STATE BOARD OF EDUCATION – ADMINISTRATIVE RULE SUMMARY Title/OAR #: Date: 5/17 /2012 Access to Student Education Records/OAR 581-015-2300 Confidentiality of Records for Preschool Children with Disabilities/581-015-2770 Staff/Office: Cindy Hunt/Superintendent’s Office, Claudette /Claudette Rushing/OSL&P New Rule....... Amend Existing Rule...... Repeal Rule Hearing Date: ___April 25, 2012__________________ Hearings Officer Report Attached Prompted by: State law changes Federal law changes Other Action Requested: First Reading/Second Reading Agenda Adoption of Temporary Rule Adoption/Consent PROPOSED/AMENDED RULES SUMMARY: The proposed revisions of 581-015-2300 and 581-015-2770 are intended to clarify that both the Family Education Rights and Privacy Act (FERPA) and the Individuals with Disabilities Education Act (IDEA) apply to the education records of children with disabilities, birth to twenty-one. Timelines for parental access to these records differ by age of the child. BACKGROUND: FERPA protects the privacy interests of parents and eligible students and children related to education records. IDEA includes specific references to FERPA. However, IDEA does not simply restate FERPA, but includes several additional safeguards specifically for the records of children with disabilities under IDEA. Both sets of regulations are needed to guide appropriate protection of personally identifiable information throughout the life of the records. The revisions are requested to help ensure that the most recent regulations are the basis of decisions related to records for children with disabilities under IDEA. ISSUES/CONCERNS THAT SURFACED DURING RULE WORK: The most recent FERPA revision became effective in January 2012. There are no issues or concerns. No comments have been received for these rules. The Department held a public hearing on April 25, 2012 and no commentary was received at that time. The hearing report is attached. CHANGED SINCE LAST BOARD MEETING? N/A; first read—hasn’t been before board No; same as last month Yes – As follows: FISCAL IMPACT: Rule does not have fiscal impact beyond the statute STAFF RECOMMENDATION: Adopt administrative rule as prepared this month Adopt administrative rule next month No recommendation at this time (rarely used) Comments: Staff recommended acceptance of revised OARs to ensure that Division 15 OARs implementing federal regulations conform to IDEA requirements. In this case those requirements include by reference regulations not contained in Division 15. These rules were adopted as temporary rules at the March State Board meeting, and it was recommended that they become permanent rules in May. The first reading for them as permanent rules was at the April Board meeting. These rules are now up for adoption permanently. 1 Created by CH on 2/24/12 and Revised by CR on 2/27/12 Procedural Safeguards 581-015-2300 Access to Student Education Records (1) For purposes of ensuring the safeguards required for education records of children with disabilities, including early intervention and early childhood special education records, the Department adopts by reference the provisions of FERPA, 34 CFR 99.1 to 99.38, the IDEA, 34 CFR 300.610 to 34.300.627 and 34 CFR 303.401 through 303.416. (a) For children with disabilities under age three, references to a “student” in these rules means an infant or toddler with a disability. (b) For children with disabilities under age three, “student records” means early intervention records. (2) The program, district, agency, or contractor must comply with a parent’s request to inspect and review records without unnecessary delay and within the following timelines: (a) For children under age three, before any meeting regarding an IFSP, or any hearing pursuant to 303.430(d) and 303.435 through 303.439, and in no case more than 10 days after the request has been made. (b) For children over the age of three, before any meeting regarding an IEP/IFSP, or any due process hearing pursuant to 34 CFR 300.507, or resolution session pursuant to 34 CFR 300.510, related to a due process hearing, and in no case more than 45 days after the request has been made. (3) School districts, and EI/ECSE programs and contractors, must give parents of children with disabilities an opportunity to examine all student education records in accordance with OAR 581-015-2300 as noted above. Stat. Auth.: ORS 343.041, 343.155 Stats. Implemented: ORS 343.155, 343.173, 34 CFR 300.501, 34 CFR 300.610-627, 34 CFR 303.400-303.416, 34 CFR 300.510, 34 CFR 300.507, 34 CFR 300.530 Hist: ODE 4-2000, f. & cert. ef. 2-1-00; ODE 6-2003, f. 4-29-03, cert. ef. 4-30-03; Renumbered from 581-015-0606, ODE 10-2007, f. & cert. ef. 4-25-07 581-015-2770 Confidentiality of Records for Preschool Children with Disabilities Contractors and subcontractors must follow the rules and procedures in OAR 581-015-2300 and 34 CFR 303.400 through 303.420 for confidentiality of records for preschool children with disabilities with the following exception: "School district" means contractors or subcontractors. Stat. Auth.: ORS 343.475, 343.485 Stats. Implemented: ORS 343.485 Hist.: EB 23-1992, f. & cert. ef. 6-23-92; ODE 24-2000, f. & cert. ef. 10-16-00; Renumbered from 581-015-1010, ODE 10-2007, f. & cert. ef. 4-25-07 BEFORE THE OREGON DEPARTMENT OF EDUCATION RULE HEARING: OAR 581-015-2300 and 2770, Student Education Records HEARING OFFICER’S REPORT 2 The Department held a public hearing on April 25, 2012, to receive public comment on the proposed rule amendments. Notice of hearing was published in a timely manner in the Secretary of State’s bulletin and was sent to interested parties and persons who requested notice pursuant to ORS 183.335 (7). The hearing was held at the Department’s offices in Salem, Oregon before Cindy Hunt, Hearing Officer. No one testified and no one submitted written testimony. Respectfully submitted this 25th day of April, 2012 3