Dear County and District Superintendents, Special Education Local Plan Area Directors, Special Education Administrators at County Offices of Education, Charter School Administrators, Principals, and Nonpublic School Directors:

Electronic Student Records in Data Systems Used for IDEA Monitoring

The purpose of this notice is to encourage local educational agencies (LEAs) to review their current educational record maintenance practices to ensure students' records, including those records of students with disabilities, are secure, up-to-date and accessible. This is especially important as LEAs use virtual platforms to deliver instruction, rely more heavily on electronic means of communication and more frequently access electronic student data systems to obtain information regarding students. The California Department of Education (CDE) also encourages LEAs to review their educational record maintenance practices in preparation for participation in 2020–21 special education monitoring activities required by the CDE. Despite the challenges presented by the COVID–19 pandemic, the responsibilities, obligations and duties of LEAs, special education local plan areas (SELPAs) and the CDE remain in place and in effect; they have not been waived. And while the CDE’s monitoring activities will continue to comply with all legal requirements due to the unique challenges brought about by COVID-19, the CDE anticipates completing most monitoring activities with LEAs via virtual and remote processes.

Student Records and Family Educational Rights Protection Act

As you know, the Family Educational Rights Protection Act (FERPA) is the federal law that protects the privacy of student records; the Individuals with Disabilities Education Act (IDEA) regulations confirm and reinforce that the records of students with disabilities are subject to the requirements of FERPA. (20 U.S.C. § 1232g; 34 C.F.R. Part 99; 34 C.F.R. §§ 300.610 – 300.577.) FERPA defines "education records" as those records that are directly related to a student and maintained by an educational agency or institution or a party acting for or on behalf of the agency or institution. (20 U.S.C. § 1232g; 34 C.F.R. Part 99, § 99.2.) These records include but are not limited to grades, transcripts, class lists, student course schedules, health records (at the K–12 level), student financial information (at the postsecondary level), and student discipline files. The information may be recorded in any way, including, but not limited to, handwriting, print, computer media, videotape, audiotape, film, microfilm, microfiche, and email1. LEAs are required to protect the confidentiality of students’ records when the records are collected, while the records are maintained, whenever the records are accessed, and anytime the records are disclosed. (34 C.F.R. § 300.623.)

The COVID-19 pandemic has required LEAs to make major shifts in learning and service delivery for all students. These shifts may also include how student records are maintained, updated, accessed and reported. To ensure the accuracy of the information in an LEA’s electronic data system, LEAs are strongly encouraged to maintain accurate, up-to-date information in their computer-based Individualized Education Program (IEP) systems. This is especially important now, given that schools and school districts are working virtually, likely making teachers and staff more reliant on the information in these electronic systems. Pre-COVID–19, teachers and staff could easily share paper copies of documents. Now that classrooms, schools and school districts are educating students in a virtual environment, it is critical that students’ electronic records, including computer-based IEPs, remain accessible and are kept up-to-date.

Student Records and Special Education Monitoring Activities

Virtual and remote monitoring is preferable and more efficient during this time for several reasons:

• Health and Safety–Conducting monitoring activities virtually and remotely and eliminating the need to travel and conduct in-person monitoring activities protects the health and safety of LEA, SELPA, and CDE staff. This approach to monitoring also respects the health and safety orders of the 58 county jurisdictions throughout the State.
  
  
• State and Local Resources–Hardcopy delivery of student records to the CDE is a costly alternative to maintaining and allowing limited, read-only access to an electronic student record. Compliance monitoring is more efficiently accomplished when there is a current electronic student record to access for relevant information, especially given the scarcity of State and local resources as a result of COVID–19.

To facilitate virtual and remote monitoring, the CDE anticipates accessing and reviewing electronic student records housed in LEAs’ student information systems (SIS), including electronic IEP systems. While FERPA prohibits educational agencies such as LEA from disclosing personally identifiable information (PII) from students’ education records without the prior written consent of a parent or eligible student, exceptions to FERPA’s general consent rule applies. Relevant here is the exception that allows State educational authorities such as the CDE to access student records in connection with an audit or evaluation of Federal or State supported education programs, or for the enforcement of or compliance with Federal legal requirements that relate to those programs. (34 CFR 99.35.)

Beginning this year and moving forward, LEAs participating in a monitoring activity will need to provide the CDE with remote, electronic access to LEA-based documentation specific to the particular special education monitoring activity. Required documentation may include the following:

• Individualized Education Programs (IEPs), including signature pages
• IEP meeting invitations
• Prior Written Notice
• Assessment Plans, including parent signatures
• Assessment Reports
• Documents related to a manifestation determination
• Documents related to an expulsion hearing
• LEA policies and procedures
• Other documents, as applicable

The CDE will work collaboratively with LEAs on a suitable process that will allow the CDE to access relevant electronic student records. Once a system has been selected, each LEA will need to provide instructions and any other information (e.g., username, password) to the CDE consultant assigned to the particular monitoring activity2. One option is for LEAs to provide the CDE with temporary, read-only access to an LEA’s electronic student information system. Alternatively, an LEA may provide the CDE with password-protected, read-only electronic access to a distinct folder that contains the relevant documentation. Such a folder could reside within the LEA’s student information system, or in some other secure format accessible online. The electronic files will only be accessed by the CDE, they will not be downloaded by or transferred to the CDE. To be clear, the CDE intends to view, but not download, student-specific information.

In summary, the CDE encourages LEAs to consider their current educational record maintenance practices to ensure that students’ records, including those records of students with disabilities, are secure, accessible and up-to-date. Most LEAs in the State choose to maintain and access student records electronically, and in light of the circumstances created by the COVID–19 pandemic, teachers, service providers, schools, and school districts have likely become more reliant on these electronic record systems. Keeping student records up-to-date benefits both teachers and students. Finally, accuracy of electronic records is also important in the context of special education monitoring activities, for LEAs to demonstrate compliance, and for the CDE to monitor compliance with the IDEA.

If you have any questions regarding this subject, please contact Shiyloh Duncan-Becerril, Administrator I, Special Education Division, by phone at 916-327-3547 or by email at sbecerril@cde.ca.gov.

Sincerely,

Heather Calomese, Director
Special Education Division

HC:sdb

Footnotes

1 More information regarding education records may be accessed at: https://studentprivacy.ed.gov/faq/what-education-record .
2 This will not include compliance complaint investigations or compliance complaint corrective action monitoring.