Differentiated Destruction: OSEP Issues Guidance on Destroying Special Education Records

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Author: Heather Edwards, Attorney at Law

The Office of Special Education Programs (“OSEP”) recently issued guidance clarifying when and how parents must be notified before records containing personally identifiable information (“PII”) are destroyed under the Individuals with Disabilities Education Act (“IDEA”).  Letter to Zacchini, 69 IDELR 188 (February 27, 2017).

Federal regulations require local educational agencies (“LEAs”) to (1) inform parents of children with disabilities when PII collected, maintained, or used under IDEA is no longer needed to provide educational services to the child; and (2) destroy PII at the request of the parent once it is no longer needed. 34 CFR §§ 300.624(a), (b). However, a permanent record of a student’s name, address, and phone number, his or her grades, attendance record, classes attended, grade level completed, and year completed may be maintained without time limitation. 34 CFR § 300.624(b), see also, 5 C.C.R. § 430 et seq. [state regulations governing classification, retention, and destruction of pupil records].

Typically, LEAs provide the required notice to the parent and student when the student graduates (i.e., receives a regular high school diploma or ages out) or otherwise leaves the LEA. OSEP has clarified that an LEA is not required to also provide this notice to parents when it actually destroys a student’s special education records that are no longer needed or deletes them from its database. Rather, it is sufficient if the LEA informs parents that the records are unnecessary at the time that the LEA makes that determination.

OSEP explained that LEAs should also remind parents that they may require the records, such as an IEP, for other purposes, including college or employment accommodations, public benefits, or insurance. As a result, parents may want to exercise their right to access those records and request copies of the records that they will need to acquire post-school benefits in the future before they are destroyed.

While OSEP’s guidance is informal and is not legally binding, it represents an interpretation of the IDEA by the U.S. Department of Education in the context of the specific facts presented.  In addition, this guidance serves as an important reminder for LEAs to ensure their policies and procedures for retention and destruction of student records meet the state and federal legal requirements for students with disabilities.

 

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