On December 24, 2014, the State Department of Education, Bureau of Special Education (the “Bureau”), issued guidance on a school district’s ability to send student records to out-of-district placements proposed by a student’s planning and placement team (“PPT”).  Specifically, the guidance provides that a school district may disclose personally identifiable student information to an out-of-district placement proposed by a PPT without parental consent because, under the Family Educational Rights and Privacy Act (“FERPA”), such proposed placement constitutes a school where the student seeks or intends to enroll.  Under FERPA, parental consent is not required under these circumstances because disclosure of records to a school where the student seeks or intends to enroll is an exception to the general consent requirement.

The Bureau’s guidance comes more than one year after the Family Policy Compliance Office (“FPCO”) interpreted FERPA to permit such disclosure. Letter to Anonymous, 113 LRP 35724 (June 19, 2013).  In Letter to Anonymous, on which the Bureau relies, the FPCO opined that a school district “may disclose personally identifiable information from a student’s education records to a third party (such as another school) in order to make an educational placement” under the Individuals with Disabilities Education Act.  Such disclosure may only be made, however, if the school district includes in its annual FERPA notification a statement that it “discloses education records for this purpose” or if the school district “makes a reasonable attempt to notify the parent in advance of the disclosure.”

School districts in Connecticut should find this guidance helpful in light of the July 2013 revisions to the Connecticut special education regulations regarding out-of-district placements.  The new special education regulations remove the requirement for parental consent for out-of-district placements and the requirement that a school district request a due process hearing when a parent refuses or revokes consent for an out-of-district placement.  The current regulations, read together with the Bureau’s guidance, permit a school district to send student records to proposed out-of-district placements without parental consent.

While parents certainly retain the right to file for due process if they disagree with the program proposed by the school district, we are hopeful that this new guidance will streamline the placement process for students who require an out-of-district placement.  We encourage school districts to review the Department’s guidance, which can be accessed here. We also encourage schools to review their annual notification of rights under FERPA to ensure inclusion of language permitting disclosure of educational records for purposes of enrollment.

If you have questions regarding the Bureau’s guidance or policy language, please contact Gwen Zittoun at gzittoun@goodwin.com or 860-251-5523, or Julie Fay at jfay@goodwin.com or 860-251-5009.

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Photo of Julie C. Fay Julie C. Fay

Julie is co-chair of Shipman’s Education Department, and a partner in the School Law Practice group, where she represents public and independent schools in a variety of special education and general education law matters, with a particular focus on issues relating to students…

Julie is co-chair of Shipman’s Education Department, and a partner in the School Law Practice group, where she represents public and independent schools in a variety of special education and general education law matters, with a particular focus on issues relating to students with disabilities, student discipline, confidentiality, school governance and policy. Julie frequently represents schools in administrative hearings, including expulsion hearings, special education due process hearings and related proceedings, and is often called upon to guide districts in drafting policies and administrative procedures in all education law areas. As part of her practice, Julie has conducted numerous professional development workshops for clients and other school organizations.

Photo of Gwen J. Zittoun Gwen J. Zittoun

Gwen represents boards of education in relation to special education, Section 504, restraint and seclusion, student discipline, board policy development and revision, and general education matters. Gwen frequently speaks on education issues, including privacy and confidentiality of student information, bullying and Section 504.