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FERPA and teacher attendance


ncecparent

Question

The general law is that a student record is anything that affects their IEP or education that is stored in school. 

Though not stated, would that also allow the record of their special education teacher attendance? Though not a record of the child it effects their FAPE when there is not a properly certified staff member giving their instruction. 

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As you correctly stated, the attendance record of the spec ed teacher would not be considered an educational record of your child; therefore, you would not be entitled to that under FERPA, even though it potentially speaks to whether or not you child has received FAPE.

There might be other laws under which you could request this information, such as your state's Sunshine Law.  However, that is a long, involved process and not receiving FAPE is something you would want to address immediately.  My suggestion would be to first, reach out (casually - no "threats" yet) and ask what the procedure is when the spec ed teacher is not at school on a particular day when your child is to receive spec ed services; specifically, does s/he still receive specialized instruction?  If so, who provides that?  (Also ask for that person's title so that you can look up on your state DOE's website to see what certification is required for that title/position. )  If s/he does not receive his/her specialized instruction on the days the spec ed teacher is absent, ask what the procedure is for making up those minutes.

If the above does not get you anywhere, then you can ask for documentation of the minutes your child has received.  If the school refuses that, file a state complaint alleging the procedural violation of not following the IEP document due to 1) failure to provide FAPE because they won't provide documentation of minutes and therefore, the assumption has to be that the minutes were not provided and 2) prohibiting parent participation by failing to communicate and answer questions regarding the provision of minutes.

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Wanted to add to my answer as I did a little more digging.  Some things to know when you're talking about a "properly certified staff member."  First, due to nationwide staffing issue, many states have PIP's (Provisional Intern Permits) which allows uncredentialed staff members to be the responsible teacher for a spec ed classroom, the co-teacher in a collaborate classroom setting, or even a case manager.  What you want to focus on (and obtain information regarding) is whether or not the staff person providing the specialized instruction is sufficiently trained in how to do it AND is providing the instruction with fidelity.

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The one thing that isn't considered with 'certified staff' is the student's relationship with the person.  You can have an uncertified person who knows enough to provide good instruction & has a great relationship with the child where the child learns & grows.  You can have another person with impeccable credentials who does a so-so job relating to students where they don't learn because they are 'rubbed the wrong way' when they interact with the student.

I think it's reasonable to ask who delivers your child's sp ed instruction as well as what happens when the person isn't available.  It's possible for them to be in attendance & still not be working with your child so attendance might not give you the right picture.  It could be the certified staff has perfect attendance but they are in IEP meetings where an IA works with your child most days.

I tell parents to look at progress.  The only way for a student who is behind to catch up is for them to make more than a year of progress every year.  Less than that & the gap widens.  Just one year every year & they stay behind.  You can ask for progress reports to be given to you more often than your state requires.  This can be written into the IEP.  Working with the school can make for a positive relationship between school staff and your child - and you too.

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