 The Supreme Judicial Court of Massachusetts, in Champa v. Weston Public Schools (SJC 11838) (October 23, 2015) recently decided that private settlement agreements between public school districts and parents, once redacted of personally identifiable information, are public records subject to disclosure. Previously, many school districts believed that disclosure of settlement agreements violated the Federal Educational Rights Privacy Act (FERPA) and its Massachusetts equivalent.
Settlement agreements are a frequent dispute resolution mechanism parents and districts utilize to avoid the time and cost of litigation. One of the standard terms of a settlement agreement is a confidentiality clause. It will be interesting to see what, if any, effect this decision has on special education disputes going forward. Will Districts continue to insist on confidentiality in settlement agreements? Will clients decide to request settlement agreements to compare their outcome against the work of another attorney or law firm and then possibly pursue malpractice actions? What information will be considered “personally identifiable?” (Arguably, more than a student's name will need to be redacted as it would be fairly easy to confirm the identity of the student simply by cross-referencing the name of the special education placement and the school district). In my opinion, this decision is a win for the press, a loss for school districts and a toss-up for parents and students. Parents are now entitled to more information about deals offered to other parents, but Districts may now be more reluctant to offer a concession to Parents if they know that compromise could be broadcast throughout the community. The District’s increased reluctance to settle, combined with the decreased protections for student’s educational records, may ultimately result in a loss for students. For more information about special education settlement agreements, student's educational privacy rights, and disputes with public school districts, contact the Massachusetts law firm of Lillian E. Wong today.
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 The Question Parents and educational advocates often ask me what to do when a teacher is "bullying" a student. Massachusetts' Bullying Law Many people are surprised to learn that the Massachusetts Anti-Bullying law does not apply when teachers are "bullying" students. The Massachusetts Anti-Bullying law defines a "bully" as a "student," making it legally impossible for the teacher to be labeled a bully under this statute. Reframing the Question Just because the anti-bullying law does not apply to teacher/student interactions, doesn't mean the teacher is acting appropriately. When I'm told a teacher is bullying as student I always ask for a more detailed description about the teacher's actions. Is the teacher refusing to implement the student's IEP or 504 accommodations? Then the teacher is denying the child a Free Appropriate Public Education (FAPE). Is the teacher continually making fun of the child's known or perceived disability? Then the teacher has committed disability-based harassment and discrimination. Is the teacher impermissibly sharing confidential information about the student? Then the teacher is violating the child's privacy rights under FERPA. Getting Help Before any parent makes allegations against a teacher, it's important to have a clear understanding of what events took place and what laws are implicated. It's also useful to corroborate reports of teacher "bullying" and provide supporting documentation to the school. If you have questions about the laws governing teacher/student interactions, contact the Boston area law office of Lillian E. Wong today.  Having a copy of your child's educational records is an important parental right, especially if you are in a dispute with the school. Educational records are broadly defined and can be thousands of pages. Read more about requesting educational records here. How much can the school charge for a copy of the record? Federal and Massachusetts law require that the copy fee be reasonable, no more than the school's actual cost, and not so high that it effectively prevents the parents from exercising their right to inspect and review those records. How much is a reasonable rate in Massachusetts? There is no state-wide policy in Massachusetts; rates vary by district. Here's some guidance: - 10 Cents? In 2004, a Hearing Officer upheld a 10 cents per page fee as reasonable for an individual making $500/month. - 20 Cents? In 2005, the Massachusetts Department of Education contemplated a 20 cents per page fee as reasonable, guided (but not governed) by the maximum allowable fee for copies of public records. - 25 Cents or MORE? Since 2009, the maximum allowable fee for copies of public records in Massachusetts has been 20 cents per page for photocopies and 50 cents per page for computer printouts. While this rule does not govern educational records, it might be considered persuasive by a hearing officer. So how to I get a copy of my child's records without breaking the bank? - Ask for a copy of the District's fee policy before you request copies of your child's records. - Specify what type of documents you want copies of (IEPs, discipline reports, evaluations) and what documents you don't need (attendance, immunization reports, report cards, anything more than four years old). - Before the school begins copying, ask for a detailed fee estimate. If you believe the fee is too high, try negotiating with the school. If that doesn't work, contact the Boston area Law Office of Lillian E. Wong today.  If you are in a dispute with the school, want to learn more about your child's educational history (attendance, discipline, testing, etc.), or if you just want to make sure your copy of the records is complete, you should request to review and or receive a copy your child's educational records. Always make the request in writing, and be as specific as possible about what information you want. If you only want the last two years of records or only want to see discipline records make sure you let the school know. Do you have a right to this information? Yes. The Federal Educational Rights Privacy Act (FERPA) grants parents the right to inspect, review, and receive a copy of their child's educational records. What are educational records? FERPA defines "educational records" as records that are: 1) directly related to a student and 2) maintained by an education agency or institution or by a party acting for the agency or institution. 34 CFR 99.3. Education records may be recorded in any manner, including, but not limited to, handwriting, print, computer media, video or audio tape, film, microfilm, or microfiche. Id. So what does that mean? Your child's educational records might not just be in one school file. Email correspondences about your child might be stored on the school's server. Handwritten IEP meeting notes might be in a teacher's notebook. Phone logs might be kept in the secretary's office. How long does the school have to respond? Districts must respond in a "reasonable" time, but in no more than 45 days. What is reasonable depends on the nature, amount, and the location of the records you are requesting. Can the school charge me for copies? Yes. The school can charge a reasonable rate for copies, as long as that fee doesn't effectively preclude a parent from accessing the records. The school cannot charge for the cost of retrieval. It's always a good idea to ask what the fee is for copies and approximately how many copies will be made, before the school sends you the bill. Learn more about FERPA rights here. If you need help requesting your child's educational records, contact Boston area attorney Lillian E. Wong today.  Background I recently wrote an article called Education Law and ADD/ADHD Medication. In that article, I addressed whether it was legal for schools to require ADD/ADHD medication, whether teachers could talk to parents about ADD/ADHD medication, and whether schools could refuse to administer ADD/ADHD medication. Read that article here. The Question After reading that article, readers had one remaining question - is it permissible for my child's teacher to talk to him or her about their medication? The Answer It depends on whether the conversation is private. If the teacher is asking your child about taking ADD/ADHD medication in front of other students or parents, the teacher is arguably violating the Federal Educational Rights and Privacy Act (FERPA). FERPA mandates that personal information, like what medication a student takes, may only be disclosed if there is a legitimate educational interest in the disclosure. FERPA also provides exceptions for disclosure in emergency situations. If the conversation is private, the teacher has acted appropriately. If you have questions about the rights of children with ADD/ADHD, contact the Boston area Law Office of Lillian E. Wong today.  Special Education Law is all about acronyms. Here are the most important ones: BSEA: Bureau of Special Education Appeals C.F.R.: Code of Federal Regulations E.I.: Early Intervention ESY: Extended School Year FAPE: Free Appropriate Public Education FERPA: Family Educational Rights and Privacy Act IDEA: Individuals with Disabilities Education Act of 2004 IEE: Independent Evaluation IFSP: Individualized Family Service Plan IEP: Individualized Educational Plan LEA: Local education agency or school district LRE: Least Restrictive Environment LEP: Limited English Proficient M.G.L: Massachusetts General Laws OCR: Office of Civil Rights RTI: Response to Intervention SEA: State Department of Education SLD: Specific Learning Disability U.S.C.: United States Code  This question was posted on Avvo.com by an individual in Melville, NY. Here is my response: FERPA stands for the Family Educational Rights and Privacy Act. It gives parents the right to inspect, review, and receive a copy of their child's educational records. Under the law, parents may request that school officials explain the contents of the record, and if the parents disagree with its contents, they may ask the school to amend inaccurate information. FERPA also forbids the disclosure of any "personally identifiable information" about the child without parental consent. I would recommend hiring a lawyer if you are having difficulty accessing or amending your child's file or if you feel confidential information about your child has been compromised. |
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It is doubtful that any child may reasonably be expected to succeed in life if he is denied the opportunity of an education.
Brown v. Board of Education, 347 U.S. 483 (1954)
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15 Morningside Drive
Topsfield, MA 01983
978-561-9001 (P)
978-561-1591 (F)
lwong@lillianwongesq.com
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