To Copy or Not to Copy, That is the Question!
To Copy or Not to Copy, That is the Question!
Published in the September 2025 issue of the ISHA Voice.
By Karen Kockler, School Affairs Committee Member
What do you do when told to make copies of your written materials and/or protocols for parents/guardians? I do receive this question from time to time. First, I am not a lawyer, and I do not give out advice or instruction as to what to do when asked to provide copies of “written material” and/or protocols to parents/guardians. You need to do your own due diligence and consult with your district’s administrators and legal counsel, if warranted. However, what I can do is provide you with relevant legislation and references that address the copying of student records, session logs, therapy notes, and protocols. I can also remind you to review the ASHA Code of Ethics and the Illinois Educator Code of Ethics, specifically those sections that require us to uphold laws and to respect the needs and privacy of parents/guardians and students.
In order to consider the legalities of copying materials for parents/guardians, there are several laws that one should review.
- Federally , The Family Educational Rights and Privacy Act, or FERPA, instructs us what to do for Protecting Student Privacy. FERPA states that parents/guardians, and/or “eligible” students, have a right to request access to education records.
- Parents/guardians, or sometimes “eligible” students, must be given the opportunity to inspect and review the student's education records.
- As members of educational teams, we “shall comply with a request for access to records”.
- We “shall respond to reasonable requests for explanations and interpretations of the records.
- If circumstances effectively prevent the parent or eligible student from exercising the right to inspect and reviewthe student's education records, the educational agency or institution, or SEA (i.e. State Education Agency) or its component, shall—
- Provide the parent or eligible student with a copy of the records requested; OR
- Make other arrangements for the parent or eligible student to inspect and review the requested records.”
The following excerpts from the above linked document provide definition of “Education Records”, and what they do and do not include. [FERPA, Subpart B]
- “Education Records” (from FERPA) ARE:
- directly related to a student; and are
- maintained by an educational agency or institution or by a party acting for the agency or institution.
- “Education Records” (from FERPA) ARE NOT:
- Records that are kept in the sole possession of the maker, are used only as a personal memory aid, and are not accessible or revealed to any other person except a temporary substitute for the maker of the record.
- Records of the law enforcement unit of an educational agency or institution.
- Records relating to an individual who is employed by an educational agency or institution, that:
- Are made and maintained in the normal course of business;
- Relate 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 his or her status as a student are education records and not excepted under paragraph (b)(3)(i) of this definition.
- 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 his or her 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 definition, “treatment” does not include remedial educational activities or activities that are part of the program of instruction at the agency or institution; and
- 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.
- Grades on peer-graded papers before they are collected and recorded by a teacher.”
- Illinois State Law: Public Act 101-0515, also (105 ILCS 5/14-8.02f) in IL School Code Article 14-8.02f Subparts (c) and (d)
“For a meeting to determine the child's eligibility for special education, the written material must include all evaluations and collected data that will be considered at the meeting. For a child who is already eligible for special education and related services, the written material must include a copy of all individualized education program components that will be discussed by the individualized education program team, other than the components related to the educational and related service minutes proposed for the child and the child's placement.
Parents shall also be informed of their right to review and copy their child's school student records prior to any special education eligibility or individualized education program review meeting, subject to the requirements of applicable federal and State law.
(d) Local education agencies must make logs that record the delivery of related services administered under the child's individualized education program and the minutes of each type of related service that has been administered available to the child's parent or guardian at any time upon request of the child's parent or guardian. For purposes of this subsection (d), related services for which a log must be made are: speech and language services, occupational therapy services, physical therapy services, school social work services, school counseling services, school psychology services, and school nursing services. The local education agency must inform the child's parent or guardian within 20 school days from the beginning of the school year or upon establishment of an individualized education program of his or her ability to request those related service logs.”
- Also in Illinois State Law: (740 ILCS 110/3) (from Ch. 91 1/2, par. 803) Civil Liabilities § 110/3. Records and communications; personal notes of therapist; psychological test material Current as of January 01, 2022:
Sec. 3. (a) All records and communications shall be confidential and shall not be disclosed except as provided in this Act. Unless otherwise expressly provided for in this Act, records and communications made or created in the course of providing mental health or developmental disabilities services shall be protected from disclosure regardless of whether the records and communications are made or created in the course of a therapeutic relationship.
As used in this subsection, "confidential" has the same meaning as in paragraph (3) of subsection (b) of Section 5 of the Court Record and Document Accessibility Act.
(b) A therapist is not required to but may, to the extent he determines it necessary and appropriate, keep personal notes regarding a recipient. Such personal notes are the work product and personal property of the therapist and shall not be subject to discovery in any judicial, administrative or legislative proceeding or any proceeding preliminary thereto.
(c) Psychological test material whose disclosure would compromise the objectivity or fairness of the testing process may not be disclosed to anyone including the subject of the test and is not subject to disclosure in any administrative, judicial or legislative proceeding. However, any recipient who has been the subject of the psychological test shall have the right to have all records relating to that test disclosed to any psychologist designated by the recipient. Requests for such disclosure shall be in writing and shall comply with the requirements of subsection (b) of Section 5 of this Act. (Source: P.A. 103-166, eff. 1-1-24.)
Service logs and session notes (as long as they are not shared with anyone) are considered different types of information and are not education records per se.
Review publisher websites for their copyright policies:
In my opinion, for whatever it’s worth, upholding one law (i.e. special education law) may require us to break another law (i.e. copyright infringement)…a precarious position to be in. In my own practice, I would write evaluation reports and progress updates clearly, providing all critical details and data (i.e. naming the assessments, providing standard scores and percentile ranks with explanations), and as parent-friendly as possible. Finally, if a parent/guardian/student were to request access to inspect and review a student’s educational records, how would you explain and/or interpret the information within? How would you explain/interpret protocols? Consider your responses to these questions, and your responses should be, then, the content of your reports, providing information related to the identified adverse effects on the student’s educational and/or functional performance.
