Divorced Parents, School Records, and an Observation Request
You are a school-based occupational therapist in Bismarck. A 7-year-old student on your caseload has autism and receives OT twice weekly under an IEP. The parents are divorced. The mother has physical custody; the father has joint legal custody. The father emails you asking for the complete OT evaluation, progress notes, and a video of a session, and he wants to observe next week. The mother sends a separate email saying, 'Do not release anything to him; I am the custodial parent.' The district's front office has a copy of the divorce decree but has not given it to you. The father has attended prior IEP meetings by phone. Your principal is on leave, and the special education director asks you to handle the request today. You have not verified the custody order or the district's records policy.
1. May the OT release the evaluation and progress notes to the father over the mother's objection? What must be verified first?
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The starting point is that the records are education records under FERPA, not ordinary clinical records. FERPA generally gives both parents access unless a court order or state law specifically limits the noncustodial parent's rights. Physical custody alone does not automatically remove the father's right to inspect and review education records. You should not rely on the mother's email as a legal order. Obtain and review the divorce decree or custody order and follow district policy. If the order gives the father joint legal custody and does not restrict records, release the OT evaluation and progress notes after redacting information about other students. If the order is unclear, escalate to the district's legal counsel or special education director before releasing.
2. How should the OT handle the request to observe and to receive a video?
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The observation request is governed by district policy, not by FERPA alone. Schools may set reasonable conditions to protect other students, test security, and instructional time. You can offer an observation consistent with policy, but you should not promise a video that may include other students. The video request should be handled like a record request; redact other students. The mother's objection should be documented and forwarded with the request. Do not debate the parents or release records to either parent in the hallway. If the father arrives without an appointment, follow the front-office protocol. If the district has a policy requiring advance notice or a supervised observation, apply it consistently.
3. What documentation and consultation steps should the OT take that day?
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Document the father's request, the mother's objection, the custody document you reviewed, the redactions, who authorized release, and the observation arrangements. Consult the special education director and district legal counsel because the principal is unavailable. Do not alter the OT records. If you are also a treating clinician outside the school, keep those records separate. If the district ultimately denies access, provide the legal basis in writing and the appeal process. A timely, documented decision is safer than an informal release or blanket refusal. If you are unsure whether FERPA or HIPAA applies, ask before releasing anything.