FERPA Amended to Grant Easier Access to Education Records by Child Welfare Agencies

Earlier this year, FERPA was amended to grant child welfare agency representatives, agency caseworkers, or a tribal organization access to the education records of children within their care and protection.  The new exemption was created in order to prevent delays and complications in the education of children in foster care.  Prior to the amendment, child welfare agency representatives and caseworkers were required to obtain parental consent or seek a court order to gain access to a child’s education records.  This sometimes caused delays and issues with the education of foster children.  Now, upon request, a school district can release the education records of a student who is the legal responsibility of a child welfare agency or organization to a caseworker or agency representative.  The agency in turn can only disclose the student’s records to an entity that addresses the student’s educational needs and is authorized to receive the disclosure.  The Act streamlines the process for child welfare agency representatives and caseworkers. 

On January 14, 2013, President Obama signed the Uninterrupted Scholars Act (“the Act”) into law.  The Act amends the Family Educational Rights and Privacy Act (“FERPA”) to grant child welfare agency representatives, agency caseworkers, or a tribal organization access to the educational records of children for whom they are legally responsible.  FERPA protects the privacy rights of a student’s educational records by prohibiting the Department of Education from funding educational agencies that have the policy or practice of releasing students’ records or personally identifiable information to any individual, agency, or organization without written parental consent.  The Act was passed to break down the barrier created by FERPA which prevented caseworkers and child welfare agencies from having access to the education records of children for whom they were legally responsible. 

The Act creates a new exception to the requirement for parental consent to release education records.  The Act establishes that an “agency caseworker or other representative of a State or local child welfare agency,” who has the right to access a student’s case plan and who is legally responsible for the child’s care and protection, can be provided with a student’s education records without parental consent.  See 20 U.S.C. § 1232g(b)(1)(L) (2013).  The caseworker or agency representative may only disclose personally identifiable information within the student’s educational records to an entity that addresses the student’s educational needs and is authorized by such agency or organization to receive such disclosure consistent with State or tribal laws applicable to protecting the confidentiality of a student’s educational records. 

Prior to the Act, FERPA delayed caseworkers in accessing the education records of the children within their care.  The Congressional Caucus on Foster Youth described that FERPA created an unintentionally “harmful barrier that prevented child welfare workers with legal responsibility for foster children from being able to access the school records necessary to help meet the educational needs of student in foster care.”  Congressional Caucus on Foster Youth, “Uninterrupted Scholars Act 2012” (May 31, 2012) (located at http://fosteryouthcaucus-karenbass.house.gov/priorities-legislation/legislation/uninterrupted-scholars-act).  Now, under the new exception, caseworkers will be able to access a child’s educational records so that delays do not result in gaps in the child’s education.  The Congressional Caucus on Foster Youth described that the Act helps to prevent unnecessary delays in a foster child’s education.  These delays and lack of access previously resulted in inappropriate course placement, enrollment delays, lost credits, delayed graduation, and drop-outs. 

In addition, the Act changed the notice requirements under the court order exception to FERPA.  The Act now permits school districts to disclose the education records of a child without additional notice when the parent is a party to a court proceeding involving child abuse and neglect or dependency matters and the information has been requested by court order in the context of the proceeding.  See 20 U.S.C. § 1232g(b)(2)(B) (2013).  In these cases, when a court order for education records is issued additional parental consent is no longer required.  The records can then be released to a third party listed by the court on the court order.  

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