According to a 2013 study conducted by the Radicati Group, there are over 100 billion business-related e-mails sent and received per day. E-mail remains the predominant form of communication in business and professional settings. This trend is expected to continue. Radicati predicts that business e-mail will account for over 132 billion emails sent and received per day by the end of 2017. Parents, who may be accustomed to e-mail as the default mode of communication in their professional lives, understandably expect that schools will also communicate using e-mail. However, many special educators are still uncertain about whether they can e-mail special education records and, if so, how to go about it. Recent guidance from the Office of Special Education Programs makes it clear that schools may distribute special education records such as IEPs and progress reports via e-mail if they follow these simple steps.
Check with your educational agency.
OSEP makes clear that state educational agencies are the entities that may either permit or prohibit districts to distribute special education documents via e-mail. The IDEA specifically provides that parents may elect to receive prior written notices, procedural safeguards notices, and due process complaint notices by email, if the public agency makes that option available. 34 CFR 300.505. In Letter to Breton, 114 LRP 14938 (OSEP 2014), OSEP explained that schools may use e-mail to deliver IEPs and progress reports as well. “The IDEA statute and regulations do not explicitly address the use of electronic mail for other documents required under the IDEA.” The letter went on to explain that it is up to state agencies to determine whether its schools may use e-mail to distribute special education documents. For schools in Nebraska, the Nebraska Department of Education allows the use of e-mail in a special education context.
Obtain Parental Consent
The OSEP letter emphasized that OSEP has no objection to the use of e-mail for special education communication “so long as the parent of the child with a disability and the public agency agree.” The letter goes on to note that the parental consent can be electronic or digital so long as schools “take the necessary steps to ensure that there are appropriate safeguards to protect the integrity of the process.”
Under the Electronic Signatures Act, enacted in 2000, electronic agreements (with a few exceptions) are as enforceable as those executed on paper. The law does not specify an approved method of signing electronic agreements and various methods have been improvised, including clicking an "I Accept" button, typing "Yes", typing in a name, or using a "key" to encrypt (scramble) information that uniquely identifies the signer. So long as you have some method for the parent to indicate his/her intent to agree to the e-mail communication, you should be able to rely on that assent. This means, for example, that a school could send a parent an e-mail asking the parent if he/she consents to the school providing copies of IEPs electronically. If the parent replies in the affirmative, the district should maintain a copy of that communication and can then begin using e-mail to communicate. Of course, if a parent ever expresses any objection to e-mail communication, the school should cease using e-mail and return to the use of hard copies of documents.
Observe Basic Digital Security Protocols
Any time schools use e-mail to communicate about students, they should make sure that they are observing basic digital security. The OSEP letter notes that schools must take reasonable steps to ensure the information is secure during delivery as well as after it arrives in the parents' inbox. To accomplish this schools should always use at least two-factor authentication. They should also confirm with the parents that their email address is confidential and password-protect the documents which are sent. It is a very simple process to password-protect a .pdf document (click here for step by step instructions). For larger documents, services like Dropbox encrypt material which is uploaded and you can just send parents a link that allows them to sign in with their own username and password. With any special education issue, it is always better to find out the answer before you take action. Feel free to contact Karen, Steve, Bobby, or Tim or your school district's attorney if you have questions about the use of digital communication or more generally about the IDEA and Rule 51 of the Nebraska Department of Education.