The U.S. Department of Education's Student Privacy Policy Office ("SPPO") recently issued one guide and two guidance documents regarding the Family Educational Rights and Privacy Act ("FERPA"), the federal law that protects the privacy of student education records. FERPA applies to educational agencies and institutions (collectively, "schools") that receive funding under any program administered by the U.S. Department of Education.

The guide and companion guidance documents address distinct topics. Released on March 8, 2023, the guide provides general information to students who have reached the age of 18 or who attend a postsecondary educational institution ("eligible students") concerning their rights under FERPA. The guidance documents, released on April 12, 2023, focus more specifically on the applicability of FERPA to student health records.

These new resources, which provide overviews of existing legal rights and obligations, include the following information:

  • An Eligible Student Guide to FERPA explains the rights provided by FERPA to eligible students, including the right to access education records and to seek amendment or correction of education records. The guide describes the general consent requirement governing the disclosure of personally identifiable information ("PII"), as well as the exceptions to that requirement, such as the ability to disclose PII to third parties with a "legitimate educational interest" in the information and to disclose "directory information," under certain circumstances, without consent. The guide also explains a school's annual obligation to notify eligible students of their FERPA rights, and of the process for filing a complaint with the SPPO.
  • FERPA: Guidance for School Officials on Student Health Records describes the extent to which FERPA protects the privacy of student health records. Education records protected by FERPA may include student health records; however, health records of eligible students that constitute "treatment records" are specifically excluded from the definition of "education records" and thus are not afforded FERPA protection. As explained in the guidance, "treatment records," as defined by FERPA, apply only to eligible students. The guidance also details the relationship between FERPA and the Health Insurance Portability and Accountability Act of 1996 ("HIPAA") Privacy Rule concerning health records maintained by school health clinics and health care facilities. A high-level summary of this guidance is provided by the companion document, Know Your Rights: FERPA Protections for Student Health Records.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.