2014-09-18-Empowering Paraprofessionals in the Classroom
Seminars@Hadley
Empowering Paraprofessionals in the Classroom:
Confidentiality for Students with Disabilities
Presented by
Kim Walker
Moderated by
Dawn Turco
September 18, 2014
Host
You’re listening to Seminars@Hadley. This seminar is “Empowering Paraprofessionals in the Classroom: Confidentiality for Students with Disabilities,” presented by Kim Walker; moderated by Dawn Turco.
Dawn Turco
Welcome to today’s Seminars@Hadley. I’m Dawn Turco and I will be moderating today’s seminar which we have titled “Empowering Paraprofessionals in the Classroom: Confidentiality for Students with Disabilities.”
This seminar today is being offered for continuing education credit, so at the end I will explain a little bit that will be in the recording for those taking the recorded version, of how you do that and go ahead and get your credit for this seminar. This is a topic today that’s of interest to paraprofessionals and others working in schools, so that’s why we made it available to them.
Today we have a single presenter, Dr. Kim Walker. Kim joined Hadley’s faculty not too many months ago, and of course right away I realized we had somebody with lots and lots of good experiences and information that would lend itself to our seminars. Kim has worked in public schools and more recently at a residential school for the blind; and indeed even did in-person trainings on today’s topic because confidentiality of student records is so very important.
So we will be turning the microphone over to Kim. Kim has some information on the pertinent laws, what goes into a record and indeed what you are able to talk about with colleagues and where you draw the line on what’s important to be talking about and what’s gossip. So there’s lots to cover and Kim has a break in the middle – so don’t worry, there will be opportunities in the middle and at the end for Q&A.
Having said all that, I welcome all of today’s participants and those who might be joining the recorded version of this webinar later on, and of course we welcome Dr. Kim Walker. So Kim, the microphone is yours.
Kim Walker
Thank you, Dawn, and welcome everyone to Seminars@Hadley. This is a topic that I really enjoy talking about with educators and parents and the community because it is such an important aspect when we’re dealing with our students who have disabilities.
As you know, as special educators we want to provide the best educational programs for our students with disabilities; but part of our responsibility is to protect the personal information as that relates to our students. So in today’s seminar we will focus on how we can protect the rights of the students with disabilities and the laws that give us guidance. This will be an overview of the laws and some specifics that we need to be very cognizant of.
So under IDEA, Individuals with Disabilities Education Act and other federal laws that we’ll discuss in a minute, that protects the confidentiality of a child’s educational record. And some of the safeguards that are addressed are the use of personally identifiable information meaning the student’s name, the student’s Social Security number – anything that you could possibly say about a child in a school system or in a community setting that someone can go “Hey, I know who that kid is.”
As an itinerant vision teacher working out in the public schools, often there would be only one child who was blind. So if anyone in that school made the comment “You know, the little girl who is blind,” automatically everyone knew who that child was. So that could be personally identifiable information.
Also, IDEA and the laws give us guidance on who has access to the child’s records. Also these laws give rights to parents to inspect their child’s educational records, and also it gives us guidance on requests that these records can be amended to correct information that the parent feels is misleading or inaccurate, or maybe that they think violates the child’s privacy.
So let’s look first at what is the purpose of confidentiality requirements? Is it just additional paperwork? What really is it? So through the process of determining the eligibility and placement, and we’re designing the IEP and we’re providing that program as outlined in that IEP, we have some very personal and sensitive information about our students and our families. We create these documents, we collect them, and in many cases we have to share them with legitimate political parties.
Some of the things that these records often include are the social, emotional and the educational status of the child. This information is confidential and must only be shared with individuals who need the information to provide services to the student and who have, and this is a term that you need to remember, a legitimate educational interest. And we’ll talk about this a little bit more in-depth later on in the seminar.
These policies are not intended to inhibit us as professionals to provide communication but really it’s to ensure that confidentiality, the confidential information about these students and their families is treated appropriately. So the purpose of the seminar, we’re going to outline the procedures that we should follow to ensure that the confidentiality, the special education records are handled in a secure and often sensitive manner.
So first of all, let’s look at the two confidentiality laws that we’ll be discussing today. First we’ll be looking at FERPA. That is the Family Education Rights and Privacy Act. Another that I mentioned earlier is IDEA, Individuals with Disabilities Education Act. Together these two laws really interface to protect the rights of the parents and the students in our educational public institutions.
So first of all let’s talk about FERPA. This law was passed in 1974. This applies to all schools that receive federal funds from the US Department of Education – and that’s a key, schools that receive federal funds: often Title funds, IDEA funds for children with disabilities. Those are federal funds that schools receive from the US Department of Education. FERPA sometimes is referred to as the Buckley Amendment.
FERPA also gives parents certain rights with respect to their child’s education records. Another key thing to remember is that these rights transfer to the student when he or she reaches the age of 18 or attends a school beyond the high school level.
And when we’re sitting in those IEP meetings we really need to let the student know that year that they turn 17, we need to go ahead and let them know that these rights will transfer to them at the next IEP meeting if they have turned 18. Also on the IEPs, there is a statement that is generally signed by the parent stating that they understand that these rights will transfer to their child when they turn 18.
So now let’s look at IDEA, a little background under Individuals with Disabilities Education Act. This was passed originally in 1975 and the latest reauthorization was in 2004. Again, this applies to all schools that received those federal funds and in this case to serve students with disabilities.
This was formerly called the Education for All Handicapped Children’s Act but you’ll hear it or see acronyms such as the Educational Handicapped Act or EHCA – sometimes you’ll see two different acronyms.
And IDEA addresses services to students with disabilities in the public schools. And one section of this law deals with confidentiality of student records, and it does incorporate the provisions of FERPA.
So the first thing I want to discuss that are outlined in these two laws are parental notifications. These are very important. We do not do anything with a child’s record until we talk to the parent or any educational testing. We must have consent before we do this. But we also are to provide annual notification to the parents, letting them know their rights as described in FERPA and IDEA. And generally in the school setting this is done at the IEP meetings where generally you go over parental rights; sometimes it’s called procedural safeguards.
But something that really should be done is that these parental rights and the explanation should be sent when we have that notice of the IEP meeting. And the reason we want to do this is it gives the parents time to review this document and it is a huge document with lots and lots of words and some legal jargon. That gives them a chance to be able to review it and ask any questions at the meeting.
So now I want to talk about what is an educational record? What is the definition of an educational record? Sometimes people don’t understand it’s just not what is in that file or a typed document. So the definition for this is records, files, documents and other materials which contain information directly related to a student and are maintained by any educational agency or institution or by a person for such agency or institution. These include but are not limited to handwriting.
Sometimes we have handwritten notes when we have some things that we just really need to jot down. This can be considered an educational record, especially if we share it, and I’ll talk about sole possession records in a minute. Also if you video or have any audio recordings of a child that is an educational record. Of course, computer media such as emails, that also meets this definition.
If you take pictures and you want to put these in the newspaper or the school newsletters you really need to have consent to publish these pictures or publish this information. Some schools do put out a broad statement saying that they will do this, and it gives them notification that they can let the school know “I really don’t want this done.” So schools will often have newsletters, but parents of children who have disabilities have the right to say “I really don’t want my child in this media.” So those are some things that can be considered an educational record for a child.
Now, I want to talk about one record that’s outlined under these two laws, and that’s called a sole possession record. This is the one record that really does not have to be revealed to anyone if you do these next things; that if you are the person that made the record and you are not going to show it to anyone else.
And usually they’re used as personal memory aids for a child, like what does the child like, what does the child dislike, things like that; and that no one else has access to this record and you cannot reveal this to anyone else, because as soon as you reveal this record to someone else it is considered an educational record that all legitimate parties have the right to view.
I’ll tell you an example of a sole possession record that I had when I was a teacher in a classroom. I would have children and I’d be looking at the behaviors that they’d be exhibiting. Maybe were they eating on their own? Were they communicating on their own? And I didn’t have time to have my graph sheet out and be working with the child in turn and take the time to record it because I wanted to spend all of my time focusing on the intervention that I was working with with this child.
So often in the school people would see me with masking tape taped to my pants leg, because I would be sitting with a child and we would be working, and as they started exhibiting the behavior that I wanted them to do or the intervention that I was providing I would put a tally mark. And then after I finished working with the child I would take the piece of tape and I would put it on a piece of paper with the child’s name on it.
But then at a time, my planning period, that’s when I would sit down with that sole possession record and I would transfer that raw data to a graph sheet so that other people could understand it and make sense of it. So that’s a brief overview of what you would consider a sole possession record.
Now I want to talk about the right to inspect and review records. Parents do have the right to review any education record of their child that that school collects, maintains or uses with respect to the identification, the evaluation or the educational placement of that child. And IDEA guarantees the parents that they have a right to review that record within a reasonable amount of time with a written request, and you really should not exceed 45 days. To be honest I don’t know a school that would go those 45 calendar days.
They also have a right to have a representative review their records. Maybe they have an advocate; maybe they have an attorney. Maybe they have a friend that wants to view that record. But I’ll tell you best practice is to have a written statement from that parent that you put in that child’s file stating who the person is, the date and why, so that you have a record that the parent gave the representative the right to view this record.
Also the parent has a right to have an explanation and interpretation of the record. As educators we often use our buzz words and we use words that we’re very comfortable with, and sometimes we forget that parents do not understand what we’re saying. So they have a right to question these records. Also you need to make sure that they have the right to only expect information related to their child.
We’ll go into a little detail about this later but I’ll give you an example. At the school I was working in, parents came in and brought their child in – they would sign their child in: this is my child, who brought them in and the time. Or they would sign them out at the end of the day.
That document had many, many children’s names on it, but if a parent requested to see that record to see if their child was coming to school on time or if they didn’t come to school, then you have to make sure that all other children’s names are removed from that document. So that’s when they cannot see a document that has other children’s names on it.
Here’s one that is really, really important to remember. These rights extend to both parents unless otherwise indicated by law. So if the parents’ parental rights have been revoked in court and there are court documents on file in the Principal’s office, that parent has the right – even though that parent is not living with that child, they may not have had contact with that child.
Unless their parental rights have been revoked the parent has the right to review these educational records. Also as I mentioned earlier they have a right to obtain copies of these records within a reasonable period of time and not to exceed 45 days.
If a parent looks at these records and they believe this information is inaccurate or misleading or it violates the privacy of their child then they may ask the [school] to amend it or fix it. The school must decide within a reasonable amount of time if it’s going to comply with the request. It might be a legitimate note or evaluation that really is pertinent to that child.
If the school decides to refuse the request it must inform the parent of that decision and indicate their right to request a due process hearing. And if they do have a hearing and after the hearing it’s determined that the parent’s request be honored, the school system must amend that child’s record and inform that parent in writing that it has done so. Sometimes if the result was in favor of the school system the parent has a right to add a statement to the child’s record, saying that they disagree.
When we’re looking at amendments of records, we need to make sure that the parents have annual notification of a right to request this amendment. Also like I said you have to let them know that if the agency decides to amend the records the parents must be notified in writing. If the agency refuses to amend the records upon the parent request the parents must be notified in writing again. And make sure that they understand their right to a hearing.
So now let’s look, we’ve talked about the records, we’ve talked about the rights to amend the records. Let’s talk about who has the right to review these records other than the parent.
So in keeping with FERPA, only certain people or individuals have access to that child’s records, and these are some that are included: authorized employees of the school – the teachers, the Principal, sometimes paraprofessionals, OT’s, occupational therapists, physical therapists, speech therapists; officials of another school or school system, or postsecondary school where the child is seeking to enroll. You can let them have those records.
Also for audit purposes the Department of Education may need to review records for compliance reviews. But, it’s very important, they are not authorized employees of the school. They must sign a form stating they have reviewed the record and why. Also if there are subpoenas or court orders or if there are health and safety emergencies – those people have the right to review those records.