-friendly trend in court decisions that interpreted the statute. By expanding certain key definitions, the 2008 ADA Amendments bring within coverage of the statute a large number of individuals previously excluded. Although the ADA maintains its primary definition as to what it means to be disabled (those with “a physical or mental impairment that substantially limits one or more major life activities” or those “regarded as disabled”) the amendments expand what it means to “substantially limit,” what constitutes a “major life activity,” and alters the “regarded as disabled” analysis. The new legislation became effective on January 1, 2009.

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The October 31, 2008 memorandum issued by Anne Louise Thompson, Bureau Chief for Special Education, bears a second reading this time of year as districts prepare to submit excess cost grant applications for the spring of 2009.  The memo, issued in the fall, caused shock waves in the special education community initially, as directors absorbed the news that they would no longer be able to obtain excess cost grant funding related to costs incurred through settlement agreements with parents who reject the IEP offered by the district make unilateral placements for their children in private schools.  Unless the district "accepts programmatic responsibility for the child's education" through the development of the IEP, and pays the entire cost of the placement, the district will not be eligible for excess cost grant funding for these agreements.  On the other hand, if the district makes the placement through the PPT (at an approved school), or goes to due process and loses and the hearing officer orders reimbursement of the costs of tuition, the district is eligible to apply for excess costs.

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For our special education administrator friends, figuring out how to comply with the state and federal special education regulations and proving that to the Bureau of Special Education is no easy task.  Just when you think you have all the rules figured out, the "interpreters" of the regulations manage to invent new requirements.  So, a couple of tips culled from recent experiences:

 (1) Proving compliance with the 5-day rule for sending out the IEP following the PPT meeting: Parents seem to be increasingly concerned about your compliance with the rule that a copy of the IEP should be mailed to them within 5 days following the PPT meeting.  Even if a separate complaint is not filed on this point, it is almost always included on the list entitled "And Another Thing".  Although it is stated nowhere in the regulations that you must retain documentation of this, you will find that the letter from the Bureau inquiring as to your compliance with this rule will ask you for copies of your documentation proving that you have sent a copy of the IEP to the parent within 5 days following the meeting. A couple of ideas for keeping such documentation: Enter the mailing of the IEP as an entry on your log for "documentation of attempts to secure parental participation".  Send a (dated) cover letter with the IEP and keep a copy of the letter in the file along with other correspondence and copies of PPT invitations.  Paperwork reduction act, anyone?

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