Privacy Panel: Information Sharing Between Education and Child Welfare Agencies and Access to...

Privacy Panel: Information Sharing Between Education

and Child Welfare Agencies and Access to Records

CIP ConferenceJuly 2010

TA brought to you by:

National Child Welfare Resource Center on Legal and Judicial Issues

Part of training and technical assistance network of the Children’s Bureau, US Dept of HHS

Legal Center FCE Collaboration between ABA and the Juvenile Law

Center and Education Law Centers, in partnership with Casey Family Programs and Annie E. Casey Foundations

A national technical assistance resource and information clearinghouse on legal and policy matters affecting the education of children and youth in out-of-home care

Website: www.abanet.org/child/education Listserv, Conference Calls, Publications,

Searchable Database

Overview Privacy interests of youth and parents Confidentiality laws governing each agency Balancing privacy interest with need for

sharing information to serve the child and family

Bottom line: confidentiality laws do permit sharing of information…but that sharing must occur within the parameters of the law

LAW: Family Educational Rights and Privacy Act (FERPA)20 U.S.C. § 1233g; 34 CFR Part 99

Purpose: to protect privacy interests of parents and students regarding the students’ education records

EDUCATION MYTH

“We can’t share any information about a student with anyone who is not considered the parent.”

REALITY

Education Records Must follow guidelines under FERPA

But, not all information about a student is an education record under FERPA

Directory Information

EDUCATION MYTH

“We can’t share child specific education records with anyone without parental consent”

REALITY

The only individuals with automatic access to education records are the parent and youth over 18.

Others involved with the child welfare system (e.g., caseworkers, child attorneys, GALs, CASAs, foster parents and caretakers) should be able to gain access in a variety of ways.

How child welfare can gain access to education records:

Parental Consent Child welfare agency

representative or foster parent or caretaker is considered the parent under law

FERPA Exceptions (i.e., Court order granting access)

How child welfare can gain access to education records:

Always should first try and obtain parental consent from birth parent.

FERPA Definition of Parent: includes natural parent, a guardian, or an individual acting as a parent in the absence of a parent or guardian.

Comments to Regulations confirm that foster parents who are acting as a child’s parent qualify.

FERPA Exceptions Other school officials, including teachers,

with legitimate educational interest in the child;

In connection with an emergency, to protect the health and safety of student or other persons;

Officials of other schools when child transferring schools;

State and local authorities within department of juvenile justice;

To comply with judicial order or subpoena.

EDUCATION MYTH

“Unless we receive notice from the parent, we hold no responsibility in getting education records to a new school when a child transfers out of school.”

REALITY

False. Schools must transfer records to a new

school when a student is transferring. This transfer falls under an exception to the FERPA consent requirement.

Now, under Fostering Connections, child welfare agencies have an obligation to see that this transfer occurs for children in care.

CHILD WELFAREMYTH

“We are not obligated to keep education information in our child welfare case files.”

REALITY

False. Child welfare is specifically required to maintain educational information, including school records, in the case plan.

Must keep health and education records as part of written case plan, that includes: Name and address of health and education

provider Grade level performance School record Known medical problems and medications Any other relevant health and education

information Records must be reviewed and updated Must supply records to foster care provider Must supply records to youth exiting care

LAW: Title IV-E of the Social Security Act 42 U.S.C.A. 675(1)(C) & (5)(D)

Mythbusting: Downloadable at http://www.abanet.org/child/education/publications/dataexchange.html

Solving the Data Puzzle: http://www.abanet.org/child/education/publications/solvingthedatapuzzle.pdf

Contact Information

ABA Center on Children and the LawLegal Center for Foster Care and Education

www.abanet.org/child/education

Kathleen McNaughtmcnaughk@staff.abanet.org