Special Education Tip-of-the-Day: Access to Records (Part 1)

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by Jessica Jansepar Ross, Attorney

The IDEA and the Family Educational Rights and Privacy Act (FERPA) are two important federal laws that apply to educational records for students with disabilities. These laws contain provisions about what is considered a “record,” who can have access to a child’s records, how records are maintained, and what parents can do if they disagree with a record in their child’s educational file (which we will discuss in Part 2).

FERPA is the broader law that applies to students generally. The IDEA incorporates some definitions from FERPA, including the definition of “educational records.” For this post, we will be focusing on the IDEA, but here is a helpful chart from the U.S. Department of Education that compares side-by-side the requirements of the IDEA and FERPA.

What is an educational record?

“Educational records” are records that are directly related to the student and are maintained by the school or school district and/or its agents, such as teachers, administrators, and service providers (e.g. speech therapists and counselors). However, there are a few exceptions, including personal notes that a teacher may write as a memory aid and does not share with others. However, the category of educational records is generally pretty broad. Educational records can live anywhere, including electronically. Parents are often surprised that educational records can include emails between teachers, if they are kept by the teacher/school. You can ask the district for its policy on which records it maintains. This information may also be available on the school or district website.

Is a parent entitled to review their child’s educational records?

Under the IDEA, a parent can request to inspect and review any educational records that have to do with their child’s evaluation, identification, and placement, or with the provision of FAPE (i.e. special education records). Schools have to provide parents access to the records without “unnecessary delay” regarding an IEP meeting, a hearing, or a resolution session as part of a due process hearing (more on that in a future post.) In any case, schools have to comply with a parent’s request to inspect records within 45 days after the request has been made.

The opportunity to “inspect and review” may look different depending on the circumstances. The district at a minimum has to provide parents with the opportunity to come in and review all of the documents in person. However, in some instances, districts prefer to provide copies to parents rather than have them come onto campus. In that instance, you should confirm that records will be provided free of charge, and if not, opt to review the documents in person.

Can a school charge parents for copies of their child’s educational records?

Schools cannot charge a fee for retrieving a child’s records for their parents. However, schools can charge a fee for copying records, as long as the fee doesn’t “effectively prevent” a parent from exercising their right to review those records.

If this is a concern, you should ask in your records request that the school tell you how much it will charge for copying the records before it begins doing so. You should also confirm that the fee doesn’t include staff’s time searching for and compiling records. This way, you can opt to review the documentation in person, or explain why having to do so is too burdensome and you need the records free of charge (for example, if you live two hours away from the school).

To access your child’s educational records, you should:

  • Request in writing to inspect and review any educational records and keep a copy of the request.
  • If possible, request the records well in advance of any meeting or hearing. However, if the timeline is tight, be prepared to explain why you need the request expedited.
  • Include examples of the types of records that you are requesting, such as evaluations, incident reports, and emails regarding your child’s IEP services.
  • Be flexible about how you are willing to receive the records. Sometimes schools can prepare electronic records quicker than documents that they have to copy. Be open to receiving them in multiple batches, or in a different format than you had in mind, if possible.

 

For more information about access to student records, please visit the Center for Parent Information and Resources.

Here is a sample letter requesting student educational records.

 

Tomorrow’s Tip-of-the-Day: Access to Records (Part 2)

 

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