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Tool 86: The Amendment Request: Correcting the File One Wrong Sentence at a Time

THE RULE

If you believe information in your child’s education records is inaccurate, is misleading, or violates the privacy or other rights of your child, you may ask the district to amend it (34 C.F.R. § 300.618(a)). The Family Educational Rights and Privacy Act (FERPA) gives you the same right, in nearly the same words (34 C.F.R. § 99.20(a)).

Those are the three grounds. There is no fourth. Read them once more before you write anything, because most amendment requests fail on the grounds, not on the facts.

First you have to read the file. The district must let you inspect and review your child’s records without unnecessary delay, before any IEP meeting, before any due process hearing or resolution session, and in no case more than 45 days after you ask (34 C.F.R. § 300.613(a)). It may charge you for copies only if the fee does not effectively prevent you from inspecting the records, and it may not charge you anything to search for or retrieve them (34 C.F.R. § 300.617). That is Tool 84 and Letter 2.

The district must decide. It must decide whether to amend, in accordance with your request, within a reasonable period of time after it receives the request (34 C.F.R. § 300.618(b); 34 C.F.R. § 99.20(b)). The regulation sets no number of days. That is a real gap, and the way you close it is to propose a date yourself.

If the district refuses, it must say so, and it must tell you about the hearing. It must inform you of the refusal and advise you of your right to a hearing (34 C.F.R. § 300.618(c); 34 C.F.R. § 99.20(c)).

The hearing is a right, not a favor. On request, the district must provide an opportunity for a hearing to challenge information in the education records, to ensure the information is not inaccurate, misleading, or otherwise in violation of the privacy or other rights of your child (34 C.F.R. § 300.619; 34 C.F.R. § 99.21(a)). That hearing must be conducted according to the FERPA hearing procedures (34 C.F.R. § 300.621), which are at 34 C.F.R. § 99.22.

Here is what § 99.22 requires, in plain terms:

• The hearing is held within a reasonable time after the district receives your request (34 C.F.R. § 99.22(a)).

• You get notice of the date, time, and place, reasonably in advance (34 C.F.R. § 99.22(b)).

• It may be conducted by any individual who does not have a direct interest in the outcome - including an official of the district (34 C.F.R. § 99.22(c)). Read that twice. The person deciding may work for the district.

• You get a full and fair opportunity to present evidence, and you may be assisted or represented by one or more people of your own choosing, including an attorney, at your own expense (34 C.F.R. § 99.22(d)).

• The decision comes in writing, within a reasonable period after the hearing (34 C.F.R. § 99.22(e)).

• The decision must be based solely on the evidence presented at the hearing, and must include a summary of the evidence and the reasons for the decision (34 C.F.R. § 99.22(f)).

If the hearing goes your way, the record changes. If the district decides the information is inaccurate, misleading, or otherwise in violation of your child’s privacy or other rights, it must amend the record and tell you so in writing (34 C.F.R. § 300.620(a); 34 C.F.R. § 99.21(b)(1)).

If it goes against you, you still get the last word in the file. If the district decides the information is not inaccurate, misleading, or otherwise in violation of your child’s rights, it must inform you of your right to place in the records a statement commenting on the information, or setting out your reasons for disagreeing with the decision (34 C.F.R. § 300.620(b); 34 C.F.R. § 99.21(b)(2)).

That statement is not a gesture. It must be kept as part of your child’s records for as long as the district maintains the record or the contested portion, and if the district discloses that record or that portion to anyone, your statement must be disclosed to that party too (34 C.F.R. § 300.620(c); 34 C.F.R. § 99.21(c)). Once your statement is in, the district’s sentence does not travel alone.

If your child has a 504 plan and no IEP, the IDEA sections above are not yours to use, but FERPA is. The amendment request, the hearing, and the statement all live in 34 C.F.R. §§ 99.20-99.22 regardless of whether your child is served under the Individuals with Disabilities Education Act (IDEA). Section 504 separately requires a system of procedural safeguards that includes an opportunity for the parent to examine relevant records (34 C.F.R. § 104.36). Tools 82 through 84 cover the difference.

One more thing about age. Under FERPA, these rights transfer from you to your child when your child becomes an “eligible student” (34 C.F.R. § 99.5(a)(1)). If your child is at or near 18, read Tool 81 before you send anything.

Letter 34 in Appendix A is the request.

WHY IT MATTERS

A file is not a filing cabinet. It is a description of your child that other adults read before they meet him.

The sentence that says “Parent declined services” - when you never declined anything - will be read by next year’s team, by the receiving district when you move, and by whoever writes the next evaluation. It becomes background. Nobody re-checks it. It gets summarized into the next document, and the summary of a wrong sentence is a wrong sentence with a citation.

The errors that do the most damage are small and specific. A behavior log that records a refusal on a day your child was in the nurse’s office. A suspension listed that never happened. An evaluation that says a parent “was not available” for the interview it never scheduled. A date wrong by a year, which quietly makes a delay look like it was your fault.

You may not be able to change what the team thinks. You can ask the district to change what the file says, and even when it will not, you can make sure your version rides along with theirs, for as long as the record exists, to every party the record is disclosed to (34 C.F.R. § 300.620(c)).