DECISION
November 7, 2022
On September 21, 2022, Escondido Union School District, called Escondido, filed a due process hearing request with the Office of Administrative Hearings, called OAH, naming Student. The due process hearing request included both expedited and non-expedited claims. OAH set the expedited and non-expedited hearings for October 18, 2022. The statutory hearing and decision timeline requirements governing expedited and non-expedited issues are different. OAH published the Expedited Decision on October 27, 2022. Thus, this Decision addresses the non-expedited issue only. Administrative Law Judge Cynthia Fritz heard this matter via videoconference on October 18, 2022.
Attorneys Deborah Cesario and Shannyn Shafer represented Escondido. Director of Special Education Meggan Lokken attended the hearing on Escondido's behalf. Parents and Student did not appear for the hearing.
At Escondido's request, the undersigned continued the non-expedited matter to October 26, 2022, for closing briefs. Escondido timely submitted a closing brief, and the matter was closed and submitted on October 26, 2022.
ISSUE
Can Escondido submit referral packets to potential residential treatment centers to secure a placement for Student without parental consent?
JURISDICTION
This hearing was held under the Individuals with Disabilities Education Act, called IDEA, its regulations, and California statutes and regulations. (20 U.S.C. § 1400 et. seq.; 34 C.F.R. § 300.1 (2006) et seq.; Ed. Code, § 56000 et seq.; Cal. Code Regs., tit. 5, § 3000 et seq.) The main purposes of the IDEA are to ensure:
• all children with disabilities have available to them a free appropriate public education that emphasizes special education and related services designed to meet their unique needs and prepare them for further education, employment, and independent living, and
• the rights of children with disabilities and their parents are protected. (20 U.S.C. § 1400(d)(1); See Ed. Code, § 56000, subd. (a).)
The party requesting the hearing is limited to the issues alleged in the complaint, unless the other party consents, and bears the burden of proof by a preponderance of the evidence. (20 U.S.C. § 1415(f) (3)(B); Ed. Code, § 56502, subd. (i); Schaffer v. Weas (2005) 546 U.S. 49, 57-58, 62 [126 S.Ct. 528, 163 L.Ed2d 387]; and see 20 U.S.C. § 1415(i)(2)(C)(iii.) Here, Escondido filed the complaint and bore the burden of proof. The factual statements in this Decision constitute the written findings of fact required by the IDEA and state law. (20 U.S.C. § 1415(h)(4); Ed. Code, § 56505, subd. (e)(5).)
Student was 13 years old and in eighth grade at the time of hearing. Student resided within Escondido's school boundaries at all relevant times. Student became eligible for special education in 2014 and, at the time of the hearing, was eligible under the primary category of autism and the secondary category of intellectual disability. Student was diagnosed with autism spectrum disorder and attention deficit hyperactivity disorder in 2014.
Student demonstrated below average cognitive ability, and had needs in academics, attention, focus, verbal and nonverbal communication, pragmatic skills, impulsive behavior, emotional regulation, perseverating on topics, and mental health. Escondido found Student eligible for emotional disturbance and other health impairment in September 2022, but Parents did not consent to the individualized education program offer.
CAN ESCONDIDO SUBMIT REFERRAL PACKETS TO POTENTIAL RESIDENTIAL TREAMENT CENTERS TO SECURE A PLACEMENT FOR STUDENT WITHOUT PARENTAL CONSENT?
Escondido contends that Student's placement at his Escondido middle school is substantially likely to result in continued injury to Student or others; and he needs to be placed at a residential treatment facility as an alternative educational setting. The undersigned found in the October 27, 2022 Expedited Decision in this matter, that Student's continued placement at his Escondido middle school was substantially likely to result in injury to Student and others. Since March 2022, Student's behaviors had significantly escalated and resulted in multiple attempts to commit suicide while on campus, sexual assaults on staff and students, multiple attempted sexual assaults, repeated threats of harm to himself and others, and three involuntary commitments to Rady's Children's Hospital due to mental health issues related to his behaviors at school. (See Escondido Union School District v. Parent on Behalf of Student, (2022) Expedited Decision, OAH Case No. 2022090699.) While Escondido established that Student's continued placement at his Escondido middle school would likely result in injury to Student or others, it failed to prove that an unspecified residential treatment facility was an appropriate interim alternative educational setting for Student. (Ibid.)
Escondido asserts it cannot identify a specific residential treatment facility as a proposed interim alternative educational setting because Parents will not sign releases of information allowing it to refer Student to residential treatment facilities for potential acceptance. Thus, Escondido requests an order that allows it to send Student's educational records to residential treatment facilities without parental consent under the Family Educational Rights and Privacy Act of 1974, called FERPA, judicial order and emergency circumstances exceptions.
Under FERPA, a student's education records with personally identifiable information cannot be disclosed by an educational agency or institution unless a parent provides written consent to the disclosure, except under certain conditions. (20 U.S.C § 1232g(b)(1); 34 C.F.R. § 99.30(a) (2004).) Personally identifiable information includes the student's name; parents or other family members' names; address; personal identifiers; indirect identifiers; 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. (34 C.F.R. § 99.3 (2012).) Disclosure means to “to permit access to, or the release, transfer, or other communication of personally identifiable information 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.” (34 C.F.R. § 99.3 (2012).) Education records under FERPA are records, files, documents, and other materials which contain information directly related to a student, and are maintained by an educational agency or institution or by a person acting for such agency or institution. (20 U.S.C. § 1232g(a)(4)(A).)
ESCONDIDO FAILED TO PROVE IT HAS A NEED FOR A JUDICIAL ORDER AT THIS TIME
FERPA provides a list of several exceptions to the parent consent requirement including that an educational institution may disclose personally identifiable information from an education record of a student to comply with a judicial order or lawfully issued subpoena. (20 U.S.C. § 1232g(b)(2)(B); 34 C.F.R. § 99.31(a)(9)(i)(2012).) Disclosure of confidential information responsive to a judicial order is subject to the requirements of parental notification. (20 U.S.C. § 1232g(b)(2)(B); 34 C.F.R. § 99.31(a)(9)(ii)(2012).) “Personal information shall only be transferred to a third party on the condition that such party will not permit any other party to have access to such information without the written consent of the parents of the student.” (20 U.S.C. §§ 1232g(b)(4)(B).)
Although FERPA itself does not appear to set forth an explicit standard for a court to consider when deciding whether to order disclosure, the Congressional policy expressed in this provision places a significantly heavier burden on a party seeking access to student records to justify disclosure than exists with respect to discovery of other kinds of information. The remarks of Senator Buckley emphasized that students have substantial privacy and confidentiality interests in their school records. (See Sen.Rep.No.93-1026, 93rd Cong., 2nd Sess. 186-88, reprinted in (1974) U.S. Code Cong. & Admin. News, pp. 4251-52.) The privacy violations are no less objectionable simply because release of the records is obtained under a judicial order unless, before approval is given, the party seeking disclosure is required to demonstrate a genuine need for the information that outweighs the privacy interest of the student. (See Sen.Rep.No.93- 1026, 93rd Cong., 2nd Sess. 187, reprinted in 1974) Courts have held that before disclosure of FERPA protected documents through a judicial order, the party seeking disclosure is required to demonstrate a need for the information that outweighs the privacy interests of the student. (Doe v. Berkeley Unified Sch. Dist. (N.D. Cal., May 10, 2021, No. C 20-08842 WHA) 2021 WL 1866197, *1; Doe v. Manhattan Beach Unified Sch. Dist. (C.D. Cal., Oct. 20, 2021, No. CV 19-06962-DDP (RAOx)) 2021 WL 11271845, *4; Jun Yu v. Idaho State University (D. Idaho, March 27, 2017, No. 4:15-cv-00430-REB) 2017 WL 1158813, *2; Ragusa v. Malverne Union Free Sch. Dist. (E.D.N.Y. 2008) 549 F.Supp.2d 288, 292; Rios v. Read (E.D.N.Y. 1977) 73 F.R.D. 589, 599.)
Escondido argues it needs OAH to order disclosure of Student's education records without parental consent so that it can obtain Student's acceptance into a residential treatment facility. Escondido failed to show a need for an order at this time.
Meggan Lokken, Escondido's Special Education Director, explained that she had been working with Julie Cole at the San Diego County Office of Education to find Student a placement. Recently, Cole informally located three out-of-state residential treatment facilities that she believed could be a match for Student. Lokken described the residential treatment facility acceptance process. Lokken explained that Escondido needed to send Student's educational records to prospective residential treatment centers for their review before they would accept Student. However, as allowed under FERPA, Escondido can redact the personally identifiable information from Student's education records to receive conditional acceptances at residential treatment facilities. FERPA regulations allow schools to release education records or information without consent when the records have been “de-identified,” that is, when all personally identifiable information has been removed. (34 C.F.R. § 99.31(b)(1) (2012.) This avoids the confidentiality concerns addressed in FERPA.
Escondido failed to establish this step was taken before seeking a judicial order and failed to show that there are no other means to gain residential treatment facility acceptance without sending personally identifiable information without parental consent. Further, Escondido failed to establish redacted education records were not sufficient to obtain acceptance from a residential treatment facility. Thus, Escondido failed to demonstrate a need for a judicial order at this time that outweighs Student's privacy right. Nothing in this Decision prohibits Escondido from filing a due process hearing request with additional information.
FERPA'S HEALTH AND SAFETY EMERGENCY EXCEPTION IS WITHIN ESCONDIDO'S DISCRETION TO DETERMINE AND IMPLEMENT WITHOUT A JUDICIAL ORDER
Escondido also seeks an order to release Student's educational records to residential treatment facilities under FERPA's emergency exception. It maintains Student's need for immediate and intense mental health treatment, coupled with Student's and others' significant risk of injury if Student remains in his current placement, constitutes an emergency allowing disclosure of his educational records to proposed residential treatment facilities without parental consent.
As written, the federal regulations delineate 16 exceptions to the FERPA parental consent requirement, including the judicial order exception and an emergency exception. (34 C.F.R. § 99.31 (2012).) The FERPA emergency exception to the parental consent requirement states an educational institution may disclose personally identifiable information from an educational record when an emergency makes it necessary to protect the health or safety of the student or others. (34 C.F.R. §§ 99.31(a)(10) (2012), & 99.36(a) (2009).) The educational agency may consider the totality of the circumstances when making this decision, and the regulation gives deference to the educational agency's determination provided there is an articulable and significant threat to the health or safety of a student or other individuals. (34 C.F.R. § 99.36(c) (2009).) Once the determination is made, the educational agency may disclose information from the education records to any person whose knowledge of the information is necessary to protect the health and safety of the student or other individuals. (Ibid.) Within a reasonable time after disclosure is made under this exception, the educational agency must record in the student's educational records the articulable and significant threat that formed the basis for the disclosure and the parties to whom the information was disclosed. (34 C.F.R. § 99.32(a)(5) (2008).)
Under the terms of this administrative implementing regulation, Escondido may invoke the emergency exception without a judicial order if it believes an articulable and significant threat to the health and safety of Student's or others applies. (34 C.F.R. §§ 99.31(a)(10) (2012), & 99.36(a) (2009).) FERPA is not intended to be an obstacle in addressing emergencies and protecting student's safety. Thus, the undersigned is not inclined to order disclosure of Student's education records without parental consent under this emergency exemption when Escondido can independently make this determination and implement it without OAH intervention. Accordingly, this Decision does not reach the determination if an emergency exists under this exception.
CONCLUSIONS AND PREVAILING PARTY
As required by California Education Code section 56507, subdivision (d), the hearing decision must indicate the extent to which each party has prevailed on each issue heard and decided. Escondido failed to prove it can submit referral packets to potential residential treatment centers to secure a placement for Student without parental consent under these facts. Student prevailed on the sole issue in this non-expedited matter.
RIGHT TO APPEAL THIS DECISION
This is a final administrative decision, and all parties are bound by it. Under Education Code section 56505, subdivision (k), any party may appeal this Decision to a court of competent jurisdiction within 90 days of receipt.
Cynthia Fritz
Administrative Law Judge
Office of Administrative Hearings