FERPA for the Financial Aid Office NCASFAA Fall Conference November 2012

Diane G. Miller Associate General Counsel N.C. State Education Assistance Authority Phone: (919)

Disclaimers

What will we cover in this session? Review FERPA basics Highlight FERPA issues for the financial aid office Discuss your FERPA issues

What is FERPA? Family Education Rights and Privacy Act of 1974 Statute: 20 U.S.C. § 1232g Regulations: 34 C.F.R. Part 99 Policy Guidance: /index.html /index.html

FERPA History FERPA is also known as the “Buckley Amendment” Enacted in 1974 to prevent abuses of student privacy by educational institutions Purpose is to provide students and parents access to their education records Create the opportunity to inspect and correct education records

FERPA – Summary of Rights Generally, a student has a right to: Inspect and review his or her education records Have some control over the disclosure of his or her education records Request an amendment to his or her education records

Does FERPA apply to your institution? Yes – if your institution receives any funds under any program administered by the Secretary of Education

An institution is required to: Annually notify students of their rights under FERPA Inform students of the procedure to exercise their FERPA rights and review their education records Maintain a record of to whom personally identifiable information was disclosed –Does not apply to school officials with a legitimate educational interest –Does not apply to directory information

What does FERPA apply to? “Education records”

What are education records? Directly related to a student - contain personally identifiable information Maintained by an educational agency or institution Records can be in any format Does not include information that is not recorded such as personal knowledge

What is Personally Identifiable Information? Name; Name of the student’s parent or other family members; Address of the student or student’s family; A personal identifier, such as a social security number, student number, or biometric record; and Other indirect identifiers, such as the student’s date of birth, place of birth, and mother’s maiden name.

What is PII? Other information that, alone or in combination, is linked or linkable to a specific student that would allow a reasonable person in the school community, who does not have personal knowledge of the relevant circumstances, to identify the student with reasonable certainty; or Information requested by a person who the educational agency or institution reasonably believes knows the identity of the student to whom the education record relates.

Financial aid records Generally, all financial aid records are education records as defined by FERPA A student’s financial aid status as an applicant or a recipient is FERPA protected information and cannot be disclosed without the student’s consent unless it the disclosure is permitted as an exception under the regulations

Exclusions - Not education records “Sole possession records” Law enforcement records Employment records Treatment records Alumni records (that don’t “relate back”)

When can education records be disclosed? The student provides written consent or The disclosure is made under one of the exceptions in the FERPA regulations

Disclosure with consent Signed and dated written consent (may be electronic) Specify records to be disclosed Purpose for which they may be disclosed To whom they may be disclosed

What information may be released without a student’s consent? Directory information – information contained in an education record that would not generally be considered harmful or an invasion of privacy if disclosed Each institution may designate what non-confidential information is “directory information” Students can request a privacy block regarding their directory information

Disclosures that can be made without student consent Disclosure may be made if it is in connection with financial aid that the student has received or applied for if the information is needed: To determine the amount of the aid To determine the conditions of the aid To determine the students eligibility for the aid or To enforce the terms and conditions of the aid

What are some of the other exceptions that permit disclosure without the student’s consent? Disclosures made to other school officials who have a legitimate interest in the student’s education records A “legitimate education interest” is any authorized interest or activity undertaken in the name of your institution for which access to the education record is necessary or appropriate to the operation of the institution

Additional exceptions Disclosures to parents Disclosures made to comply with a judicial order or lawfully issued subpoena Disclosure to a court in the context of a lawsuit the student brought against the institution or the intuition brought against the student Disclosure in connection with an audit of federal or state supported education programs

What are some other exceptions? Disclosure may be made to organizations that are conducting studies on behalf of institutions Disclosure to accrediting organizations Disclosure may be made to the US Department of Justice in connection with the investigation or prosecution of terrorism crimes Disclosures made as a result of a health or safety emergency

How does FERPA apply to parents? Rights under FERPA are transferred from a student’s parents to the student when the student attends a postsecondary institution FERPA does permit an institution to disclose education records to the student’s parents if the student is a dependent under IRS laws You cannot assume that the student is an IRS dependent

Review and inspection of education records Institutions must comply with request within 45 days. Institutions are generally required to give copies, or make other arrangements for access, only if failure to do so would effectively deny access Institutions may not destroy records if request for access is pending Institutions may charge fee for copying records unless fee would prevent the student from exercising his or her rights Education records that contain information about more than one student may be redacted

Required recordkeeping Keep a record of: –The date of the disclosure –The information disclosed –The person to whom the disclosure was made No record need be kept where the individual requesting the disclosure is the student, a school official with a legitimate educational interest, or a person who has the consent of the student Generally, the record of the disclosure is available to the student

What are some best practices? Assume that all information in your records is a FERPA protected record and may not be disclosed If the information sought is directory information, check to determine if that student’s directory information has a privacy block Be able to specifically articulate and document why information is exempt from FERPA before you disclose

FERPA Caveats Know your institution’s FERPA policies Consult with your attorney as necessary FERPA questions are frequently fact-specific and not easily answered

What are the consequences of violating FERPA? Among other things, the withholding of federal student aid funding

Questions? Comments? Thank you!