POLICY LETTER: October 13, 2010 to Florida Department of Health Early Steps Program Part C Coordinator Lynne Marie Price

October 13, 2010Lynne Marie Price, Part C CoordinatorEarly Steps Program, Children's Medical Services NetworkFlorida Department of Health4052 Bald Cypress Way SE, Bin A06Tallahassee, Florida 32399-1701Dear Ms. Price:This is in response to the December 7, 2009, letter from the Florida Department of Health (FDOH) to the Office of Special Education Programs (OSEP) requesting clarification about whether FDOH must provide parents with a copy of a test protocol that contains personally identifiable information about their child as part of their child's education records under Part C of the Individuals with Disabilities Education Act (IDEA). The letter also asked whether: (1) Federal copyright laws prohibit the copying and distribution of copies of the test protocol that contains personally identifiable information, if the protocol is copyrighted; (2) FDOH and its early intervention service (EIS) providers may provide parents with a copy of the test protocol that contains personally identifiable information if it is protected under copyright law; and (3) FDOH may provide an original or a copy of the test protocol that contains personally identifiable information to the local educational agency (LEA), with parental consent, upon a child's transition at age three from the IDEA Part C program to the IDEA Part B preschool program.COPYRIGHT LAWTest protocols commonly refer to written instructions on how a test must be administered and the questions posed. Generally, these test protocols are original creations of independent authors and/or organizations. Therefore, they may be protected by the U.S. Copyright Act of 1976, the Digital Millennium Copyright Act of 1988, as well as other State, Federal, and international acts and conventions. If a given test protocol is copyrighted, it may not be reproduced, transmitted, distributed, publicly displayed, nor may a derivative work be created therefrom, without express permission from the copyright owner, unless such use is allowed under the Fair Use Doctrine. The OfficeIn a situation where a copyrighted document has been made part of a child's education record because it includes child-specific information, the State lead agency may wish to contact the copyright holder to discuss whether a summary or report of the child's evaluation and assessment results can be prepared that can be provided to the parents as part of the child's education record, in lieu of providing a copy of the copyrighted document. Such a summary or report would provide parents with the necessary and pertinent information regarding their child's developmental functioning and areas of strengths and need. The State lead agency may identify other alternatives to provide parents with the rights under IDEA Part C to inspect and review their child's test protocol that contains personally identifiable information, if such records are copyrighted documents.Separately, we note that the State lead agency must provide parents with an explanation of the results of their child's evaluation and assessment as part of the notice that must be provided to parents under 34 CFR 303.403(b) before the agency proposes or refuses to initiate or change the identification, evaluation, or placement their child, or the provision of appropriate early intervention services to the child and the child's family. This notice pursuant to 34 CFR 303.403(b) must provide an explanation of the child's evaluation and assessment results in a manner that would adequately inform the parent about how and in what areas the child was evaluated and assessed, and include the child's data or performance against such measures in order to explain the basis of the child's eligibility determination. A summary or report would both meet this requirement and not require the State lead agency to provide a copy of the test protocol that includes both questions and child-specific personally identifiable information.ORIGINALS vs. COPIESFDOH also asked whether it could provide an original or a copy to the LEA when a child receiving services under IDEA Part Page PAGE * MERGEFORMAT 2 Lynne Marie Price