Dated February 6, 2006

Ms. Karen S. Feuchtenberger

Assistant Counsel

Commonwealth of Pennsylvania

Department of Education

333 Market Street

Harrisburg, Pennsylvania 17126-0333

Dear Ms. Feuchtenberger:

This responds to your letters dated November 22, 2004, and June 6, 2005,
in which you asked for guidance about the disclosure of records of
special education students under the Family Educational Rights and
Privacy Act (FERPA), 20 U.S.C. § 1232g. This Office administers FERPA
and is responsible for providing technical assistance to educational
agencies and institutions to ensure compliance with the statute and
regulations, which are codified at 34 CFR Part 99.

Your November 22, 2004, letter explains that under the Pennsylvania
Charter School Law (CSL), a student's school district of residence is
obligated to pay a charter school a proportional share of State public
education subsidy payments if the student enrolls at a charter school
instead of a district public school. The CSL provides a formula used to
calculate State funding for charter schools. Under that formula, the
subsidy rate for special education students substantially exceeds the
regular education rate.

According to your letter, charter schools send school districts an
invoice for each attending student who is a resident of that district.
The invoice states whether the charter school should be reimbursed at
the regular or special education rate. If the charter school seeks
payment at the special education rate, it provides the district of
residence with a copy of the cover sheet of the student's individualized
education program (IEP), a one-page form that contains identifying
information including the student's name and address, information about
the student's parents or guardians, the student's date of birth and
school, and the names of the student's IEP team members but excludes
information about "the student's diagnosis, clinical condition, and
medication history." You stated that "\[r\]eceipt of the IEP cover sheet
triggers the district's obligation to pay at the special education rate
for the identified student," citing 22 Pa. Code

§ 711.9(a)(2), which provides:

> The child's school district of residence shall provide the special
> education payment required by section 1725-A(a)(3) of the act (24 P.S.
> § 17-1725-A(a)(3)) to the charter school either when:

(1) A child with an IEP from a school entity in this Commonwealth begins
    attending the charter school.

(2) The charter school has identified an enrolled child as a child with
    a disability under the IDEA \[Individuals with Disabilities
    Education Improvement Act\], has developed an IEP for the child, and
    *notifies the district of residence of the identification.*

(Emphasis added.) You added that some school districts are reluctant to
pay at the higher, special education rate based only on receipt of the
IEP cover sheet, particularly when the student was previously enrolled
in the school district and was not identified as a student with a
disability prior to enrollment in the charter school. You indicated that
some school districts insist that they be permitted to review the
student's complete special education records in order to determine
whether the student is, in fact, disabled.

You explained that the Pennsylvania Department of Education (PDOE) has
taken the position that school districts are not entitled to view the
special education records of a student enrolled at a charter school
because the charter school, and not the school district, is the local
educational agency (LEA) responsible for providing a free appropriate
public education (FAPE). According to your letter, under the CSL (quoted
above) "the only responsibility of the school district is to pay the
charter school at the special education rate if the charter school has
identified the student as a student with a disability who needs special
services." You confirmed in subsequent telephone conversations with my
staff that PDOE has determined that local school districts have no
authority under State law to validate or question a charter school's
identification of an enrolled child as a child with a disability under
IDEA. However, school districts nevertheless assert that they have a
right to condition payment at the higher, special education rate on the
production of the child's entire special education records. You asked
whether, in the absence of parental consent, a school district may view
special education records maintained by a charter school when, in the
school district's judgment, the records are essential to validate the
charter school's entitlement to payment of the State subsidy at the
higher rate for students receiving special education services.

FERPA applies to an educational agency or institution that receives
funds under any program administered by the Secretary of Education. 34
CFR § 99.1(a). We assume for purposes of this discussion that both the
charter schools and the local school districts in Pennsylvania are
"educational agencies or institutions" subject to FERPA because they
provide educational services to students and receive Department funds
(including funds under the IDEA), and, therefore, meet the descriptions
in § 99.1(a). Parents have a right under FERPA to inspect and review
their children's education records and to seek to have them amended in
certain circumstances. See 34 CFR Part 99, Subparts B and C. A parent
must also provide a signed and dated written consent before an
educational agency or institution discloses education records, or

personally identifiable information from education records, except as
authorized by law. 34 CFR § 99.30. Exceptions to this requirement are
set forth in § 99.31 of the regulations.

Under FERPA, an educational agency or institution may disclose education
records, without consent, to authorized representatives of "State and
local educational authorities" if the disclosure is in connection with
the audit or evaluation of Federal or State supported education
programs, or for the enforcement of or compliance with Federal legal
requirements that relate to those programs. 20 U.S.C. §§
1232g(b)(1)(C)(i)(III), (b)(3), and (b)(5); 34 CFR

§§ 99.31(a)(3)(iv) and 99.35. In order to meet this requirement,
Federal, State, or local law (including valid administrative
regulations) must authorize the relevant "State or local educational
authority" to conduct the audit, evaluation, or compliance or
enforcement activity in question. Further, any personally identifiable
information collected by the relevant "State or local educational
authority" under this exception must be "protected in a manner that will
not permit the personal identification of students and their parents" by
other than enumerated officials and must be destroyed when no longer
needed for the purposes of the audit or evaluation. 20 U.S.C. §§
1232g(b)(3) and (b)(5); 34 CFR§§ 99.31(a)(3)(iv) and 99.35.

We will defer to your State Attorney General's determination whether
State law authorizes a school district of residence to "audit or
evaluate" a charter school LEA's request for payment of State funds at
the special education rate and, if so, whether personally identifiable
information from students' education records is needed in connection
with this audit or evaluation. In this regard, it is not clear to us
whether the "notification" provision in 22 Pa. Code§ 711.9(a)(2)
requires a charter school LEA to identify each individual student for
whom it seeks payment at the special education rate or merely to provide
the school district of residence with the gross number of students in
that category. However, we would defer to a determination by your State
Attorney General that 22 Pa. Code § 711.9(a)(2) authorizes a school
district of residence to "audit" a charter school's submission for
payment of State funds at the higher rate by examining the information
contained in a student's IEP cover sheet, as described above, to ensure
that the student has been identified as a child with a disability and
that the charter school has developed an IEP for the student. This
interpretation of State law would permit a charter school LEA to
disclose a student's IEP cover sheet, without prior written consent, to
the student's school district of residence under §§ 99.31(a)(3)(iv) and
99.35 of the FERPA regulations.

In regard to a charter school LEA's disclosure of a student's entire IEP
to the school district of residence, while we will defer to your State
Attorney General's interpretation of State law on the matter, it is our
understanding that under the CSL the State alone is responsible for
supervising charter school LEAs' compliance with IDEA and for the
general supervision of special education programs provided by charter
school LEAs under the IDEA. 22 Pa. Code §§ 711.2 - 711.4 (2005). This
kind of general supervisory authority could permit a charter school LEA
to disclose a student's full IEP to the responsible supervising entity
(in this case, the State) to permit the supervising entity to review the
LEA's determination that a child was in need of special education
services, and in that case disclosure would be permissible, without
parental consent, under §§ 99.31(a)(3) and 99.35 of the FERPA
regulations. However, we are not aware of any State law that authorizes
a school district of residence to undertake the type of "audit or
evaluation" of a charter school LEA that would necessitate the
disclosure of a student's entire IEP.

Under 34 CFR §300.600 of current IDEA regulations, the State educational
agency must exercise general supervision over all education programs for
children with disabilities administered within the State and must ensure
that those programs meet State standards and the requirements of Part B
of IDEA. Consistent with this general supervisory responsibility, the
SEA designates the public agency or school district in the State that is
responsible for ensuring the provision of FAPE to disabled students, and
the SEA generally assigns this responsibility to only one agency. It is
our understanding that in Pennsylvania, the charter school, not the
district of residence, is the public agency responsible for ensuring the
provision of FAPE to disabled students attending the charter school. As
such, there is no authority under IDEA to allow a school district in the
State that is not responsible for ensuring the provision of FAPE to the
students in question to review or otherwise challenge the disability
determination made by the responsible school district. We are not aware
of any other basis on which the school district of residence may conduct
an "audit or evaluation" under IDEA, or seek compliance with, or
enforcement of, Federal legal requirements in IDEA, that would justify a
charter school LEA's disclosure of a student's entire IEP to the school
district of residence without parental consent.

In summary, we are unaware of any authority in State or Federal law that
would permit a charter school LEA to disclose to the school district of
residence the student's entire IEP. Therefore, we conclude that the
charter school may disclose only the personally identifiable information
contained in a student's IEP cover sheet to the school district of
residence under the exception to consent contained at §§ 99.31(a)(3)(iv)
and 99.35 of the FERPA regulations (assuming your State Attorney General
interprets State law as described above).

We would also like to clarify that the disclosure of a student's IEP
cover sheet cannot be characterized as a "directory information"
disclosure under FERPA, as suggested in footnote 1 of your letter. This
Office has consistently advised that a student's receipt of special
education services is the type of information that generally would be
considered "harmful or an invasion of privacy if disclosed" and,
therefore, may not be designated and disclosed as "directory
information" under FERPA. 20 U.S.C. § 1232g(a)(5)(A); 34 CFR § 99.3
("Directory information.")

Finally, Federal officials responsible for the administration of IDEA
have advised that a student with a disability attending a charter school
must receive the special education and related services and supports
identified in the student's IEP. As provided in 34 CFR § 300.301(c), the
State must ensure that there is no delay in implementing a student's
IEP, including any case in which the payment source for providing or
paying for special education and related services to the student is
being determined. See also 34 CFR Part 76, Subpart H (allocation of
federal formula funds to charter schools).

I trust that the above information is helpful in explaining the scope
and limitations of FERPA as it relates to your concern.

> Sincerely,
>
> LeRoy S. Rooker
>
> Director
>
> Family Policy Compliance Office

cc: Troy Justesen, Director

> Office of Special Education Programs
>
> U.S. Department of Education
>
> Dean Kern, Director
>
> Charter School Program
>
> U.S. Department of Education