Dear Legal Mailbag:

In my school, we have a long-standing practice of teachers covering classes for one another when there are not enough substitutes. As a result, I often find myself leaving my chemistry lab classroom to teach English, or Spanish, or even PE. As such, I feel like I teach all of the students in my building at some point in the year.

In our population, we have a variety of students with specific special needs – Autism spectrum disorders, food allergies, wheelchairs, and even a seizure disorder. Some of them work individually, and a couple have one-to-one support, but they all have their own individual plans. However, access to such plans is closely guarded and limited only to teachers on whose class rosters those students appear; staff members are actively discouraged from sharing plans of students with teachers who don’t actually teach those students. FERPA is always cited as the reason for this prohibition. However, it would make my life (and job) a lot easier if I had access, since I inevitably do teach those students sometime in the year. Couldn’t the case be made that ANYONE on the staff would have a need, even a responsibility, to have access to such information? I’m not trying to be nosy, but I think it would help me better support the needs of those students and work within what is best for them. What does the law say?

Frustrated with FERPA

Dear Frustrated:

As you know, the Family Educational Rights and Privacy Act, i.e., FERPA, protects the confidentiality of student records. But Legal Mailbag must say that FERPA should not be interpreted to prevent teachers who work with students with special needs on an ad hoc basis from seeing IEPs, Section 504 plans and the like. Conversely, the information should not be shared unless and until a teacher serves as a substitute and may need the information. In any event, a practice of keeping such documents confidential from teachers who serve as substitutes could cause problems down the road.

FERPA provides that personally-identifiable information in student records must be kept confidential. But that requirement is not absolute. As you note, teachers who have these students on their class rosters have access to certain records that address the special needs of these students. Such access is consistent with FERPA, which provides that confidential student information may be released without parent consent in a number of different situations, such as when the information is subpoenaed or is needed to address a health or safety emergency.

The FERPA provision that addresses teacher access to student information is described in the FERPA regulations as follows:

a) An educational agency or institution may disclose personally identifiable information from an education record of a student without the consent required by §99.30 if the disclosure meets one or more of the following conditions:
(1)(i)(A) The disclosure is to other school officials, including teachers, within the agency or institution whom the agency or institution has determined to have legitimate educational interests.
34 Code of Federal Regulations § 99.31(a)(1)(i)(A). The question is whether and when a teacher or other school official has “legitimate educational interests” in the information.

That same FERPA regulation elaborates on this requirement as follows:

(ii) An educational agency or institution must use reasonable methods to ensure that school officials obtain access to only those education records in which they have legitimate educational interests. An educational agency or institution that does not use physical or technological access controls must ensure that its administrative policy for controlling access to education records is effective and that it remains in compliance with the legitimate educational interest requirement in paragraph (a)(1)(i)(A) of this section.

We see from this provision that school districts should have controls and procedures to keep school records secure and confidential. However, school officials with a legitimate educational interest in student records should still have access to the school records they need to do their jobs. The challenge is to know when a teacher has such a legitimate educational interest.

Legal Mailbag does not have all the facts here, and thus Legal Mailbag cannot tell you specifically who should have access to what records. However, some general observations and a recommendation may be helpful. First, teachers substituting for other teachers have a legitimate educational interest in records that would notify them of any special needs of the students whom they teach. Second, if such teachers do not have access to information that they reasonably should have to keep students safe, liability can result. For example, if a student has a Section 504 plan because of a significant allergy and a substitute is not aware of the related danger to the student, the district could be held liable for harm caused if the substitute teacher does not properly supervise students as they share food. Similarly, certain interventions with a child on the spectrum may trigger vehement reactions that can be and should be avoided by providing proper notification of the sensitivity to the substitute teacher. Teachers should have the information they need to do their jobs properly, whether they are the regularly-assigned teacher or a substitute teacher.

Given the potential need for substitutes to have such information, some districts ask that teachers maintain a folder for substitutes that contains information on the special needs of their students. There may be situations in which substitutes need more information, such as access to the complete IEPs of students or to their behavior plans. However, summary information in a “substitute’s folder” to provide notice to substitutes of students’ special needs would be a good start, and the need for further information can be assessed from there.