Family Education Rights and Privacy Act | NYC Autism Charter School

ANNUAL NOTICE OF RIGHTS UNDER THE FAMILY EDUCATIONAL RIGHTS AND PRIVACY ACT

Student Records Privacy Materials

To comply with applicable requirements of the Family Educational Rights and Privacy Act and accompanying regulations (“FERPA”), the Individuals with Disabilities Education Act (“IDEA”), and the Protection of Pupil Rights Amendment (“PPRA”), NYC Autism Charter Schools (“NYCACS” or the “School”) has developed the compliance policies and procedures that follow (the “Student Records Privacy Materials”). These materials apply to both NYCACS East Harlem and NYCACS Bronx. All members of the School’s workforce are subject to applicable requirements set forth in the Student Records Privacy Materials. The School’s Executive Director is designated as the School official responsible for ensuring the confidentiality of any personally identifiable information in student education records and for overseeing compliance with applicable laws. The Executive Director has authority to handle all requests to access, review, or amend student records and will consult with the School’s legal counsel as needed.

FERPA Annual Notice

The School will annually notify parents of students currently in attendance, or eligible students currently in attendance, of their Rights under FERPA (the “Annual Notice”). A model Annual Notice is available below at Exhibit A.

The Annual Notice will inform parents or eligible students that they have the right to:

Inspect and review the student’s education records;
Seek amendment of the student’s education records that the parent or eligible student believes to be inaccurate, misleading, or otherwise in violation of the student’s privacy rights;
Consent to disclosures of PII contained in the student’s education records, except to the extent that FERPA authorizes disclosure without consent; and
File with the U.S. Department of Education a complaint under 34 CFR §§ 99.63 and 99.64 concerning alleged failures by NYCACS to comply with FERPA.

Additionally, NYCACS’ Annual Notice must include all of the following:

The procedure for exercising the right to inspect and review education records.
The procedure for requesting amendment of records under 34 CFR § 99.20.
If the educational agency or institution has a policy of disclosing education records under 34 CFR § 99.31(a)(1), a specification of criteria for determining who constitutes a school official and what constitutes a legitimate educational interest.

NYCACS may provide the Annual Notice by any means that are reasonably likely to inform parents or eligible students of their rights, including via the Remind app and/or email. The School will implement processes to ensure that it effectively notifies (a) parents or eligible students who are disabled, and (b) parents who have a primary or home language other than English.

Requests To Inspect And Review

Subject to certain exceptions, which are discussed below, FERPA grants parents and eligible students the right to inspect and review the student’s education records (an “Access Request”). The School must also respond to reasonable requests for explanations and interpretations of the records.

Time To Respond. The School must comply with an Access Request within a reasonable period of time, which must not exceed 45 days from the date the School receives that request.

If Inspection And Review Infeasible. If circumstances effectively prevent the parent or eligible student from exercising the right to inspect and review the student’s education records, NYCACS will:

Provide the parent or eligible student with a copy of the records requested;
Make other arrangements for the parent or eligible student to inspect and review the requested records.

No Destruction When Request Pending. NYCACS must not destroy any education records if they are the subject of an outstanding request to inspect and review.

“Treatment Record” Exclusion. The School is not required to grant eligible students access to “treatment records,” but such students have the right to have those records reviewed by a physician or other appropriate professional of the students’ choosing.

Copying Fee. The School is permitted to charge a reasonable fee for creating a copy of education records in response to an Access Request, unless, because of the parent or eligible student’s financial circumstances, the imposition of that fee would effectively prevent the parent or eligible student from making the request. NYCACS will not charge a fee to search for or retrieve the education records of a student.

Limitations On Right to Inspect and Review.

If the education records at issue contain information on more than one student, NYCACS will limit inspection and review to only information about the specific student that is the subject of Access Request.

Additionally, it is not required to permit a student to inspect and review education records that are:

financial records, including any information those records contain, of their parents;
confidential letters and confidential statements of recommendation placed in the education records of the student before January 1, 1975, as long as the statements are used only for the purposes for which they were specifically intended; and
confidential letters and confidential statements of recommendation placed in the student’s education records after January 1, 1975, if:
1. the student has waived their right to inspect and review those letters and statements; and
2. those letters and statements are related to the student’s:
  1. admission to an educational institution;
  2. application for employment; or
  3. receipt of an honor or honorary recognition.

To ensure the waiver discussed above will be valid, the School must:

not require such waiver as a condition for admission to or receipt of a service or benefit the School offers; and
collect the waiver in writing and signed by the student, regardless of age.

Where the student at issue has waived their right to review confidential letters and statements, NYCACS must:

give the student, on request, the names of the individuals who provided the letters and statements of recommendation; and
use the letters and statements of recommendation only for the purpose for which they were intended.

A student has the right to revoke their waiver of the right to review confidential letters and statements; provided, however, that such waiver must be in writing and will only apply to actions that occur after the revocation.

Requests To Amend

In the event a parent or eligible student believes the education records relating to the student contain information that is inaccurate, misleading, or in violation of the student’s privacy rights, they may ask the School to amend the record (“Request to Amend”). Upon receipt of a Request to Amend, NYCACS must decide whether to amend the record as requested within a reasonable time. Generally, within 45 days of receipt, NYCACS will either provide a response or notify the requesting party that the response has been delayed due to limited administrative resources and will be provided within 45 days thereafter.

Right To Hearing. If NYCACS denies a Request to Amend, the requesting party may request an opportunity for a hearing to challenge that decision. This hearing must meet, at a minimum, the following requirements:

The School must hold the hearing within a reasonable time after it has received the request for the hearing from the parent or eligible student. Generally, a hearing will be held within 45 days of receipt of request.
The School must give the parent or eligible student notice of the date, time, and place, reasonably in advance of the hearing.
The hearing must be conducted by a member of the School who does not have a direct interest in the outcome of the hearing.
The School must give the parent or eligible student a full and fair opportunity to present relevant evidence. The parent or eligible student may, at their own expense, be assisted or represented by one or more individuals of their own choice, including an attorney.
The educational agency or institution shall make its decision in writing within a reasonable period of time after the hearing. Generally, a decision will be made within 45 days of the hearing.
The decision must be based solely on the evidence presented at the hearing, and must include a summary of the evidence and the reasons for the decision.

Decision Following Hearing. If, following the above hearing, the School decides that the information at issue is, in fact, inaccurate, misleading, or otherwise in violation of the student’s privacy rights, it must (a) amend the record accordingly, and (b) inform the parent or eligible student of the amendment in writing.

If, instead, the School decides that the information in the education record is not inaccurate, misleading, or otherwise in violation of the privacy rights of the student, it must inform the requesting party of the right to place a statement in the record commenting on the contested information in the record or stating why they disagrees with the decision of the agency or institution, or both.

If NYCACS places a statement in the education records of a student in accordance with the above paragraph, it must (a) maintain the statement with the contested part of the record for as long as the record is maintained, and (b) disclose the statement whenever it discloses the portion of the record to which the statement relates.

Consent

Consent Required.

With limited exceptions (which are discussed in the Consent Not Required subsection below), the School must not disclose PII from a student’s education record unless it first receives a signed and dated written consent from the parent or eligible student.

This written consent must:

Specify the records that may be disclosed;
State the purpose of the disclosure; and
Identify the party or class of parties to whom the disclosure may be made.

In circumstances where the School discloses PII from education records after receiving the consent described above, the following rules apply:

If a parent or eligible student so requests, the School must provide them with a copy of the records disclosed; and
If the parent of a student who is not an eligible student so requests, the School must provide the student with a copy of the records disclosed.

Consent Not Required.

The School may disclose PII from an education record of a student without the consent discussed in the Consent Required subsection above if the disclosure meets one or more of the following conditions:

The disclosure is to other school officials, including teachers, within the School whom the School has determined have legitimate educational interests in the contents of those records.
1. A contractor, consultant, volunteer, or other party to whom the School has outsourced institutional services or functions may be considered a school official under this paragraph provided that the outside party:
  1. Performs an institutional service or function for which the agency or institution would otherwise use employees;
  2. Is under the direct control of the agency or institution with respect to the use and maintenance of education records; and
  3. Is subject to the requirements of the Limits on Redisclosure section below.
2. The School must use reasonable methods – including appropriate administrative, physical, and technical access controls – to ensure that school officials obtain access to only those education records in which they have legitimate educational interests.
The disclosure is, subject to the requirements of the Disclosure to Other Educational Agencies or Institutions section below, to officials of another school, school system, or institution of postsecondary education where the student seeks or intends to enroll, or where the student is already enrolled so long as the disclosure is for purposes related to the student’s enrollment or transfer.
The disclosure is, subject to the requirements of the Disclosure for Federal or State Program Purposes below, to an authorized representative of:
1. The Comptroller General of the United States;
2. The Attorney General of the United States;
3. The Secretary; or
4. State and local government authorities.
The disclosure is in connection with financial aid for which the student has applied or which the student has received, if the information is necessary to:
1. Determine eligibility for the aid;
2. Determine the amount of the aid;
3. Determine the conditions for the aid; or
4. Enforce the terms and conditions of the aid.
The disclosure is to State and local officials or authorities to whom this information is specifically:
1. Allowed to be reported or disclosed pursuant to State statute adopted before November 19, 1974, if the allowed reporting or disclosure concerns the juvenile justice system and the system’s ability to effectively serve the student whose records are released; or
2. Allowed to be reported or disclosed pursuant to the section below titled Disclosure of Information as Permitted by State Statute Adopted After November 19, 1974, Concerning the Juvenile Justice System.
3. NOTE: States are permitted to further limit the number or type of State or local officials to whom disclosures may be made in the circumstances described in this subsection.
The disclosure is to organizations conducting studies for, or on behalf of, educational agencies or institutions to:
1. Develop, validate, or administer predictive tests;
2. Administer student aid programs; or
3. Improve instruction.
4. NYCACS may only disclose PII to organizations conducting studies if:
  1. The study is conducted in a manner that does not permit personal identification of parents and students by individuals other than representatives of the School that have legitimate interests in the information;
  2. The information is destroyed when no longer needed for the purposes for which the study was conducted; and
  3. NYCACS enters into a written agreement with the School that:
    1. Specifies the purpose, scope, and duration of the study or studies and the information to be disclosed;
    2. Requires the School to use PII from education records only to meet the purpose or purposes of the study as stated in the written agreement;
    3. Requires the School to conduct the study in a manner that does not permit personal identification of parents and students by anyone other than representatives of the School with legitimate interests; and
    4. Requires the School to destroy all PII when the information is no longer needed for the purposes for which the study was conducted and specifies the time period in which the information must be destroyed.
The disclosure is to accrediting organizations to carry out their accrediting functions.
The disclosure is to a parent of a “dependent student,” as defined in Section 152 of the Internal Revenue Code of 1986.
The disclosure is to comply with a judicial order or lawfully issued subpoena and the School makes a reasonable effort to notify the parent or eligible student of the order or subpoena in advance of compliance, so that the parent or eligible student may seek protective action; provided, however, that advance notice is not required if the disclosure is in compliance with:
1. A Federal grand jury subpoena and the court has ordered that the existence or the contents of the subpoena or the information furnished in response to the subpoena not be disclosed;
2. Any other subpoena issued for a law enforcement purpose and the court or other issuing agency has ordered that the existence or the contents of the subpoena or the information furnished in response to the subpoena not be disclosed; or
3. An ex parte court order obtained by the United States Attorney General (or designee not lower than an Assistant Attorney General) concerning investigations or prosecutions of an offense listed in 18 U.S.C. 2332b(g)(5)(B) or an act of domestic or international terrorism as defined in 18 U.S.C. 2331.
4. NOTE: If the School initiates legal action against a parent or student, the educational agency or institution may disclose to the court, without a court order or subpoena, the education records of the student that are relevant for the educational agency or institution to proceed with the legal action as plaintiff.
5. NOTE2: If a parent or eligible student initiates legal action against the School, the School may disclose to the court, without a court order or subpoena, the student’s education records that are relevant for the educational agency or institution to defend itself.
The disclosure is in connection with a health or safety emergency, under the conditions described in the Disclosure of Information in Health and Safety Emergencies section below.
The disclosure is information the School has designated as “directory information” under the conditions described in the Disclosing Directory Information section below.
The disclosure is to the parent of a student who is not an eligible student or to the student.
The disclosure is to a victim of an alleged crime of violence or a non-forcible sex offense. The disclosure may only include the final results of the disciplinary proceeding conducted by the institution of postsecondary education with respect to that alleged crime or offense. The institution may disclose the final results of the disciplinary proceeding, regardless of whether the institution concluded a violation was committed.
The disclosure is in connection with a disciplinary proceeding at an institution of postsecondary education. The School must not disclose the final results of the disciplinary proceeding unless it determines that:
1. The student is an alleged perpetrator of a crime of violence or non-forcible sex offense; and
2. With respect to the allegation made against them, the student has committed a violation of the institution’s rules or policies.
3. NOTE: The School may not disclose the name of any other student, including a victim or witness, without the prior written consent of the other student.
The disclosure is to a parent of a student at an institution of postsecondary education regarding the student’s violation of any Federal, State, or local law, or of any rule or policy of the institution, governing the use or possession of alcohol or a controlled substance if:
1. The institution determines that the student has committed a disciplinary violation with respect to that use or possession; and
2. The student is under the age of 21 at the time of the disclosure to the parent.
The disclosure concerns sex offenders and other individuals required to register under section 170101 of the Violent Crime Control and Law Enforcement Act of 1994, 42 U.S.C. 14071, and the information was provided to the School under 42 U.S.C. 14071 and applicable Federal guidelines.

NYCACS may also release education records without consent:

After the removal of all PII provided that the School has made a reasonable determination that a student’s identity is not personally identifiable, whether through single or multiple releases, and taking into account other reasonably available information.
If it is de-identified student level data from education records and the disclosure is for the purpose of education research. In such instances, the School should attach a code to each record that may allow the recipient to match information received from the same source, provided that:
1. The School does not disclose any information about how it generates and assigns a record code, or that would allow a recipient to identify a student based on a record code;
2. The record code is used for no purpose other than identifying a de-identified record for purposes of education research and cannot be used to ascertain PII about a student; and
3. The record code is not based on a student’s social security number or other personal information.
NOTE: The School must use reasonable methods to identify and authenticate the identity of parents, students, school officials, and any other parties to whom the School discloses PII from education records.

Recordkeeping Requirements Related to Access Requests and PII Disclosures

Subject to the exceptions set forth below, NYCACS must maintain a record of each request for access to and each disclosure of PII from the education records of each student. The School must also maintain a record of the names of State and local educational authorities and Federal officials and agencies that may redisclose PII from the student’s education records without consent as set forth in the Limits on Redisclosure of Information section below.

The School must maintain the above records as part of the education records of the student for as long as the records are maintained. For each request or disclosure, the record must include:

The parties who have requested or received PII from the education records; and
The legitimate interests the parties had in requesting or obtaining the information.

Upon request of a parent or eligible student, NYCACS must obtain a copy of the record of further disclosures and make it available to the requesting party to review.

In the event the School discloses PII from education records in accordance with the Health and Safety Emergencies section below, it must record the following:

The articulable and significant threat to the health or safety of a student or other individuals that formed the basis for the disclosure; and
The parties to whom the agency or institution disclosed the information.

If the School discloses PII from education records with the understanding authorized in the
Limits on Redisclosure of Information section, the record of the disclosure required under this section must include:

The names of the additional parties to which the receiving party may disclose the information on behalf of the educational agency or institution; and
The legitimate interests which each of the additional parties has in requesting or obtaining the information.

The following parties may inspect the record relating to each student:

The parent or eligible student.
The school official or their assistants who are responsible for the custody of the records.
Those parties authorized in the Prior Consent Not Required subsection above, provided that the purpose of the review is auditing the recordkeeping procedures of the School.

The School is not required to record requests for access or disclosures if the request or disclosure was made by or to:

The parent or eligible student;
A school official, including a teacher, whom the School has determined has a legitimate interest;
A party with written consent from the parent or eligible student;
A party seeking directory information; or
A party seeking or receiving records in accordance with a lawfully issued grand jury subpoena, other subpoena issued for a law enforcement purpose, or an ex parte court order obtained by the U.S. Attorney (or a designee not lower than an Assistant Attorney General) concerning investigations or prosecutions of an offense listed in 18 U.S.C. 2332b(g)(5)(B) or an act of domestic or international terrorism as defined in 18 U.S.C. 2331.

Upon request of a parent or eligible student, NYCACS will provide a list of the types and locations of education records collected, maintained and used by the School.

Limits on Redisclosure of Information

NYCACS may disclose PII from an education record only on the condition that the party to whom the information is disclosed will not disclose the information to any other party without the prior consent of the parent or eligible student. The officers, employees, and agents of a party that receives such information may use the information, but only for the purposes for which the disclosure was made.

That said, the School may disclose PII with the understanding that the party receiving the information may make further disclosures of the information on behalf of the School if the following conditions are met:

The disclosures meet the requirements set forth in the Consent Not Required subsection above; and
Either the School has maintained a record of the names and legitimate interests of the additional parties to whom the redisclosure will be made or a State or local educational authority or Federal official or agency has complied with the requirements of § 99.32(b)(2).

Disclosure of Information to Other Educational Agencies or Institutions

If NYCACS discloses an education record to another educational agency or institution, it must:

Make a reasonable attempt to notify the parent or eligible student at the last known address of the parent or eligible student, unless the disclosure is initiated by the parent or eligible student;
Give the parent or eligible student, upon request, a copy of the record that was disclosed; and
Give the parent or eligible student, upon request, an opportunity for a hearing in accordance with the Requests to Amend section above.

The School may disclose an education record of a student in attendance to another educational agency or institution if:

The student is enrolled in or receives services from the other agency or institution; and
The disclosure meets the requirements of set forth above in this section.

Disclosure of Information for Federal or State Program Purposes

The School may, in connection with an 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, grant access to education records to authorized representatives of the officials or agencies listed in 34 CFR § 99.31(a)(3). In such instances, 34 CFR § 99.35 imposes certain requirements on the pertinent State or local educational authority to appropriately secure and limit use of the education records.

Disclosure of Information in Health and Safety Emergencies

NYCACS may disclose PII from an education record to appropriate parties, including parents of an eligible student, in connection with an emergency if knowledge of the information is necessary to protect the health or safety of the student or other individuals.

Additionally, the School may:

Include in the education records of a student appropriate information concerning disciplinary action taken against the student for conduct that posed a significant risk to the safety or well-being of that student, other students, or other members of the school community;
Disclose such information to teachers and school officials within the School whom the School has determined have legitimate educational interests in the behavior of the student; or
Disclose such information to teachers and school officials in other schools who have been determined to have legitimate educational interests in the behavior of the student.

In determining whether an emergency exists in which knowledge of the information at issue is necessary to protect the health or safety of the student or other individuals, the School may take into account the totality of the circumstances pertaining to a threat to the health or safety of a student or other individuals. If the School determines that there is an articulable and significant threat to the health or safety of a student or other individuals, it may disclose information from education records to any person whose knowledge of the information is necessary to protect the health or safety of the student or other individuals. If, based on the information available at the time of the determination, there is a rational basis for the determination, the U.S. Department of Education will not substitute its judgment for that of the School in evaluating the circumstances and making its determination.

Disclosing Directory Information

The School may disclose directory information if it has given public notice to parents of students in attendance and eligible students in attendance at the School of:

The types of PII that the School has designated as directory information;
A parent’s or eligible student’s right to refuse to let the agency or institution designate any or all of those types of information about the student as directory information; and
The period of time within which a parent or eligible student has to notify the School in writing that they does not want any or all of those types of information about the student designated as directory information.

A model Directory Information Notice is available below at Exhibit B.

The School may disclose directory information about former students without complying with the notice and opt out conditions described above. However, the School must continue to honor any valid request to opt out of the disclosure of directory information made while a student was in attendance unless the student rescinds the opt out request.

A parent or eligible student may not use the right to opt out of directory information disclosures for purposes of:

Preventing the educational agency or institution from disclosing or requiring a student to disclose the student’s name, identifier, or institutional email address in a class in which the student is enrolled; or
Preventing the School from requiring a student to wear, to display publicly, or to disclose a student ID card or badge that exhibits information that may be designated as directory information and that has been properly designated by the School as directory information in its Directory Information Notice.

In its Directory Information Notice to parents and eligible students in attendance at the School, the School may specify that disclosure of directory information will be limited to specific parties, for specific purposes, or both. When the School specifies that disclosure of directory information will be limited to specific parties, for specific purposes, or both, it must limit its directory information disclosures accordingly.

If a student’s social security number or other non-directory information is used alone or combined with other data elements to identify or help identify the student or the student’s records, the School may not disclose or confirm directory information without meeting the written consent requirements in the Consent Required subsection above.

Disclosure of Information as Permitted by State Statute Adopted After November 19, 1974, Concerning The Juvenile Justice System

If reporting or disclosure allowed by State statute concerns the juvenile justice system and the system’s ability to effectively serve, prior to adjudication, the student whose records are released, the School may disclose education records under 34 CFR § 99.31(a)(5)(i)(B). In such instances, the School should obtain, from the officials or authorities to whom the records are disclosed, a written certification that, except as otherwise provided under State law, the information will not be disclosed to any other party without prior written consent of the parent of the student.

Conflict with State or Local Laws

If the School determines that it cannot comply with FERPA due to a conflict with State or local law, it must notify the Student Privacy Policy Compliance Office within 45 days, providing the text and citation of the conflicting law.

Submission of Information to Student Privacy Policy Compliance Office

The School may be required to submit to the Office reports, information on policies and procedures, annual notifications, training materials, or other information necessary to carry out the Office’s enforcement responsibilities under FERPA.

Glossary

Attendance includes, without limitation:

Attendance in person or by paper correspondence, videoconference, satellite, Internet, or other electronic information and telecommunications technologies for students who are not physically present in the classroom; and
The period during which a person is working under a work-study program.

Authorized representative means any entity or individual designated by a State or local educational authority or an agency headed by an official listed in 34 CFR § 99.31(a)(3) to conduct – with respect to Federal- or State-supported education programs – any audit or evaluation, or any compliance or enforcement activity in connection with Federal legal requirements that relate to these programs.

Biometric record, as used in the definition of PII, means a record of one or more measurable biological or behavioral characteristics that can be used for automated recognition of an individual. Examples include fingerprints; retina and iris patterns; voiceprints; DNA sequence; facial characteristics; and handwriting.

Dates of attendance means the period of time during which a student attends or attended an educational agency or institution. Examples of dates of attendance include an academic year, a spring semester, or a first quarter. Dates of attendance does not include specific daily records of a student’s attendance at an educational agency or institution.

Directory information includes, but is not limited to, the student’s name; address; telephone listing; electronic mail address; photograph; date and place of birth; major field of study; grade level; enrollment status (e.g., undergraduate or graduate, full-time or part-time); dates of attendance; participation in officially recognized activities and sports; weight and height of members of athletic teams; degrees, honors, and awards received; and the most recent educational agency or institution attended. Directory information does not include a student’s SSN or student ID number, except as follows:

A student ID number, user ID, or other unique personal identifier used by a student for purposes of accessing or communicating in electronic systems, but only if the identifier cannot be used to gain access to education records except when used in conjunction with one or more factors that authenticate the user’s identity, such as a personal identification number (PIN), password or other factor known or possessed only by the authorized user; and
A student ID number or other unique personal identifier that is displayed on a student ID badge, but only if the identifier cannot be used to gain access to education records except when used in conjunction with one or more factors that authenticate the user’s identity, such as a PIN, password, or other factor known or possessed only by the authorized user.

Disciplinary action or proceeding means the investigation, adjudication, or imposition of sanctions by an educational agency or institution with respect to an infraction or violation of the internal rules of conduct applicable to students of the agency or institution.

Disclosure means to permit access to or the release, transfer, or other communication of PII contained in education records by any means, including oral, written, or electronic means, to any party except the party identified as the party that provided or created the record.

Early childhood education program means:

A Head Start program or an Early Head Start program carried out under the Head Start Act (42 U.S.C. 9831 et seq.), including a migrant or seasonal Head Start program, an Indian Head Start program, or a Head Start program or an Early Head Start program that also receives State funding;
A State licensed or regulated childcare program; or
A program that:
1. Serves children from birth through age six that addresses the children’s cognitive (including language, early literacy, and early mathematics), social, emotional, and physical development; and
2. Is:
  1. A State prekindergarten program;
  2. A program authorized under section 619 or part C of the Individuals with Disabilities Education Act; or
  3. A program operated by a local educational agency.

Educational agency or institution means any public or private agency or institution to which funds have been made available under any program administered by the Secretary, if:

The educational institution provides educational services or instruction, or both, to students; or
The educational agency is authorized to direct and control public elementary or secondary, or postsecondary educational institutions.

Education program means any program that is principally engaged in the provision of education, including, but not limited to, early childhood education, elementary and secondary education, postsecondary education, special education, job training, career and technical education, and adult education, and any program that is administered by an educational agency or institution.

Education records means those records that are (a) directly related to a student, and (b) maintained by an educational agency or institution or by a party acting for the agency or institution. Education records also include early intervention records regarding a child that are required to be collected, maintained, or used under part C of the IDEA. Education records does not include:

Records that are kept in the sole possession of the maker, are used only as a personal memory aid, and are not accessible or revealed to any other person except a temporary substitute for the maker of the records.
Records of the law enforcement unit of an educational agency or institution, subject to the provisions of 34 CFR § 99.8.
Records relating to an individual who is employed by an educational agency or institution, that:
1. Are made and maintained in the normal course of business;
2. Relate exclusively to the individual in that individual’s capacity as an employee; and
3. Are not available for use for any other purpose.
4. NOTE: Records relating to an individual in attendance at the agency or institution who is employed as a result of their status as a student are education records and not excepted.
Records on a student who is 18 years of age or older, or is attending an institution of postsecondary education, that are:
1. Made or maintained by a physician, psychiatrist, psychologist, or other recognized professional or paraprofessional acting in their professional capacity or assisting in a paraprofessional capacity;
2. Made, maintained, or used only in connection with treatment of the student; and
3. Disclosed only to individuals providing the treatment. For the purpose of this definition, “treatment” does not include remedial educational activities or activities that are part of the program of instruction at the agency or institution.
Records created or received by an educational agency or institution after an individual is no longer a student in attendance and that are not directly related to the individual’s attendance as a student.
Grades on peer-graded papers before they are collected and recorded by a teacher.

Eligible student means a student who has reached 18 years of age or is attending an institution of postsecondary education.

Institution of postsecondary education means an institution that provides education to students beyond the secondary school level; “secondary school level” means the educational level (not beyond grade 12) at which secondary education is provided as determined under State law.

Parent means a parent of a student and includes a natural parent, a guardian, or an individual acting as a parent in the absence of a parent or a guardian.

Party means an individual, agency, institution, or organization.

Personally Identifiable Information (“PII”) includes, but is not limited to:

The student’s name;
The name of the student’s parent or other family members;
The address of the student or student’s family;
A personal identifier, such as the student’s social security number, student number, or biometric record;
Other indirect identifiers, such as the student’s date of birth, place of birth, and mother’s maiden name;
Other information that, alone or in combination, is linked or linkable to a specific student that would allow a reasonable person in the school community, who does not have personal knowledge of the relevant circumstances, to identify the student with reasonable certainty; or
Information requested by a person who the educational agency or institution reasonably believes knows the identity of the student to whom the education record relates.

Record means any information recorded in any way, including, but not limited to, handwriting, print, computer media, video or audio tape, film, microfilm, and microfiche.

Secretary means the Secretary of the U.S. Department of Education or an official or employee of the Department of Education acting for the Secretary under a delegation of authority.

Student, except as otherwise specifically provided in this part, means any individual who is or has been in attendance at an educational agency or institution and regarding whom the agency or institution maintains education records.

EXHIBIT A

FERPA Annual Notice

The Family Educational Rights and Privacy Act (“FERPA”) affords parents and students who are 18 years of age or older (“eligible students”) certain rights with respect to the student’s education records. These rights are:

The right to inspect and review the student’s education records within 45 days after the day NYC Autism Charter Schools (“NYCACS”) receives a request for access.

Parents or eligible students who wish to inspect their child’s or their own education records should submit to the Head of School a written request that identifies the records they wish to inspect. NYCACS will make arrangements for access and notify the parent or eligible student of the time and place where the records may be inspected.

Parents or eligible students may appoint a representative to inspect records on their behalf with prior written authorization to the Head of School. If a request is connected to a CSE meeting or due process hearing, records will be provided without unnecessary delay and prior to that meeting.

The right to request the amendment of the student’s education records that the parent or eligible student believes are inaccurate, misleading, or otherwise in violation of the student’s privacy rights under FERPA.

Parents or eligible students who wish to ask NYCACS to amend their child’s or their own education record should write to the Head of School, clearly identify the part of the record they want changed, and specify why it should be changed. If NYCACS decides not to amend the record as requested by the parent or eligible student, the School will notify the parent or eligible student of the decision and of their right to a hearing regarding the request for amendment. Additional information regarding the hearing procedures will be provided to the parent or eligible student when notified of the right to a hearing.

The right to provide written consent before NYCACS discloses personally identifiable information (“PII”) from the student’s education records, except to the extent that applicable law authorizes disclosure without consent.

One exception, which permits disclosure without consent, is disclosure to school officials with legitimate educational interests. The criteria for determining who constitutes a school official and what constitutes a legitimate educational interest must be set forth in the school’s or school district’s annual notification for FERPA rights. A school official includes: an administrator, supervisor, instructor, or support staff member (including health or medical staff); a Board of Trustees member; a parent or student on an official committee; and any volunteer or contractor performing an institutional function under the direct control of the School with respect to the use and maintenance of personally identifiable information.

A school official typically has a legitimate educational interest if the official needs to review an education record in order to fulfill their professional responsibility. All NYCACS staff members are required to sign a confidentiality agreement acknowledging their obligations under applicable law, and receive annual training in student records confidentiality. The School maintains a list, available for public inspection, of the names and positions of those employees who may have access to the personally identifiable information of any student, consistent with applicable law. This list is available upon request from the Executive Director.

Upon request, NYCACS discloses education records without consent to officials of another school or school district in which a student seeks or intends to enroll, or is already enrolled, if the disclosure is for purposes of the student’s enrollment or transfer.

The right to file a complaint with the U.S. Department of Education concerning alleged failures by NYCACS to comply with the requirements of FERPA. The name and address of the Office that administers FERPA are:

Student Privacy Policy Office

U.S. Department of Education

400 Maryland Avenue, SW

Washington, DC 20202

Please note that FERPA permits the disclosure of PII from students’ education records, without consent of the parent or eligible student, if the disclosure meets certain conditions found in § 99.31 of the FERPA regulations. Except for disclosures to school officials, disclosures related to some judicial orders or lawfully issued subpoenas, disclosures of directory information, and disclosures to the parent or eligible student, § 99.32 of the FERPA regulations requires the school to record the disclosure. Parents and eligible students have a right to inspect and review the record of disclosures. A school may disclose PII from the education records of a student without obtaining prior written consent of the parents or the eligible student if the disclosure is:

To other school officials, including teachers, within the educational agency or institution whom the school has determined to have legitimate educational interests. This includes contractors, consultants, volunteers, or other parties to whom the school has outsourced institutional services or functions, provided that the conditions listed in § 99.31(a)(1)(i)(B)(1) – (a)(1)(i)(B)(3) are met. (See § 99.31(a)(1))
To officials of another school, school system, or institution of postsecondary education where the student seeks or intends to enroll, or where the student is already enrolled, if the disclosure is for purposes related to the student’s enrollment or transfer, subject to the requirements of § 99.34. (See § 99.31(a)(2))
To authorized representatives of the U.S. Comptroller General, the U.S. Attorney General, the U.S. Secretary of Education, or State and local educational authorities, such as the State educational agency (SEA) in the parent or eligible student’s State. Disclosures under this provision may be made, subject to the requirements of § 99.35, in connection with an 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. These entities may make further disclosures of PII to outside entities that are designated by them as their authorized representatives to conduct any audit, evaluation, or enforcement or compliance activity on their behalf, if applicable requirements are met. (See §§ 99.31(a)(3) and 99.35)
In connection with financial aid for which the student has applied or which the student has received, if the information is necessary for such purposes as to determine eligibility for the aid, determine the amount of the aid, determine the conditions of the aid, or enforce the terms and conditions of the aid. (See § 99.31(a)(4))
To State and local officials or authorities to whom information is specifically allowed to be reported or disclosed by a State statute that concerns the juvenile justice system and the system’s ability to effectively serve, prior to adjudication, the student whose records were released, subject to § 99.38. (See § 99.31(a)(5))
To organizations conducting studies for, or on behalf of, the school, in order to: (a) develop, validate, or administer predictive tests; (b) administer student aid programs; or (c) improve instruction, if applicable requirements are met. (See § 99.31(a)(6))
To accrediting organizations to carry out their accrediting functions. (See § 99.31(a)(7))
To parents of an eligible student if the student is a dependent for IRS tax purposes. (See § 99.31(a)(8))
To comply with a judicial order or lawfully issued subpoena if applicable requirements are met. (See § 99.31(a)(9))
To appropriate officials in connection with a health or safety emergency, subject to § 99.36. (See § 99.31(a)(10))
Information the school has designated as “directory information” if applicable requirements under § 99.37 are met. (See § 99.31(a)(11)).
To an agency caseworker or other representative of a State or local child welfare agency or tribal organization who is authorized to access a student’s case plan when such agency or organization is legally responsible, in accordance with State or tribal law, for the care and protection of the student in foster care placement. (See 20 U.S.C. § 1232g(b)(1)(L))
To the Secretary of Agriculture or authorized representatives of the Food and Nutrition Service for purposes of conducting program monitoring, evaluations, and performance measurements of programs authorized under the Richard B. Russell National School Lunch Act or the Child Nutrition Act of 1966, under certain conditions. (See 20 U.S.C. § 1232g(b)(1)(K)).

EXHIBIT B

FERPA Directory Information Notice

The Family Educational Rights and Privacy Act (“FERPA”) requires that NYC Autism Charter Schools (“NYCACS”), with certain exceptions, obtain your written consent prior to the disclosure of personally identifiable information from your child’s education records. However, NYCACS may disclose appropriately designated “directory information” without written consent, unless you have advised NYCACS to the contrary in accordance with NYCACS’s procedures. The primary purpose of directory information is to allow NYCACS to include information from your child’s education records in certain school publications. Examples include:

Annual yearbooks;
Graduation or enrichment programs; and
A playbill, showing your student’s role in a drama production;

Directory information, which is information that is generally not considered harmful or an invasion of privacy if released, can also be disclosed to outside organizations without a parent’s prior written consent. Outside organizations include, but are not limited to, companies that take school photos or publish yearbooks. In addition, two federal laws require local educational agencies (“LEAs”) receiving assistance under the Elementary and Secondary Education Act of 1965, as amended (“ESEA”), to provide military recruiters, upon request, with the following information – names, addresses and telephone listings – unless parents have advised the LEA that they do not want their student’s information disclosed without their prior written consent.

If you do not want NYCACS to disclose any or all of the types of information designated below as directory information from your child’s education records without your prior written consent, you must notify NYCACS in writing by September 30th (or within two weeks of enrollment if after September 30th). To opt out, complete and return the Directory Information Opt-Out Form (Exhibit B.1) to the Head of School by the deadline. NYCACS has designated the following information as directory information:

Student’s name
Date and place of birth
Age
Address
Telephone listing
Parent email address
Photograph
Dates of attendance
The most recent educational agency or institution attended
Student ID number, user ID, or other unique personal identifier used to communicate in electronic systems but only if the identifier cannot be used to gain access to education records except when used in conjunction with one or more factors that authenticate the user’s identity, such as a PIN, password, or other factor known or possessed only by the authorized user
A student ID number or other unique personal identifier that is displayed on a student ID badge, but only if the identifier cannot be used to gain access to education records except when used in conjunction with one or more factors that authenticate the user’s identity, such as a PIN, password, or other factor known or possessed only by the authorized user.

EXHIBIT B.1

Sample Directory Information Opt-Out Form

The following form is provided annually to all parents/legal guardians along with the Annual FERPA Notice. Completed forms must be returned to the Head of School by September 30th of each school year, or within two weeks of enrollment if enrollment occurs after September 30th. If no form is returned by the deadline, the School will assume no objection to the release of directory information.

TO: Parents/Legal Guardians of Students Enrolled at NYC Autism Charter Schools

FROM: Julie Fisher, Executive Director

DATE: [Date of Memo]

RE: Notice of Intent to Disclose Student Directory Information – [School Year]

Pursuant to the Family Educational Rights and Privacy Act (FERPA) and Part B of the Individuals with Disabilities Education Act (IDEA), you have the right to request that NYC Autism Charter Schools refrain from publishing any or all directory information regarding your child. Directory information includes the items listed below.

You are hereby notified that NYCACS intends to publish the directory information indicated on this form. Directory information may be circulated to other parents/legal guardians of students enrolled in the School and may be used in school publications such as event programs, annual program books, and recognition lists. Some information (name and photograph) may be used specifically for event programs.

If you object to the publication of any item, please place a checkmark (✓) in the box to the right of that item, complete the signature section, and return this form to the School office no later than _________________________ [due date].

Please note: If you do not return this form by the due date indicated above, the School will assume that you have no objection to the publication of your child’s directory information.

Directory Information to Be Published by NYC Autism Charter Schools

[School Year]

Place a checkmark (✓) in the box next to any item you DO NOT want published.

Name □

Date and place of birth □

Age □

Address □

Telephone listing □

Parent email address □

Photograph □

Dates of attendance □

The most recent educational agency or institution attended □

Student ID number, user ID, or other unique personal

identifier used to communicate in electronic systems □

A student ID number or other unique personal

identifier that is displayed on a student ID badge □

Please complete the section below and return this form to the School office.

Student’s Name: _______________________________________

Print Your Name: _______________________________________

Relationship to Student: _______________________________________

Signature: _______________________________________

Date: _______________________________________

Return completed form to the Head of School at your child’s campus:

East Harlem: 433 East 100th Street, New York, NY 10029

Bronx: 1180 Tinton Ave., 4th Fl., Bronx, NY 10456

Questions? Contact Julie Fisher, Executive Director, at jfisher@nycacharterschool.org or 212-860-2580.