Federal Requirements for Keeping, Releasing, and Destroying Test Protocols & Student Records 

Records from psychoeducational evaluations may be destroyed when they are no longer needed for educational purposes. Parents, however, must be given prior notice first, in case such records are needed for other purposes  (CFR Section 300.573).  Specifically the regulations state:

(a)   The public agency shall inform parents when personally identifiable information collected, maintained, or used under this part is no longer needed to provide educational services to the child.

(b)   The information must be destroyed at the request of the parents. However, a permanent record of a student's name, address, and phone number, his or her grades, attendance record, classes attended, grade level completed, and year completed may be maintained without
time limitation.

Excerpt from Appendix B, Final Regulations, regarding 300.573

The regulation provides that parents must be informed when personally identifiable information is no longer needed to provide educational services to the child. This notice would normally be given after a child graduates or otherwise leaves the educational agency. 

Personally identifiable information on a child may be retained permanently unless a parent requests that it be destroyed. The purpose of the destruction option is to allow parents to decide that records about a child's performance, abilities, and behavior, which may possibly be stigmatizing and are highly personal, are not maintained after they are no longer needed for educational purposes.  

On the one hand, parents may want to request destruction of records, as it is the best protection against improper and unauthorized disclosure of what may be sensitive personal information. However, individuals with disabilities may find that they need information in their education records for other purposes, such as public and private insurance coverage.

When informing parents about their rights under this section, it would be helpful if the agency reminds them that the records may be needed by the child or the parents for social security benefits or other purposes. Even if the parents request that the information be destroyed, the agency may retain the information described in paragraph (b) of this section.

In instances in which an agency intends to destroy personally identifiable information that is no longer needed to provide educational services to the child (such as after the child has graduated from, or otherwise leaves the agency's program), and informs parents of that determination, the parents may want to exercise their right of access to those records and request copies of the records they will need to acquire post-school benefits in the future. 
 
OSEP has included test protocols as part of the child’s educational record since 1981 (Inquiry of Hill, EHLR 211:259, Dept of Ed., 1981).  FERPA regulations also apply to test protocols as part of the child’s educational record when such test protocols contain personally identifiable information, as defined by OSEP. When test records do not contain personally identifiable information, then parents do not nave the right of access according to OSEP. 

Educational institutions put forth the argument that, since the test protocols were in the sole possession of the psychologist, they need not be shared.  OSEP answered that once test scores had been released, parents had the right to review the underlying paperwork.

FERPA also prohibits a district from destroying education records while a parental request to review them is pending.   Although parents are not generally entitled to copies of protocols (unless failure to provide them would effectively prevent the parent from exercising his/her right to inspect them), OSEP and OCR have both opined that that Section 504 and IDEA include the right to copy test protocols if they are needed for a due process hearing.  (Ref. OCR, 1984, In re: Tri-County, Illinois; OSEP, Inquiry of Hafner, 1979).  

Finally, OCR issued a letter in 1990 which found that a district's policy of destroying protocols violated Section 504 because such records were relevant to the district's recommendation that a child be placed in a program for children with behavioral disorders, a recommendation with which the parents disagreed.   (St. Charles Community School District, 17 EHLR 18, 1990.)                                                                    

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Last modified: September 22, 2008