In January of 2013, Congress amended the Family Educational Rights and Privacy Act of 1974 (“FERPA”) to add an additional disclosure exception. The amendment permits Local Education Agencies (“LEAs”), State Education Agencies (“SEAs”), and education institutions receiving federal funds to release education records of students without the written consent of their parents to a “tribal organization (as defined in section 450b of title 25)[.]” The tribal organization must have “the right to access a student’s case plan,” as defined and determined by the tribal organization, when the organization is legally responsible, in accordance with tribal law, for the care and protection of the student. The disclosure can be made provided that the education records, or the personally identifiable information contained in such records, “will not be disclosed by such agency or organization, except to an individual or entity engaged in addressing the student’s education needs” and the disclosure is consistent with tribal laws applicable to protecting the confidentiality of the students records.
This is certainly a step in the right direction for providing Tribes and Tribal Education Departments access to student records. It will be interesting to see if regulations are adopted interpreting this provision and if there are limits placed on it.