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FERPA North Carolina/South Carolina Association of Student Financial Aid Administrators Fall Conference. Kochie Richardson Regional Training Executive November 7,2006.

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FERPA North Carolina/South Carolina Association of Student Financial Aid AdministratorsFall Conference

Kochie Richardson

Regional Training Executive

November 7,2006

financial aid staff and privacy issues
Financial-Aid Staff and Privacy Issues:

Balancing Customer Service

with Compliance

  • FERPA: The Family Educational Rights and Privacy Act.
    • Signed into law August 21, 1974.
    • Became effective November 19, 1974.
    • Commonly called the “Buckley Amendment.”
    • 34 CFR Part 99.
      • Appendix A - page 41.
ferpa law changes
FERPA Law Changes
  • Nine amendments.
    • December 31, 1974 to October 26, 2001.
    • First amendment provided definition of “educational agency or institution.”
      • Those that receive U.S. Department of Education funding.
  • More-recent changes.
    • Campus security (1990).
    • War on Terrorism (2001).
for more information on ferpa
For More Information on FERPA
  • Department’s Family Policy Compliance Office.
    • (202) 260-3887
effect of ferpa on the financial aid office
Effect of FERPA on the Financial-Aid Office
  • Rights of parents and eligible students.
    • Rights transfer to students:
      • At age 18.
      • If attending school beyond high school.
      • Students are termed as “eligible students.”
effect of ferpa on the financial aid office8
Effect of FERPA on the Financial-Aid Office
  • Definition of parent.
    • Natural parent.
    • Guardian.
    • Individual acting as a parent in the absence of a parent or guardian.
effect of ferpa on the financial aid office9
Effect of FERPA on the Financial-Aid Office
  • Regulations do not apply when:
    • Student is deceased.
    • Person applied to school but has not attended.
effect of ferpa on the financial aid office10
Effect of FERPA on the Financial-Aid Office
  • Written releases are not required if:
    • School official has legitimate educational interest.
    • Party is in connection with financial aid to student.
    • Audit/evaluation purposes.
    • Judicial order or subpoena.
    • Health and safety emergencies.
    • Others.
effect of ferpa on the financial aid office11
Effect of FERPA on the Financial-Aid Office
  • Two parties have access to student’s education record.
    • The student.
    • Parents of dependent student.
      • Defined in IRS Code, Section 152.
      • School’s release of parents’ financial information to student is not required.
  • Parent/student FAFSA completion.
    • Conflict?
what is written consent
What Is Written Consent?
  • Standards for written consent:
    • Specify the records to be disclosed.
    • State the purpose of the disclosure.
    • Identify to whom the information will be disclosed.
  • Example of student release form.
    • Appendix - page 46-47.
aacrao s guidelines for ferpa
AACRAO’s Guidelines for FERPA
  • Revised 2001 edition available.
    • Guidance about exceptions to student-records disclosure.
    • Members can obtain a copy at a reduced price.
    • Interested non-members can contact AACRAO.
release of directory information
Release of Directory Information
  • Non-personal information that may be disclosed.
    • Not considered harmful or invasion of privacy.
release of directory information16
Release of Directory Information
  • Examples of directory information.
    • Student’s name and address.
    • Telephone listing.
    • E-mail address.
    • Date and place of birth.
    • Dates of attendance.
    • Enrollment status.
    • Degrees, honors and awards received.
release of directory information17
Release of Directory Information
  • Annual notification to students required.
    • Must be made by means likely to inform students.
      • College catalogue.
      • College handbook.
      • School Web site.
  • Student may request that information not be released.
    • Request must be in writing.
  • Example of school’s annual notification.
    • Appendix - page 48-49.
what is an education record
What Is An Education Record?
  • Records, files, documents and other materials containing student-related information.
    • Includes records shared with or accessible to another individual.
    • May be handwritten, print, magnetic tape, film, diskette or some other medium.
    • FERPA does not mandate time frame for retaining.
      • Time frame varies based on the type of record.
      • Department-related records usually are kept for three years.
educational record exceptions
Educational-Record Exceptions
  • Sole-possession records or private notes.
  • Law enforcement or campus-security records.
  • Personnel records.
    • Unless for student employees.
  • Professional-treatment records.
  • Information obtained on a former student.
    • Alumni records.
fsa handbook record requirement
FSA Handbook Record Requirement
  • School must maintain:
    • List of all education records.
    • Location of records.
    • Procedures by which student can review records.
  • For more information, see 2006-07 FSA Handbook.
    • Volume 2, Chapter 9.
record of disclosures
Record of Disclosures
  • FERPA regulations require a record of each disclosure made without written consent.
  • Record must be kept with student’s education records.
  • Each disclosure must include:
    • Names of parties who requested or received the information.
    • The legitimate interest that the parties had.
exceptions to recording disclosures
Exceptions to Recording Disclosures
  • If request was from or disclosure was to:
    • The student, or parent (of an ineligible student).
    • A school official with legitimate educational interest.
    • A party seeking directory information.
    • A party directed by a subpoena with orders that the subpoena not be disclosed.
    • A representative of the U.S. Attorney General investigating or prosecuting terrorism crimes.
ferpa violation penalties
FERPA Violation Penalties
  • Complaint procedures.
    • Written complaints may be filed with Family Policy Compliance Office (FPCO) of the U.S. Department of Education.
    • If FPCO finds a violation, school is notified to correct its actions.
    • If school still fails to comply with FERPA, Secretary can direct no further federal funding.
recent supreme court case
Recent Supreme Court Case
  • Gonzaga University v. John Doe (June 20, 2002).
    • By 7-2 vote, Court ruled that students cannot sue schools that release grades and other personal information improperly.
    • Found that FERPA gives “no specific, individually enforceable rights.”
    • Leaves enforcement to Department of Education, with right to remove federal funding.
special circumstances
Special Circumstances
  • FAO receives various requests for student records.
    • Records must be protected from careless release.
  • Three examples of special circumstances.
    • Subpoenas.
    • Student Employees’ Use of Education Records.
    • Parent Access to a Student’s Education Record.
the subpoena
The Subpoena
  • A command from a court requiring a person’s appearance to provide testimony or evidence.
    • Subpoena duces tecum.
      • Requires documents, papers or other tangible items.
    • Subpoena ad testificandum.
      • Requires person to testify.
  • Bench warrant.
    • Also a court order.
    • Requires person to produce something or testify.
the subpoena27
The Subpoena
  • FERPA requires reasonable effort to notify student of subpoena in advance of records release.
    • Exceptions (school is ordered not to notify student).
      • Federal grand-jury subpoenas.
      • Subpoenas for law-enforcement purposes.
  • Some subpoena powers are limited.
    • Federal district subpoena is valid in all 50 states.
    • State court subpoena only valid in that state.
    • Court must have jurisdiction over the institution for the subpoena to be binding.
the subpoena28
The Subpoena
  • Prior-notification requirement.
    • Student is alerted to possible court action.
    • Allows student to seek legal counsel.
  • Notification must be timely and allow response.
    • Generally allow 14 days for student to respond.
    • Sent by certified mail with return receipt.
    • Sample Notice to Student - page 55.
student employees use of records
Student Employees’ Use of Records
  • Office is responsible for the privacy and confidentiality of student records that student employees use.
  • All employees must understand this responsibility.
  • Recommended use of code of responsibility.
    • New-employee-training tool.
    • Violations and sanctions explained.
    • Sample Code of Responsibility - page 56.
parental access to records
Parental Access to Records
  • Parents have no inherent rights to inspect eligible student’s records.
  • Rights can be modified.
    • Written consent of student.
    • In compliance with subpoena.
    • In connection with health or safety issue.
    • Parent(s) claim student on taxes.
parental access to records31
Parental Access to Records
  • School should have a policy about the release of records to parents.
    • AACRAO indicates school not required to release information.
    • Regulations do not prohibit separated, divorced, or non-custodial parent from accessing student’s records.
      • Court order, state statute, or legal document may state otherwise.
parental access to records32
Parental Access to Records
  • FAFSA instructions ask for information from responsible parent(s).
    • Releasing financial information to non-responsible parent is not recommended.
recent legislative amendments
Recent Legislative Amendments
  • FERPA amendments impact privacy of records.
    • The Jeanne Clery Disclosure of Campus Security and Campus Crime Statistics Act.
    • The Campus Sex Crime Prevention Act (CSPCA).
    • The USA Patriot Act.
    • The Student and Exchange Visitor Information System (SEVIS).
what to do
What to Do?
  • Compliance, customer service and conflict require the financial-aid office to act responsibly.
    • Develop and share a student-record privacy and confidentiality statement for your office.
    • Provide staff training and require a signed statement or code of responsibility from all employees.
    • Attend FERPA conferences/training sessions.
    • Annually complete the NASFAA Self-Evaluation Guide on FERPA.
important ferpa web sites
Important FERPA Web Sites

Membership/subscription may be required to access some of these Web sites

case study 2
Case Study 2
  • Parent calls the FAO to check on daughter’s financial-aid awards.
  • Parent provides student’s name and SSN.
  • Can you provide this type of information?
case study 239
Case Study 2
  • Possible resolution.
    • Yes, can provide information with caution.
    • Follow office’s privacy policy regarding the release of information.
    • Disclose information only with sufficient proof.
      • Student’s signed written release.
      • Student’s dependency status with interested parent.
        • If student is claimed as dependent on parent’s taxes.
case study 4
Case Study 4
  • Parent calls the FAO to check on her daughter’s financial-aid awards.
  • Parent provides student’s name and SSN.
  • Staff member asks if parent is custodial parent.
  • Parent did not complete FAFSA, but contributes to student’s expenses with a PLUS loan.
  • Can you provide this type of information?
case study 441
Case Study 4
  • Possible resolution.
    • Yes, with caution.
    • Although FERPA supports this release of information, school’s policy may require signed release.
    • Refer parent to the student for financial-aid information.
case study 6
Case Study 6
  • Campus Foundation Office calls to confirm financial-aid eligibility of students applying for scholarships.
  • Can you provide this type of information?
case study 643
Case Study 6
  • Possible resolution.
    • Yes, FERPA supports the disclosure of student information in connection with financial aid.
    • Is Foundation Office employee a “school official with legitimate educational interest?”
      • If so, okay to release.
      • If not, request a signed student release.
case study 10
Case Study 10
  • Student requests copy of parents’ tax return.
  • Parents have misplaced their copy.
    • Needed to assist with estimating projected income for new FAFSA.
  • Can you provide this type of information?
case study 1045
Case Study 10
  • Possible resolution.
    • FERPA does not support the release of parent financial information to student.
    • Offer parent/student options for receipt of tax return.
      • Signed parent release to student.
      • Forward tax return directly to parent.
      • Sealed tax return given to student.
      • Refer parent to tax preparer and IRS.
case study 12
Case Study 12
  • SAP letters only state that students are no longer eligible for aid.
  • Various individuals want personally identifiable information (grades).
  • To whom can you disclose this information?
case study 1247
Case Study 12
  • Possible resolution.
    • The student.
      • Following office privacy policies and proof of individual, can discuss grades.
    • The dependent student’s parents.
      • Following office privacy policies, can discuss grades.
      • Determine student is dependent for tax purposes.
      • May want to require written release.
      • May refer parent to student.
case study 1248
Case Study 12
  • Possible resolution (continued).
    • The independent student’s parents.
      • Without written release, do not discuss grades.
      • Refer parent to student.
    • The student’s spouse.
      • Without written release, do not discuss grades.
      • Refer spouse to student.
    • The student’s roommate.
      • Without written release, do not discuss grades.
      • Refer roommate to student.
case study 1249
Case Study 12
  • Possible resolution (continued).
    • The student’s academic adviser.
      • Following privacy policy and annual notification, discuss grades with adviser (if school official).
    • The student’s campus work supervisor.
      • Unless defined as “school official,” do not discuss grades.
      • Could request written student release.
    • The Lions Club Scholarship Committee Chair.
      • FERPA supports the release.
      • Office privacy policy may request a written release from student.
case study wrap up
Case Study Wrap-Up
  • The bottom line.
    • A student’s written release provides the greatest protection from unwarranted breach of privacy!
financial aid staff and privacy issues51
Financial-Aid Staff and Privacy Issues:

Balancing Customer Service

with Compliance