FERPA, ADA and 504: They’ve Changed

1. FERPA, ADA and 504: They’ve Changed The presentation will begin momentarily. .

2. FERPA, ADA and 504: They've changed! Greg Stevens Assistant General Counsel gstevens@doe.k12.ga.us 404.463-1725 Georgia Department of Education Kathy Cox, State Superintendent of Schools

3. FERPA Overview • Family Educational Rights and Privacy Act passed in 1974 • There are two key parts of the act – • Rights • Privacy Georgia Department of Education Kathy Cox, State Superintendent of Schools

4. FERPA Things to Keep in Mind • FERPA only applies to educational records – defined as records that are directly related to the student and maintained by an educational agency. See 34 C.F.R. § 99.3. • Does not apply to “memory aids,” records of law enforcement units, employee records, records made when the person is no longer a student, and peer assignments. • Does NOT apply to personal observation. Georgia Department of Education Kathy Cox, State Superintendent of Schools

5. Changes in FERPA Definitions • Broadens the term “Attendance” to include “virtual” attendance. • Clarifies the term “Directory Information.” • Redefines the term “Educational records.” • Clarifies Personally Identifiable Information. Georgia Department of Education Kathy Cox, State Superintendent of Schools

6. Changes in FERPA Rights None! Georgia Department of Education Kathy Cox, State Superintendent of Schools

7. Changes in FERPA Disclosure • Clarifies that information can be disclosed to contractors • Clarifies that schools can disclose information regarding transferring students • Clarifies study exception • Expressly authorizes release of de-identified information as long as the information cannot be linked in a way that might allow identification. Georgia Department of Education Kathy Cox, State Superintendent of Schools

8. FERPA Changes in Recordkeeping • Clarifies that even access given to State and Federal agencies need to be recorded. • If using the health and safety exemption, you must record the threat and to whom the information was disclosed. • Adds recordkeeping requirements for redisclosure. Georgia Department of Education Kathy Cox, State Superintendent of Schools

9. FERPA Other Changes • Clarifies that information can be disclosed to state and federal educational agencies • Clarifies the health and safety emergency. • Directory information concerning former students. • Outlines USDOE investigation and enforcement. Georgia Department of Education Kathy Cox, State Superintendent of Schools

10. The Americans with Disabilities Amendment Act • Signed into law on September 25, 2008 and took effect on January 1, 2009. • Conforming section changes the definition of disability in Section 504 to the new ADA definition. • http://snipr.com/newada Georgia Department of Education Kathy Cox, State Superintendent of Schools

11. ADAAA/504 Things to Keep in Mind • Prevents discrimination if someone has a disability • Applies in both the employment and educational context. • “a record of” and “regarded as” do not require accommodations or positive reaction • Means more than accommodation • There is an undue hardship limitation, but it is a very high hurdle. Georgia Department of Education Kathy Cox, State Superintendent of Schools

12. Why the ADAAA? • Sutton v. United Air Lines and Toyota Motor Manufacturing, Kentucky, Inc. v. Williams limited the scope of ADA. • This law acts as the CPR of the ADA – taking it back to what it was “supposed to be.” • Most of you were doing what this says anyway. Georgia Department of Education Kathy Cox, State Superintendent of Schools

13. The Two Major Changes(and a third smaller one) • Expanded list of “major life activities” • (see last slide for the list) • Old rule of not considering mitigating factors has reversed. Teams now MUST consider mitigating factors. • Consider disabilities that are in remission and episodic. Georgia Department of Education Kathy Cox, State Superintendent of Schools

14. What do these changes mean? • Increased life activities means schools need to be aware of possible student eligibility beyond what has been traditionally addressed by 504. • Consider mitigating factors when determining eligibility. • Consider disabilities in remission that may arise again. Georgia Department of Education Kathy Cox, State Superintendent of Schools

15. The Big Question • I’ve done the above, and the student has a disability that substantially limits a major life activity but either because of the mitigating factors or remission, the student is fine. What do I do? Georgia Department of Education Kathy Cox, State Superintendent of Schools

16. What do I do now? • Try your best. Courts always welcome honest and reasonable attempts to comply with the law. • Call OCR if you need clarification. • “OCR is evaluating the impact of the Amendments Act on OCR's enforcement responsibilities under Section 504 and under Title II of the ADA, including whether any changes in regulations, guidance, or other publications are appropriate.” • Email me. Georgia Department of Education Kathy Cox, State Superintendent of Schools

17. Major Life Activities • “Major life activities include, but are not limited to, caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating and working.” • “A major life activity also includes the operation of a major bodily function, including but not limited to, functions of the immune system, normal cell growth, digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine, and reproductive functions.” Georgia Department of Education Kathy Cox, State Superintendent of Schools

18. Gregg Stevens Assistant General Counsel gstevens@doe.k12.ga.us 404.463-1725 Georgia Department of Education Kathy Cox, State Superintendent of Schools