Loeb Aronin, Ed.D
From time to time, parents request that school psychologists provide them with a copy of the various test protocols that were used in assessing their child. In some cases they want the protocols sent to an advocate who may or may not be a psychologist. Often, school psychologists are concerned that they have a serious dilemma that centers around 1) issues related to professional ethics and copyright laws vs. 2) parent rights to have a better understanding of the assessment data so that they may discuss/debate the assessment findings in an informed manner.
The purpose of this article is: to provide school psychologists and district personnel with information to help with the decision-making process regarding the release of student assessment records; and stimulate districts/SELPAs to develop specific policies and guidelines that resolve the apparent conflict between parent rights and professional ethics. In order to enable readers to review some of the material referenced, a number of web sites are listed following topics, and at the end of this article.
Copyright Concerns
Test publishers, such as the Psychological Corporation, are well aware of the concerns on this issue. They state: “If a test taker or the parent of a child who has taken a test wishes to examine test responses or results, the parent or test taker may be permitted to review the test and the test answers in the presence of a representative of the school, college or institution that administered the test. Such review should not be permitted in those jurisdictions where applicable laws require the institution to provide a photocopy of the test subsequent to review. If you are not certain of the effect of the laws in your state, please contact your state’s professional organization.” http://www.psychcorp.com/catalogs/ordering/copyrights.htm
Family Education Rights and Privacy Act (FERPA)
§99.10(c) of the FERPA regulations provides that an educational institution or agency is required “to respond to reasonable requests for explanations and interpretations of the records.” Accordingly, an educational agency or institution is required to respond to a reasonable request for an explanation or interpretation of a student’s assessment and answer sheet. This could include reviewing the question booklet with the parent.
FERPA is a federal law that affords parents the right to have access to their children’s educational records, the right to seek to have the records amended, and the right to have some control over the disclosure of information from the records. FERPA requires that a school comply with a parent’s request for access to the student’s records within 45 days of the receipt of a request. FERPA generally protects a student’s privacy interests in “education records.” “Education records” are broadly defined as: those records, files, documents, and other materials, which (i) contain information directly related to a student; and (ii) are maintained by an educational agency or institution or by a person acting for such agency or institution. 20 U.S.C. §1232g(a)(4)(A). See also 34 CFR §99.3.
The FERPA rights of parents to review their child’s educational records apply to general and special education records. When it comes to special education records, there are no additional restrictions to keep these records confidential from parents or general education teachers. Basically, the federal law for education records (FERPA) supercedes any copyright laws.
FERPA requires a parent be given access to and not copies of assessment records. Except in specific instances, the school district is not required to provide the parent a copy of the answer sheet or the question booklet. A school would generally be required to provide copies of educational records (protocols) if failure to do so would effectively prevent the parent from exercising the right to inspect and review the records, i.e., the parent does not live within commuting distance of the school or is too ill to attend a district site. OSERS (Office of Special Education Rehabilitative Services) and the courts have repeatedly ruled that protocols are educational records, as they form the basis for educational decisions.
Some contend that the IDEA goes further than FERPA in allowing parents access to school records. They rely upon Section 1415 (b) 1 (A) of the IDEA, which requires that state and local education agencies provide “an opportunity for the parents or guardian of a child with a disability to examine all relevant records with respect to the identification, evaluation, and educational placement of a child, and the provision of a free appropriate public education to such child.” However, we would hold that both laws provide parents with the opportunity to examine their child’s records, and under specified circumstances obtain a copy of the record(s).
Some school psychologists assume that, if a school employee tests a student and keeps the test protocol in a personal file that is not accessible to other school personnel, the protocol is considered to be in the sole possession of the “maker” and thus does not fall under FERPA or IDEA access requirements. However, a number of authorities have concluded that, once the test results are disclosed (e.g., discussed at a team meeting or included in the evaluation report), parents have the right to inspect the underlying protocols. In addition, if the child helped complete the test protocol by writing on it, the child may be considered the “maker” of the record.
Excerpts from FERPA
Part B and FERPA provide that an educational agency or institution shall respond to reasonable requests for explanations and interpretations of education records. (34 CFR §300.562(b)(1); 34 CFR §99.10(c)). “(d) If circumstances effectively prevent the parent or eligible student from exercising the right to inspect and review the student’s education records, the educational agency or institution, or SEA or its component, shall-
Separate answer sheets — Where test “protocols” are meant to refer to test instruments or question booklets that do not identify a student or that do not contain personally identifiable information, such documents are not considered “education records” under FERPA. See 34 CFR §99.3. “Records that are not directly related to a student and maintained by an agency or institution are not “education records” under FERPA and parents do not have a right to inspect and review such records. For example, a test protocol or question booklet which is separate from the sheet on which a student records answers and which is not personally identifiable to the student would not be a part of his or her “education records.” Only the answer sheet would be considered an education record under FERPA.
On the other hand, copies of personally identifiable protocols, maintained in district files are considered educational records. Accordingly, the parent has a right under Part B and FERPA to request an explanation and interpretation of the record. The explanation and interpretation by school personnel could entail showing the parent the test question booklet, reading the questions to the parent, or providing an interpretation for the responses in some other adequate manner that would inform the parent. Under these circumstances, the integrity of the test protocol is protected, as the parent is not given a copy of the protocol. http://www.edlaw.net/database/protocols.html.
Under FERPA, an educational agency or institution is not required to provide a parent with an opportunity to inspect and review information that is not personally identifiable to his or her child, such as test instruments and question booklets that are not directly related to the student.
Recommendations
1. School personnel need to work closely with parents in the whole process of intervention, referral, assessment and educational planning for students who are having difficulties in the general education program. When a parent requests, in writing, that copies of a student’s protocols be sent to an advocate it should be done in an expeditious manner. If the advocate is not a psychologist, or other authorized individual, a letter should accompany the records indicating that copyright laws prohibit duplication the protocol.
2. District/SELPA personnel should develop guidelines related requests for copies of protocols that are consistent with FERPA and IDEA laws and regulations.
3. We are well aware that school psychologists have heavy caseloads and significant restraints on their time. However, time might be saved by conferencing with parents, using the protocols for sharing assessment results, prior to the IEP Committee meeting. The conference would provide the parent the opportunity to discuss the findings, become aware of the student’s performance on the various assessment instruments, and establish a rapport between parent and psychologist. The time used in this process may very well result in a better relationship between parent and school, and ultimately save the tremendous amount of time and money that is currently being spent on informal reviews, due process hearings, lawsuits and private school placements. As the saying goes, we can pay now, or pay later.
Online Resources
FERPA—The entire law is available as a download at the following site: http://www.ed.gov/offices/OM/fpco/ferparegs.html
OSERS 1993 Interpretation of parent rights re: access to test protocols and test answer sheets http://web.indstate.edu/soe/iseas/edtl-rec3.html
Information on filing a FPCO complaint http://www.ed.gov/offices/OM/fpco/aboutus.html
The Family Policy Compliance Office (FPCO) U.S. Department of Education. The Office interprets FERPA and PPRA, responds to complaints about interpreting or applying the laws. http://nces.ed.gov/pubs97/p97527/Sec2_txt.htm
Sharing test protocol information with parents – Letter from Tom Hehir, Office of Special Education Programs http://web.indstate.edu/soe/iseas/edtl-rec3.html
Are psychological evaluations and test protocols “educational records” under FERPA? http://www.spedlaw.com/html/opnews/OpJan%202000.htm#The%20FAQ’s (Scroll down to the FAQs)
Family Rights and Privacy Act Regulations – (FERPA) (See 99. 10, 11, and 12) http://www.ed.gov/offices/OM/fpco/ferparegs.html
Loeb Aronin is a member and past chair of the California Advisory Commission on Special Education. He is the recipient of numerous state and national awards and a past president of CASP. Email: janloeb@aol.com.