A parent requested the following accommodation after his teachers repeatedly mentioned his Individualized Education Program (IEP) to the class:

“Teachers should not intentionally allow other students to know that XXXXXX has an IEP and receives special education services.”

The parent didn’t understand that privacy is a right, not an accommodation, simply because the privacy violations modeled by the teacher pointed in the opposite direction.

Privacy is a Right

The Family Educational Rights and Policy Act (FERPA) and Parts B and C of the Individuals with Disabilities Education Act (IDEA) protect the privacy of students.

If a teacher states in class that a student has an IEP or 504 Plan—or does anything else that makes this clear to other students—the teacher is in noncompliance for breaching confidentiality.

Kids are smart and pick up on differences with other students, especially as they grow older. They will notice a student who leaves the classroom every time a test takes place and a student who does different activities during P.E.

While kids’ inherent Sherlock Holmes skills can’t be stopped, what can be stopped is adults who put kids on the spot for having an IEP or 504 Plan. It is the school’s responsibility to maintain their privacy.

Straight from the U.S. Department of Education

August 22, 2022, the U.S. Department of Education (USDOE) released a guidance document titled “IDEA and FERPA Crosswalk: A side-by-side comparison of the privacy provisions under Parts B and C of the IDEA and FERPA“.

Among other things, the document points out the following:

IDEA section 617(c) requires the Secretary of the U.S. Department of Education (ED) to adopt confidentiality provisions that are consistent with FERPA but also include additional protections under Parts B and C of the IDEA. These provisions are reflected in IDEA Part B in 34 CFR 300.610 through 300. 627 and IDEA Part C in 34 CFR 303.401 through 303.417. FERPA applies to educational agencies and institutions that receive funds from ED.

While the IDEA Part B and Part C provisions are consistent with, and incorporate protections under, FERPA, the IDEA Part B and Part C confidentiality provisions include several provisions that are specifically related to infants, toddlers and children with disabilities receiving services under IDEA and provide protections beyond the FERPA requirements. When analyzing the privacy and confidentiality requirements for children with disabilities, it is critical to begin by examining the IDEA requirements first.

The following are some of the differences and similarities:

Definitions:

The definition of education record is the same under IDEA Part B and FERPA. The definition of a “participating agency” is different under the IDEA Part B and Part C regulations and applies differently in different States under IDEA Part C depending on how the State delivers IDEA Part C services. FERPA applies to an educational agency or institution to which funds have been made available under any program administered by the Secretary of the U.S. Department of Education. The definitions of PII are generally the same across all three statutes; they are slightly different under IDEA Part B and Part C and the definition of PII under IDEA Part C is the same as FERPA.

Confidentiality:

All three statutes (IDEA Parts B and C and FERPA) require the protection of privacy of children or eligible students covered by the respective statutes and their regulations. While the IDEA Part B and Part C provisions are consistent with, and incorporate protections under, FERPA, the IDEA Part B and Part C confidentiality provisions include several provisions that are specifically related to infants, toddlers and children with disabilities receiving services under IDEA and provide protections beyond the FERPA requirements. When analyzing the privacy and confidentiality requirements for children with disabilities, it is critical to begin by examining the IDEA requirements first.

Consent:

Consent under Parts B and C of the IDEA and FERPA requires that the consent be prior, written parental consent where for consent to disclose of PII from records, the records must be identified. The definition of consent under Parts B and C of the IDEA have broader applicability than the definition of consent under FERPA which applies only to disclosure of PII from education records. Consent under Parts B and C of the IDEA must be informed.

Inspection & Review

Generally, under all three statutory/regulatory frameworks, Parts B and C of the IDEA and FERPA all provide parents the right to access and amend records and dispute resolution provisions. While Parts B and C of the IDEA require parents be provided copies of certain records, generally, FERPA does not require parents to be provided copies of records.

Retention of Records

Parts B and C of IDEA require a record of access be maintained and FERPA has a recordation requirement concerning requests to access. Parts B and C of the IDEA (unlike FERPA) contain express provisions regarding the retention and destruction of records.

Procedural Safeguards

Parts B and C of IDEA and FERPA all require notice of the rights be provided to parents, but the content of the notice and when it must be provided, vary across the three statutory/regulatory frameworks.

Considering reading USDOE’s guidance document in full. It will explain privacy rights in terms of confidentiality, but you’ll learn about access, who has access, requirements related to recording access, and so on.

Click on the image below to view the document in full.