NASP Communiqué Vol. 30 #1
September 2001
Test Protocols, Part II: Storage and Disposal
By Andrea Canter, NCSP
Procedures governing the periodic destruction of outdated or no
longer useful information do not exist in most systems. Moreover, the
cumulative nature of most record-keeping systems makes a fresh start
difficult or impossible for most pupils. Russell Sage Foundation, 1970
In 1969, the Russell Sage Foundation convened a conference on the
legal and ethical aspects of school record keeping, identifying many
abuses that led to such policies as the Family Education Rights and
Privacy Act (FERPA). Among the problems identified by conference participants
were the lack of parent notice as to what pupil records were maintained
by the school, where such records were located and what procedures,
if any, were established for the destruction of outdated records. With
the implementation of laws and regulations for students with disabilities,
the nature of materials defined as "school records" grew considerably
beyond registration, attendance and group test data to include an ever-expanding
variety of medical, educational and psychological evaluation and treatment
records, including comprehensive assessment and reassessment data, Individual
Education Plans and conference notes.
For any given student with a disability, the Special Education record
alone can account for several inches of paper space in a Due Process
file, expanding each year that the student is enrolled and receiving
Special Education services. For students identified for special education
services at age five or six, it is conceivable that the Due Process
record will include data from at least four evaluations, twelve IEPs
and dozens of team conferences; for students with significant medical
conditions, add to that file at least annual reports from physicians
and other specialists and perhaps another thick file of school health
records documenting medications, surgeries, etc. Does the student have
significant behavior challenges? Add to the record numerous behavior
plans, manifestation determination records and perhaps suspension records.
There is no doubt that the special education system - regardless of
location - generates considerable documentation for every child with
a disability, as well as for those suspected of having a disability.
This accumulation presents a number of challenges for school personnel,
from the clerical staff charged with filing and retrieving records,
to the administrators responsible for adhering to regulations and district
policies, to the practitioners who may face conflicts between ethical
standards and administrative directives.
Record-keeping dilemmas pose significant concerns for school psychologists.
On the one hand, we are committed to insuring compliance with our principles
of ethics that call for assuring authorized use of our data, safeguarding
confidential material and protecting test security (NASP, 2000a; Canter,
2001). Further, we are committed to practices that are in the best interest
of students and protect their due process rights. On the other hand,
we are expected to adhere to state and local policies and regulations
governing the storage and disposal of records, including psychological
records. Such policies and practices at the state and district level
are typically guided more by convenience and economics than by legal
mandate.
This article summarizes legal and ethical foundations for policies
addressing storage and disposal of school records, including records
of school psychological services and, particularly, test protocols;
reviews reported practices and specific examples of local policies and
practice; and suggests "best practice" guidelines. As is true in developing
policies regarding access to and copying records including protocols,
the reader is cautioned to consider state and local regulations that
can vary considerably across jurisdictions (see Canter, 2001).
Legal Foundations for School Records Policies
Q. Are there federal mandates regarding the storage and disposal of
educational records?
Definitions
FERPA defines "educational records" as records maintained by the schools
(or their agent) pertaining to the individual student (34 CFR §99.3).
IDEA ’97 essentially reiterates the definition of "educational
record" under FERPA (§300.560(b). Although at times some psychologists
and administrators may claim that test protocols are "personal notes,"
a number of federal policy documents, as well as at least one court
ruling, have defined protocols as "educational records" and therefore
subject to any regulation of such records (see Jacob-Timm & Hartshorne,
1998). FERPA further excludes professional "notes" from this
definition of school records, while courts have ruled that raw test
data and test protocols are not "private notes" and thus not subject
to this exclusion (Canter, 2001; Jacob-Timm & Hartshorne, 1998).
"Destruction" of records is defined by IDEA ’97 regulations as
"physical destruction or removal of personal identifiers from the information
so that the information is no longer personally identifiable" (§300.560(a)).
Mandates regarding record-keeping
Both FERPA and IDEA ’97 mandate that each school agency establish
policies regarding storage, retrieval and disposal of educational records.
FERPA guarantees that parents (or students age eighteen or older) have
access to school records and that they receive annual notice of their
rights to inspect, review and request amendments of school records (34
CFR§99.7); on request, parents must be provided copies of district policies
and procedures for reviewing and amending records, including a list
of types and locations of all educational records (34 CFR §99.6 and
IDEA ’97 regulation§300.565). However, neither FERPA nor IDEA provides
specific guidance as to the nature of these policies - records must
be "accessible" while their storage must also guarantee confidentiality.
Destruction of records
Parent access to student educational records is based on multiple due
process safeguards, not the least of which is the parent’s right
to challenge the information and request an amendment if information
is inaccurate, misleading or out-of-date. If records are not available,
or have been destroyed, the parent’s right to challenge the information
is compromised; at the same time, the school district’s ability
to document its services and decisions is severely limited.
While neither FERPA nor IDEA explicitly address policies and procedures
for destroying school records, including protocols, interpretative guidance
has been offered by the Office of Special Education Programs (OSEP)
and the Office of Civil Rights (OCR) through policy memos. OSEP, for
example, has stated unequivocally that parents have the right to review
test protocols and test questions (see Canter, 2001). This ruling has
prompted some districts and some practitioners to destroy raw data and
protocols once reports are completed. Further, some state policies and
district counsel have maintained that, once a report is written, that
report becomes the educational record and the protocol
may be destroyed in accordance with district policy (Desrochers, 1998).
However, OCR criticized this practice in ruling against an Illinois
school district with such a policy: In a 1990 complaint investigation,
OCR noted that test protocols were crucial documentation of assessment
results and conclusions of the district school psychologist; when parents
disputed the assessment results and subsequent recommendations, they
were denied access to this information because the district had destroyed
the test protocols upon completion of the assessment report. OCR ruled
that such destruction of records violated Section 504, effectively denying
parents access to relevant records (Reschly & Bersoff, 1999). Further,
common sense and child advocacy should call this practice into question,
regardless of policy:
"Slick ways to get around legal requirements such as destroying test
protocols undermine the intent of the regulations and may place the
educational agency at great risk for large legal fees. Moreover, it
is hard to see how such destruction of records represents anyone’s
conception of best professional practices." (Reschly & Bersoff,
1999, p. 1086)
Timelines for data storage
How long should test protocols be maintained in student records? Implied
in both FERPA and IDEA is the notion that, at some point, data contained
in school records may become out-of-date and no longer useful, and that
disposal of such records is legitimate as long as parents are informed
as to what will be destroyed, how and why (IDEA, §300.573 (a)). FERPA
further mandates that records cannot be destroyed if there is an outstanding
request to review them (34 CFR §99.10-11); IDEA requires that records
be destroyed at parent request (§300.573(b)).
Given the OCR ruling cited above, when is it "safe" to destroy records?
IDEA notes that information can be destroyed, with parent notification,
when "no longer needed to provide educational services to the child."
Common sense might suggest that data collected for special education
eligibility and IEP planning become obsolete once the next reevaluation
takes place, as that information replaces the initial data as the foundation
for continuing services and developing the IEP. Are assessment and
treatment data subject to legal challenge beyond the three-year reevaluation
cycle? As noted below, many districts adhere to their legal counsel
recommendations that student records, including test protocols, be maintained
for at least five years beyond that student’s discharge
from special education or graduation/transfer from the school
system.
A search for any statuatory or interpretative guidance at the
federal level yielded one document, a 1990 OSEP letter to Breecher citing
34 CFR §76.730 and §76.731, noting that "local education agencies must
retain (1) records to show compliance with EHA-B requirements; (2) records
to show how EHA-B funds are used; and (3) other records to facilitate
an effective audit. These records must be retained for a minimum period
of five years following completion of the activity for which the grant
or subgrant was used" (cited by Minnesota Department of Children, Families
and Learning policy memo, 1996). However, more than a decade has passed
since the above "clarifications" were issued by OSEP and OCR, with no
new set of standards provided at the federal level. Rather, beyond the
provisions of FERPA and IDEA, states and local agencies are expected
to set their own policies regarding timelines in formal "record retention
policies" (Lombard, Minnesota Department of Children, Families and Learning;
personal communication, 2001).
States may have their own regulations that help define the longevity
of specific records. For example, North Carolina law obligates parents
to file for due process within 60 days of an LEA decision and that parents
receive clear and full notice of this timeline, which was upheld by
the 4th U.S. Circuit Court of Appeals (CM by JM and EM v.
Board of Education of Henderson County, 34 IDELR ¶57, 4th
Cir. 2001). Destruction of test data after 60 days would likely be within
the law in North Carolina.
Same timeline for all records? A further issue
is the definition of a school record - while protocols are generally
included in definitions of school records, are all documents so defined
of equal value over time? Does a protocol have the same historical value
to a student record as the assessment report and eligibility documentation,
or the IEP itself? While it is clearly prudent to maintain records
of services throughout a student’s school career, is it really
necessary to retain raw data or test protocols beyond some reasonable
limit of their validity and usefulness?
Location of educational records and protocols
While records clearly need to be stored in a manner that allows
proper and timely access as well as protecting confidentiality, federal
regulations do not limit how or where such records are maintained, nor
do regulations limit the number of locations housing school records
for an individual student. Districts are obligated under both FERPA
and IDEA to inform parents as to the locations of all educational records.
Professional Standards
-
Q. Do standards for professional ethics and service delivery
address storage and disposal of test protocols and related records?
-
A. Yes. NASP and APA standards tend to reiterate vague requirements
stated in law, emphasizing confidentiality of information. APA policy
guidelines, however, offer explicit recommendations regarding timelines
for record retention.
Professional standards regarding record keeping require adherence to
state and federal law as the basis of ethical conduct. In its 1997 revision,
the National Association of School Psychologists’ Standards
for the Provision of School Psychological Services provided the
following guidance, clearly based on FERPA:
"School psychological records are systematically reviewed, and when
necessary, purged, in keeping with relevant state and federal laws in
order to protect children from decisions based on incorrect, misleading
or out-of-date information" (Principle 3.6.6, NASP 1997).
However, the most recent revision (NASP, 2000b) provides less
specific direction, stating only:
"The school psychological services unit’s policy on student
records is consistent with state and federal rules and laws and ensures
the protection of the confidentiality of the student... The policy specifies
the types of data developed by the school psychologist that are classified
as school or pupil records... " (Unit Guideline 4.4).
Additional but vague guidance is also provided in NASP’s revised
Principles for Professional Ethics (NASP, 2000a), which notes
that "school psychologists comply with all laws, regulations and policies
pertaining to the adequate storage and disposal of records to maintain
appropriate confidentiality of information" (Principle IV-D-5).
The American Psychological Association offers similar guidelines in
its Principles of Ethics (APA, 1992):
1.24. "Records and Data. Psychologists create, maintain, disseminate,
store, retain, and dispose of records and data relating to their research,
practice, and other work in accordance with law and in a manner that
permits compliance with the requirements of this Ethics Code."
5.04. "Maintenance of Records. Psychologists maintain appropriate confidentiality
in creating, storing, accessing, transferring, and disposing of records
under their control, whether these are written, automated, or in any
other medium. Psychologists maintain and dispose of records in accordance
with law and in a manner that permits compliance with the requirements
of this Ethics Code."
However, APA’s Ethics offers some guidance regarding retention
of outdated records that could help establish criteria for disposal:
2.07. "Obsolete Tests and Outdated Test Results. (a)Psychologists do
not base their assessment or intervention decisions or recommendations
on data or test results that are outdated for the current purpose."
5.10. "Ownership of Records and Data. Recognizing that ownership of
records and data is governed by legal principles, psychologists take
reasonable and lawful steps so that records and data remain available
to the extent needed to serve the best interests of patients, individual
or organizational clients, research participants, or appropriate others."
Finally, in a set of "Record Keeping Guidelines," APA (1993) provided
specific recommendations regarding timelines for storage of psychological
records, and opened the door to develop policies that might set different
timelines for different types of records:
"Retention of Records: The psychologist is aware of relevant
federal, state and local laws and regulations governing records retention.
Such laws and regulations supersede the requirements of these guidelines.
In the absence of such laws and regulations, complete records are maintained
for a minimum of 3 years after the last contact with the client.
Records, or a summary, are then maintained for an additional 12 years
before disposal. If the client is a minor, the record period is extended
until 3 years after the age of majority. All records, active and inactive,
are maintained safely, with properly limited access, and from which
timely retrieval is possible" (p.984). (emphasis added)
Reported School District Practices
- Q. In practice, are district policies regarding storage and disposal
of records consistent?
- A. Definitely not.
Information gathered from an informal survey of NASP’s state leaders
in spring 2001 revealed a wide range of policies and practices regarding
storage and disposal of test protocols. Some respondents indicated
that they were not aware of a formal policy at the district or state
level. The following information should be considered to reflect individual
district practices which may not be consistent with typical practices
in that state, and is presented only for the purpose of illustrating
the range of practice:
-
Massachusetts: At least one district’s policy
is to shred test protocols after the evaluation is completed. However,
state regulations define protocols as "personal records" if maintained
only in the school psychologist’s own files and not released
to any third party other than the parent. This would appear to be
in direct contradiction to past rulings by OCR and OSEP that define
protocols as "educational records." Where protocols are contained
in student files, Massachusetts considers them "temporary records;"
as part of documentation supporting special education records, such
protocols are to be retained for seven years (Massachusetts Department
of Education, 1995; 603 CMR 10.21(9)).
-
Wisconsin: In Wisconsin, the protocol is considered
part of the student’s education record if it identifies the
student, thus falling under the definition of a " Behavioral record"
under state law. For auditing purposes, special education records
(including protocols) are to be kept for five years after the student
leaves the school system (Wydeven, personal communication).
-
Florida: In one of Florida’s largest school
districts, local policy calls for maintaining all student records,
including test protocols, for five years after the student would
be "reasonably" expected to graduate; such files are maintained
in a confidential "central files" area (Leighton, personal communication).
-
Ohio: In a large urban Ohio district, records contain
protocols and other materials from the most recent evaluation,
while copies of all evaluation reports of a student with
a disability are maintained "indefinitely;" for students assessed
but not found to have a disability, such records are maintained
for five years (Forcade, personal communication).
-
Iowa: Iowa’s largest Area Education Agency reports
that its protocols are contained in special education files housed
in a central location, not in schools. Records are destroyed after
students graduate, and this destruction (shredding and recycling
paper) is advertised (Boyle, personal communication).
-
North Carolina: One district reports variable timelines
for destruction of records, with most information purged after five
years (Flagler, personal communication). As noted above, North Carolina
limits parents’ challenges of due process to sixty days.
Going Out on a Limb: Practice Guidelines
In the absence of specific regulation and in the presence of vague
professional standards, the following are offered as guidelines for
individuals and service units seeking to establish logical, legal and
ethical procedures for the storage and disposal of school records, with
particular attention to test protocols. Readers are cautioned that 1)
these recommendations are offered by the author and are not official
association guidelines; 2) individual states and/or districts may have
existing regulations or policies that contradict (and supersede) these
recommendations. In the absence of a local policy, these recommendations
will hopefully help in establishing practice and guidelines. Where cumbersome
or clearly inappropriate policy or practice exists, these recommendations
will hopefully serve as a starting point for revising standards and
practices.
Storage of Test Protocols and Other Psychological Records
A guiding principle for developing policies regarding the storage of
records should be to balance students’ rights to due process and
confidentiality with efficient and appropriate retrieval of relevant
information. There are multiple means of achieving this end, and the
size and organization of the school district will determine the most
appropriate plan. It is not necessary (or even desirable) to maintain
all school records in one location, but it is necessary that the location
of all school records is disclosed to parents.
Where should psychologists’ records be kept? Commonly,
student "cumulative" or registration records are housed in school offices
for easy access by clerical and professional staff. More protections
should be given to special education, health, psychological and other
records containing confidential information. Some districts will maintain
all such records together in one file location - a single file may contain
the IEPs, team assessment reports, health records and test protocols
from all team members. However, this is not a recommended practice,
as issues of confidentiality and test security are not constant across
information sources. Further, test protocols are probably the most misused,
misinterpreted and most rapidly outdated sets of information in a student’s
file and require more stringent control than do reports and instructional
plans. It is therefore recommended that psychological test protocols
in particular be housed separately from other educational records to
safeguard confidentiality and test security, and to limit direct, unsupervised
access to individuals trained in interpreting this information.
Who should oversee storage of psychologists’ records?
Ethical standards clearly call for school psychologists to assume responsibility
for assuring confidentiality of records and test security. If the individual
school psychologist is not directly responsible for storage of his or
her records, then the service unit should assure proper storage and
access by training assigned clerical staff and developing policies with
appropriate facility officials. Note that these responsibilities apply
equally to paper and electronic records.
Guidelines, Storage of Psychological Records:
-
Test protocols and other forms of raw data that identify a student
should be stored and maintained under the direct control of either
the relevant school psychologist or the administrator/supervisor
of the Psychological Services Unit. It is recommended that test
protocols and other forms of raw data be maintained separately
from other due process records, such as IEPs.
-
Test protocols, other forms of raw data and all reports of psychological
services should be stored in a manner that insures student confidentiality
and test security, protects against inappropriate access and release
of information, and allows for efficient retrieval of data in appropriate
situations.
-
Non-school psychologists with responsibility for overseeing the
storage and retrieval of psychological services records, including
protocols, should receive sufficient training in test security,
confidentiality and release of records to allow for legally and
ethically responsible maintenance of records.
-
The location of all student records, including psychological reports
and protocols, must be reported to district administration and parents.
Procedures for accessing their child’s school records, and
for challenging the accuracy of information, should be communicated
to parents annually.
-
The district should develop timelines for storage of different
types of school records and establish a plan to notify parents and
relevant professionals when records are to be destroyed.
Disposal of Test Protocols and Other Psychological Records
The most common practice among school districts appears to be
maintaining all student records well past graduation or termination
of enrollment. Unless there are regulations that specifically address
timelines for challenges to these records, maintaining "outdated" assessment
data seems both inefficient and potentially harmful to the student.
Much of the weight of a student’s due process file is due to the
abundance of thick protocols, leading to expensive, environmentally
unsound storage solutions. Electronic storage (on CD, tape, microfilm)
solves some of the physical concerns but can be expensive and subjects
the records to an entirely new array of potential hazards, including
system crashes, hacker access and ethical dilemmas (e.g., Harvey &
Kruger, 1998; Jacob-Timm & Hartshorne, 1998).
Simply, we should only maintain raw data and protocols as long
as they are useful and legally subject to challenge. Beyond any statute
of limitations on the rights to challenge this information, test protocols
and similar data should be destroyed, with proper notice to both parent
and the creator of the record, when their value to serving the student
is clearly passed. When are such data "out of date" and of "no value
to serving the student?" If the district’s policy includes advance
notification to the school psychologist who gathered the data, the school
psychologist can determine the probability that past evaluation data
will be needed in making decisions or addressing complaints. While any
formal statute of limitations will help us determine if future legal
action pertaining to specific data is possible, understanding of the
student’s current program will also help us determine if "old"
data are likely to provide any assistance to future instructional planning.
In systems where test protocols are maintained separately from other
school records, such file maintenance and "clean up" will be much easier
to implement.
In contrast to policies regarding raw data and protocols, reports
or summaries of assessment results should be maintained as long
as records of student services are kept. The prevailing practice of
maintaining such records for a period beyond graduation or enrollment
appears to serve districts well, given varying statues of limitations
and the potential usefulness of certain records, such as IEPs, in supporting
enrollment in adult services and post-secondary education programs.
As in the case of test protocols, however, it would be wise for school
districts to periodically review student files and remove any materials
defined as "out of date" and not critical to documenting due process
or student progress.
Guidelines: Disposal of Psychological Records and Protocols:
-
Test protocols and other raw data from psychological services should
be maintained in appropriate student records at least until
the completion of the next reevaluation or until the date required
by state law. Within legal time limits, raw data and test protocols
should be destroyed only after a determination that the information
is no longer necessary to support the student’s instructional
program and placement. Parents and the school psychologist should
be notified in advance of the district’s intent to destroy
such records. This guideline applies to test data in hard copy or
electronic format.
-
Reports and summaries of psychological services should be maintained
in appropriate school records following the timeline for all other
due process records. It is recommended that these summary records
of special education services be maintained until at least five
years beyond the date of the student’s graduation or last day
of enrollment, or until the date required by state law.
-
School psychologists adhere to relevant ethical and practice standards
in the use and interpretation of all test data, and insure that
current services are not based on outdated information.
References
American Psychological Association (1992). Ethical principles of
psychologists. Washington, DC: Author.
American Psychological Association (1993). Record keeping guidelines.
American Psychologist, 48 (9), 984-986.
Canter, A. (2001). Test protocols, part I: Right to review and copy.
Communiqué, 29 (7), 30.
Desrochers, J. (1998). Ethics and professional practices committee:
Test protocols disposition. The Connecticut School Psychologist,
Spring 1998, 3-4.
Harvey, V. & Kruger, L. (1998, March). Computer mediated consultation:
Ethical issues and guidelines. Communiqué, 26 (6), 6, 12.
Jacob-Timm, S. & Harsthorne, T. S. (1998). Ethics and law for
school psychologists (third edition). New York: Wiley.
Minnesota Department of Children, Families and Learning (1996). Test
protocols: Access and storage (policy memo). St. Paul: Author.
National Association of School Psychologists (1997). Principles
for professional ethics (revised). Bethesda, MD: Author.
National Association of School Psychologists (2000a). Principles
for professional ethics (revised). Bethesda, MD: Author (available
online at www.nasponline.org).
National Association of School Psychologists (2000b). Guidelines
for the provision of school psychological services (revised). Bethesda,
MD: Author. (available online at www.nasponline.org).
Reschly, D.J. & Bersoff, D. N. (1999). Law and school psychology.
In C.R. Reynolds & T.B. Gutkin (Eds.), Handbook of school psychology
(3rd edition) (pp. 1077-1112). New York: Wiley.
Russell Sage Foundation (1970). Guidelines for the collection, maintenance
and dissemination of pupil records. New York: Author.
Andrea Canter, Ph.D., NCSP, is the Editor of the Communiqué, NASP
Special Projects consultant and part-time supervisor and mentor with
the Minneapolis Public chools.
Thanks to the following individuals for their assistance in preparing
this article: Tom Fagan, Michael Forcade, Fred Grossman, Tom Lombard,
John Desrochers, Perry Zirkel, Susan Jacob-Timm and respondents on the
NASP Leadership Listserv. Part I regarding access and copying of test
protocols appeared in the June 2001 issue.