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Administrative Rules
Rule 24:05:29 CONFIDENTIALITY OF INFORMATION

CHAPTER 24:05:29

CONFIDENTIALITY OF INFORMATION

Section

24:05:29:01        District policies and procedures on confidentiality of information.

24:05:29:02        Definitions.

24:05:29:03        Annual notification of rights.

24:05:29:04        Access rights.

24:05:29:05        Record of access.

24:05:29:06        Records on more than one child.

24:05:29:07        List of types and locations of information.

24:05:29:08        Fees.

24:05:29:09        Amendment of records at parent's request.

24:05:29:10        Opportunity for a hearing.

24:05:29:11        Hearing procedures.

24:05:29:12        Result of hearing.

24:05:29:13        Consent.

24:05:29:14        Safeguards.

24:05:29:15        Destruction of information.

24:05:29:16        Children's rights.

24:05:29:17        Enforcement.

24:05:29:18        Notice to parents.

24:05:29:19        Disciplinary information.

24:05:29:20        U.S. department use of personally identifiable information.




Rule 24:05:29:01 District policies and procedures on confidentiality of information.

          24:05:29:01.  District policies and procedures on confidentiality of information. Each school district shall develop and implement policies and procedures on the confidentiality of information consistent with this chapter.

          Source: 16 SDR 41, effective September 7, 1989; 23 SDR 31, effective September 8, 1996.

          General Authority: SDCL 13-37-1.1.

          Law Implemented: SDCL 13-37-1.1.




Rule 24:05:29:02 Definitions.

          24:05:29:02.  Definitions. Terms used in this chapter mean:

 

          (1)  "Act," "FERPA," the Family Educational Rights and Privacy Act of 1974, as amended to July 1, 2013, enacted as section 444 of the General Education Provisions Act, as amended to July 1, 2013;

 

          (2)  "Attendance," includes:

 

               (a)  Attendance in person or by paper correspondence, videoconference, satellite, Internet, or other electronic information and telecommunications technologies for students who are not physically present in the classroom; and

 

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

 

          (3)  "Biometric record," as used in the definition of personally identifiable information, a record of one or more measurable biological or behavioral characteristics that can be used for automated recognition of an individual. Examples include fingerprints; retina and iris patterns; voiceprints; DNA sequence; facial characteristics; and handwriting;

 

          (4)  "Destruction," physical destruction or removal of personal identifiers from information so that the information is no longer personally identifiable;

 

          (5)  "Directory information," information contained in an education record of a student which would not generally be considered harmful or an invasion of privacy if disclosed, such as the student's name, address, telephone listing, electronic mail address, photograph, date and place of birth, major field of study, enrollment status (e.g. full time or part time) participation in officially recognized activities and sports, weight and height of members of athletic teams, dates of attendance, degrees, honors, and awards received, and the most recent previous educational agency or institution attended. Directory information does not include a student's social security number or student identification number, except as provided in this subdivision. Directory information includes a student identification number, user identification number, or other unique personal identifier used by the student for purposes of accessing or communicating in electronic systems, but only if the identifier cannot be used to gain access to education records except when used in conjunction with one or more factors that authenticate the user's identity, such as a personal identification number, password, or other factor known or possessed only by the authorized user;

 

          (6)  "Disclosure," to permit access to or the release, transfer, or other communication of education records or the personally identifiable information contained in those records to any party, 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;

 

          (7)  "Education records," records directly related to a student and maintained by an educational agency or institution or by a party acting for the agency or institution. The term does not include the following:

 

               (a)  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;

 

               (b)  Records of a law enforcement unit of an educational agency or institution, but only if education records maintained by the agency or institution are not disclosed to the unit and the law enforcement records are maintained separately from education records, maintained solely for law enforcement purposes, and disclosed only to law enforcement officials of the same jurisdiction;

 

               (c)  Records related to an individual who is employed by an educational agency or institution that are made and maintained in the normal course of business, are related exclusively to the individual in that individual's capacity as an employee, and are not available for use for any other purpose. Records relating to an individual in attendance at the agency or institution who is employed as a result of the individual's status as a student are educational records and not excepted under this subdivision;

 

               (d)  Records on a student who is 18 years of age or older or is attending an institution of postsecondary education that are made or maintained by a physician, psychiatrist, psychologist, or other recognized professional or paraprofessional acting in a professional capacity or assisting in a paraprofessional capacity; made, maintained, or used only in connection with treatment of the student; and disclosed only to individuals providing the treatment. For the purpose of this section, "treatment" does not include remedial educational activities or activities that are part of the program of instruction at the agency or institution;

 

               (e)  Records created or received by an educational agency or institution after an individual is no longer a student in attendance and that are not directly related to the individual's attendance as a student; and

 

               (f)  Grades on peer-graded papers before they are collected and recorded by a teacher;

 

          (8)  "Eligible student," a student who has reached 18 years of age or is attending an institution of postsecondary education;

 

          (9)  "Institution of postsecondary education," an institution that provides education to students beyond the secondary school level;

 

          (10)  "Secondary school level," the educational level, not beyond grade twelve, at which secondary education is provided as determined under state law;

          (11)  "Participating agency," any agency or institution that collects, maintains, or uses personally identifiable information, or from which information is obtained, under Part B of the IDEA;

 

          (12)  "Personally identifiable information," the term includes:

 

               (a)  The student's name;

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

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

               (d)  A personal identifier, such as the student's social security number, student number, or biometric record;

               (e)  Other indirect identifiers, such as the student's date of birth, place of birth, and mother's maiden name;

               (f)  Other 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

               (g)  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;

 

          (13)  "Record," any information recorded in any way, including handwriting, print, video or audio tape, film, microfilm, microfiche, and computer media.

 

          Source: 16 SDR 41, effective September 7, 1989; 23 SDR 31, effective September 8, 1996; 26 SDR 150, effective May 22, 2000; 33 SDR 236, effective July 5, 2007; 36 SDR 96, effective December 8, 2009; 40 SDR 40, effective September 11, 2013.

          General Authority: SDCL 13-37-1.1.

          Law Implemented: SDCL 13-37-1.1.

 




Rule 24:05:29:03 Annual notification of rights.

          24:05:29:03.  Annual notification of rights. Each school district shall annually notify parents of students currently in attendance and eligible students currently in attendance at the agency or institution of their rights under the Act and this chapter. The notice must inform the parent or eligible student that the parent or eligible student has a right to do the following:

 

          (1)  Inspect and review the student's education records;

 

          (2)  Seek amendment of the student's education records to ensure that they are not inaccurate, misleading, or otherwise in violation of the student's privacy or other rights;

 

          (3)  Consent to disclosure of personally identifiable information contained in the student's education records, except to the extent that the Act and the regulations in this chapter authorize disclosure without consent; and

 

          (4)  File with the U. S. Department of Education a complaint concerning alleged failures by the agency or institution to comply with the requirements of the Act and this chapter.

 

          The notice shall also include the procedures for exercising the right to inspect and review education records, the procedures for requesting the amendment of records and, if the educational agency or institution has a policy of disclosing education records, a specification of criteria for determining who constitutes a school official and what constitutes a legitimate educational interest.

 

          The district may provide this notice by any means that are likely to inform the parents and eligible students of their rights and that will effectively notify parents of students who have a primary or home language other than English and parents or eligible students who are disabled.

 

          Source: 16 SDR 41, effective September 7, 1989; 23 SDR 31, effective September 8, 1996; 26 SDR 150, effective May 22, 2000; 33 SDR 236, effective July 5, 2007.

          General Authority: SDCL 13-37-1.1.

          Law Implemented: SDCL 13-37-1.1.

 




Rule 24:05:29:04 Access rights.

          24:05:29:04.  Access rights. Each school district shall permit parents to inspect and review any education records relating to their student which are collected, maintained, or used by the agency under this chapter. The agency shall comply with a request without unnecessary delay and before any meeting regarding an individual education program or hearing relating to the identification, evaluation, or placement of the student, or discipline hearing, or resolution session, and in no case more than 45 calendar days after the request has been made.

 

          The right to inspect and review education records under this section includes the following:

 

          (1)  The right to response from the district to reasonable requests for explanations and interpretations of the records;

 

          (2)  The right to request that the district provide copies of the records containing the information if failure to provide these copies would effectively prevent the parent from exercising the right to inspect and review the records; and

 

          (3)  The right to have a representative of the parent inspect and review the records.

 

          The district may presume that the parent has authority to inspect and review records relating to the parent's child unless the agency has been advised that the parent does not have the authority under applicable state law governing such matters as guardianship, separation, divorce, or custody.

 

          Source: 16 SDR 41, effective September 7, 1989; 23 SDR 31, effective September 8, 1996; 26 SDR 150, effective May 22, 2000; 33 SDR 236, effective July 5, 2007.

          General Authority: SDCL 13-37-1.1.

          Law Implemented: SDCL 13-37-1.1.

 

          Cross-References:

          Divorce and separate maintenance, SDCL chapter 25-4.

          Jurisdiction and venue of guardianships, SDCL chapter 30-26.

          Appointment, qualification, bonds and removal of guardians, SDCL chapter 30-27.

          Custody, care and maintenance of wards, SDCL chapter 30-28.

 




Rule 24:05:29:05 Record of access.

          24:05:29:05.  Record of access. Each school district shall keep a record of parties obtaining access to education records collected, maintained, or used under this chapter, except access by parents and authorized employees of the district, including the name of the party, the date access was given, and the purpose for which the party is authorized to use the records. A parent or eligible student may inspect this record on request.

          Source: 16 SDR 41, effective September 7, 1989; 23 SDR 31, effective September 8, 1996.

          General Authority: SDCL 13-37-1.1.

          Law Implemented: SDCL 13-37-1.1.




Rule 24:05:29:06 Records on more than one child.

          24:05:29:06.  Records on more than one child. If any education record includes information on more than one child, the parents of those children may inspect and review only the information relating to their child or may be informed of that specific information.

 

          Source: 16 SDR 41, effective September 7, 1989; 23 SDR 31, effective September 8, 1996; 33 SDR 236, effective July 5, 2007.

          General Authority: SDCL 13-37-1.1.

          Law Implemented: SDCL 13-37-1.1.

 




Rule 24:05:29:07 List of types and locations of information.

          24:05:29:07.  List of types and locations of information. Each school district shall provide parents on request a list of the types and location of education records collected, maintained, or used by the district.

          Source: 16 SDR 41, effective September 7, 1989; 23 SDR 31, effective September 8, 1996.

          General Authority: SDCL 13-37-1.1.

          Law Implemented: SDCL 13-37-1.1.




Rule 24:05:29:08 Fees.

          24:05:29:08.  Fees. A school district may charge a fee for copies of records which are made for parents under this chapter if the fee does not effectively prevent the parents from exercising their right to inspect and review those records. The district may not charge a fee to search for or to retrieve information under this chapter.

 

          Source: 16 SDR 41, effective September 7, 1989; 20 SDR 33, effective September 8, 1993; 23 SDR 31, effective September 8, 1996.

          General Authority: SDCL 13-37-1.1.

          Law Implemented: SDCL 13-37-1.1.

 

          Cross-Reference: Fees, 34 C.F.R. § 300.617.

 




Rule 24:05:29:09 Amendment of records at parent's request.

          24:05:29:09.  Amendment of records at parent's request. A parent who believes that information in education records collected, maintained, or used under this article is inaccurate or misleading or violates the privacy or other rights of the student may request the district which maintains the information to amend the information.

          The district shall decide whether to amend the information in accordance with the request within a reasonable period of time after receipt of the request.

          If the district decides to refuse to amend the information in accordance with the request, it shall inform the parent of the refusal and advise the parent of the right to a hearing.

          Source: 16 SDR 41, effective September 7, 1989; 23 SDR 31, effective September 8, 1996.

          General Authority: SDCL 13-37-1.1.

          Law Implemented: SDCL 13-37-1.1.




Rule 24:05:29:10 Opportunity for a hearing.

          24:05:29:10.  Opportunity for a hearing. The district shall, on request, provide an opportunity for a hearing to challenge information in education records to ensure that it is not inaccurate, misleading, or otherwise in violation of the privacy or other rights of the student.

          Source: 16 SDR 41, effective September 7, 1989; 23 SDR 31, effective September 8, 1996.

          General Authority: SDCL 13-37-1.1.

          Law Implemented: SDCL 13-37-1.1.




Rule 24:05:29:11 Hearing procedures.

          24:05:29:11.  Hearing procedures. At a minimum, a district's hearing procedures must include the following elements:

          (1)  The hearing must be held within 30 days after the district received the request, and the parent of the student or eligible student shall be given notice of the date, place, and time 5 days in advance of the hearing;

          (2)  The hearing may be conducted by any party, including an official of the district, who does not have a direct interest in the outcome of the hearing;

          (3)  The parent of the student or eligible student shall be afforded a full and fair opportunity to present evidence relevant to the issues raised and may be assisted or be represented by individuals of the parent's choice at the parent's own expense, including an attorney;

          (4)  The district shall make its decision in writing within 30 days after the conclusion of the hearing; and

          (5)  The decision of the district shall be based solely upon the evidence presented at the hearing and shall include a summary of the evidence and the reasons for the decision.

          Source: 16 SDR 41, effective September 7, 1989; 17 SDR 30, effective August 27, 1990; 23 SDR 31, effective September 8, 1996.

          General Authority: SDCL 13-37-1.1.

          Law Implemented: SDCL 13-37-1.1.




Rule 24:05:29:12 Result of hearing.

          24:05:29:12.  Result of hearing. If, as a result of the hearing, the district decides that the information is inaccurate, misleading, or otherwise in violation of the privacy or other rights of the student, it shall amend the information accordingly and inform the parents in writing.

          If, as a result of the hearing, the district decides that the information is not inaccurate, misleading, or otherwise in violation of the privacy or other rights of the student, it shall inform the parents of the right to place in the records it maintains on the student a statement commenting on the information or setting forth any reasons for disagreeing with the decision of the district.

          Any explanation placed in the records of the student under this section must be maintained by the district as part of the records of the student as long as the record or contested portion is maintained by the district. If the records of the student or the contested portion is disclosed by the district to any party, the explanation must also be disclosed to the party.

          Source: 16 SDR 41, effective September 7, 1989; 23 SDR 31, effective September 8, 1996.

          General Authority: SDCL 13-37-1.1.

          Law Implemented: SDCL 13-37-1.1.




Rule 24:05:29:13 Consent.

          24:05:29:13.  Consent. Parental consent must be obtained before personally identifiable information is disclosed to parties other than officials of participating agencies collecting or using the information under this article or used for any purpose other than meeting a requirement under this chapter, unless the information is contained in education records and the disclosure is authorized without parental consent under FERPA. The district may not release information from education records to participating agencies without parental consent except as follows:

 

          (1)  An educational agency or institution may disclose personally identifiable information from the education records of a student without the written consent of the parent of the student or the eligible student if the disclosure is to other school officials, including teachers, within the educational institution or local educational agency who have been determined by the agency or institution to have legitimate educational interests or to officials of another school or school system in which the student seeks or intends to enroll, subject to the requirements set forth in subdivision (2) of this section; and

 

          (2)  An educational agency or institution that discloses the education records of a student pursuant to subdivision (1) of this section shall make a reasonable attempt to notify the parent of the student or the eligible student at the last known address of the parent or eligible student, unless the disclosure is initiated by the parent or eligible student.

 

          If the agency or institution includes in its annual notice of parent's rights that it is the policy of the public agency to forward education records on request to a school in which a student seeks or intends to enroll, then the public agency does not have to provide any further notice of the transfer of records.

 

          Notwithstanding the FERPA exceptions for releasing information from education records without parental consent including the annual notice provision, if a student is enrolled, or will enroll in a private school that is not located in the district of the parent's residence, parental consent must be obtained before any personally identifiable information about the student is released between officials in the district where the private school is located and officials in the district of the parent's residence.

 

          An educational agency receiving personally identifiable information from another educational agency or institution may make further disclosures of the information on behalf of the educational agency without the prior written consent of the parent or eligible student if the conditions of subdivisions (1) and (2) of this section are met and if the educational agency informs the party to whom disclosure is made of these requirements.

 

          Source: 16 SDR 41, effective September 7, 1989; 20 SDR 33, effective September 8, 1993; 23 SDR 31, effective September 8, 1996; 26 SDR 150, effective May 22, 2000; 33 SDR 236, effective July 5, 2007; 36 SDR 96, effective December 8, 2009.

          General Authority: SDCL 13-37-1.1.

          Law Implemented: SDCL 13-37-1.1.

 




Rule 24:05:29:14 Safeguards.

          24:05:29:14.  Safeguards. Each school district shall protect the confidentiality of personally identifiable information at collection, storage, disclosure, and destruction stages.

          One official in the district shall assume responsibility for ensuring the confidentiality of any personally identifiable information.

          All persons collecting or using personally identifiable information must receive training or instruction regarding the provisions of this chapter concerning personally identifiable information.

          Each district shall maintain for public inspection a current listing of the names and positions of those employees within the district who may have access to personally identifiable information on students in need of special education or special education and related services.

          Source: 16 SDR 41, effective September 7, 1989; 23 SDR 31, effective September 8, 1996.

          General Authority: SDCL 13-37-1.1.

          Law Implemented: SDCL 13-37-1.1.




Rule 24:05:29:15 Destruction of information.

          24:05:29:15.  Destruction of information. The school district shall inform parents when personally identifiable information collected, maintained, or used under this chapter is no longer needed to provide educational services to the student.

          The information no longer needed must be destroyed at the request of the parents. However, a permanent record of the student's name, address, and phone number, the student's grades, attendance record, classes attended, and grade level completed may be maintained without time limit.

          Source: 16 SDR 41, effective September 7, 1989; 23 SDR 31, effective September 8, 1996.

          General Authority: SDCL 13-37-1.1.

          Law Implemented: SDCL 13-37-1.1.




Rule 24:05:29:16 Children's rights.

          24:05:29:16.  Children's rights. All of the parental rights in this chapter are extended to the child upon reaching the age of 18 unless the child has been declared incompetent by the courts, consistent with § 24:05:30:16.01, including taking into consideration the type or severity of a child's disability.

 

          Source: 16 SDR 41, effective September 7, 1989; 23 SDR 31, effective September 8, 1996; 26 SDR 150, effective May 22, 2000; 33 SDR 236, effective July 5, 2007.

          General Authority: SDCL 13-37-1.1.

          Law Implemented: SDCL 13-37-1.1.

 




Rule 24:05:29:17 Enforcement.

          24:05:29:17.  Enforcement. The department shall ensure that all school districts in this state comply with the requirements on confidentiality of information through on-site monitoring, approval of comprehensive plans, and complaint resolution. Sanctions for noncompliance include the disapproval of local special education programs and the withholding of state and federal funds.

 

          Source: 16 SDR 41, effective September 7, 1989; 23 SDR 31, effective September 8, 1996; 36 SDR 96, effective December 8, 2009.

          General Authority: SDCL 13-37-1.1.

          Law Implemented: SDCL 13-37-1.1.

 




Rule 24:05:29:18 Notice to parents.

          24:05:29:18.  Notice to parents. The department shall give notice that fully informs parents about the requirements under this chapter, including the following:

 

          (1)  A description of the extent to which the notice is given in the native languages of the various population groups in the state;

 

          (2)  A description of the children on whom personally identifiable information is maintained, the types of information sought, the methods the state intends to use in gathering the information, including sources from whom information is gathered, and the uses to be made of the information;

 

          (3)  A summary of the policies and procedures which participating agencies must follow regarding storage, disclosure to third parties, retention, and destruction of personally identifiable information; and

 

          (4)  A description of all the rights of parents and children regarding this information, including the rights under 34 C.F.R. Part 99, Family Educational Rights and Privacy Act, as amended to July 1, 2013.

 

          Before any major identification, location, or evaluation activity, the notice shall be published or announced in newspapers or other media, or both, with circulation adequate to notify parents throughout the state of the activity.

 

          Source: 20 SDR 33, effective September 8, 1993; 23 SDR 31, effective September 8, 1996; 26 SDR 150, effective May 22, 2000; 33 SDR 236, effective July 5, 2007; 36 SDR 96, effective December 8, 2009; 40 SDR 40, effective September 11, 2013.

          General Authority: SDCL 13-37-1.1.

          Law Implemented: SDCL 13-37-1.1.

 




Rule 24:05:29:19 Disciplinary information.

          24:05:29:19.  Disciplinary information. A local educational agency shall include in the records of a child with a disability a statement of any current or previous disciplinary action that has been taken against the child and transmit the statement to the same extent that the disciplinary information is included in, and transmitted with, the student records of nondisabled children.

          The statement may include a description of any behavior engaged in by the child that required disciplinary action, a description of the disciplinary action taken, and any other information that is relevant to the safety of the child and other individuals involved with the child.

          Consistent with the above policy, if a child transfers from one school to another, the transmission of any of the child’s records shall include both the child’s current individualized education program and any statement of current or previous disciplinary action that has been taken against the child.

          Source: 26 SDR 150, effective May 22, 2000.

          General Authority: SDCL 13-37-1.1.

          Law Implemented: SDCL 13-37-1.1.




Rule 24:05:29:20 U.S. department use of personally identifiable information.

          24:05:29:20.  U.S. department use of personally identifiable information. If the U.S. Department of Education or its authorized representatives collect any personally identifiable information regarding children with disabilities that is not subject to the Family Educational Rights and Privacy Act of 1974, as amended to July 1, 2013, the U.S. secretary shall apply the applicable provisions of 5 U.S.C. 552a, as amended to July 1, 2013, and the regulations implementing those provisions in 34 C.F.R. part 5b, as amended to July 1, 2013.

 

          Source: 26 SDR 150, effective May 22, 2000; 33 SDR 236, effective July 5, 2007; 36 SDR 96, effective December 8, 2009; 40 SDR 40, effective September 11, 2013.

          General Authority: SDCL 13-37-1.1.

          Law Implemented: SDCL 13-37-1.1.

 

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