WSR 16-09-056 PROPOSED RULES WASHINGTON STATE SCHOOL FOR THE BLIND [Filed April 15, 2016, 2:06 p.m.]
Original Notice.
Title of Rule and Other Identifying Information: Chapter 72-280 WAC, Family Educational Rights and Privacy Act.
Hearing Location(s): Washington State School for the Blind (WSSB), 2214 East 13th Street, Vancouver, WA 98661, on June 1, 2016, at 1:00 p.m.
Date of Intended Adoption: June 1, 2016.
Submit Written Comments to: Dean Stenehjem, 2214 East 13th Street, Vancouver, WA 98661, e-mail dean.stenehjem@wssb.wa.gov, fax (360) 737-2120, by May 25, 2016.
Assistance for Persons with Disabilities: Contact Janet Kurz by May 25, 2016, (360) 947-3302 or (360) 696-6321.
Purpose of the Proposal and Its Anticipated Effects, Including Any Changes in Existing Rules: Rule changes update provisions for consistency with the revision in the federal and state regulations implementing the Family Educational Rights Privacy Act and Individuals with Disabilities Education Act.
Statutory Authority for Adoption: RCW 72.40.022.
Statute Being Implemented: RCW 72.40.022.
Rule is necessary because of federal law, 34 C.F.R. Parts 99 and 300.
Name of Proponent: WSSB, governmental.
Name of Agency Personnel Responsible for Drafting: Bonnie Terada, 1220 Main Street, Suite 510, Vancouver, WA 98660, (360) 759-2100; Implementation and Enforcement: Dean Stenehjem, 2214 East 13th Street, Vancouver, WA 98661, (360) 947-3301.
No small business economic impact statement has been prepared under chapter 19.85 RCW. No impact on small business.
A cost-benefit analysis is not required under RCW 34.05.328. WSSB is not subject to RCW 34.05.328 (5)(a)(i).
April 15, 2016
Dean O. Stenehjem
Superintendent
AMENDATORY SECTION (Amending WSR 90-16-010, filed 7/19/90, effective 8/19/90)
WAC 72-280-010 Confidentiality of student records.
The Washington state school for the blind 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)((, and the Education of the Handicapped Act, 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.)); 34 C.F.R. Part 99 (FERPA).
This law establishes that the education records of students attending or having attended the state school for the blind (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.
AMENDATORY SECTION (Amending WSR 90-16-010, filed 7/19/90, effective 8/19/90)
WAC 72-280-011 Definitions.
As used in this chapter:
(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, ((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 or program 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 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;
(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 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;
(v) Records that contain only information relating to an individual after he or she is no longer a student at the school)) the type of records covered under the definition of "education records" in 34 C.F.R. Part 99 (regulations implementing FERPA).
(4) "Eligible student" means a student who has reached eighteen years of age. When a student becomes an "eligible student," the rights accorded to, and the consent required of, parents under this chapter, transfer from the parents to the student.
(5) "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 or biometric records; a list of personal characteristics or other information that would make ((the student's identity easily traceable; or other information that would make the student's identity easily traceable)) it possible to identify the student with reasonable certainty.
(8) "Student" means any individual who is or has been in attendance at the school and regarding whom the school maintains education records.
(9) "Legitimate educational interest" exists if the school official needs to have access to the record in order to fulfill the official's professional responsibility, perform appropriate tasks that are specified in his or her position description or contract agreement, perform a function related to a student's education or discipline, perform a service or benefit relating to the student or student's family, such as health education, counseling, advising, or student employment, or maintain safety and security.
(10) "School official" includes a person employed by the school as a teacher, administrator, supervisor, counselor, support or clerical staff, human resources staff, information systems specialist, school security personnel, a person appointed to the board of trustees, a person with whom the school has contracted to perform a service to or on behalf of the school (such as an attorney, hearing officer, auditor, medical consultant, or therapist), a parent or student serving on an official committee or assisting another school official in performing his or her tasks, or other party to whom the school has outsourced institutional services or functions.
(11) "Participating agency" means any school district, agency or institution which collects, maintains, or uses personally identifiable information, or from which information is obtained in implementing chapters 392-172A and 72-171 WAC (rules for the provision of special education), and includes the OSPI, school districts and other public agencies.
AMENDATORY SECTION (Amending WSR 90-16-010, filed 7/19/90, effective 8/19/90)
WAC 72-280-015 Notice.
The school ((shall)) provides parents ((of student ()) or eligible students(())) currently in attendance with annual notice of their rights under ((this chapter. The notice shall inform parents (or eligible students) of their right to:
(1) Inspect and review the student's education records;
(2) Request amendment of the student's education records to ensure that they are not inaccurate, misleading, or otherwise in violation of the student's privacy or other rights;
(3) Consent to disclosure of personally identifiable information contained in the student's education records;
(4) Obtain a copy of the school's policy on access to and disclosure of education records; and
(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)) FERPA by publication in the parent/student handbook and through these rules.
AMENDATORY SECTION (Amending WSR 90-16-010, filed 7/19/90, effective 8/19/90)
WAC 72-280-020 ((Education records—Parents' (or eligible students') right to inspect.)) Access rights.
(1) ((A parent, eligible student, or representative of the parent has the right to inspect and review the education records of the student.)) The school shall permit parents of students eligible for special education to inspect and review, during school business hours, any education records relating to the student which are collected, maintained, or used by the school under chapters 392-172A and 72-171 WAC. A request by a parent (or eligible student) to inspect and review education records should be made in writing to the director of education. The director of education or designee shall comply with a request promptly and before any meeting regarding an individualized education program or hearing or resolution session relating to the identification, evaluation, educational placement of the student or provision of FAPE to the student, including disciplinary proceedings. The school shall respond, in no case, more than forty-five calendar days after the request has been made.
(2) Where the education record ((or data)) includes information on more than one student, the parent(s) of those students (or the eligible 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 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 student) from exercising the right to inspect and review the student's education records, the school may provide such copies free of charge.)) The right to inspect and review education records under this section includes:
(a) The right to a response from the school to reasonable requests for explanations and interpretations of the records;
(b) The right to request that the school provide copies of the records containing the information if failure to provide those copies would effectively prevent the parent or eligible student from exercising the right to inspect and review the records; and
(c) The right to have a representative of the parent or eligible student inspect and review records.
(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.
(5) A list of the types and locations of education records collected, maintained, or used by the school may be obtained by the parent (or eligible student) at the director of education's office.
AMENDATORY SECTION (Amending WSR 90-16-010, filed 7/19/90, effective 8/19/90)
WAC 72-280-030 ((Education records—))Amendment of records—Hearing on request to amend records.
(1)(a) A parent (or eligible student) who believes that information contained in the education record is inaccurate, misleading, or violates the privacy or other rights of the student, may request the school to amend the information.
(b) ((The right to challenge, under this chapter, shall not be used to contest grades which are correctly recorded.)) A parent (or eligible student) shall not be permitted under this chapter to challenge the validity of grades or other evaluations 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, it shall inform the parent (or eligible student) of the decision and of the right to a ((brief adjudicative proceeding under WAC 72-108-100)) hearing.
(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)) 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 may be conducted by any party, including an official of the school, who does not have a direct interest in the outcome of the hearing. The parent (or eligible 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 eligible student) may, at their own expense, be assisted or represented at the hearing by one or more individuals, including an attorney.
(c) The school will provide a written decision within a reasonable period of time after the conclusion of the hearing. The decision shall be based solely upon the evidence presented at the hearing and include a summary of the evidence presented and the reasons for the decision.
(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))) 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 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 student) of the right to place in the records it maintains on the student a statement commenting on the challenged information or setting forth any 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.
AMENDATORY SECTION (Amending WSR 90-16-010, filed 7/19/90, effective 8/19/90)
WAC 72-280-040 ((Disclosure of personally identifiable information from education records.)) Consent for release of records.
(((1) The school shall not permit access to or the release of education records or personally identifiable information contained there (other than "directory information") without the written consent of the parent (or eligible student) to any party other than the following:
(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;
(b) Officials of another school, school system, or institution of postsecondary education who have requested the records and in which 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 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 subpoena: Provided, That the school makes a reasonable effort to notify the parent (or eligible 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.
(2) Where the consent of a parent (or eligible 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 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 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 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).)) (1) Parental consent must be obtained before personally identifiable information is disclosed to parties, other than officials of participating agencies in accordance with subsection (2) of this section, unless the information is contained in education records, and the disclosure is authorized without parental consent under 34 C.F.R. Part 99.
(2) Except as provided in this section, parental consent is not required before personally identifiable information is released to officials of participating agencies for purposes of meeting a requirement of this part.
(3) Parental consent, or the consent of an eligible student who has reached the age of majority under state law, must be obtained before personally identifiable information is released to officials of participating agencies providing or paying for transition services.
(4) If a parent (or eligible student) so requests, the school shall provide him or her with a copy of the records disclosed.
(5) "Directory information" may be disclosed without the parent's (or eligible student's) prior written consent, unless the parent (or eligible student) notifies the school in writing within ten days of enrollment and thereafter 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.
AMENDATORY SECTION (Amending WSR 90-16-010, filed 7/19/90, effective 8/19/90)
WAC 72-280-050 Safeguards.
(1) The school shall protect the confidentiality of personally identifiable information at collection, storage, disclosure, and destruction stages.
(2) ((A school official shall insure)) The director of education is responsible for assuring the confidentiality of any personally identifiable information.
(3) The school shall maintain, for public inspection, a current listing of the names and positions of those employees within the school who may have access to personally identifiable information.
AMENDATORY SECTION (Amending WSR 90-16-010, filed 7/19/90, effective 8/19/90)
WAC 72-280-055 Record of access.
(((1))) The school shall maintain a record of ((each request for access to and each disclosure of personally identifiable information from the education records of each student.
(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;
(b) The date access was given; and
(c) The legitimate interest or purpose for which the party is authorized to use the records.
(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 72-280-040 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 student;
(b) A school official under WAC 72-280-040 (1)(a);
(c) A party with written consent from the parent or eligible student; or
(d) A party seeking directory information)) parties obtaining access to educational records collected, maintained, or used under this chapter including the name of the party, the date access was given, and the purpose for which the party is authorized to use the records. The agency is not required to keep a record of access by parents, and authorized employees with a legitimate educational interest in the records.
AMENDATORY SECTION (Amending WSR 90-16-010, filed 7/19/90, effective 8/19/90)
WAC 72-280-060 Destruction of information.
(1) Student education records may be destroyed in accordance with state laws and regulations: Provided, That the school shall not destroy any education records if there is an outstanding request to inspect and review the records under this chapter.
(2)(a) The school shall inform parents (or eligible students) when personally identifiable information is no longer needed to provide educational services to the student, or is no longer required to be retained under state or federal law.
(b) At the request of a parent (or eligible 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" means physical destruction or removal of personal identifiers.
REPEALER
The following sections of the Washington Administrative Code are repealed:
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