Original Notice.

     Exempt from preproposal statement of inquiry under RCW 34.05.310(4).

     Title of Rule: Chapter 148-280 WAC, Family Educational Rights and Privacy Act of 1974.

     Purpose: To implement federal regulatory changes regarding educational records, resulting from amendments to the Family Educational Rights and Privacy Act, state laws, RCW 13.40.480 and 28A.225.330; and to revise school policy on disclosure of directory information.

     Statutory Authority for Adoption: RCW 72.42.041.

     Statute Being Implemented: 20 U.S.C. § 1232g, RCW 13.40.480 and 28A.225.330.

     Summary: Changes are needed to comply with the federal regulatory changes related to the protection and disclosure of educational records as a result of the amendments to Family Educational Rights and Privacy Act of 1974, 20 U.S.C. § 1232g, its implementing regulations at 34 C.F.R. part 99; amendments to state laws related to school security and sharing of information in the juvenile justice system; and to revise school policy on disclosure of directory information.

     Reasons Supporting Proposal: Required by federal and state law.

     Name of Agency Personnel Responsible for Drafting: Bonnie Y. Terada, Attorney General's Office, 1220 Main Street, Suite 510, Vancouver, WA 98660, (360) 759-2100; Implementation: Dr. John Davis, Interim Superintendent, Washington School for the Deaf, 611 Grand Boulevard, Vancouver, WA 98661-4918, (360) 414-0400; and Enforcement: Superintendent, Washington School for the Deaf, 611 Grand Boulevard, Vancouver, WA 98661-4918, (360) 414-0400.

     Name of Proponent: Washington State School for the Deaf, governmental.

     Rule is not necessitated by federal law, federal or state court decision.

     Explanation of Rule, its Purpose, and Anticipated Effects: The new and revised rules implement the federal regulatory changes related to the protection and disclosure of educational records as a result of the amendments to Family Educational Rights and Privacy Act of 1974, 20 U.S.C. § 1232g and its implementing regulations at 34 C.F.R. part 99. Revisions and new rules are also necessary to implement state laws related to school security and sharing of personally identifiable information within and outside of the school, including other participants in the juvenile justice system. The school policy governing disclosure of directory information is being revised to allow disclosure of certain types of information in education records that is not generally considered harmful, and its release is not considered an invasion of a student's privacy. The revision of policy is consistent with FERPA regulations which require the school to provide public notice to parents and students of the types of personally identifiable information designated as directory information and the right to refuse disclosure of any or all of such information.

     Proposal Changes the Following Existing Rules: As described above.

     No small business economic impact statement has been prepared under chapter 19.85 RCW. No small business impacts have been identified.

     Section 201, chapter 403, Laws of 1995, does not apply to this rule adoption. RCW 34.05.328 does not apply to this rule adoption. The rules are not considered significant legislative rules by the Washington State School for the Deaf.

     Hearing Location: Washington State School for the Deaf, Administrative Conference Room, 611 Grand Boulevard, Vancouver, WA 98661, on September 3, 2003, at 9:00 a.m.

     Assistance for Persons with Disabilities: Contact Judy Smith by August 29, 2003, TTY (360) 414-0401 or (360) 414-0401.

     Submit Written Comments to: Bonnie Terada, Assistant Attorney General, Attorney General's Office, 1220 Main Street, Suite 510, Vancouver, WA 98660, fax (360) 696-6291, by August 29, 2003.

     Date of Intended Adoption: September 3, 2003.

July 2, 2003

Dr. John Davis

Interim Superintendent

OTS-6480.1

AMENDATORY SECTION(Amending WSR 90-16-018, filed 7/19/90, effective 8/19/90)

WAC 148-280-010   Confidentiality of student records.   The Washington school for the deaf implements policy contained in this chapter in compliance with the Family Educational Rights and Privacy Act of 1974, 20 U.S.C. Sec. 1232(g) (FERPA), and the ((Education of the Handicapped Act)) Individuals with Disabilities Education Act (IDEA), 20 U.S.C. ((Secs. 1400 through 1420, this policy has been created:

     (1) To ensure that information contained in student education records is treated in a responsible manner with due regard for the personal nature of such information;

     (2) To ensure the accuracy of information contained in student education records by providing parents (or eligible students) with the opportunity to inspect the records; and

     (3) To ensure the continued confidentiality of such records by establishing procedures governing the release of information contained therein.)) § 1412 (a)(8). These laws establish that the education records of students attending or having attended the school are confidential and can be released only with written permission of the parent (or adult student). The primary rights of parents and adult students under FERPA are:

     (1) To inspect and review education records;

     (2) To request amendment of education records; and

     (3) To have some control over the disclosure of information from education records.

[Statutory Authority: RCW 72.40.022 and 20 U.S.C. §§ 1232(g), 1412 (2)(D), 1414 (a)(1)(B) and 1417(c). 90-16-018, § 148-280-010, filed 7/19/90, effective 8/19/90.]

     (1) "Directory information" means information contained in an education record of a student which would not generally be considered harmful or an invasion of privacy if disclosed. It includes, but is not limited to the student's name, photograph, address, telephone listing, date and place of birth, ((major field of study,)) participation in officially recognized activities and sports, weight and height of members of athletic teams, dates of attendance, ((degrees)) diplomas, honors, and awards received, and ((the most recent)) previous ((educational agency or institution)) school attended.

     (2) "Disclosure" means to permit access to or the release, transfer, or other communication of education records, or the personally identifiable information contained in those records, to any party, by any means, including oral, written, or electronic means.

     (3) "Education records" means those records, files, documents, and other materials that are:

     (a) Maintained by the school; and

     (b) Directly related to a student.

     The term "education records" does not include:

     (i) Records of ((instructional, supervisory, and administrative personnel and educational personnel ancillary to those persons)) school staff that are kept in the sole possession of the maker of the record, and are not accessible or revealed to any other person except a temporary substitute for the maker of the record;

     (ii) Records ((of the school security department that are kept apart from education records, maintained solely for law enforcement purposes, and are not available to persons other than law enforcement officials of the same jurisdiction)) created and maintained by school security or the law enforcement unit of the school;

     (iii) ((In the case of persons who are employed by but do not attend the school,)) Records made and maintained in the normal course of business which relate exclusively to such person in that person's capacity as an employee and which are not available for ((use for)) any other purpose: Provided, That this exception ((from the definition of "education records")) does not apply to records relating to an individual in attendance at the school who is employed as a result of his or her status as a student;

     (iv) Records on a student who is eighteen years of age or older that are created and maintained by a physician, psychiatrist, psychologist, or other recognized professional or paraprofessional acting in his or her professional or paraprofessional capacity, or assisting in that capacity and that are created, maintained, or used only in connection with the treatment of the student; and are not available to anyone other than persons providing such treatment; provided, however, that such records can be personally reviewed by a physician or other appropriate professional of the student's choice; and

     (v) Records that contain only information relating to an individual after he or she is no longer a student at the school.

     (4) "((Eligible)) Adult student" means a student who has reached eighteen years of age. When a student becomes an "((eligible)) adult student," the rights accorded to, and the consent required of, parents under this chapter transfer from the parents to the student.

     (5) "Legitimate educational interest" means the necessity to review educational records in order to fulfill professional responsibility, perform a function related to a student's education or discipline, or maintain safety and security.

     (6) "Parent" means a parent of a student and includes a natural parent, a guardian, or an individual acting as a parent in the absence of a parent or guardian.

     (((6) "Party" means an individual, agency, institution, or organization.))

     (7) "Personally identifiable information" includes, but is not limited to the student's name; the name of the student's parent or other family member; the address of the student or student's family; a personal identifier, such as the student's Social Security number or student number; a list of personal characteristics that would make the student's identity easily traceable; or other information that would make the student's identity easily traceable.

     (8) (("Student" means any individual who is or has been in attendance at the school and regarding whom the school maintains education records.)) "School official" includes a person employed by the school as a teacher, administrator, supervisor, counselor, support staff member (including health or medical staff and law enforcement unit personnel), a person serving on the school board of trustees, a person with whom the school has contracted to perform a special task (such as an attorney, auditor, medical consultant, or therapist), or a parent or student serving on an official committee or assisting another school official in performing his or her tasks.

[Statutory Authority: RCW 72.40.022 and 20 U.S.C. §§ 1232(g), 1412 (2)(D), 1414 (a)(1)(B) and 1417(c). 90-16-018, § 148-280-011, filed 7/19/90, effective 8/19/90.]

     (5) File with the United States Department of Education a complaint concerning alleged failures to comply with the requirements of the Family Educational Rights and Privacy Act)) as defined by FERPA by publication in the parent/student handbook.

[Statutory Authority: RCW 72.40.022 and 20 U.S.C. §§ 1232(g), 1412 (2)(D), 1414 (a)(1)(B) and 1417(c). 90-16-018, § 148-280-015, filed 7/19/90, effective 8/19/90.]

     (2) Where the education record or data includes information on more than one student, the parent(s) of those students (or the ((eligible)) adult students) shall have the right to inspect and review only the information relating to their child (or themselves) or to be informed of that specific information.

     (3) The parent (or ((eligible)) adult student) has the right to obtain copies of the student's education records. Charges for the copies shall not exceed the cost normally charged by the school. However, if the fee effectively prevents the parent (or ((eligible)) adult student) from exercising the right to inspect and review the student's education records, the school may provide such copies free of charge.

     (4) The school may presume that a parent has authority to inspect and review records relating to his/her child unless the school has been advised that ((the parent does not have the authority under applicable state law governing such matters as guardianship, separation, and dissolution)) there is a court order, parenting plan, or legally binding document relating to such matters as dissolution, separation, guardianship, or custody that specifically revokes these rights.

     (5) The parent (or adult student) has the right to a response from the school to reasonable requests for explanations and interpretations of the records.

[Statutory Authority: RCW 72.40.022 and 20 U.S.C. §§ 1232(g), 1412 (2)(D), 1414 (a)(1)(B) and 1417(c). 90-16-018, § 148-280-020, filed 7/19/90, effective 8/19/90.]

     (2) A request by a parent (or ((eligible)) adult student) ((for review of information)) to inspect and review education records should be made in writing to the ((individual or office having custody of the record)) supervising teacher K-12 (i.e., building principal).

     (3) The ((custodian of the record)) supervising teacher K-12 or his/her designee shall respond to reasonable requests for inspection, explanation, and interpretation of education records within forty-five days from the date the request was received and before any meeting regarding an individualized education program or hearing relating to the identification, evaluation, or placement of the student. If the ((records custodian)) supervising teacher K-12 is unable to comply with a request within the above stated period, he or she shall inform the parent (or ((eligible)) adult student) of that fact and the reasons in writing.

[Statutory Authority: RCW 72.40.022 and 20 U.S.C. §§ 1232(g), 1412 (2)(D), 1414 (a)(1)(B) and 1417(c). 90-16-018, § 148-280-025, filed 7/19/90, effective 8/19/90.]

     (b) ((The right to challenge, under this chapter, shall not be used to contest grades which are correctly recorded.)) A parent (or adult student) shall not be permitted under this chapter to challenge the validity of grades which are accurately recorded.

     (2) The school shall decide whether to amend the record as requested within a reasonable time after receipt of the request.

     (3) If the school decides ((not to amend the record as requested)) to deny the request, it shall inform the parent (or ((eligible)) adult student) of the decision and of the right to a ((brief adjudicative proceeding under WAC 148-108-100.

     (4) The school shall, on request, provide an opportunity for a brief adjudicative proceeding to challenge information in the education record on the grounds provided for in subsection (1) of this section.

     (5) For the purpose of this chapter:

     (a) The decision of the brief adjudicative proceeding must be based solely on the evidence presented at the brief adjudicative proceeding and must include a summary of the evidence and the reasons for the decision.

     (b) The parent (or eligible student) may, at their own expense, be assisted or represented by one or more individuals of his or her choice, including an attorney. Where the parent (or eligible student) is represented by an attorney, the school may be represented by an assistant attorney general.

     (6))) hearing. The hearing shall be a brief adjudicative proceeding.

     (4) The school will conduct a hearing within a reasonable time after it has received the request for a hearing.

     (a) Notice of the date, time and place shall be provided reasonably in advance of the hearing.

     (b) The hearing will be conducted by a hearing officer who is a disinterested party. This hearing officer may be a school official. The parent (or adult student) shall be afforded a full and fair opportunity to present evidence relevant to the issues raised in the original request to amend an education record. The parent (or adult student) may, at their own expense, be assisted at the hearing by one or more individuals, including an attorney.

     (c) The hearing officer will prepare a written decision based solely on the evidence presented at the hearing. The decision will include a summary of the evidence presented and the reasons for the decision.

     (5) If, as a result of the ((brief adjudicative proceeding)) hearing, the school decides that the information is inaccurate, misleading, or otherwise in violation of the privacy or other rights of the student, it shall amend the information accordingly and so inform the parent (or ((eligible)) adult student) in writing.

     (((7))) (6) If, as a result of the ((brief adjudicative proceeding)) hearing, the school decides that the information is not inaccurate, misleading, or otherwise in violation of the privacy or other rights of the student, it shall inform the parent (or ((eligible)) adult student) of the right to place in the record((s it maintains on the student)) a statement commenting on the challenged information and/or ((setting forth any)) a statement of the parent's (or adult student's) reasons for disagreeing with the decision of the school((, (or both))).

     (((8))) (7) Any explanation placed in the records of the student under this section must:

     (a) Be maintained by the school as part of the records of the student as long as the record or contested portion is maintained by the school; and

     (b) Be included with any disclosure of the record or contested portion to which the explanation relates.

[Statutory Authority: RCW 72.40.022 and 20 U.S.C. §§ 1232(g), 1412 (2)(D), 1414 (a)(1)(B) and 1417(c). 90-16-018, § 148-280-030, filed 7/19/90, effective 8/19/90.]

     (a) School officials((, including teachers, when the information is required for a legitimate educational interest within the performance of their responsibilities to the school, with the understanding that its use will be strictly limited to the performance of those responsibilities)) who have a legitimate educational interest in the records;

     (b) Officials of another school, school system, or institution of postsecondary education ((who have requested the records and in which)) where the student seeks or intends to enroll((, upon condition that:

     (i) The parent (or eligible student) be notified of the transfer (unless the disclosure is initiated by the parent or eligible student);

     (ii) The parent (or eligible student), upon request, receive a copy of the record that was disclosed; and

     (iii) The parent (or eligible student), upon request, receive an opportunity for a brief adjudicative proceeding)). Pursuant to RCW 28A.225.330, records disclosed under this subsection will include disciplinary action, violent behavior or behavior listed in RCW 13.04.155, attendance, immunization records, and academic performance. The school shall provide the parent (or adult student), upon request, with a copy of the records disclosed and an opportunity for a hearing to challenge the content of the record;

     (c) Federal and state officials requiring access to education records in connection with the audit and evaluation of a federal or state-supported education program, or in connection with the enforcement of or compliance with federal or state legal requirements which relate to such programs((. In such cases the information required shall be protected by the federal or state official in a manner which will not permit the personal identification of students and their parents to other than those officials and such personally identifiable data shall be destroyed when no longer needed for such audit, evaluation, or enforcement of legal requirements));

     (d) Organizations conducting studies for, or on behalf of the school, for purposes of developing, validating, or administering predictive tests, administering student aid programs, and improving instruction: Provided, That the study is conducted in such a manner that does not permit the personal identification of parents and students by persons other than representatives of such organizations, and such information is destroyed when no longer needed for the purposes for which it was provided;

     (e) Accrediting organizations in order to carry out their accrediting functions;

     (f) Any person or entity designated by judicial order or ((lawfully-issued)) lawfully issued subpoena: Provided, That the school shall make((s)) a reasonable effort to notify the parent (or ((eligible)) adult student) ((of the order or subpoena)) in advance of compliance((. Any school employee receiving a subpoena or judicial order for education records should immediately notify the attorney general;

     (g) Those individuals or agencies to which a release of information without consent is permitted by the rules that implement the Family Educational Rights and Privacy Act of 1974, 34 C.F.R. Secs. 99.31 through 99.37)), unless such notification and disclosure is specifically prohibited by an order of the court or other issuing agency or the order has been issued ex parte.

     (i) If the school initiates legal action against a parent or student, the school may disclose to the court, without a court order or subpoena, the education records of the student that are relevant and necessary for the school to proceed with the legal action.

     (ii) If a parent or student initiates legal action against the school, the school may disclose to the court, without a court order or subpoena, the student's education records that are relevant and necessary for the school's defense;

     (g) State and local officials or authorities if specifically required by state law adopted before November 19, 1974, or if reporting or disclosure concerns the juvenile justice system and the system's ability to effectively serve the student prior to adjudication;

     (h) Appropriate persons in connection with a health or safety emergency if knowledge of such information is necessary to protect the health or safety of a student or other individuals;

     (i) Teachers and school officials in other schools and school districts, and teachers, security personnel and other personnel at the Washington school for the deaf who have a legitimate educational interest in the behavior of the student when the information concerns disciplinary action taken against the student for behavior that posed a significant risk to safety or well-being of that student, other students, or other members of the school community, or a history of violent behavior or behaviors listed in RCW 13.04.155. "Disciplinary action" means the investigation, adjudication or imposition of sanctions by the school for an infraction or violation of the student conduct code.

     (2) Where the consent of a parent (or ((eligible)) adult student) is obtained for the release of education records, it shall be in writing, signed and dated by the person giving such consent, and shall include:

     (a) A specification of the records to be released;

     (b) The reasons for such release; and

     (c) The names of the parties to whom such records will be released.

     (3) When a disclosure is made under subsection (2) of this section, if a parent (or ((eligible)) adult student) so requests, the school shall provide him or her with a copy of the records disclosed.

     (4) Personally identifiable education records released to third parties, with or without parent (or ((eligible)) adult student) consent, shall be accompanied by a written statement indicating that the information cannot be subsequently released in a personally identifiable form to any other party without the prior consent of the parent (or ((eligible)) adult student).

     (5) ((Unless otherwise prohibited by law, information from education records may be released to appropriate persons in connection with an emergency if knowledge of such information is necessary to protect the health or safety of a student or other person(s).)) "Directory information" may be disclosed without the parent's (or adult student's) prior written consent, unless the parent (or adult student) notifies the school in writing by the tenth day of the academic year that he or she does not want any or all of the student's information to be designated as directory information.

[Statutory Authority: RCW 72.40.022 and 20 U.S.C. §§ 1232(g), 1412 (2)(D), 1414 (a)(1)(B) and 1417(c). 90-16-018, § 148-280-040, filed 7/19/90, effective 8/19/90.]

     (2) The school shall maintain the record with the education records of the student as long as the records are maintained.

     (3) For each request or disclosure the record must include:

     (a) The name of the party who had requested or received information;

     (b) The date access was given; and

     (c) The legitimate interest or purpose ((for which the party is authorized to use the records)) the party has in requesting or obtaining the information.

     (4) If the party receiving personally identifiable information makes further disclosures of the information on behalf of the school, the record must include:

     (a) The names of additional parties to which the receiving party may disclose the information; and

     (b) The legitimate interests under WAC 148-280-040 which each of the additional parties has in requesting or obtaining the information.

     (5) Subsection (1) of this section does not apply if the request was from, or the disclosure was to:

     (a) The parent or ((eligible)) adult student;

     (b) A designated school official with a legitimate educational interest under WAC 148-280-040 (1)(a);

     (c) A party with written consent from the parent or ((eligible)) adult student; ((or))

     (d) A party seeking directory information; or

     (e) A party seeking or receiving records as directed by a federal grand jury or other law enforcement subpoena and the issuing court or other issuing agency has ordered that the existence or the contents of the subpoena or the information furnished in response to the subpoena not be disclosed.

[Statutory Authority: RCW 72.40.022 and 20 U.S.C. §§ 1232(g), 1412 (2)(D), 1414 (a)(1)(B) and 1417(c). 90-16-018, § 148-280-055, filed 7/19/90, effective 8/19/90.]

     (2)(a) The school shall inform parents (or ((eligible)) adult students) when personally identifiable information is no longer needed to provide educational services to the student.

     (b) At the request of a parent (or ((eligible)) adult student), the school shall destroy personally identifiable information. However, the school may maintain a permanent record of the student's name, address, phone number, grades, attendance record, classes attended, grade level completed, and year of completion without time limitation.

     (3) For the purpose of this section, "destruction" shall mean physical destruction or removal of personal identifiers.

[Statutory Authority: RCW 72.40.022 and 20 U.S.C. §§ 1232(g), 1412 (2)(D), 1414 (a)(1)(B) and 1417(c). 90-16-018, § 148-280-060, filed 7/19/90, effective 8/19/90.]

     The following sections of the Washington Administrative Code are repealed:

WAC 148-280-050	Safeguards.
WAC 148-280-070	Directory information.

© Washington State Code Reviser's Office