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898.2 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)) 8 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 898.1 (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 898.1 (a) or (b) not above the elementary or secondary education level, as determined under State law. (Authority: 20 U.S.C. 1221e-3(a)(1), 1232h(a)) 8 98.4 Protection of students' privacy

in examination, testing, or treat.

ment. (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 eramination 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 designed to affect behavioral, emotional, or attitudinal characteristics of an individual or group. (Authority: 20 U.S.C. 1232h(b)) $98.5 Information and investigation

office. (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

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)

$98.9 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)

898.10 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 authorized under 34 CFR part 78, including:

(i) Issuing a notice of intent to terminate funds under 34 CFR 78.21;

(ii) Issuing a notice to withhold funds under 34 CFR 78.21, 200.94(b), 298.45(b), depending upon the applicable program under which the notice is issued; or

(iii) Issuing a notice to cease and desist under 34 CFR 78.31, 200.94(c) or 298.45(c), depending upon the program under which the notice is issued; or

or

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)

8 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) 8 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 contractor failed to comply with the provisions of section 439 of the Act. (Approved by the Office of Management and Budget under control number 1880-0507) (Authority: 20 U.S.C. 1221e-3(a)(1), 1232h) 8 98.8 Notice of the complaint.

(a) If the Office receives a complaint that meets the requirements of 898.7, it provides written notification to the complainant and the recipient or contractor against which the violation has

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99.21 Under what conditions does a parent

or eligible student have the right to a

hearing? 99.22 What minimum requirements exist for

the conduct of a hearing?

Subpart D-May an Educational Agency

or Institution Disclose Personally Identifiable Information from Education Records?

(2) For a contractor, direct the contracting officer to take an appropriate action authorized under the Federal Acquisition Regulations, including either:

(1) Issuing a notice to suspend operations under 48 CFR 12.5; or

(ii) Issuing a notice to terminate for default, either in whole or in part under 48 CFR 49.102.

(b) If, after an investigation under 898.9, the Secretary finds that a recipient or contractor has complied voluntarily with section 439 of the Act, the Secretary provides the complainant and the recipient or contractor written notice of the decision and the basis for the decision.

99.30 Under what conditions is prior consent

required to disclose information? 99.31 Under what conditions is prior consent

not required to disclose information? 99.32 What recordkeeping requirements

exist concerning requests and disclo

sures? 99.33 What limitations apply

the redisclosure of information? 99.34 What conditions apply to disclosure of

information to other educational agen

cies or institutions? 99.35 What conditions apply to disclosure of

information for Federal or State pro

gram purposes? 99.36 What conditions apply to disclosure of

information in health and safety emer

gencies? 99.37 What conditions apply to disclosing di

rectory information?

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

PART 99-FAMILY EDUCATIONAL

RIGHTS AND PRIVACY

Subpart A-General

Sec. 99.1 To which educational agencies or insti

tutions do these regulations apply? 99.2 What is the purpose of these regula

tions? 99.3 What definitions apply to these regula

tions? 99.4 What are the rights of parents? 99.5 What are the rights of students? 99.6 What information must an educational

agency's or institution's policy contain? 99.7 What must an educational agency or

institution include in its annual notifica

tion? 99.8 What provisions apply to records of a

law enforcement unit?

Subpart E-What are the Enforcement

Procedures? 99.60 What functions has the Secretary dele

gated to the Office and to the Office of

Administrative Law Judges? 99.61 What responsibility does an edu

cational agency or institution have con

cerning conflict with State or local laws? 99.62 What information must an educational

agency or institution submit to the Of

fice? 99.63 Where are complaints filed? 99.64 What is the complaint procedure? 99.65 What is the content of the notice of

complaint issued by the Office? 99.66 What are the responsibilities of the Of

fice in the enforcement process? 99.67 How does the Secretary enforce deci

sions? AUTHORITY: 20 U.S.C. 1232g, unless otherwise noted.

SOURCE: 53 FR 11943, Apr. 11, 1988, unless otherwise noted.

Subpart B-What are the Rights of Inspec

Mon and Review Education
Records?

99.10 What rights exist for a parent or eligi

ble student to inspect and review edu

cation records? 99.11 May an educational agency or institu

tion charge a fee for copies of education

records? 99.12 What limitations exist on the right to

inspect and review records?

Subpart A-General

Subpart C-What are the procedures for

Amending Education Records?

99.20 How can a parent or eligible student

request amendment of the student's education records?

899.1 To which educational agencies

or institutions do these regulations

apply? (a) This part applies to an educational agency or institution to which

funds have been made available under any program administered by the Secretary of Education that:

(1)(i) Was transferred to the Department under the Department of Education Organization Act (DEOA); and

(ii) Was administered by the Commissioner of Education on the day before the effective date of the DEOA; or

(2) Was enacted after the effective date of the DEOA, unless the law en

acting the new Federal program has
the effect of making section 438 of the
General Education Provisions Act in-
applicable.
(Authority: 20 U.S.C. 1230, 1232g, 3487, 3507)

(b) The following chart lists the funded programs to which part 99 does not apply as of April 11, 1988:

Name of program

Authorizing statute

Implementing regulations

1. High School Equivalency Program and College As Section 418A of the Higher Edu- part 206.
sistance Migrant Program.

cation Act of 1965 as amended
by the Education Amendments
of 1980 (Pub. L. 96–374) 20

U.S.C. 10700-2). 2. Programs administered by the Commissioner of the The Rehabilitation Act of 1973, as parts 350-359,

Rehabilitation Services Administration, and the Direc- amended. (29 U.S.C. 700, et 361, 365, tor of the National Institute on Disability and Reha- seq.).

366, 369 bilitation Research.

371, 373 375, 378, 379, 385

390, and 395. 3. Transition program for refugee children

Immigration and Nationality Act. part 538.

as amended by the Refugee
Act of 1980, Pub. L. 96–212 (8

U.S.C. 1522(d)). 4. College Housing

Title IV of the Housing Act of part 614.

1950, as amended (12 U.S.C.

1749, et seq.). 5. The following programs administered by the Assist- Section 405 of the General Edu- parts 700, 706–

ant Secretary for Educational Research and Im cation Provisions Act (20 708.
provement: Educational Research Grant Program. U.S.C. 1221e), and section 406
Regional Educational Laboratories Research and of the General Education Provi-
Development Centers. All other research or statis- sions Act (20 U.S.C. 1221-1).
tical activities funded under Section 405 or 406 of
the General Education Provisions Act.

or

NOTE: The Secretary, as appropriate, updates the information in this chart and informs the public.

(c) 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.

(d) 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 agree

ment, 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, as amended).

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

or

cluding each of its components (such as a department within a university). (Authority: 20 U.S.C. 12328) $ 99.2 What is the purpose of these reg.

ulations? The purpose of this part is to set out requirements for the protection of privacy of parents and students under section 438 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.

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8 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 438 of the General Education Provisions Act. (Authority: 20 U.S.C. 1232g)

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

Disciplinary action proceeding means the investigation, adjudication, or imposition of sanctions by an educational agency or institution with respect to an infraction or violation of the internal rules of conduct applicable

to students of the agency or institution.

Disclosure means to permit access to or the release, transfer, or other communication of education records, or the personally indentifiable information contained in those records, to any party, by any means, including oral, written, or electronic means. (Authority: 20 U.S.C. 1232g(b)(1)) Educational agency

institution means any public or private agency or institution to which this part applies under $ 99.1(a). (Authority: 20 U.S.C. 12328(a)(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, that are:

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

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