Important Survey For Parents To Take About Their Child’s Data Collection In Schools

A reader just asked me to put this up.  While the reader asked to remain anonymous, I can say with absolute certainty that her concerns about data mining are very well and she looks into these issues religiously.  Parents: please take some time out of your day to fill out this survey.  We need companies like this to keep track of what data is being released on our students!

I usually don’t ask parents to fill out surveys but this is an exception. This organization is taking on edtech corporations and the data mining happening in our schools. EFF is HELPING us.

Please, READ THIS AND SHARE. TAKE THE SURVEY—- here: https://www.eff.org/issues/student-privacy

EFF is spreading the word about companies collecting students’ data and launching a campaign to educate parents and administrators about these risks to student privacy. Children usually have little or no say about which devices they’re assigned, and we believe that the safety of their sensitive personal information should lie in the hands of parents and trusted school officials – not private companies.

You can help us investigate school surveillance by taking our survey.  The results will help us paint a nation-wide portrait of which cloud platforms are in use, which devices are being assigned, and where. You can read a case study of one family in Roseville, California and learn more in our FAQ.

EFF is the organization who just filed an FTC complaint against Google for spying on kids. Help them know who else is taking data from our children.

https://www.eff.org/press/releases/google-deceptively-tracks-students-internet-browsing-eff-says-complaint-federal-trade

 

Delaware Attorney General Responds To Senate Bill 79 and Data Sharing Fears

Last week, I posted a rather long article about data sharing and my fear the recently passed Senate Bill 79 will only make it worse based on some clauses in the legislative language.  Delaware Attorney General Matt Denn responded to me, and addressed his concerns.  I thought that was very forthcoming considering I hadn’t even reached out to him yet on the issue.


From: “Denn, Matthew (DOJ)” <Matthew.Denn@state.de.us>
To: Kevin Ohlandt <kevino3670@yahoo.com>
Cc: “Wright, Christian (DOJ)” <Christian.Wright@state.de.us>
Sent: Friday, October 9, 2015 7:51 AM
Subject: Senate Substitute 1 for SB 79

​Kevin — I saw Mike Matthews’ link to your blog post about Senate Substitute 1 for SB 79.  That bill was written by my office, and it has been recognized by national student data privacy advocates as among the most protective in the country for students.  It does not undo any existing privacy protections — you can actually look at the bill and see that not one word in the existing statute is deleted.  It does set up a task force to look at how DOE’s internal handling of student data should be improved — the majority of the bill relates to sharing and handling of student data by entities outside DOE.  Most if not all of the lobbyists who are listed were registered to lobby against the bill, they represent a variety of large national interests and getting the bill passed over their objections was a difficult undertaking.   I am copying Christian Wright from my office who wrote the bill and is also in charge of enforcing it, if you have any questions about it, he would be happy to answer them.

Matt Denn


I took AG Denn up on his offer and reached out to Christian Wright.


From: Kevin Ohlandt <kevino3670@yahoo.com>
To: “Denn, Matthew (DOJ)” <Matthew.Denn@state.de.us>
Cc: “Wright, Christian (DOJ)” <Christian.Wright@state.de.us>
Sent: Friday, October 9, 2015 10:36 AM
Subject: Re: Senate Substitute 1 for SB 79

Matt and Christian,

I didn’t have concerns with this legislation as it was originally written.  Unfortunately I got very distracted by House Bill 50 while most of the action on this legislation was going on.  The amendment is what I have grave concerns with.  It seems as if it was modeled after “legislation” written by Jeb Bush’s company, Excellence In Education.  http://static.excelined.org/wp-content/uploads/Student-Data-Privacy-Accessibility-and-Transparency-Act-Model-Legislation-03.2015.pdf  Many of the sections in the amendment have the exact same working as this mock legislation, especially on pages 10-13.  Jeb Bush has received a lot of criticism for his role in education and the further implementation of Common Core State Standards, high-stakes testing, and things like this.  I can see why Google and Microsoft would lobby against the bill, but my concern is who lobbied FOR the bill, or more specifically, the amendment to it.

There are legal loopholes all over this that can cause data to stream out to outside companies.  As well, this company IMS Global Learning Consortium, which is incorporated in Delaware, seems to be an umbrella company for shared access of a great deal of student data between their “members”.  A blogger in Colorado wrote an excellent article based on this company and what is going on out there with data.  I would like to know how much of this bill was written by your office and how much was taken off templates from outside companies that actually make money off of education.  Legislation can be extremely tricky, but even if certain data is protected, a great deal of it isn’t and it really feels like students are being tracked and catalogued for unknown purposes.  I’m not the only person that feels this way.  Given the numerous issues going on with education in Delaware in terms of the DOE, the Governor’s role in very questionable actions, and the very large influence outside companies have on education in this state, I am attempting to understand what is really going on.  What we are told in the general media and in public meetings does not always gel with what is going on behind the scenes, and this concerns me on levels I never could have imagined.

Thank you,

Kevin Ohlandt


From: Kevin Ohlandt [mailto:kevino3670@yahoo.com]
Sent: Friday, October 09, 2015 12:23 PM
To: Denn, Matthew (DOJ) <Matthew.Denn@state.de.us>; Wright, Christian (DOJ) <Christian.Wright@state.de.us>
Subject: Fw: Senate Substitute 1 for SB 79

Matt and Christian,

I’m sorry, I forgot to put up a link to the Colorado blog article: http://colohub.weebly.com/data-connect-the-dots.html.  As well, the Delaware blogger Kavips wrote an article this morning and he really went through what Senate Bill 79 w/SS1 does AND doesn’t do: https://kavips.wordpress.com/2015/10/09/revisiting-the-student-data-privacy-protection-act-sb-79/.

Thanks again,

Kevin


From: Wright, Christian (DOJ)
Sent: Friday, October 09, 2015 2:55 PM
To: Kevin Ohlandt <kevino3670@yahoo.com>
Cc: Matthews, Michael J (K12) <michael.matthews@redclay.k12.de.us>; downwithabsolutes@gmail.com; Denn, Matthew (DOJ) <Matthew.Denn@state.de.us>
Subject: RE: Senate Substitute 1 for SB 79

Kevin —

Thanks for your emails.  I have attempted to address what I think are the questions you have raised SS 1 for SB 79, while also trying to provide an overall view of how the bill came about.

Who drafted SS 1 for SB 79?

I was the sole drafter of SS 1 for SB 79.  I modeled SS 1 for SB 79 on California’s Student Online Personal Information Privacy Act (SOPIPA), which is now Section 22584 in the California Business & Professions Code.  SOPIPA had been widely praised by student advocates as being the strongest legislation in the country for protecting student data privacy.  SOPIPA was suggested to us as model legislation by Common Sense Media, one of the top independent NPOs focused on children and technology.  SS 1 for SB 79, like SOPIPA, has been praised by student data privacy advocates and experts for taking one of the strongest stands in the nation to date in favor of student data privacy—most recently this morning during a call I had with a law professor who is a nationally-recognized expert on information privacy and cyber law.

Who lobbied on SS 1 for SB 79?

I handled all negotiations, meetings, and conversations with folks who wanted to provide input for or against SS 1 for SB 79 (and SB 79 before it).  Excluding legislators, the only parties with whom I had dealings on SS 1 for SB 79 (or SB 79 itself) were Common Sense Media, Microsoft, Delaware PTA, Google, DOE, the State Board, and the State Privacy & Security Coalition (whose members include Google, Facebook, Yahoo!, Amazon, Comcast, AT&T, and Verizon).  Until your email, I had never heard of either Jeb Bush’s company or IMS Global Learning Consortium.  (Your email was also the first time we have seen the proposed model legislation in the URL you provided, so it played no role in our thinking and drafting.)

Common Sense Media, Microsoft, and Delaware PTA lobbied hardest in favor of the bill, and Google and the State Privacy & Security Coalition lobbied hardest against it.  DOE and the State Board were also in favor of SS 1 for SB 79, but their participation was not as significant once SS 1 replaced the original SB 79.

Why the change from SB 79 to SS 1 for SB 79?

While you didn’t specifically ask this question, you stated that you didn’t have any concerns with SB 79 as originally written, so I thought it would be useful to explain why the substitution took place.  The original SB 79 was modeled on a Georgia student data privacy bill (SB 89), and the student data privacy provisions governing ed-tech companies in the Georgia bill were not as strong as California’s bill.  (At the time, we thought it might be difficult to get a bill as strong as California’s passed.)

During subsequent negotiations on SB 79, it became increasingly likely that SB 79 in its original form would have a fiscal note attached to it because of the provisions applicable to DOE.  We did not want a fiscal note to delay the passage of legislation regulating the security and privacy of student data collected or maintained by ed-tech providers, and Delaware already has laws and regulations addressing the collection and use of student data by DOE, districts, and schools, so we elected to strip all of the DOE provisions in SB 79 out (essentially lines 97-234 and 317-379) in favor of a substitute bill that focused only on the ed-tech providers using California’s best-in-class privacy protections, and the creation of a task force to take a comprehensive look at student data privacy and security in Delaware’s public school system.

What did SS 1 for SB 79 do to “provisions addressing data security and privacy responsibilities currently in code”?

Absolutely nothing.  They are all still there and will remain there until new Chapter 81A in Title 14 goes into effect.  The nine items in the final paragraph of the synopsis—including the language about “deleting provisions addressing data security and privacy responsibilities of the Department of Education in favor of establishing the Student Data Privacy Task Force”—are identifying the differences between SB 79 and SS 1 for SB 79.  This was done because the Division of Research’s Legislative Drafting Manual (p. 49) recommends that “A synopsis to a substitute bill should detail the difference between the substitute bill and the original bill, in addition to explaining what the bill does.”  So the “deleting provisions” language in the synopsis is identifying what was deleted from SB 79 in creating SS 1, not anything that was deleted from the Delaware Code itself.  ALL state and federal laws currently protecting student data (including FERPA, which we couldn’t touch anyway) remain in place until Chapter 81A goes into effect.

What about the legal loopholes in SS 1 for SB 79?

There aren’t any legal loopholes.  As the handout we distributed to legislators explains (see attached), SS 1 for SB 79 protects a broad range of student data, including student records, emails, searches, and personally identifiable information, from commercial use by operators of sites and applications used for school purposes.  The law absolutely forbids ed-tech providers from targeting students and parents with advertising based on student data, creating a student profile based on student data to be used outside of the school, selling student data, or disclosing student data to third parties (except in very limited, specified circumstances, set forth mostly in lines 105-124 of the bill).

The law does not allow student data to be given to marketers.  It does allow an operator to use de-identified or aggregate data—which cannot be traced to any specific student—for its own marketing purposes, but not generally to give to marketers.  If the data can in any way identify a student then it isn’t de-identified or aggregate student data and cannot be used for the operator’s own marketing purposes. 

Let me give you a concrete example of how that works.  Let’s say a Delaware school district hires Acme-Ed Corp. to provide online math services for its students, with personalized learning that adapts to the student’s progress as they learn the material.  The service performs amazingly, with huge leaps in student learning, and Acme-Ed would like to be able to tout this success when it pitches to other school districts (i.e., marketing its service).  Acme-Ed cannot use identifiable student data if it wants to do this—it cannot say “Jane Doe’s math scores jumped 37%, and John Public’s math scores jumped 40%!”.  But Acme-Ed would be able to say something like, “Using our product, the score for one student at an elementary school in Delaware jumped 37%” or “Using our product, the scores for the students at an elementary school in Delaware went by 15-40%, with a median increase of 27%.”

If there are other parts of the bill that concern you that I haven’t covered, please feel free to identify them for me, and I’ll be happy to address them.

Thanks for giving us an opportunity to clarify what SS 1 for SB 79 does (and doesn’t) do.  We are confident that the bill is a giant step forward for protecting student data in Delaware, and is every bit the “big victory for student privacy” that Common Sense Media calls it.  (https://www.commonsensemedia.org/kids-action/blog/big-victory-for-student-privacy-in-delaware)

Regards,

Christian

Christian Douglas Wright

Director, Consumer Protection Unit
Delaware Department of Justice
820 N. French Street
Wilmington, DE  19801
(302) 577-8944
christian.wright@state.de.us


My concerns, which really haven’t changed much at all, are still in the signed legislation, which can be on the Delaware Legislator website.  If you go to the right side, go to “Bill Quick Search”, on the drop bar, put in Senate Bill, and then 79.  When you scroll down, go to “Substitute Legislation for this bill”, and follow the lines by number if you download the Full Text of the Legislation in MS Word.  The following are the lines that I am most concerned about, all of which are already allowed under the Federal Educational Rights and Privacy Act (FERPA).

Lines 91-93:

An operator shall not knowingly engage in any of the following activities with respect to such operator’s Internet website, online or cloud computing service, online application, or mobile application:

Lines 98-101:

(2) Use information, including state-assigned student identifiers or other persistent unique identifiers, created or gathered by an Internet website, online or cloud computing service, online application, or mobile application as described in § 8102A(10)a. of this title, to amass a profile about a student except in furtherance of K-12 school purposes.

Lines 105-110:

(4) Disclose student data, unless the disclosure is made for any of the following reasons:

a. In furtherance of the K-12 school purposes of the Internet website, online or cloud computing service, online application, or mobile application. The recipient of the student data disclosed for this reason shall not further disclose the student data unless done to allow or improve the operability and functionality within that student’s classroom or school, and is legally required to comply with the requirements of § 8104A of this title or paragraphs (1) through (3) of this section.

Lines 133-135:

2. As allowed by state or federal law and under the direction of a school district, school, or the Department, if no student data is used for any purpose in furtherance of advertising or to amass a profile on the student for purposes other than K-12 school purposes.

Lines 138-141:

(6) Nothing in this subsection prohibits an operator from using student data for any of the following:

a. Maintaining, delivering, supporting, evaluating, or diagnosing the operator’s Internet website, online or cloud computing service, online application, or mobile application.

b. Adaptive learning or customized student learning purposes.

Lines 171-174:

(8) Prevent the Department, school district, or school from recommending, solely for K-12 school purposes, any educational materials, online content, services, or other products to any student or to the student’s family if the Department, school district, or school determines that such products will benefit the student and no person receives compensation for developing, enabling, or communicating such recommendations.

If this was just the Delaware DOE, my concerns could stop there.  But we all know how much money they spend on vendor after vendor.  With Rodel really pushing personalized learning, my fears only magnify.  We already have several school districts in a “consortium” to share “best practices”.

But what makes my hair stand on edge is the words “except in furtherance of K-12 school purposes”.  This is the legal loophole.  Any corporate education reform company is supposedly in business for “school purposes”.  But they make tons of money while doing so, and their goal isn’t to make education better.  They are selling a product, so their goal is to make more and more money.

What safeguards does this legislation have for the student data once it is in the hands of a private operator?  Once the information is out there, it’s not that easy to just put it back.  If the company did violate this law, how would anyone know it?  It’s not like the company would just hand over the information to a concerned parent.  These companies have attorneys that make more in a day than the eight former Race To The Top positions at the DOE.  What normal parent can stand up to these corporate juggernauts?  How many years would it take?  And how much information is already out there?

I can’t believe our General Assembly would overwhelmingly pass this bill.  A hat tip to the four sole Republican Senators who had the courage to vote no.  If I can see the gaping holes in this legislation, why couldn’t they?  This bill was written by lobbyists who knew exactly what they were doing.  These lobbyists are paid handsomely to swindle legislators into obeying their corporate masters.  I’ve heard from a lot of folks indicating they needed more information on this.  Unless you have followed all the movements of the DOE, Governor Markell, and corporate education reform companies, it is hard to pinpoint one glaring point.

Aside from the time away from true teacher-student interaction, this is one of my biggest concerns with personalized learning.  Smarter Balanced was just the beginning in Delaware.  Now the Governor and the Delaware DOE have their “justification” to unleash an unwitting public into the glory of “blended learning”.  This was the true goal of all of this: a trillion dollar industry that has been very patient.  This is the crossroads.  Only you can decided if you want your child to be a commodity.

Delaware’s Regulation 811 Would Make All Student Health Records Electronic In A DOE Database

They say timing is everything.  No sooner do I write an article about student data and big companies dealing with that data and then the Delaware State Board of Education puts up their agenda for their next meeting on October 15th.  One of their proposed regulations actually deals with Student Health Records.  Regulation 811 defines these records as the following, with a cross-out being the old regulation and the underlined being what they want to add:

Delaware School Health Record Form” means an form electronic document containing documentation of an information about a student’s health information, which includes but is not limited to identifying information the student’s name, gender, birthdate, health history, immunizations, results of mandated testing and screenings, medical diagnoses, long term issued medications and treatments, and referrals.

So if this regulation passes, no longer would a tangible health form be sent from one school to another, it would be sent electronically.  And all the information would be stored on an electronic Delaware School Health Record.  Just more evidence of the hardcore data and cataloguing of Delaware students by the DOE…Sorry folks, with everything I’ve figured out with this state agency, I don’t trust this one at all.  This regulation is up for discussion, not action.

You can read the entire regulation here:

The Data Consortium That Allows Student Information To Be Shared With Hundreds Of Companies & Universities Globally

One picture. Nine cross-state collaborations. And a company that houses all of the big testing companies and many of the big education reform players as well as some unusual shockers. What in God’s name has the DOE done now? What the hell is “student interventions product, data tagging” and all this other nonsense? Now I can see why Delaware Senator David Sokola and Attorney General Matt Denn were in such a huge rush to get Senate Bill 79 passed. But the original legislation was not what passed. It was the SS1 amendment that was the true goal. Have to say I’m very disappointed Delaware seems to think it can share student data with whoever the hell they want.

And then there is this very disturbing document, taken from Colorado’s Statewide Longitudinal Data System Grant application for a potential award from the US Department of Education for this year:

12088161_1631093473798876_7639148365207500198_n

And what is this, in the July 2015 newsletter from the CCSSO website:

Privacy Workgroup

The privacy workgroup would like to welcome Pat Bush from Delaware as the newest CIO-lead for the group. He joins current CIO leads- Melinda Maddox from Alabama and Marcia Bohannon from Colorado. The leads are meeting this month to continue discussions around the development of a privacy toolkit for SEA leadership and will also identify priority areas for the workgroup to focus on during the new program year.  

For those who may not be familiar with CCSSO and SEA, CCSSO is the Council of Chief State School Officers and SEA stands for State Educational Agencies which in Delaware is the Department of Education. Why would the DOE need a privacy “toolkit”?

Back to Senate Bill 79 w/SS1.  This bill was rushed through the 148th General Assembly by Senator David Sokola under the hand of Delaware Attorney General Matt Denn.  Below is the lobbying activity on this one bill:

SS 1 FOR SB 79 (Sokola) AN ACT TO AMEND TITLE 14 OF THE DELAWARE CODE RELATING TO EDUCATIONAL DATA GOVERNANCE. 8/11/2015 Robert L. Byrd Delaware Business Roundtable Education Committee, Inc.
SS 1 FOR SB 79 (Sokola) AN ACT TO AMEND TITLE 14 OF THE DELAWARE CODE RELATING TO EDUCATIONAL DATA GOVERNANCE. 7/6/2015 Cheryl Heiks Google
SB 79 (Sokola) AN ACT TO AMEND TITLE 14 OF THE DELAWARE CODE RELATING TO EDUCATIONAL DATA GOVERNANCE. 7/6/2015 Cheryl Heiks Google
SS 1 FOR SB 79 (Sokola) AN ACT TO AMEND TITLE 14 OF THE DELAWARE CODE RELATING TO EDUCATIONAL DATA GOVERNANCE. 7/2/2015 Melissa Hopkins Rodel Foundation of Delaware
SS 1 FOR SB 79 (Sokola) AN ACT TO AMEND TITLE 14 OF THE DELAWARE CODE RELATING TO EDUCATIONAL DATA GOVERNANCE. 6/22/2015 Rhett Ruggerio Delaware Charter School Network
SS 1 FOR SB 79 (Sokola) AN ACT TO AMEND TITLE 14 OF THE DELAWARE CODE RELATING TO EDUCATIONAL DATA GOVERNANCE. 6/22/2015 Jordan Seemans Delaware Charter School Network
SS 1 FOR SB 79 (Sokola) AN ACT TO AMEND TITLE 14 OF THE DELAWARE CODE RELATING TO EDUCATIONAL DATA GOVERNANCE. 6/19/2015 Kimberly B. Gomes Delaware Business Roundtable Education Committee, Inc.
SS 1 FOR SB 79 (Sokola) AN ACT TO AMEND TITLE 14 OF THE DELAWARE CODE RELATING TO EDUCATIONAL DATA GOVERNANCE. 6/19/2015 Kimberly B. Gomes Amazon
SS 1 FOR SB 79 (Sokola) AN ACT TO AMEND TITLE 14 OF THE DELAWARE CODE RELATING TO EDUCATIONAL DATA GOVERNANCE. 6/19/2015 Robert L. Byrd Amazon
SS 1 FOR SB 79 (Sokola) AN ACT TO AMEND TITLE 14 OF THE DELAWARE CODE RELATING TO EDUCATIONAL DATA GOVERNANCE. 6/19/2015 Rebecca Byrd Delaware Business Roundtable Education Committee, Inc.
SS 1 FOR SB 79 (Sokola) AN ACT TO AMEND TITLE 14 OF THE DELAWARE CODE RELATING TO EDUCATIONAL DATA GOVERNANCE. 6/19/2015 Rebecca Byrd Amazon
SB 79 (Sokola) AN ACT TO AMEND TITLE 14 OF THE DELAWARE CODE RELATING TO EDUCATIONAL DATA GOVERNANCE. 6/19/2015 Rebecca Byrd Amazon
SB 79 (Sokola) AN ACT TO AMEND TITLE 14 OF THE DELAWARE CODE RELATING TO EDUCATIONAL DATA GOVERNANCE. 6/17/2015 Ron Barnes Google Inc.
SB 79 (Sokola) AN ACT TO AMEND TITLE 14 OF THE DELAWARE CODE RELATING TO EDUCATIONAL DATA GOVERNANCE. 6/15/2015 Melissa Hopkins Rodel Foundation of Delaware
SB 79 (Sokola) AN ACT TO AMEND TITLE 14 OF THE DELAWARE CODE RELATING TO EDUCATIONAL DATA GOVERNANCE. 6/15/2015 Paul Herdman Rodel Foundation of Delaware
SS 1 FOR SB 79 (Sokola) AN ACT TO AMEND TITLE 14 OF THE DELAWARE CODE RELATING TO EDUCATIONAL DATA GOVERNANCE. 6/11/2015 Christopher V. DiPietro MICROSOFT CORPORATION
SB 79 (Sokola) AN ACT TO AMEND TITLE 14 OF THE DELAWARE CODE RELATING TO EDUCATIONAL DATA GOVERNANCE. 6/3/2015 Christopher V. DiPietro MICROSOFT CORPORATION
SB 79 (Sokola) AN ACT TO AMEND TITLE 14 OF THE DELAWARE CODE RELATING TO EDUCATIONAL DATA GOVERNANCE. 5/18/2015 Deborah Hamilton Google
SB 79 (Sokola) AN ACT TO AMEND TITLE 14 OF THE DELAWARE CODE RELATING TO EDUCATIONAL DATA GOVERNANCE. 5/12/2015 Scott Ward MICROSOFT CORPORATION
SB 79 (Sokola) AN ACT TO AMEND TITLE 14 OF THE DELAWARE CODE RELATING TO EDUCATIONAL DATA GOVERNANCE. 5/12/2015 Jeremy Kudon MICROSOFT CORPORATION
SB 79 (Sokola) AN ACT TO AMEND TITLE 14 OF THE DELAWARE CODE RELATING TO EDUCATIONAL DATA GOVERNANCE. 5/5/2015 Rebecca Byrd Delaware Business Roundtable Education Committee, Inc.
SB 79 (Sokola) AN ACT TO AMEND TITLE 14 OF THE DELAWARE CODE RELATING TO EDUCATIONAL DATA GOVERNANCE. 5/5/2015 Kimberly B. Gomes Delaware Business Roundtable Education Committee, Inc.
SB 79 (Sokola) AN ACT TO AMEND TITLE 14 OF THE DELAWARE CODE RELATING TO EDUCATIONAL DATA GOVERNANCE. 5/5/2015 Robert L. Byrd Verizon Delaware LLC
SB 79 (Sokola) AN ACT TO AMEND TITLE 14 OF THE DELAWARE CODE RELATING TO EDUCATIONAL DATA GOVERNANCE. 5/5/2015 Robert L. Byrd Delaware Business Roundtable Education Committee, Inc.
SB 79 (Sokola) AN ACT TO AMEND TITLE 14 OF THE DELAWARE CODE RELATING TO EDUCATIONAL DATA GOVERNANCE. 5/5/2015 Robert L. Byrd Amazon
SB 79 (Sokola) AN ACT TO AMEND TITLE 14 OF THE DELAWARE CODE RELATING TO EDUCATIONAL DATA GOVERNANCE. 5/5/2015 Kim Willson Delaware Charter School Network
SB 79 (Sokola) AN ACT TO AMEND TITLE 14 OF THE DELAWARE CODE RELATING TO EDUCATIONAL DATA GOVERNANCE. 5/5/2015 Rhett Ruggerio Delaware Charter School Network
SB 79 (Sokola) AN ACT TO AMEND TITLE 14 OF THE DELAWARE CODE RELATING TO EDUCATIONAL DATA GOVERNANCE. 5/5/2015 Jordan Seemans Delaware Charter School Network
SS 1 FOR SB 79 (Sokola) AN ACT TO AMEND TITLE 14 OF THE DELAWARE CODE RELATING TO EDUCATIONAL DATA GOVERNANCE. 8/11/2015 Robert L. Byrd Delaware Business Roundtable Education Committee, Inc.
SS 1 FOR SB 79 (Sokola) AN ACT TO AMEND TITLE 14 OF THE DELAWARE CODE RELATING TO EDUCATIONAL DATA GOVERNANCE. 7/6/2015 Cheryl Heiks Google
SS 1 FOR SB 79 (Sokola) AN ACT TO AMEND TITLE 14 OF THE DELAWARE CODE RELATING TO EDUCATIONAL DATA GOVERNANCE. 7/2/2015 Melissa Hopkins Rodel Foundation of Delaware
SS 1 FOR SB 79 (Sokola) AN ACT TO AMEND TITLE 14 OF THE DELAWARE CODE RELATING TO EDUCATIONAL DATA GOVERNANCE. 6/22/2015 Rhett Ruggerio Delaware Charter School Network
SS 1 FOR SB 79 (Sokola) AN ACT TO AMEND TITLE 14 OF THE DELAWARE CODE RELATING TO EDUCATIONAL DATA GOVERNANCE. 6/22/2015 Jordan Seemans Delaware Charter School Network
SS 1 FOR SB 79 (Sokola) AN ACT TO AMEND TITLE 14 OF THE DELAWARE CODE RELATING TO EDUCATIONAL DATA GOVERNANCE. 6/19/2015 Kimberly B. Gomes Delaware Business Roundtable Education Committee, Inc.
SS 1 FOR SB 79 (Sokola) AN ACT TO AMEND TITLE 14 OF THE DELAWARE CODE RELATING TO EDUCATIONAL DATA GOVERNANCE. 6/19/2015 Kimberly B. Gomes Amazon
SS 1 FOR SB 79 (Sokola) AN ACT TO AMEND TITLE 14 OF THE DELAWARE CODE RELATING TO EDUCATIONAL DATA GOVERNANCE. 6/19/2015 Robert L. Byrd Amazon
SS 1 FOR SB 79 (Sokola) AN ACT TO AMEND TITLE 14 OF THE DELAWARE CODE RELATING TO EDUCATIONAL DATA GOVERNANCE. 6/19/2015 Rebecca Byrd Delaware Business Roundtable Education Committee, Inc.
SS 1 FOR SB 79 (Sokola) AN ACT TO AMEND TITLE 14 OF THE DELAWARE CODE RELATING TO EDUCATIONAL DATA GOVERNANCE. 6/19/2015 Rebecca Byrd Amazon
SS 1 FOR SB 79 (Sokola) AN ACT TO AMEND TITLE 14 OF THE DELAWARE CODE RELATING TO EDUCATIONAL DATA GOVERNANCE. 6/11/2015 Christopher V. DiPietro MICROSOFT CORPORATION

To anyone who thinks Senator Sokola is trustworthy and is looking out for kids, think again.  But Attorney General Matt Denn’s involvement and the imperative rush to get this through…that’s a headscratcher.  Similar bills went through in other states, and nearly all of them had the same amendments added and the lobbyists swarmed in to make sure the following language was added, which is taken from the final legislation for Senate Bill 79:

(6) Nothing in this subsection prohibits an operator from using student data for any of the following:

a. Maintaining, delivering, supporting, evaluating, or diagnosing the operator’s Internet website, online or cloud computing service, online application, or mobile application.

b. Adaptive learning or customized student learning purposes.

(7) Nothing in this subsection prohibits an operator from using or sharing aggregate student data or de-identified student data for any of the following:

a. The development and improvement of the operator’s Internet website, online or cloud computing service, online application, or mobile application, or other educational Internet websites, online or cloud computing services, online applications, or mobile applications.

b. Within other Internet websites, online or cloud computing services, online applications, or mobile applications owned by the operator, and intended for school district, school, or student use, to evaluate and improve educational products or services intended for school district, school, or student use.

c. To demonstrate the effectiveness of the operator’s products or services, including their marketing.

When are Governor Markell and the Delaware DOE going to stop allowing all this data sharing?  Not anytime soon.  And don’t think this is just Delaware.  A company called IMS Global Learning Consortium has ALL the major players involved.  They are an umbrella company for data to be shared between all of these companies, with companies that do business with the Delaware DOE and two Delaware School Districts bolded for emphasis:

Contributing Members

Act, American Institutes for Research, Bill & Melinda Gates Foundation, Blackboard, California State University, Data Recognition Corporation, ETS, EduCause, Harvard Business Publishing, Houghton Mifflin Harcourt, IBM, Indian River School District, Intel, Learning.com, Lumen, McGraw Hill Education, Measured Progress, MediaCore, Microsoft, National Student Clearinghouse, Northwest Evaluation Association, Pacific Metrics Corporation, PARCC, Pearson, Public Consulting Group, Qualcomm Education Inc., Questar, Samsung, Schoology, Smarter Balanced Assessment Consortium and numerous other companies and universities in the United States and around the world.

Affiliates

ACE Learning, College Board, Google, Red Clay Consolidated School District, Scantron, Scholastic, SunGard K-12 Education (houses Delaware e-school and IEP Plus), WestEd and many more.

And then they have hundreds of Alliance Participants. You can see what all the members get for their dues to IMS.  Pretty extensive list.

When you are a member, you get shared access of the whole network.  And which school district does the DOE praise the most and just had an administrator from that district join the State Board of Education? Indian River. And what district will be the recipient of the Wilmington Christina School District students? Red Clay Consolidated.

This company that charges outlandish fees to belong to their network has all the major education players. American Institutes for Research is the vendor for the Smarter Balanced Assessment. Want to know what that means Delaware parents? That means YOUR child’s test results are most likely filtering through this network of companies and universities and school districts. All over the world.

And take a wild guess where they are incorporated?

Delaware parents: by letting your child take the Smarter Balanced Assessment, you are saying it is okay for all these entities around the country and the globe to see your child’s information. It’s okay for them to see the psychometric information American Institutes for Research uses as a result of these assessments. Yes, the Delaware Department of Education isn’t on there. But guess what, the Smarter Balanced Assessment Consortium and American Institutes for Research are. And so is their scoring vendor, Data Recognition Corporation. And if Delaware ever changes the state assessment, I’m sure one of the many other testing companies on this list will gladly put in a bid.  But you can change that.  Aside from the obvious misuse and abuse that comes from Smarter Balanced, we are now learning the data from it is the true goldmine. The only way to stop this is to refuse to have your child take this test. Opt your child out now. Unless, once again, you are okay with all this…

Delaware legislators, this is just yet another reason why you need to override Governor Markell’s veto of the opt-out legislation: House Bill 50. You don’t think the Governor knows about all of this data swapping? Of course he does!

While Delaware didn’t win an award for this year’s Statewide Longitudinal Data System grant, it is very interesting to see the requirements for this, which can be found here,especially Section V.

Are we human? Or are we data?

Students in Delaware May Bring Something Home This Week That Is Very Puzzling **UPDATED**

Earlier this year, the Delaware 148th General Assembly passed Senate Bill 94 and this was signed by Governor Jack Markell on 8/4/15.  This bill is to help keep track of students who may have military in their family.

This Act requires the Department to develop a regulation for the identification of a “military-connected youth”. The Act further provides that this identification is not a public record, is protected by the federal Family Educational and Privacy Act and shall not be used for purposes of determining school achievement, growth or performance. The purpose of this identification is to ensure the necessary individuals at the school level are aware of any military connected youth for services and supports.

The exact area that was added to Delaware code is as follows:

Amend § 122(b), Title 14 of the Delaware Code

(27)  Developing a process for districts and charter schools to annually identify enrolled students who is a “military connected youth”. For purposes of this section, a “military-connected youth” means having an immediate family member, including a parent, step-parent, sibling or any other person residing in the same household, who is on active duty in; serving in the reserve component; or recently retired from of a “branch of the United States armed forces.” For purposes of this section, “branch of the United States armed forces” means:

(1) United States Army;

(2) United States Air Force;

(3) United States Marine Corps;

(4) United States Navy;

(5) National Guard;

(6) United States Coast Guard;

(7) National Oceanic and Atmospheric Administration; or

(8) United States Public Health Service.

The identification of a “military-connected youth” shall not be used for purposes of determining school achievement, growth, or performance. Provided further, the identification of a “military-connected youth” is not a public record under Delaware’s Freedom of Information Act [Chapter 100 of Title 29] or any other law and shall not be made public by any person, except as permitted under the provisions of the Family Educational Rights and Privacy Act of 1974, 20 U.S.C. § 1232g. et seq. Rules and regulations on this subject shall be proposed by the Secretary subject to approval by the State Board of Education.

Parents may see a form in their child’s book-bag with the following information:

“Impact Aid” or “Federal Impact Survey Card”: It asks for “Pupil Data” and “Employment Data (Uniformed Services Only)”.

This is not a bad thing and it is designed to help students who have connections to the Military.  This way if someone is deployed all of a sudden, or something happens, the school will know and be able to help the student out. 

Updated, 9:54pm: I reached out to the Delaware DOE on this and they said this is NOT connected w/Senate Bill 94.  I did find out WHAT “Impact Aid” is and I will post something tomorrow about it…

Delaware Senator Sokola Introduces Student Data Protection Legislation

Delaware Senator David Sokola introduced Senate Bill 79 on May 1st.  This bill would force school districts and the Delaware Department of Education to effectively govern the use of student data in conjunction with existing state and federal law.  I would have thought most of this was part of state law already.  Certainly, federal FERPA law already trumps state law, and even they have allowed student data and information to get out to contracted vendors for “educational benefit”.

US Department of Education Gives A Case For Parent Opt Out of Standardized Testing

The United States Department of Education sent a letter to school superintendents December, 2014.  This explained to them exactly what student and parents rights are in regards to the Family Educational Rights & Privacy Act (FERPA).  This is the educational version of the medical HIPPA.  In this letter, it talks about when parents can opt their child out of certain events which could cover standardized testing if read the right way!

Page 4, #1 and #7 in the below document gives the best clear reason for opt out I have ever seen.  Under the section for the Protection of Pupil Rights Amendment, it clearly states:

PPRA may apply to the programs and activities of a State educational agency (SEA), LEA, or other recipient of funds under any program administered by the Department.  It governs the administration to elementary and secondary school students of a survey, analysis, or evaluation that concerns one or more of the following eight protected areas:

1. political affiliations or beliefs of the student or the students’ parent;

7. religious practices, affiliations, or beliefs of the student or the student’s parent.

In addition, it states the following:

PPRA also concerns the development of local policies concerning…the opportunity for the parent to opt the student out of participation in certain specific activities…

A case could certainly be made for this if parent opt out ever became an issue in a Federal court.  My beliefs certainly don’t agree with standardized testing in a high-stakes one-size-fits-all environment.  Read the below document and let me know your take on this!

Uh-oh! Looks like we got a bleeder here! What has Family Foundations Academy done now?

Yes, I know.  Not another Family Foundations article.  When’s he going to do the long-awaited Rodel follow-up?  As my friend Wilson Jomama once said about another recent charter scandal, it’s like staring at the sun.

Please enjoy the theme music while we look at yet another big oops at this Wilmington charter school.  As mentioned initially on Kilroy’s first FFA Explosion article by a parent, their December 2nd Board meeting had a rather public situation involving a special needs student.  Please read the minutes from this meeting.  While this school has clear transparency issues, this outing of a student was about as transparent as Saran Wrap!

So what did they do wrong?  They looked like pretty concise board minutes to me.  But there’s just that tiny, little baby of a hiccup called student privacy.  I was shocked when I saw a parent commenting on this on Kilroy’s, but to actually see it in their board minutes was shocking!

kevinaftershave

Yes, they fully revealed a student discipline problem of a student on a 504 plan.  While they didn’t reveal the name of the student, which they proudly boasted in their meeting minutes, unless they have multiple students who bite, kick and hit teachers, this student is easily identifiable.  Not only is this a violation of FERPA, but also Section 504 which is protected by the Office of Civil Rights.  Why the hell would they discuss a discipline issue with a particular student in a public forum like that?  And one with special needs?

It looks like this may have been a cover.  Not that the student wasn’t experiencing those issues (Lord only knows what fresh hell that poor kid was going through at this school), but it was also an impetus for a spotlight to be shown on Dr. Tennell Brewington.  In the minutes there is a whole part about her not using the Child Study Team and the Climate Team to help this student.  Here’s a novel idea, maybe they should have used an IEP Team!!!!  Sorry, no matter what this student may have done as a manifestation of their disability, this public roasting of this student has many violations.  If I were the parent of this student, I would not only be contacting the FERPA department at the US DOE, but also the OCR Office as well.

By the end of the meeting, after executive session, it was announced Dr. Brew was going on a 90 day paid leave of absence.  No explanation was given, but that’s none of our damn business when you read the harsh notes at the end when a member of the public DARED to ask about it.  I wonder what could have caused such a rift between Brewmoore?  Could it…no…maybe…possibly have been a… sorry folks, this isn’t Soap Opera Digest!

Staring at the sun indeed!  If that other recent charter school scandal caused some sun glare, this one is a Super Nova!

If you are sad the holidays are over, do not lament, because Family Foundations Academy is like the gift that keeps on giving…and giving…and giving…and giving!

 

 

 

The Relationship Between The Delaware DOE and Public Consulting Group Revealed, It’s Worse Than Before!

The Delaware Department of Education and the Public Consulting Group have a relationship based on a contract, but the circumstance regarding the implementation of this contract are very alarming. This contract is to help support the Children Services Cost Recovery project, which provides federal Medicaid reimbursement to Delaware. PCG has had a vendor contract with the Department of Health and Social Services (DHSS) for many years, but it wasn’t until the end of 2011 that the DOE gained a contract with PCG.

When a student with disabilities receives Medicaid and also receives special education services through an IEP, the state can actually get part of the costs for the special education reimbursed to them. Special needs parents of a child with an IEP should receive a letter asking for authorization from the state to recover such costs. This could include occupational therapy, speech and language, or even a school nurse. This would be classified as School Based Health Providers. As per the DOE website, the letter should indicate something to this effect:

Written Notification to Parents/Guardians/Custodians

Regarding Use of Public Benefits or Insurance (MEDICAID)

You are receiving this written notification in order to provide you with information about your and your child’s rights and protections under Part B of the Individuals with Disabilities Education Act (“IDEA”). This information is to assist you in making an informed decision about whether you should give your written consent to allow your school district or charter school to use your or your child’s public benefits or insurance (Medicaid) to pay for special education and related services that your school district or charter school is required to provide at no cost to you under IDEA. This written notification must be provided to you before the school district obtains your consent for the first time and annually thereafter. Your rights include the following: 

Before your school district or charter school can use your or your child’s public benefits or insurance (Medicaid) for the first time to pay for special education and related services under IDEA, the school district or charter school must obtain your signed and dated written consent. 

Under Federal law—the Family Education Rights and Privacy Act (“FERPA”) and the confidentiality of information provisions in IDEA—your school district or charter school is required to obtain your written consent before disclosing personally identifiable information (such as your child’s name, address, social security number, student number, student number, IEP, or evaluation results) from your child’s education records to a party other than your school district or charter school, with some exceptions. In this situation, your school district or charter school is required to obtain your consent before disclosing personally identifiable information for billing purposes to the agency in your State that administers the public benefits or insurance (Medicaid) program. Your consent must include a statement specifying that you understand and agree that your school district or charter school may use your or your child’s public benefits or insurance (Medicaid) to pay for services under 34 CFR part 300, which are special education and related services under IDEA.

Your school district or charter school if the school district or charter school seeks to use your or your child’s public benefits or insurance (Medicaid).

Your school district or charter school may not require you to sign up for, or enroll in, a public benefits or insurance (Medicaid) program in order for your child to receive a free, appropriate public education (“FAPE”) under IDEA. Additionally, your school district or charter school may not require you to pay an out-of-pocket expense, such as the payment of a deductible or a co-pay amount for filing a claim for services that your school district or charter school is otherwise required to provide to your child free of charge. Finally, your school district or charter school may not use your or your child’s public benefits or insurance (Medicaid) if using those benefits or insurance (Medicaid) would: (a) decrease your available lifetime coverage or any other insured benefit, (b) cause you to pay for services that would otherwise be covered by your public benefits or insurance (Medicaid) program because your child also requires those services outside of the time that your child is in school; (c) increase your premium or lead to the cancellation of your public benefits or insurance (Medicaid); or (d) cause you to risk the loss of your or your child’s eligibility for home and community-based waivers that are based on your total health-related expenditures.

You may withdraw your consent to the disclosure of your child’s personally identifiable information to your State’s public benefits or insurance (Medicaid) program agency at any time.

If you provided your consent for your school district or charter school to disclose your child’s personally identifiable information to the State agency that is responsible for administering your public benefits or insurance (Medicaid) program, you have the right under 34 CFR part 99 (FERPA regulations) and 34 CFR part 300 (IDEA regulations) to withdraw that consent at any time. If you wish to withdraw your consent, you should ask your school district or charter school what procedures you would need to follow.

If you refuse to provide your consent, or subsequently withdraw your consent, your school district or charter school must ensure that your child is provided all required special education and related services at no charge to you or your child.

If you withdraw your consent or refuse to provide consent under the FERPA and IDEA regulations, your school district or charter school may not use your withdrawal of consent or refusal to provide consent to disclose personally identifiable information to a public benefits or insurance (Medicaid) program to deny your child the special education and related services he or she is otherwise entitled to receive under IDEA. Therefore, if you refuse to provide consent or withdraw consent, your school district or charter school has a continuing responsibility to ensure that your child is provided all required services necessary to receive an appropriate education at no charge to you or your child.

We hope that this information is helpful to you in making an informed decision regarding whether to allow your school district or charter school to use your or your child’s public benefits or insurance (Medicaid) to pay for special education and related services under IDEA.

What this notice does not mention is the specific corporation that is receiving a lot of private information based on this program, which is PCG.

Another result of this contract is what is called “A Random Moment In Time”, which is a computer system that contacts random Direct Service Providers in Delaware to log into the system and record what they were doing for one minute. The methodology behind this system is to provide accurate data to the Centers for Medicaid and Medicare Services (CMS) for billing purposes for Medicaid reimbursement. Since DHSS is the provider for Medicaid, CMS required the DOE to be included in this project due to special education and School Based Health Providers. The DOE had to utilize PCG as what is called a sole source provider due to a tight timeframe in which the state risked losing this source of revenue. Since PCG had an existing vendor status with DHSS, this gave the impetus for the DOE using PCG as a sole source vendor, which was approved by then Secretary of Education Lillian Lowery. As part of Delaware Medicaid, DHSS contracts with the Direct Service Providers for what is known as Early and Periodic Screening, Diagnostic and Treatment Services given to those who receive Medicaid benefits under the age of 21. The criteria for this is set forth by the Delaware Medicaid Assistance Program (DMAP).

DMAP has a website which indicates what records are to be provided to DHSS or their contracted agents (PCG) by the School Based Health Providers. The website states the following:

All providers participating in the DMAP are required to maintain records that will disclose services rendered and billed under the program, and upon request, to make such records available to DHSS or its representatives in substantiation of any or all claims. These records should be retained a minimum of five (5) years in order to comply with all State and Federal regulations and laws.

In order for DHSS to fulfill its obligation to verify services provided to Medicaid eligible clients and that are paid for by Medicaid, providers must maintain auditable records that will substantiate the claim submitted to Medicaid.

At a minimum, the records must contain the following on each client:

• Notice of referral for physical therapy services by a licensed physician, updated annually

• Referral/authorization for services by an appropriately credentialed service provider

• Full assessment(s) in the appropriate discipline area(s) with pertinent documentation such as tests, evaluations, and diagnosis (updated at least every 3 years), and an annual reassessment documented in written format including narrative information summarizing the child’s status and the continuing need for treatment

• A treatment plan prepared by the respective therapist(s) that describes the goals/objectives and level of service(s) (i.e. type and frequency of service) needed. The treatment plan is required annually. A progress note is required approximately every six months or at a reasonable interval to document the student’s progress and the continuing need for service. An I.E.P. must be developed within 30 calendar days following the determination that a student is eligible for special education and related services.

• The name and title of the professional providing services and/or supervision

• Each occurrence of the student’s service, including the date, type, length, and scope of professional services provided

• Any significant contacts made in relation to the student

DHSS has also delegated authority to Children’s Services Cost Recovery Project (CSCRP) personnel to periodically review the ongoing operations of a school based health services provider with respect to:

• Certification requirements

• Service documentation, including need for services, treatment plans and case/progress notes

• Service practitioner’s qualifications

• Billing records

Where this gets real interesting is in the area of mental health school based health providers:

Mental Health Treatment Assessment

Assessment refers to the process of determining the need, nature, frequency and duration of treatment; deciding the needed coordination with others; and documenting these activities.

Screening

Mental Health screen has four primary components:

• Child study team meetings – a meeting of staff who have knowledge of a referred student to discuss the referral problem for the purpose of determining the next step in the screening process.

• Observations – a period of time spent observing a referred student in a natural setting for the purpose of determining student’s academic and/or interpersonal behaviors.

• Group testing – Psychologist’s or psychiatrist’s participation in administration of tests for the purpose of obtaining specific information about a student or group of students.

• Records review – Information gathering on a designated student by way of examining academic, health, behavioral and any other related records for the purpose of providing data relevant to concerns.

Evaluation

Evaluation includes a “Psycho-educational Assessment”. This assessment includes psychological and/or educational testing, typically for intellectual, personality, and/or educational evaluation of referred student, for diagnostic purposes resulting in the generation of a report. The psychological component of the assessment evaluates the intellectual, academic, perceptual motor skills, social and emotional adjustment, and readiness for learning.

Mental Health Treatment Services

Mental health treatment services includes the following therapeutic and related services:

• Individual Therapy – This service consists of supportive, interpretive, insight oriented and occasionally directive interventions.

• Group therapy – This service is designed to enhance socialization skills, peer interaction, consensual validation, expression of feelings, etc.

• Family Therapy – This service consists of sessions with one or more family members, for purposes of effecting changes within the family structure, communication, clarification of roles, etc.

• Case Consultation (Reimbursable for the time of the mental health professional only and must pertain specifically and completely to an individual student.) The role of consultation is monitoring, supervision, teaching and training of professionals, paraprofessionals, parents and student in the educational environment, home and/or community environment. Case consultation includes:

o Providing general information about a specific student’s handicapping condition

o Teaching special coping and intervention techniques necessary for the specific student’s interpersonal skills

o Recommendations for enhancing a specific student’s performance in educational environments

4.2.5.3 Mental Health Treatment Services: Service Procedures

The following services are included in the mental health treatment services category and should be used to document service provision for the purpose of reimbursement:

• Mental health treatment assessment

• Individual therapy – one therapist to one student

• Group therapy – one therapist to six or less students.

• Family therapy – one therapist to one or more family members of the student’s family

• Individual co-treatment therapy – two therapists to one student

• Group co-treatment therapy – two therapists to six or less students

• Family co-treatment therapy – two therapists to one or more family members of the student’s family

• Case consultation

Mental Health Treatment Services: Treatment Plan Requirements

An assessment and treatment plan are required annually. This treatment plan must be based on an evaluation by a qualified mental health treatment provider. Further, the treatment plan must indicate goals/objectives and level of service (type and frequency of service). A progress note is required approximately every six months or at a reasonable interval to document the student’s progress and the continuing need for service. The progress note must:

• Indicate where the student is in relation to the treatment plan goals

• Indicate if the treatment plan requires changes in the goals and/or objectives and

• Indicate if the type or frequency of the treatment requires modification.

So what records do the School Based Providers need to submit to DHSS and by default, PCG?

Service Documentation

School based health services providers must make all records of services provided to students with special health needs available to Medicaid program personnel or its representatives for monitoring and auditing purposes. These providers must maintain the following information for at least five years on all individuals for whom claims have been submitted:

• Dates and results of all evaluations/assessments provided in the interest of establishing or modifying an IEP, including specific tests performed and copies of evaluation and diagnostic assessment reports

• Copies of the IEP/treatment plan documenting the need for the specific therapy, treatment or transportation service (updated annually)

• Documentation of the provision of service in the student’s record by individual therapists and individuals providing service, including:

o The date of service

o Signature of the therapist rendering the service

o Duration of the service

• Documentation of case notes, at a minimum of once a month, by the individual therapist or the individual providing the service. The definition of case note is a descriptive summary of service provided with identification of any isolated or recurring problems. If a practitioner chooses to document session notes, there is no need to document monthly case notes. Session notes must contain some written narrative.

• The provision of special transportation services will be documented by the responsible schools in a client specific, date specific format.

• Progress notes delineating the continuing need for service are required approximately every 6 months or at a reasonable interval to document the student’s progress.

This then helps to determine medical necessity:

Medical necessity will be determined by judging what is reasonable and necessary with reference to accepted standards of medical practice and treatment of the individual’s illness.

School based health services shall be determined medically necessary based upon the assessments and evaluations conducted and the prescribed care as found in the student’s treatment plan. The treatment plan shall be developed by a multi-disciplinary team, or by an authorized therapist or other authorized medical professional and signed by treatment team members. The treatment plan should address the medical necessity for the identified service(s).

Although a physician signature is not required on the treatment plan, evidence of annual physician referral is required for physical therapy services.

What other information needs to be provided to DHSS, and by default, PCG?

The student’s service record shall contain, but is not limited to, the following:

• Identifying data including name, address and phone number, sex, date of birth, next of kin, date of initial referral or assessment/evaluation, date of service initiation, and source of referral

• Date of most recent EPSDT screen

• Referral documentation by a physician or other health care professional

• Assessment, evaluation and testing reports

• Handicapping condition of the student and/or a diagnosis which has been determined using a recognized diagnostic system (e.g., ICD-9)

• An Individual Education Program, if the student is determined to need special education and related services

• A current treatment plan which sets forth the type, level and frequency of services provided to the student

• Progress notes and other relevant service documentation which denotes status of services and progress to identified service goals

• Documentation of each service rendered which describes the type of service(s) provided and the date the service(s) were provided

• Documentation supporting the discontinuation of services including treatment outcome(s) or referral for continued/enhanced services outside of the school based health services provider

RECORD MAINTENANCE A. Nursing Services B. Psychological and Counseling Services C. Speech, Language and Hearing Services D. Occupational Therapy E. Physical Therapy F. Transportation A through F should include student specific identifying information, amount of service, date of service and signature of provider. All records must be maintained for a period of at least five (5) years.

All of the above in regards to DMAP guidelines can be found here: https://www.dmap.state.de.us/downloads/manuals/School-Based.Services.Provider.Specific.pdf along with other more detailed information.

DMAP clearly states that student identifiable records must be provided to DHSS and by default, PCG, as their contracted 3rd party vendor. But does the Family Educational Rights and Privacy Act (FERPA) recognize a contracted vendor, such as PCG, to be a party that is allowed to see all of the above types of records? A study done in 2008 through the Fordham Law School’s Center on Law and Information Policy, indicated this was a clear violation of FERPA in a similar situation in New Jersey. The Department of Treasure Purchase and Property Division had a contract with Public Consulting Group, but the contract called for personal identifying information regarding students with the New Jersey DOE. Because the contract was with a separate department, and not the DOE, the authors of the report stated the New Jersey DOE was out of compliance with FERPA based on this. They also found the following:

If the information we collected mentioned that the state used a third party vendor for the development of the system or for the storage of the data, we also made a request for a copy of the agreement with such third party vendor. Most states responded promptly; however, as of the date of this report, we have not received requested contracts from a few of the states. Also, some states may use third party vendors without disclosing those relationships publicly on their websites.

FERPA generally covers a local school district, or LEA, that receives funding from the Federal Government due to the LEA being part of a public school district. State Educational Agencies (SEA) typically aren’t covered under FERPA unless it has to do with records delivered from the LEA to the SEA. In the above, the Delaware DOE definitely receives a great deal of information from local school districts in regards to special education student identifiable data. The Fordham report goes on to state the following in regards to 3rd party vendor reception of student records and parental consent:

Another exception to the written consent requirement arises for educational agencies or institutions that disclose personally identifiable, non-directory information to organizations conducting studies on behalf of the educational agency or institution. To be in compliance, these studies must be conducted in order to develop, validate, or administer predictive tests, administer student aid programs, or improve instruction. The agency or institution may release information without prior written consent only if the study is conducted in a manner that does not permit personal identification of parents and students by anyone outside of the research organization and as long as the information is destroyed when no longer needed for the purposes for which the study was conducted. Recipients of information under this exception may not redisclose personally identifiable information outside of the research organization. Under this exception a school or school district may disclose educational records to a third party vendor that such school or district has contracted with for research purposes provided that the information disclosed to such vendors remains confidential and there is a schedule for deletion of such records following the completion of the stated purpose. This exception does not permit SEAs to disclose educational records to third parties for research purposes. Research contracts must be directly tied to the school or local education institution.

So how exactly does this related to PCG and their vendor contract with Delaware?

“…further disclosure by the state to any third party vendor is only permitted in narrow circumstances. The vendor must enter into an agreement with the state department of education, which provides that such vendor is a contractor and is under the direct control of the department. Any disclosures that do not meet this criterion, or that are done simply for research purposes, are not permitted. At least one state, New Jersey, does not appear to comply with this restriction. The New Jersey contract with Public Consulting Group is between the Public Consulting Group and The NJ State Department of Treasury Purchase and Property Division rather than the Department of Education and does not indicate that the Department of Education has direct control over the vendor.”

Does current FERPA law still agree with this?

99.31 Under what conditions is prior consent not required to disclose information?

(a) An educational agency or institution may disclose personally identifiable information from an education record of a student without the consent required by 99.30 if the disclosure meets one or more of the following conditions: (1)(i)(A) The disclosure is to other school officials, including teachers, within the agency or institution whom the agency or institution has determined to have legitimate educational interests. (B) A contractor, consultant, volunteer, or other party to whom an agency or institution has outsourced institutional services or functions may be considered a school official under this paragraph provided that the outside party– (1) Performs an institutional service or function for which the agency or institution would otherwise use employees; (2) Is under the direct control of the agency or institution with respect to the use and maintenance of education records; and (3) Is subject to the requirements of 99.33(a) governing the use and redisclosure of personally identifiable information from education records.

Based on those regulations, the answer would be yes. This means the Delaware DOE was out of compliance with FERPA regulations from the moment they began working with DHSS on the Children’s Services Cost Recovery Project until the time they signed a sole source vendor contract with PCG on 12/1/2011. This may be why Lowery had to act fast in obtaining PCG as a sole source vendor contractor in late 2011. From the time they were first notified in 2008, it took three years for the Delaware DOE to become compliant with the Centers for Medicaid and Medicare Services regulations. When it became a matter of the revenue being suspended due to this non-compliance issue, the DOE signed a very quick contract with PCG.

In terms of the ability for PCG to accurately protect data, I have not heard of any breach. But parents need to understand they do have access to a great deal of special needs student information, including personal identifiable information as well as psychological or psychiatric evaluations that could contain deeply private information. Parents need to know what they are signing when they sign the Medicaid reimbursement form when they obtain an IEP for their child. This would be a personal decision, but as a parent, I certainly won’t do it.

My investigation into PCG and the Delaware DOE wouldn’t have lasted as long if the DOE was more transparent on their website with vendor contracts. PCG is mentioned in one place on the DOE website, and that is on the Random Moment In Time training manual. Are they obligated to release this information? Probably not. But if they are having parents sign a form indicating information will be released for Medicaid reimbursement purposes, they should also include every single Delaware agency as well as 3rd party vendors that may be able to see this information. This isn’t a legal matter, but one of transparency and common sense. Parents need to know when they are signing a document of this sort what the full implication of that signature actually means. As well, with school based health providers, if they are required to keep their records for five years if they are involved with this program, where is that data stored? Is it protected?

Nowhere on the Delaware Awarded Contracts website does it show the contract between the Delaware DOE and Public Consulting Group or PCG. It does show two contracts through DHSS. I have seen the contract though, as a result of an FOIA request I submitted last weekend. This contract states PCG will work with the Delaware DOE on implementation of the Random Moment In Time study and the DOE’s share of the annual cost reporting and cost reconciliation for fiscal years 2009-2012. The contract has been extended each year since it ended on June 30, 2012, and the current extension will expire on June 30, 2015.

Is the timing coincidental for when the Fordham study was released, clearly showing non-compliance on the part of the New Jersey DOE with FERPA regulations, and when Delaware was notified of non-compliance with this very similar reimbursement program and the same vendor? That is not for me to judge. Just to report the facts as best I can with the information provided to me.

The Delaware DOE is not selling IEP information to anyone. But pertinent and private information is being released to third party vendors all over the country, and transparency laws need to be much stronger in the USA so all parents know exactly who is seeing this type of personal information.

I am personally disgusted that anyone would need to see case notes from what I would otherwise assume to be a private and confidential session between a student and a psychologist or psychiatrist. It sounds like HIPAA and FERPA need to get together and come to terms with some discrepancies. I understand the need for a reimbursement program, and the fact that Delaware has recovered $8 million dollars in revenue from the Children’s Services Cost Recovery program is probably a good thing for the state coffers. But the price, as usual, is students and their personal information. Is $8 million worth the time, money and resources spent dealing with PCG on this project? I am sure PCG provides other types of services with DHSS, but the tally on their bill for the last four years alone, as per Delaware Online Checkbook, is over $12 million dollars, so what is Delaware truly getting out of this? I am quite sure the Random Moment In Time system is an annoyance and burdensome to the school based health providers. Some are never picked at all for this study, while others are picked multiple times. Most teachers have never heard of it.

Based on my findings on PCG, they are aligned with some of the most loathed and despised entities promoting Common Core State Standards and high-stakes testing. In a survey released by Gallup yesterday, it showed the country is very divided among those who support Common Core and those who oppose it. Many states are struggling with very pissed off teachers who are justified in their opposition to this federal intrusion into public schools. The US DOE has come under fire in the past couple months from the GOP Senate due to how Arne Duncan and his cohorts are conducting business. Even President Obama may have a lawsuit against him based in part on how his administration has handled education reform in America. But here is Delaware, with our Governor Markell, Secretary of Education Murphy, the DOE and the State Board of Education, proudly cheerleading what a growing number of parents in this state are beginning to hate. The government in Delaware has aligned itself with many of these entities that promote this faulty education agenda. Does the state have a back-up plan if something happens that outlaws Common Core and the tests that go along with it? They may want to start thinking about this if the current trends stay on the same track. Meanwhile, companies like PCG will continue to reap the benefits of the system that allowed them to become richer and richer.

UPDATED at 3:20pm: http://www.hockessincommunitynews.com/article/20140818/NEWS/140819818 Apparently someone hacked into the Delaware State Treasury website this morning. Although not on a state server, I ask once again, how secure is our children’s private information?

Helpful links to get more out of this article:

Delaware Online Checkbook

Random Moment In Time Training Manual

2008 Fordham Report

DOE 2013 Data Acquisition List

Delaware Awarded Contracts Website