May 8, 2008

LeRoy S. Rooker
Director, Family Policy Compliance Office
U.S. Department of Education
400 Maryland Avenue, SW
Room 6W243
Washington, DC 20202-5920

Dear Mr. Rooker:

On behalf of the American Psychological Association (APA), I am pleased to take this opportunity to comment on the Family Educational Rights and Privacy Act (FERPA) proposed rule that was published in the Federal Register on March 24, 2008.

As you may know, APA is the largest scientific and professional organization representing psychology in the United States and is the world's largest assocation of psychologists. APA's membership includes more than 148,000 researchers, educators, clinicians, consultants, and students. Through its 53 professional divisions in psychology and affiliations with 59 state, territorial, and Canadian provincial assocations, APA works to advance psychology as a science, as a profession and as a means of promoting health, education, and human welfare.

In providing comment today, we seek to represent the interests of the public by communicating the viewpoints and sharing the expertise of psychologists, including those that conduct educational research and those working in college and university counseling centers across the country. In their professional roles, they often refer to FERPA or other federal and state laws that address issues of student privacy.

What must not be lost or overlooked in this discussion of FERPA and efforts to clarify the law is a careful consideration of the classification and treatment of student health and mental health records. The regulations and any other guidance issued by the Department must make clear that college health and mental health records are not educational records and must be treated like other health and mental health records in other settings. Disclosure of a student's health or mental health record of any kind must be governed by state and federal laws and professional ethics that are applicable to those professions - as is the case in dealing with any individual's health or mental health records in other settings. In those limited instances when health or mental health records are released to campus administrators and are then governed by FERPA, it must be made clear that only that specific shared record is subject to FERPA, and not all other health or mental health records associated with an individual student.

We would now like to offer some recommendations regarding specific provisions of the proposed regulation:

§ 99.36(c)(8): Health and Safety Emergencies
APA supports the change proposed by the Department to replace the language requiring strict construction of the emergency exception with a provision that allows for an institution to take into account the totality of the circumstances pertaining to a threat to safety or health of a student or other individual(s). APA also supports the provision that the Department will not substitute its judgement for that of the institution in evaluating the circumstances and making its determination. This change will provide greater clarity and flexibility for colleges and universities when facing an emergency involving an individual student or others within the campus community. Giving the university community leeway to address significant threats to the health and safety of its students and other individuals is a measured change that will better serve students and others on campus.

§ 99.31 School Officials/Outsourcing
APA would like to make certain that this proposed regulatory change includes practicum students, fieldwork students, and unpaid school psychology interns working in schools. While these individuals may be considered "volunteers" under the proposed change, it would be helpful to clarify that students who complete required supervised activities in schools as part of an established (accredited) academic program of study are included in the school official exception.

§ 99.31(a)(2) Disclosure to a School Where Student Seeks or Intends to Enroll
APA supports the clarification that an education institution or agency is permitted to disclose students' educational records to a school or post-secondary institution in which they are seeking enrollment or have enrolled. This information is particularly important not only to ease administrative burdens, but also to meet the educational needs of students as they move through the education pipeline and will enable the receiving institution to meet the unique educational needs of the student. There is some uncertainty about what types of records can be shared, however, and we seek clarification from the Department on this criticial issue. As the proposed regulations state that "FERPA permits school officials to disclose any and all education records, including health and disciplinary records, to another institution where the student seeks or intends to enroll," we recommend that the Department clarify which types of records may be disclosed to another institution in which the student has already enrolled. In these instances, records shared without consent should only be those records defined as educational records under FERPA and should not include other health or mental health records related to the student that are not included under FERPA.

§ 99.31(a)(6) Organizations Conducting Studies for or on Behalf of an Educational Institution
APA supports many of the proposed changes that seek to facilitate educational research while protecting the privacy of students' educational records. As stated in the Department's proposed regulation, this exception to the consent requirement is intended to allow an educational agency or institution to disclose personally identifiable information from educational records without consent to "organizations or individuals to conduct studies for or on their behalf to develop, validate or adminster predictive tests, administer student aid programs or improve instruction." While this is an important clarification, there is some concern that it would not apply to recently established state longitudinal data systems. These data systems will provide a rich resource for more effective education research, evaluation, and policy-making.

§ 99.31(b) De-Identification of Information
In addition, the proposed changes under this provision seek to improve access to de-identified data from schools for research purposes, and will facilitate valuable research to improve teaching and learning. As there continues to be misunderstandings about how agencies apply FERPA to requests for information from individual researchers or organizations, it is important that the Department clarify how schools can ensure that a student's personally-identifiable information is not disclosed, while meeting the data needs of educational research.

On behalf of our membership, I would like to thank you for this opportunity to comment on these proposed regulatory changes to the Family Educational Rights and Privacy Act. Please contact Jennifer Smulson of APA's Education Government Relations Office at jsmulson@apa.org or 202.336.5945 for any additional information or to arrange for consultations with some of our members with special expertise in this area.

Sincerely,

L. Michael Honaker, Ph.D.
Deputy Chief Executive Officer

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