"Education Records"

[Dave]

What is the extent of education records when it comes to progress monitoring data collection?  My daughter's SpEd team is notorious for not collecting data and the only information in progress reports is subjective and anecdotal data.  We have continuously asked for quantifiable and/or objective data and the school team said they have it and would provide it, but they never have.  Now, they're taking another tack by saying they use personal notes, and personal rubrics and they don't have to release them because their "personal notes".  If the team members say the information in the progress report is from those notes and/or rubrics, doesn't that supporting data become an education record?  They shared the information and made it public, so it should be considered an education record and fall under FERPA.  Is there legal or authoritative guidance on when an artifact becomes an education record?

[Carolyn Rowlett]

Wow.  So many "wrong's" here.  To answer your specific question, yes, personal notes are an educational record and fall under FERP unless they are not shown to another person.  See link below.

But you also need to address the insufficiency of progress reports and getting ahold of the objective data, which I know you've been trying to do.  First, make sure the IEP document specifically describes how your child's progress toward meeting the annual goals will be measured.  That is a requirement under IDEA.  If "data collection," then they need to provide you with the data.  If this isn't addressed correctly in the IEP, ask for an amendment to the IEP document.

Another more drastic option (but one that gets the school district's attention) is to do a full-blown FERPA request asking for ALL educational records.

I may do some more research and add to this later, but wanted to respond with this for now.

 

https://nces.ed.gov/pubs97/web/97859.asp#:~:text=FERPA Defines an Education Record,film%2C microfilm%2C and microfiche.

[Angela Tyszka]

I agree with Carolyn on this one. I used to be a disability services coordinator in a law school so I would meet with students to discuss their evaluations and possible accommodations. I would take "personal notes" that would help me remember things that they told me but would only use those notes as a memory aid. I would not share the actual notes with anyone else and would not use them to generate reports or anything else that would be considered an official educational record. I was never named in a law suit specifically, but I know some of my counterparts in the school were and they did not have to turn over the type of notes that I described.

With that said, I am not a lawyer and am not qualified to give legal advice or interpret the law. My advice as a non-attorney advocate would be to approach it another way. To me, quoting laws and statutes is always a last resort. I prefer to ask questions that really get to the heart of the matter. Many times the raw data would not even make sense to the casual observer, but that doesn't mean that they don't have to put that in a usable form to share with you. Where is the objective data? How are they tracking progress? How are they determining present levels? Can they plot the data on a chart for you so you can see the progress. (See attached document. This came from my state's parent training and information center and I found it to be a great tool). 

Monthly Progress Monitoring.pdf

[JSD24]

This might be something to file a complaint to the state on.    You are requesting progress reporting to state where your child is relative to their IEP goals in a quantifiable way.  I would write a parental concerns letter to get this in writing & on the IEP.  If they don't do something, then file a state complaint.

[Dave]

On 1/11/2023 at 6:45 PM, Carolyn Rowlett said:

Wow.  So many "wrong's" here.  To answer your specific question, yes, personal notes are an educational record and fall under FERP unless they are not shown to another person.  See link below.

But you also need to address the insufficiency of progress reports and getting ahold of the objective data, which I know you've been trying to do.  First, make sure the IEP document specifically describes how your child's progress toward meeting the annual goals will be measured.  That is a requirement under IDEA.  If "data collection," then they need to provide you with the data.  If this isn't addressed correctly in the IEP, ask for an amendment to the IEP document.

Another more drastic option (but one that gets the school district's attention) is to do a full-blown FERPA request asking for ALL educational records.

I may do some more research and add to this later, but wanted to respond with this for now.

 

https://nces.ed.gov/pubs97/web/97859.asp#:~:text=FERPA Defines an Education Record,film%2C microfilm%2C and microfiche.

Thanks for responding.  This reference is helpful.  The insufficiency of the progress reports and the missing data has been at the crux of the issue since my daughter came into this school district (DoDEA Germany).  Because the school doesn't implement any special education program here (focus is on just pushing the kids through), they have no data year after year, no baselines, no specialized instruction, no updates, so my daughter's IEP goals have not been updated since the document was written in Oct of '19.  In addition, none of the goals have been remediated in these last 3 1/2 years.  We've never completed an annual review, or transition plan or triennial review.  It's a nightmare.

[Dave]

On 1/14/2023 at 2:55 AM, Angela Tyszka said:

I agree with Carolyn on this one. I used to be a disability services coordinator in a law school so I would meet with students to discuss their evaluations and possible accommodations. I would take "personal notes" that would help me remember things that they told me but would only use those notes as a memory aid. I would not share the actual notes with anyone else and would not use them to generate reports or anything else that would be considered an official educational record. I was never named in a law suit specifically, but I know some of my counterparts in the school were and they did not have to turn over the type of notes that I described.

With that said, I am not a lawyer and am not qualified to give legal advice or interpret the law. My advice as a non-attorney advocate would be to approach it another way. To me, quoting laws and statutes is always a last resort. I prefer to ask questions that really get to the heart of the matter. Many times the raw data would not even make sense to the casual observer, but that doesn't mean that they don't have to put that in a usable form to share with you. Where is the objective data? How are they tracking progress? How are they determining present levels? Can they plot the data on a chart for you so you can see the progress. (See attached document. This came from my state's parent training and information center and I found it to be a great tool). 

Monthly Progress Monitoring.pdf 3.03 MB · 4 downloads

Thank you for responding.  We are really far past quoting laws and statutes and just collecting evidence at this point.  The school has established that it has no special education program and they're really waiting to go to Due Process.  Their form of Special Education is to gaslight and obstruct as long as possible.  They have no data because they aren't implementing anything.  In a recent progress review meeting the case manager said she shoots from the hip.   

[Dave]

On 1/14/2023 at 6:56 PM, JSD24 said:

This might be something to file a complaint to the state on.    You are requesting progress reporting to state where your child is relative to their IEP goals in a quantifiable way.  I would write a parental concerns letter to get this in writing & on the IEP.  If they don't do something, then file a state complaint.

Thanks for responding.  We're looking for a lawyer now to go to Due Process.  We're past parent concern letters and Mediation.  The school has admitted to denying FAPE for two years and they continue to rack up procedural and substantive violations since.  But, it's DoDEA and they police themselves.  It's a challenge.

[Carolyn Rowlett]

Have you tried contacting/complaining to anyone within the DoDEA?  You probably have.  I had a client on a military base who took his concerns via the Army route rather than the state.  That, and bringing an advocate to the next meeting, helped him get what was needed for his daughter.

[JSD24]

Here's a quote from this website:  https://www.esd.whs.mil/Portals/54/Documents/DD/issuances/dodd/134220p.pdf?ver=2020-07-07-110814-893

l. Provides a free, appropriate public education, in accordance with an Individualized Education Program, for children, ages 3 through 21 years who are found eligible for special education and related services. These services are delivered in the least restrictive environment and with procedural safeguards, in accordance with Chapter 33 of Title 20, U.S.C., also known as the “Individuals with Disabilities Education Act”, as implemented by DoDI 1342.12 and DoD Manual (DoDM) 1342.12.

m. Develops and provides guidance as necessary for the delivery of services for children with disabilities and for the protection of procedural rights, in accordance with the Individuals with Disabilities Education Act, DoDI 1342.12, and DoDM 1342.12.

I'm not sure what the oversight agency is, but look at filing a complaint with the appropriate agency.  You might need to contact your senator or representative to figure this out as you are a US citizen.  They need to follow IDEA.

[Dave]

13 hours ago, Carolyn Rowlett said:

Have you tried contacting/complaining to anyone within the DoDEA?  You probably have.  I had a client on a military base who took his concerns via the Army route rather than the state.  That, and bringing an advocate to the next meeting, helped him get what was needed for his daughter.

Yes - no response or completely dismissive.  "No problems here".  Again, the school collects no data because they have no program to implement.  Last year, my daughter would say there wasn't even an educator with her on several days.  When we asked the school about it, they told us they don't have to give us information on the attendance of special educators.  This year my daughter answers a few questions about the implementation of her IEP every day.  The daily email goes up through the entire DoDEA Chain of Command.  DoDEA Director, Europe Director, Europe East Super, Stuttgart Super, Principal, VP, SpEd ISS, School psychologist, case manager, and SLP.  I graph the information into a visual and send to the same group.  No response from anybody, except the Europe East Superintendent recently asking my daughter and I to stop sending messages.  His next step was to reach out to my employer.

[Dave]

7 hours ago, JSD24 said:

Here's a quote from this website:  https://www.esd.whs.mil/Portals/54/Documents/DD/issuances/dodd/134220p.pdf?ver=2020-07-07-110814-893

l. Provides a free, appropriate public education, in accordance with an Individualized Education Program, for children, ages 3 through 21 years who are found eligible for special education and related services. These services are delivered in the least restrictive environment and with procedural safeguards, in accordance with Chapter 33 of Title 20, U.S.C., also known as the “Individuals with Disabilities Education Act”, as implemented by DoDI 1342.12 and DoD Manual (DoDM) 1342.12.

m. Develops and provides guidance as necessary for the delivery of services for children with disabilities and for the protection of procedural rights, in accordance with the Individuals with Disabilities Education Act, DoDI 1342.12, and DoDM 1342.12.

I'm not sure what the oversight agency is, but look at filing a complaint with the appropriate agency.  You might need to contact your senator or representative to figure this out as you are a US citizen.  They need to follow IDEA.

Right!  We lean back on 1342.12 often.  Unfortunately, the oversight agency is DOHA (Defense Office of Hearing and Appeals).  DoDEA polices themselves.  Ugh.

[JSD24]

With DoDEA policing themself, I guess the solution is federal court.  I'm thinking there is no case law on this to say of a case like this would be successful or not.  When the "school's" solution is to reach out to your employer & potentially jeopardise your job, I can see your hesitation with making a precedent setting move like this.

[Dave]

7 hours ago, JSD24 said:

With DoDEA policing themself, I guess the solution is federal court.  I'm thinking there is no case law on this to say of a case like this would be successful or not.  When the "school's" solution is to reach out to your employer & potentially jeopardise your job, I can see your hesitation with making a precedent setting move like this.

No, we're definitely filing and taking it as far as we need to.  The purpose of all of it is to shift the burden of proof for the Provision of FAPE from the parents onto the school.  DoDEA is a great place to start.