COVID-19 FERPA FAQ

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Remote learning implicates many issues related to the Family Educational Rights and Privacy Act (“FERPA”).  FERPA is a federal law that protects the privacy of student education records and prohibits school districts from disclosing personally identifiable information (“PII”) from a student’s education record without prior written consent or an applicable exception under FERPA.  Recently, the U.S. Department of Education (“DOE”), the agency that enforces FERPA, has offered insight for school districts on complying with FERPA as remote learning occurs for the remainder of the school year.  We have recounted some of the DOE guidance below:

Q: Can a teacher bring home student education records?

A: Yes, as long as the teacher has a legitimate educational interest in the education records, does not disclose PII from the education records, and uses reasonable methods to protect the education records and the PII within the records from disclosure.

Q: How can school districts use virtual learning software under FERPA?

A: Under the “school official exception” to FERPA’s general consent requirement, which permits disclosure of student education records as long as the provider (1) performs an institutional service or function for which the school district would otherwise use its own employees; (2) has been determined to meet the criteria set forth in the school district’s annual notification of FERPA rights; (3) is under the direct control of the school district regarding the use and maintenance of the education records/PII; and (4) uses the education records/PII only for authorized purposes and does not redisclose the education records/PII unlawfully.

Q: Does FERPA address which virtual learning applications can be used?

A: No, as FERPA is a privacy rule and does not include explicit information security standards. However, school districts should be cautious to review information security requirements and terms of service in connection with FERPA.

Q: Is it permissible to record classes and share the recording with students who are unable to attend?

A: Yes, assuming the recording does not disclose PII from student education records or appropriate written consent is obtained.

Q: A parent requests access to their child’s education record while school is closed. How can a school district provide access?

A: Under FERPA, a school must provide a parent with an opportunity to inspect and review their child’s education records within 45 days* of the receipt of the request. FERPA does not identify exceptions to this deadline, therefore a school district would be required to provide the parent with a copy of the records or make other arrangements permitting inspection.

*In Massachusetts, school districts have 10 days to provide such access. The Massachusetts Department of  elementary and Secondary Education has not identified exceptions to meeting this deadline.

Q: Does FERPA permit electronic consent and signatures?

A: Yes, as long the form identifies and authenticates a particular person as the source of the electronic consent and indicates such person’s approval of the information contained in the electronic consent.

Q: A teacher would like to conduct a parent-teacher conference but is working at home in the same room as a family member. Is it permissible for the teacher to conduct the conference?

A: Yes, as long as the teacher (1) does not disclose PII from the student’s education record during the conversation; or (2) moves away from the family member so the family member does not overhear the discussion; or (3) obtains prior consent in writing from the parent/student for the potential disclosure of PII to the teacher’s family members.  Teachers should make every effort to ensure that individuals residing with the teacher cannot overhear the conversation which may require relocating to another room or asking others in the household to relocate to another room.

Our office will continue to monitor federal and state guidance and legislation for further developments related to COVID-19.  If you have any questions, please contact us.

This update is provided for informational purposes only and should not be considered legal advice.

Superintendents Must Hear Disciplinary Appeals Under 37H

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On April 28, 2020, the Supreme Judicial Court of Massachusetts (SJC) issued a decision regarding the delegation of a superintendent’s statutory authority to hear a student’s appeal from a principal’s decision under M.G.L. c. 71, § 37H.

In Doe v. Worcester Public Schools, SJC-12827, a student in the Worcester Public Schools was suspended for 152 school days after a hearing before the principal pursuant to the district’s student disciplinary rules and M.G.L. c. 71, § 37H. The student appealed the principal’s decision pursuant to M.G.L. c. 71, § 37H. The school safety director, the superintendent’s designee, conducted the appeal hearing and reduced the suspension to 112 school days.

The plaintiff student brought a lawsuit against the district, arguing that the district violated M.G.L. c. 71, § 37H(d) by designating the school safety director to hear the student’s appeal of the principal’s decision. The plaintiff student argued that a disciplinary hearing pursuant to M.G.L. c. 71, § 37H must be held by the superintendent, not their designee.

In interpreting M.G.L. c. 71, § 37H, the SJC noted the statute is clear: “expelled students have a right to appeal to, and have a hearing before, the superintendent.” In comparison, the SJC examined M.G.L. c. 71, § 37H ¾ which explicitly permits a superintendent or a designee to hear an appeal of a principal’s decision. The SJC reasoned this statutory distinction “makes sense” because M.G.L c.71, § 37H may result in a permanent expulsion for serious offenses (i.e. assault on school staff, possession of a dangerous weapon, possession of a controlled substance), whereas discipline under M.G.L. c. 71, § 37H ¾ results from less serious offenses. The SJC held that granting students the ability to appeal directly to the superintendent when facing discipline for serious offenses under M.G.L. c. 71, § 37H provides these students greater procedural protections.

The Massachusetts Department of Elementary and Secondary Education had previously provided an interpretation of M.G.L. c. 71, § 37H that permitted districts to delegate the appeal duties. The SJC rejected this interpretation.

In summary:

  • Disciplinary appeals under M.G.L. c. 71, 37H (assault on school staff, possession of a dangerous weapon, possession of a controlled substance) should be heard directly by the superintendent.
  • Disciplinary appeals under M.G.L. c. 71, 37H ½ (felony complaint or conviction), while not addressed by this decision, contain the same statutory language as M.G.L. c. 71, § 37H, and should be heard directly by the superintendent.
  • Disciplinary appeals under M.G.L. c. 71, 37H ¾ may be heard by the superintendent, or a designee.

If you have questions or concerns about this issue, or about school law generally, please contact us.

This update is provided for informational purposes only and should not be considered legal advice.

Remote Learning Update

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On April 24, 2020, the Massachusetts Department of Elementary and Secondary Education issued updated guidance for school administrators regarding remote learning. The updated guidance can be found here: 2020-0424updated-remote-learning.

EEOC Guidance Permits Employee COVID-19 Testing

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Yesterday, the Equal Employment Opportunity Commission (“EEOC”) updated its COVID-19 related guidance to address the issue of employers testing employees for COVID-19.

Specifically, the EEOC opined that “…employers may take steps to determine if employees entering the workplace have COVID-19 because an individual with the virus will pose a direct threat to the health of others. Therefore an employer may choose to administer COVID-19 testing to employees before they enter the workplace to determine if they have the virus.”

In line with the above guidance, employers should:

  • Ensure that tests are accurate and reliable (this may require reviewing guidance from the U.S. Food and Drug Administration (“FDA”) or the Centers for Disease Control and Prevention (“CDC”) on what constitutes accurate and reliable testing);
  • Consider the possibility of false-positives and false-negatives from testing;
  • Require that employees observe infection control practices in the workplace; and
  • Be aware that accurate testing only reveals if the virus is currently present, and a negative test does not mean an employee will not acquire the virus later.

However, employers should not:

  • Disseminate the identities of individuals who have tested positive for COVID-19 to the workplace;
  • Ask potential new employees to be tested for COVID-19 until a conditional offer of employment has been made;
  • Use testing as a substitute for infection control practices and regular sanitization of the workplace; and
  • Discriminate in the manner in which employee COVID-19 testing is conducted (ex. measuring body temperatures for some, but not all, employees).

An employer may ask employees screening questions about COVID-19 symptoms and may measure employees’ body temperatures before beginning work. However, if an employer chooses to ask questions about symptoms or measure body temperatures, the employer must do so of all employees. The questioning and temperature measuring cannot be limited to certain employees. Furthermore, if an employee exhibits symptoms of COVID-19 while at work, the employer may send the employee home.

Our office will continue to monitor federal and state guidance and legislation for further developments related to COVID-19. If you have any questions, please contact us.

This update is provided for informational purposes only and should not be considered legal advice.

Liz Valerio and Nick Dominello Presented at MASPA Webinar Responding to COVID-19 Issues in Schools

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On April 17, 2020 Liz Valerio and Nick Dominello presented at the Massachusetts Association of School Personnel Administrator’s webinar, Responding to COVID-19 Issues in Schools. Topics discussed included: Families First Coronavirus Response Act, furloughs and layoffs, leaves of absence, transportation issues, school approved trips, educator misconduct and educator evaluations.

The presentation can be found here.

Governor Extends School Closure Through Remainder of School Year

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Today, Governor Charles D. Baker announced that Massachusetts private and public schools will remain closed though the end of the 2019-2020 school year due to the COVID-19 pandemic.

Governor Baker stated that remote learning will continue in all districts. Governor Baker also stated that DESE will soon be launching a remote learning initiative and advisory group, both to increase remote learning tools. Jeffrey C. Riley, the Commission of the Department of Elementary and Secondary Education (DESE) stated that DESE will release additional guidance regarding remote learning and reopening schools later this week.

We will continue to monitor federal and state guidance and legislation for further developments related to COVID-19.  If you have any questions, please contact us.

This update is provided for informational purposes only and should not be considered legal advice.

U.S. Department of Education (DOE) Approves Massachusetts Waiver Required for ESSA Grants and DESE Releases Grant Guidance

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On April 8, 2020, the Department of Elementary and Secondary Education (DESE) received approval from the DOE for specific waivers offered under the Coronavirus Aid, Relief, and Economic Security Act (CARES Act). Massachusetts was granted numerous waivers including:

  • Fiscal Year 2019 ESSA funds may be used until September 30, 2021;
  • DESE may waive the 15% carryover limit on Title I funds;
  • Decreased demands under Title IVA; and
  • Definition of “Professional Development” is waived under Title IIA and districts are permitted to “conduct time-sensitive, one-time or stand-alone” professional development opportunities to “help educators provide effective distance or remote learning”.

DESE expects additional waivers from DOE in the coming weeks and months. Districts are encouraged to read the guidance in full at the link below:

http://www.doe.mass.edu/covid19/on-desktop.html

DESE Grants

The Department of Elementary and Secondary Education (DESE) has also released guidance regarding grant program expenditures. Among the guidance, DESE stated the following regarding the status of DESE grants during the emergency school closure:

  • Active grants may continue to be used to pay for salaries and benefits, “consistent with the recipient organization’s policy of paying salaries”.
  • Grants may be used to pay for “Other costs…necessary to resume activities supported by the award, consistent with applicable cost principles and the benefit to the project”.
  • Generally, there is a rule regarding line item amendments which requires approval 30 days prior to need. This requirement has been lifted. Expenditures should “still fall within the allowable costs and program parameters”.

DESE also created a Frequently Asked Questions document regarding grants. Districts are encouraged to review this guidance and the FAQs in their entirety. The FAQ and the guidance can be found at the link below:

http://www.doe.mass.edu/covid19/finance-hr.html

If you have questions or concerns, please contact any of our attorneys.

This update is provided for informational purposes only and should not be considered legal advice.

Federal Government Passes CARES Act to Address COVID-19 Crisis

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On March 27, 2020, the federal government passed the Coronavirus Aid, Relief, and Economic Security (“CARES”) Act responsive to the current COVID-19 epidemic.  The Act affords economic relief to individuals, small businesses, hospitals and public health facilities, food security efforts, state and local governments, and education.

State and Local Governments

The Act designates funding to state and local governments for COVID-19 response programs, as well as direct financial aid for government entities which may run out of cash due to a high number of COVID-19 cases.

Economic Relief for Businesses

The Department of the Treasury can provide forgivable loans and investments to businesses.  We expect more information to follow as to the process by which businesses will be able to apply for such loans.

The Act also established a tax credit for businesses that are closed or suffering in order to keep workers on payroll.  The credit covers up to fifty percent (50%) of payroll on the first $10,000 of compensation, including health benefits, for each employee.

Insurance Coverage

The Act requires private insurance plans to cover COVID-19 treatments and vaccines, and to make all testing for COVID-19 free of charge.

Economic Payments for Individuals and Families

The Act offers payments to single and married couples as follows:

Individuals with an adjusted gross income of $75,000 or less are entitled to a one-time cash payment of $1,200.  For individuals with an adjusted gross income of $75,000 to $99,000, this amount decreases.  Individuals with an adjusted gross income greater than $99,000 are not entitled to a payment.

Married couples with an adjusted gross income of $150,000 or less are entitled to a one-time cash payment of $2,400.  For married couples with an adjusted gross income of $150,000 to $198,000, this amount decreases.  Married couples with an adjusted gross income greater than $198,000 are not entitled to a payment.

Individuals and married couples with children under the age of seventeen (17) years old are entitled to a payment of $500 per child.

The adjusted gross income is based on either 2018 or 2019 tax filings – whichever is most recent.

Unemployment Benefits

Under the Act, states may enter into an agreement with the federal government permitting individuals receiving unemployment benefits to receive an additional payment of $600 each week.  If such an agreement is reached, it will expire no later than July 31, 2020.

Food Assistance

The Act provides additional funding for food banks, the Supplemental Nutrition Assistance Program and the Child Nutrition Program.

Education

The Department of Education will suspend payments due on federal student loans until September 30, 2020.  Additionally, employers may provide up to $5,250 in tax-free student loan repayment benefits.

Additionally, students forced to drop out of school as a result of COVID-19 will not have time away from school deducted from lifetime limits on subsidized loan and Pell grant eligibility, and will not be asked to pay back grants or aid they have already received.

Our office is closely monitoring federal and state guidance and legislation for further developments related to COVID-19.  If you have any questions, please contact us.

This update is provided for informational purposes only and should not be considered legal advice.

Department of Labor Issues Guidance on Families First Coronavirus Response Act

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The Department of Labor (“DOL)” recently issued guidance addressing the exclusion of health care providers and emergency responders from the benefits of the Families First Coronavirus Response Act (“FFCRA”) and an exemption for small business.

Health Care Providers and Emergency Responders

An employer may exclude health care providers and emergency responders from: (a) family and medical leave under the Emergency Family and Medical Leave Expansion Act; and (b) paid sick leave under the Emergency Paid Sick Leave Act.

The DOL defines a health care provider as “anyone employed at any doctor’s office, hospital, health care center, clinic, post-secondary educational institution offering health care instruction, medical school, local health department or agency, nursing facility, retirement facility, nursing home, home health care provider, any facility that performs laboratory or medical testing, pharmacy, or any similar institution, employer, or entity. This includes any permanent or temporary institution, facility, location, or site where medical services are provided that are similar to such institutions.”  To minimize the spread of COVID-19, the DOL “encourages employers to be judicious when using this definition to exempt health care providers from the provisions of the FFCRA.”

The DOL defines an emergency responder as “an employee who is necessary for the provision of transport, care, health care, comfort, and nutrition of such patients, or whose services are otherwise needed to limit the spread of COVID-19. This includes but is not limited to military or national guard, law enforcement officers, correctional institution personnel, fire fighters, emergency medical services personnel, physicians, nurses, public health personnel, emergency medical technicians, paramedics, emergency management personnel, 911 operators, public works personnel, and persons with skills or training in operating specialized equipment or other skills needed to provide aid in a declared emergency as well as individuals who work for such facilities employing these individuals and whose work is necessary to maintain the operation of the facility.”  To minimize the spread of COVID-19, the DOL “encourages employers to be judicious when using this definition to exempt emergency responders from the provisions of the FFCRA.”

Accordingly, employers may exclude health care providers and emergency responders from family and medical leave under the Emergency Family and Medical Leave Expansion Act and/or paid sick leave under the Emergency Paid Sick Leave Act.

Small Business Exemption

The DOL guidance provides that an employer with fewer than 50 employees is exempt from the provisions of the Act if an authorized officer of the business has determined that at least one of the following situations applies:

  1. The provision of paid sick leave or expanded family and medical leave would result in the small business’s expenses and financial obligations exceeding available business revenues and cause the small business to cease operating at a minimal capacity;
  2. The absence of the employee or employees requesting paid sick leave or expanded family and medical leave would entail a substantial risk to the financial health or operational capabilities of the small business because of their specialized skills, knowledge of the business, or responsibilities; or
  3. There are not sufficient workers who are able, willing, and qualified, and who will be available at the time and place needed, to perform the labor or services provided by the employee or employees requesting paid sick leave or expanded family and medical leave, and these labor or services are needed for the small business to operate at a minimal capacity.

It does not appear that a small business needs to obtain this exemption from the DOL or another agency and based on the current guidance it appears that a small business may make this determination on its own.

Our office is closely monitoring federal and state guidance and legislation for further developments related to COVID-19.  If you have any questions, please contact us.

This update is provided for informational purposes only and should not be considered legal advice

COVID-19 and Copyright Concerns

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Pursuant to Governor Charles D. Baker’s March 25, 2020 order which requires all schools in the Commonwealth to remain closed until May 4, 2020, many districts are opting to engage in remote learning. While remote learning is an essential and helpful tool, it also poses unique challenges to school districts.

Many districts and their educators are concerned about violating federal copyright law when providing online resources to their students, including reading books through mediums such as Facebook Live or Zoom, or photocopying a book and distributing it to students. In response to these concerns, many publishers have modified their copyright policies. Those publishers can be found here:

https://www.schoollibraryjournal.com/?detailStory=publishers-adapt-policies-to-help-educators-coronavirus-covid19

Federal copyright law is violated when an individual uses an exclusive right without authorization from the individual or company that owns the rights. However, there is a four-factor test that may allow a teacher or district to engage in what would otherwise be considered a copyright violation, through the “fair use” exemption. The factors are:

  • The purpose and character of the use;
  • The nature of the copyrighted work;
  • The amount and substantiality of the portion used in relation to the work as a whole; and
  • The effect of the use on the potential market for or value of the copyrighted work.

See 17 U.S.C. §107.

Whether use is considered “fair” is a judgment made on a case-by-case basis and is a fact-intensive inquiry. It is also important to remind students and their families that they are also at risk of violating federal copyright law.

Districts should require all students and families engaged in remote learning to sign an agreement in which students and families agree to not record, reproduce or disseminate content. Please contact us if you would like assistance in drafting or reviewing such an agreement.

This update is provided for informational purposes only and should not be considered legal advice.