Appendix D: Test Protocols (OSEP Policy Letter)
Page 2 - Honorable Bill Shuster Parents of children with disabilities have access rights to education records under 34 CFR §300.613 . This provision requires that, “Each participating agency must permit parents to inspect and review any education records relating to their children that are collected, maintained, or used by the agency under this part.” The provision does not necessarily require the public agency to provide copies of the records unless the "failure to provide those copies would effectively prevent the parent from exercising the right to inspect and review the records." 34 CFR §300.613(b)(2) . Since X's request for his son's education records includes a request for test protocols, we are providing to you our long-standing policy regarding test protocols as education records and our policy regarding providing copies of copyrighted materials (such as test protocols) to parents. This policy is contained in the Analysis of Comments and Changes section of the 1999 IDEA regulations. Our policy remains the same. The discussion from the 1999 regulations regarding these issues states: Records that are not directly related to a student and maintained by an agency or institution are not "education records" under FERPA and parents do not have a right to inspect and review such records. For example, a test protocol or question booklet which is separate from the sheet on which a student records answers and which is not personally identifiable to the student would not be part of his or her "education records." However, Part B and FERPA provide that an educational agency or institution shall respond to reasonable requests for explanations and interpretations of education records . (34 CFR §300.562(b)(1); 34 CFR §99.10(c)) . Accordingly, if a school were to maintain a copy of a student's test answer sheet (an "education record"), the parent would have a right under Part B and FERPA to request an explanation and interpretation of the record. The explanation and interpretation by the school could entail showing the parent the test question booklet, reading the questions to the parent, or providing an interpretation for the responses in some other adequate manner that would inform the parent. With respect to the issue of liability for disclosing information to parents when other laws or contractual obligations would prohibit it, public agencies are required to comply with the provisions of IDEA and FERPA and must ensure that State law and other contractual obligations do not interfere with compliance with IDEA and FERPA. Federal copyright law protects against the distribution of copies of a copyrighted document, such as a test protocol. Since IDEA and FERPA generally do not require the distribution of copies of an education record, but rather parental access to inspect and review, Federal copyright law generally should not be implicated under these regulations. There is nothing in the legislative history of section 615(b)(1) of the Act to suggest that it expanded the scope of information available to parent examination beyond those records that they would have access to under FERPA. 644 Fed. Reg. 12605, 12641 (March 12, 1999)
BP 2004 – Independent Educational Evaluation (IEE)
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Desert Mountain Charter Special Education Local Plan Area (DMCS) (rev. 11/21)
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