Financial-Aid Staff and Privacy Issues:

1. Financial-Aid Staff and Privacy Issues: Balancing Customer Service with Compliance

2. Background • FERPA: The Family Educational Rights and Privacy Act. • Signed into law August 21, 1974. • Became effective November 19, 1974. • Commonly called the “Buckley Amendment.” • 34 CFR Part 99. • Appendix A - page 41.

3. FERPA Law Changes • Nine amendments. • December 31, 1974 to October 26, 2001. • First amendment provided definition of “educational agency or institution.” • Those that receive U.S. Department of Education funding. • More-recent changes. • Campus security (1990). • War on Terrorism (2001).

4. For More Information on FERPA • Department’s Family Policy Compliance Office. • (202) 260-3887 • www.ed.gov/policy/gen/guid/fpco/ferpa/index.html

6. Effect of FERPA on the Financial-Aid Office • Rights of parents and eligible students. • Rights transfer to students: • At age 18. • If attending school beyond high school. • Students are termed as “eligible students.”

7. Effect of FERPA on the Financial-Aid Office • Definition of parent. • Natural parent. • Guardian. • Individual acting as a parent in the absence of a parent or guardian.

8. Effect of FERPA on the Financial-Aid Office • Regulations do not apply when: • Student is deceased. • Person applied to school but has not attended.

9. Effect of FERPA on the Financial-Aid Office • Written releases are not required if: • School official has legitimate educational interest. • Party is in connection with financial aid to student. • Audit/evaluation purposes. • Judicial order or subpoena. • Health and safety emergencies. • Others.

10. Effect of FERPA on the Financial-Aid Office • Two parties have access to student’s education record. • The student. • Parents of dependent student. • Defined in IRS Code, Section 152. • School’s release of parents’ financial information to student is not required. • Parent/student FAFSA completion. • Conflict?

11. What Is Written Consent? • Standards for written consent: • Specify the records to be disclosed. • State the purpose of the disclosure. • Identify to whom the information will be disclosed. • Example of student release form. • Appendix - page 46-47.

12. AACRAO’s Guidelines for FERPA • Revised 2001 edition available. • Guidance about exceptions to student-records disclosure. • Members can obtain a copy at a reduced price. • Interested non-members can contact AACRAO.

14. Release of Directory Information • Non-personal information that may be disclosed. • Not considered harmful or invasion of privacy.

15. Release of Directory Information • Examples of directory information. • Student’s name and address. • Telephone listing. • E-mail address. • Date and place of birth. • Dates of attendance. • Enrollment status. • Degrees, honors and awards received.

16. Release of Directory Information • Annual notification to students required. • Must be made by means likely to inform students. • College catalogue. • College handbook. • School Web site. • Student may request that information not be released. • Request must be in writing. • Example of school’s annual notification. • Appendix - page 48-49.

17. What Is An Education Record? • Records, files, documents and other materials containing student-related information. • Includes records shared with or accessible to another individual. • May be handwritten, print, magnetic tape, film, diskette or some other medium. • FERPA does not mandate time frame for retaining. • Time frame varies based on the type of record. • Department-related records usually are kept for three years.

18. Educational-Record Exceptions • Sole-possession records or private notes. • Law enforcement or campus-security records. • Personnel records. • Unless for student employees. • Professional-treatment records. • Information obtained on a former student. • Alumni records.

19. FSA Handbook Record Requirement • School must maintain: • List of all education records. • Location of records. • Procedures by which student can review records. • For more information, see 2006-07 FSA Handbook. • Volume 2, Chapter 9.

20. Record of Disclosures • FERPA regulations require a record of each disclosure made without written consent. • Record must be kept with student’s education records. • Each disclosure must include: • Names of parties who requested or received the information. • The legitimate interest that the parties had.

21. Exceptions to Recording Disclosures • If request was from or disclosure was to: • The student, or parent (of an ineligible student). • A school official with legitimate educational interest. • A party seeking directory information. • A party directed by a subpoena with orders that the subpoena not be disclosed. • A representative of the U.S. Attorney General investigating or prosecuting terrorism crimes.

22. FERPA Violation Penalties • Complaint procedures. • Written complaints may be filed with Family Policy Compliance Office (FPCO) of the U.S. Department of Education. • If FPCO finds a violation, school is notified to correct its actions. • If school still fails to comply with FERPA, Secretary can direct no further federal funding.

23. Recent Supreme Court Case • Gonzaga University v. John Doe (June 20, 2002). • By 7-2 vote, Court ruled that students cannot sue schools that release grades and other personal information improperly. • Found that FERPA gives “no specific, individually enforceable rights.” • Leaves enforcement to Department of Education, with right to remove federal funding.

24. Special Circumstances • FAO receives various requests for student records. • Records must be protected from careless release. • Three examples of special circumstances. • Subpoenas. • Student Employees’ Use of Education Records. • Parent Access to a Student’s Education Record.

25. The Subpoena • A command from a court requiring a person’s appearance to provide testimony or evidence. • Subpoena duces tecum. • Requires documents, papers or other tangible items. • Subpoena ad testificandum. • Requires person to testify. • Bench warrant. • Also a court order. • Requires person to produce something or testify.

26. The Subpoena • FERPA requires reasonable effort to notify student of subpoena in advance of records release. • Exceptions (school is ordered not to notify student). • Federal grand-jury subpoenas. • Subpoenas for law-enforcement purposes. • Some subpoena powers are limited. • Federal district subpoena is valid in all 50 states. • State court subpoena only valid in that state. • Court must have jurisdiction over the institution for the subpoena to be binding.

27. The Subpoena • Prior-notification requirement. • Student is alerted to possible court action. • Allows student to seek legal counsel. • Notification must be timely and allow response. • Generally allow 14 days for student to respond. • Sent by certified mail with return receipt. • Sample Notice to Student - page 55.

28. Student Employees’ Use of Records • Office is responsible for the privacy and confidentiality of student records that student employees use. • All employees must understand this responsibility. • Recommended use of code of responsibility. • New-employee-training tool. • Violations and sanctions explained. • Sample Code of Responsibility - page 56.

29. Parental Access to Records • Parents have no inherent rights to inspect eligible student’s records. • Rights can be modified. • Written consent of student. • In compliance with subpoena. • In connection with health or safety issue. • Parent(s) claim student on taxes.

30. Parental Access to Records • School should have a policy about the release of records to parents. • AACRAO indicates school not required to release information. • Regulations do not prohibit separated, divorced, or non-custodial parent from accessing student’s records. • Court order, state statute, or legal document may state otherwise.

31. Parental Access to Records • FAFSA instructions ask for information from responsible parent(s). • Releasing financial information to non-responsible parent is not recommended.

32. Recent Legislative Amendments • FERPA amendments impact privacy of records. • The Jeanne Clery Disclosure of Campus Security and Campus Crime Statistics Act. • The Campus Sex Crime Prevention Act (CSPCA). • The USA Patriot Act. • The Student and Exchange Visitor Information System (SEVIS).

33. What to Do? • Compliance, customer service and conflict require the financial-aid office to act responsibly. • Develop and share a student-record privacy and confidentiality statement for your office. • Provide staff training and require a signed statement or code of responsibility from all employees. • Attend FERPA conferences/training sessions. • Annually complete the NASFAA Self-Evaluation Guide on FERPA.

34. Important FERPA Web Sites • http://www.ed.gov/policy/gen/guid/fpco/ferpa/index.html • www.ifap.ed.gov • www.aacrao.org • www.nasfaa.org • http://chronicle.com Membership/subscription may be required to access some of these Web sites

35. Case Studies

36. Balancing Customer Service with Compliance

37. Case Study 2 • Parent calls the FAO to check on daughter’s financial-aid awards. • Parent provides student’s name and SSN. • Can you provide this type of information?

38. Case Study 2 • Possible resolution. • Yes, can provide information with caution. • Follow office’s privacy policy regarding the release of information. • Disclose information only with sufficient proof. • Student’s signed written release. • Student’s dependency status with interested parent. • If student is claimed as dependent on parent’s taxes.

39. Case Study 4 • Parent calls the FAO to check on her daughter’s financial-aid awards. • Parent provides student’s name and SSN. • Staff member asks if parent is custodial parent. • Parent did not complete FAFSA, but contributes to student’s expenses with a PLUS loan. • Can you provide this type of information?

40. Case Study 4 • Possible resolution. • Yes, with caution. • Although FERPA supports this release of information, school’s policy may require signed release. • Refer parent to the student for financial-aid information.

41. Case Study 6 • Campus Foundation Office calls to confirm financial-aid eligibility of students applying for scholarships. • Can you provide this type of information?

42. Case Study 6 • Possible resolution. • Yes, FERPA supports the disclosure of student information in connection with financial aid. • Is Foundation Office employee a “school official with legitimate educational interest?” • If so, okay to release. • If not, request a signed student release.

43. Case Study 10 • Student requests copy of parents’ tax return. • Parents have misplaced their copy. • Needed to assist with estimating projected income for new FAFSA. • Can you provide this type of information?

44. Case Study 10 • Possible resolution. • FERPA does not support the release of parent financial information to student. • Offer parent/student options for receipt of tax return. • Signed parent release to student. • Forward tax return directly to parent. • Sealed tax return given to student. • Refer parent to tax preparer and IRS.

45. Case Study 12 • SAP letters only state that students are no longer eligible for aid. • Various individuals want personally identifiable information (grades). • To whom can you disclose this information?

46. Case Study 12 • Possible resolution. • The student. • Following office privacy policies and proof of individual, can discuss grades. • The dependent student’s parents. • Following office privacy policies, can discuss grades. • Determine student is dependent for tax purposes. • May want to require written release. • May refer parent to student.

47. Case Study 12 • Possible resolution (continued). • The independent student’s parents. • Without written release, do not discuss grades. • Refer parent to student. • The student’s spouse. • Without written release, do not discuss grades. • Refer spouse to student. • The student’s roommate. • Without written release, do not discuss grades. • Refer roommate to student.

48. Case Study 12 • Possible resolution (continued). • The student’s academic adviser. • Following privacy policy and annual notification, discuss grades with adviser (if school official). • The student’s campus work supervisor. • Unless defined as “school official,” do not discuss grades. • Could request written student release. • The Lions Club Scholarship Committee Chair. • FERPA supports the release. • Office privacy policy may request a written release from student.

49. Case Study Wrap-Up • The bottom line. • A student’s written release provides the greatest protection from unwarranted breach of privacy!

50. Financial-Aid Staff and Privacy Issues: Balancing Customer Service with Compliance