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tary or secondary education level, as determined under State law.

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$98.4 Protection of students' privacy

in examination, testing, or treatment.

(Authority: 20 U.S.C. 1221e-3(a)(1), 1230, 1232h, 3487, 3507)

$98.2 Definitions.

(a) The following terms used in this part are defined in 34 CFR part 77; "Department," "Recipient,” "Secretary."

(b) The following definitions apply to this part:

Act means the General Education Provisions Act.

Office means the information and investigation office specified in $98.5. (Authority: 20 U.S.C. 1221e-3(a)(1))

:

(a) No student shall be required, as part of any program specified in $98.1 (a) or (b), to submit without prior consent to psychiatric examination, testing, or treatment, or psychological examination, testing, or treatment, in which the primary purpose is to reveal information concerning one or more of the following:

(1) Political affiliations;

(2) Mental and psychological problems potentially embarrassing to the student or his or her family;

(3) Sex behavior and attitudes;

(4) Illegal, anti-social, self-incriminating and demeaning behavior;

(5) Critical appraisals of other individuals with whom the student has close family relationships;

(6) Legally recognized privileged and analogous relationships, such as those of lawyers, physicians, and ministers; or

(7) Income, other than that required by law to determine eligibility for participation in a program or for receiving financial assistance under a program.

(b) As used in paragraph (a) of this section, prior consent means:

(1) Prior consent of the student, if the student is an adult or emancipated minor; or

(2) Prior written consent of the parent or guardian, if the student is an unemancipated minor.

(c) As used in paragraph (a) of this section:

(1) Psychiatric or psychological examination or test means a method of obtaining information, including a group activity, that is not directly related to academic instruction and that is designed to elicit information about attitudes, habits, traits, opinions, beliefs or feelings; and

(2) Psychiatric or psychological treatment means an activity involving the planned, systematic use of methods or techniques that are not directly related to academic instruction and that is

$98.3 Access to instructional material

used in a research or experimen

tation program. (a) All instructional material-including teachers' manuals, films, tapes, or other supplementary instructional material—which will be used in connection with any research or experimentation program or project shall be available for inspection by the parents or guardians of the children engaged in such program or project.

(b) For the purpose of this part research of experimentation program of project means any program or project in any program under $98.1 (a) or (b) that is designed to explore or develop new or unproven teaching methods or techniques.

(C) For the purpose of the section children means persons not above age 21 who are enrolled in a program under $98.1 (a) or (b) not above the elemen

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(a) The Secretary has designated an office to provide information about the requirements of section 439 of the Act, and to investigate, process, and review complaints that may be filed concerning alleged violations of the provisions of the section.

(b) The following is the name and address of the office designated under paragraph (a) of this section: Family Educational Rights and Privacy Act Office, U.S. Department of Education, 400 Maryland Avenue, SW., Washington, DC 20202. (Authority: 20 U.S.C. 1231e-3(a)(1), 1232h)

,

$98.8 Notice of the complaint.

(a) If the Office receives a complaint that meets the requirements of $98.7, it provides written notification to the complainant and the recipient or contractor against which the violation has been alleged that the complaint has been received.

(b) The notice to the recipient or contractor under paragraph (a) of this section must:

(1) Include the substance of the alleged violation, and

(2) Inform the recipient or contractor that the Office will investigate the complaint and that the recipient or contractor may submit a written response to the complaint.

(Authority: 20 U.S.C. 1221e 3(A)(1), 1232h)

$ 98.6 Reports.

The Secretary may require the recipient to submit reports containing information necessary to resolve complaints under section 439 of the Act and the regulations in this part.

(Authority: 20 U.S.C. 1221e-3(a)(1), 1232h)

$ 98.7 Filing a complaint.

(a) Only a student or a parent or guardian of a student directly affected by a violation under Section 439 of the Act may file a complaint under this part. The complaint must be submitted in writing to the Office.

(b) The complaint filed under paragraph (a) of this section must

(1) Contain specific allegations of fact giving reasonable cause to believe that a violation of either $98.3 or $98.4 exists; and

(2) Include evidence of attempted resolution of the complaint at the local level (and at the State level if a State complaint resolution process exists), including the names of local and State officials contacted and significant dates in the attempted resolution process.

(c) The Office investigates each complaint which the Office receives that meets the requirements of this section to determine whether the recipient or

$98.9 Investigation and findings.

(a) The Office may permit the parties to submit further written or oral arguments or information,

(b) Following its investigations, the Office provides to the complainant and recipient or contractor written notice of its findings and the basis for its findings.

(c) If the Office finds that the recipient or contractor has not complied with section 439 of the Act, the Office includes in its notice under paragraph (b) of this section:

(1) A statement of the specific steps that the Secretary recommends the recipient or contractor take to comply; and

(2) Provides a reasonable period of time, given all of the circumstances of the case, during which the recipient or contractor may comply voluntarily.

(Authority: 20 U.S.C. 1221e-3(a)(1), 1232h)

$98.10 Enforcement of the findings.

(a) If the recipient or contractor does not comply during the period of time set under $98.9(c), the Secretary may either:

(1) For a recipient, take an action au- 99.11 May an educational agency or instituthorized under 34 CFR part 78, includ- tion charge a fee for copies of education

records? ing:

99.12 What limitations exist on the right to (i) Issuing a notice of intent to termi

inspect and review records? nate funds under 34 CFR 78.21; (ii) Issuing a notice to withhold funds

Subpart C-What Are the procedures for under 34 CFR 78.21, 200.94(b), or

Amending Education Records? 298.45(b), depending upon the applicable program under which the notice is 99.20 How can a parent or eligible student issued; or

request amendment of the student's edu

cation records? (iii) Issuing a notice to cease and de

99.21 Under what conditions does a parent sist under 34 CFR 78.31, 200.94(c) or

or eligible student have the right to a 298.45(c), depending upon the program

hearing? under which the notice is issued; or

99.22 What minimum requirements exist for (2) For a contractor, direct the con

the conduct of a hearing? tracting officer to take an appropriate action authorized under the Federal Subpart D-May an Educational Agency Acquisition Regulations, including el- or Institution Disclose Personally Identither:

fiable Information From Education (i) Issuing a notice to suspend oper

Records? ations under 48 CFR 12.5; or

99.30 Under what conditions is prior consent (ii) Issuing a notice to terminate for

required to disclose information? default, either in whole or in part

99.31 Under what conditions is prior consent under 48 CFR 49.102.

not required to disclose information? (b) If, after an investigation under 99.32 What recordkeeping requirements 898.9, the Secretary finds that a recipi- exist concerning requests and discloent or contractor has complied volun

sures? tarily with section 439 of the Act, the

99.33 What limitations apply to the re

disclosure of information? Secretary provides the complainant

99.34 What conditions apply to disclosure of and the recipient or contractor written

information to other educational agennotice of the decision and the basis for

cies or institutions? the decision.

99.35 What conditions apply to disclosure of

information for Federal or State pro(Authority: 20 U.S.C. 1221e-3(a)(1), 1232h)

gram purposes?

99.36 What conditions apply to disclosure of PART 99-FAMILY EDUCATIONAL

information in health and safety emerRIGHTS AND PRIVACY

gencies?

99.37 What conditions apply to disclosing diSubpart A-General

rectory information?

99.38 What conditions apply to disclosure of Sec.

information as permitted by State stat99.1 To which educational agencies or insti

ute adopted after November 19, 1974, contutions do these regulations apply?

cerning the juvenile justice system? 99.2 What is the purpose of these regulations?

Subpart E-What Are the Enforcement 99.3 What definitions apply to these regula

Procedures? tions? 99.4 What are the rights of parents?

99.60 What functions has the Secretary dele99.5 What are the rights of students?

gated to the Office and to the Office of 99.6 [Reserved]

Administrative Law Judges? 99.7 What must an educational agency or

99.61 What responsibility does

eduinstitution include in its annual notifica

cational agency or institution have contion?

cerning conflict with State or local laws? 99.8 What provisions apply to records of a

99.62 What information must an educational law enforcement unit?

agency or institution submit to the Of

fice? Subpart B-What Are the Rights of Inspec- 99.63 Where are complaints filed? tion and Review

Education

99.64 What is the complaint procedure? Records?

99.65 What is the content of the notice of

complaint issued by the Office? 99.10 What rights exist for a parent or eligi- 99.66 What are the responsibilities of the Ofble student to inspect and review edu

fice in the enforcement process? cation records?

an

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The purpose of this part is to set out requirements for the protection of privacy of parents and students under section 444 of the General Education Provisions Act, as amended.

(Authority: 20 U.S.C. 1232g)

NOTE: 34 CFR 300.560-300.576 contain requirements regarding confidentiality of information relating to handicapped children who receive benefits under the Education of the Handicapped Act.

[53 FR 11943, Apr. 11, 1988, as amended at 61 FR 59295, Nov. 21, 1996]

$ 99.3 What definitions apply to these

regulations?

The following definitions apply to this part:

Act means the Family Educational Rights and Privacy Act of 1974, as amended, enacted as section 444 of the General Education Provisions Act.

$ 99.1 To which educational agencies

or institutions do these regulations

apply? (a) Except as otherwise noted in $99.10, this part applies to an educational agency or institution to which funds have been made available under any program administered by the Secretary, if

(1) The educational institution provides educational services or instruction, or both, to students; or

(2) The educational agency provides administrative control of or direction of, or performs service functions for, public elementary or secondary schools or postsecondary institutions.

(b) This part does not apply to an educational agency or institution solely because students attending that agency or institution receive non-monetary benefits under a program referenced in paragraph (a) of this section, if no funds under that program are made available to the agency or institution.

(c) The Secretary considers funds to be made available to an educational agency or institution of funds under one or more of the programs referenced in paragraph (a) of this section

(1) Are provided to the agency or institution by grant, cooperative agreement, contract, subgrant,

subcontract; or

(2) Are provided to students attending the agency or institution and the funds may be paid to the agency or institution by those students for educational purposes, such as under the Pell Grant Program and the Guaranteed Student Loan Program (titles IVA-1 and IV-B, respectively, of the Higher Education Act of 1965, amended).

(d) If an educational agency or institution receives funds under one or more of the programs covered by this section, the regulations in this part apply to the recipient as a whole, in

(Authority: 20 U.S.C. 12328)

Attendance includes, but is not limited to:

(a) Attendance in person or by correspondence; and

(b) The period during which a person is working under a work-study program.

or

(Authority: 20 U.S.C. 1232g)

Directory information means information contained in an education record of a student which would not generally be considered harmful or an invasion of privacy if disclosed. It includes, but is not limited to the student's name, address, telephone listing, date and place of birth, major field of study, participation in officially recognized activities and sports, weight and height of members of athletic teams, dates of attendance, degrees and awards received, and the most recent previous educational agency or institution attended.

as

(Authority: 20 U.S.C. 1232g(a)(5)(A))

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institution of postsecondary education, that are:

(i) Made or maintained by a physician, psychiatrist, psychologist, or other recognized professional or paraprofessional acting in his or her professional capacity or assisting in a paraprofessional capacity;

(ii) Made, maintained, or used only in connection with treatment of the student; and

(iii) Disclosed only to individuals providing the treatment. For the purpose of this definition, "treatment” does not include remedial educational activities or activities that are part of the program of instruction at the agency or institution; and

(5) Records that only contain information about an individual after he or she is no longer a student at that agency or institution.

(Authority: 20 U.S.C. 1232g(b)(1))

(Authority: 20 U.S.C. 1232g(a)(4))

Eligible student means a student who has reached 18 years of age or is attending an institution of postsecondary education.

(Authority: 20 U.S.C. 1232g(d))

Educational

agency or institution means any public or private agency or institution to which this part applies under 899.1(a). (Authority: 20 U.S.C. 1232g(a)(3))

3 Education records. (a) The term means those records that are:

(1) Directly related to a student; and

(2) Maintained by an educational agency or institution or by a party acting for the agency or institution.

(b) The term does not include:

(1) Records of instructional, supervisory, and administrative personnel and educational personnel ancillary to those persons that are kept in the sole possession of the maker of the record, and are not accessible or revealed to any other person except a temporary substitute for the maker of the record;

(2) Records of the law enforcement unit of an educational agency or institution, subject to the provisions of $99.8.

(3)(i) Records relating to an individual who is employed by an educational agency or institution, that:

(A) Are made and maintained in the normal course of business;

(B) Relate exclusively to the individual in that individual's capacity as an employee; and

(C) Are not available for use for any other purpose.

(ii) Records relating to an individual in attendance at the agency or institution who is employed as a result of his or her status as a student are education records and not excepted under paragraph (b)(3)(i) of this definition.

(4) Records on a student who is 18 years of age or older, or is attending an

Institution of postsecondary education means an institution that provides education to students beyond the secondary school level; “secondary school level" means the educational level (not beyond grade 12) at which secondary education is provided as determined under State law. (Authority: 20 U.S.C. 1232g(d))

d Parent means a parent of a student and includes a natural parent, a guardian, or an individual acting as a parent in the absence of a parent or a guardian. (Authority: 20 U.S.C. 1232g)

) Party means an individual, agency,

, , institution, or organization.

(Authority: 20 U.S.C. 1232g(b)(4)(A))

Personally identifiable information includes, but is not limited to:

(a) The student's name;

(b) The name of the student's parent or other family member;

(c) The address of the student or student's family;

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