92 Neb. Admin. Code, ch. 51, § 009 - Procedural Safeguards
009.01 Parent
Participation in Meetings
009.01A The parents
of a child with a disability must be afforded an opportunity to participate in
meetings with respect to the identification, evaluation, and educational
placement of the child and the provision of FAPE to the child.
009.01B Each school district or approved
cooperative must provide notice consistent with 92 NAC 51-007.06A1 and 007.06B
to ensure that parents of children with disabilities have the opportunity to
participate in meetings described in 92 NAC 51-009.01 A.
009.01C A meeting does not include informal
or unscheduled conversations involving school district or approved
cooperative's personnel and conversations on issues such as teaching
methodology, lesson plans, or coordination of service provision. A meeting also
does not include preparatory activities that school district or approved
cooperative's personnel engage in to develop a proposal or response to a parent
proposal that will be discussed at a later meeting.
009.02 Parent Involvement in Placement
Decisions
009.02A The school district or
approved cooperative shall ensure that a parent of each child with a disability
is a member of any group that makes decisions on the educational placement of
their child.
009.02B In
implementing the requirements of 92 NAC 51-009.02A, the school district or
approved cooperative shall use procedures consistent with the procedures
described in 92 NAC 51-007.06A, 007.06B, and 009.01 A.
009.02C If neither parent can participate in
a meeting in which a decision is to be made relating to the educational
placement of their child, the school district or approved cooperative shall use
other methods to ensure their participation, including individual or conference
telephone calls, or video conferencing.
009.02D A placement decision may be made by a
team without the involvement of the parents if the school district or approved
cooperative is unable to obtain the parents' participation in the decision. In
this case, the school district or approved cooperative must have a record of
its attempt to ensure their involvement including information that is
consistent with the requirements of 92 NAC 51-007.06D.
009.03 Opportunity to Examine Records
009.03A The parents of a child with a
disability must be afforded, in accordance with the procedures of 92 NAC
51-009.03, an opportunity to inspect and review all education records with
respect to: the identification, evaluation, and educational placement of the
child; and the provision of FAPE to the child.
009.03B Each participating agency shall
permit parents to inspect and review any education records relating to their
children which are collected, maintained or used by the participating agency.
The participating agency shall comply with such a request without unnecessary
delay and before any meeting regarding an individualized education program or
hearing pursuant to 92 NAC 55 or resolution session and in no case more than 45
days after the request has been made.
009.03B1
As used in 92 NAC 51-009.03B, participating agency means any agency or
institution that collects, maintains or uses personally identifiable
information or from which information is obtained under this Chapter.
009.03B2 The right to inspect and review
education records includes:
009.03B2a The
right to a response from the participating agency to reasonable requests for
explanations and interpretations of the records; and
009.03B2b The right to request that the
participating agency provide copies of the records containing the information
if failure to provide those copies would effectively prevent the parent from
exercising the right to inspect and review the records; and
009.03B2c The right to have a representative
of the parent inspect and review the records.
009.03B3 A participating agency may presume
that the parent has authority to inspect and review records relating to his or
her child unless the service agency has been advised that the parent does not
have the authority under applicable Nebraska law governing such matters as
guardianship, separation and divorce.
009.03C Record of Access
009.03C1 Each participating agency shall keep
a record of parties obtaining access to education records collected,
maintained, or used (except access by parents and authorized employees of the
participating service agency), including the name of the party, the date access
was given, and the purpose for which the party is authorized to use the
records.
009.03D Records
On More Than One Child
009.03D1 If any
education record includes information on more than one child, the parents of
those children shall have the right to inspect and review only the information
relating to their child or to be informed of that specific
information.
009.03E List
of Types and Locations of Information
009.03E1 Each participating agency shall
provide parents on request a list of the types and locations of education
records collected, maintained, or used by the participating agency.
009.03F Fees
009.03F1 A participating agency may charge a
fee for copies of records which are made for parents if the fee does not
effectively prevent the parents from exercising their right to inspect and
review those records.
009.03F2 A
participating agency may not charge a fee to search for or to retrieve
information.
009.03G
Amendment of Records at Parent's Request
009.03G1 A parent who believes that
information in education records collected, maintained, or used is inaccurate
or misleading, or violates the privacy or other rights of the child may request
the participating agency which maintains the information to amend the
information.
009.03G2 The
participating agency shall decide whether to amend the information in
accordance with the request within a reasonable period of time of receipt of
the request.
009.03G3 If the
participating agency decides to refuse to amend the information in accordance
with the request, it shall inform the parents of the refusal and advise the
parent of the right to a local administrative review to be conducted in
accordance with 34 CFR
99.22.
009.03H Opportunity for a Local
Administrative Review
009.03H1 The
participating agency shall, on request, provide an opportunity for a local
administrative review to challenge information in education records to ensure
that it is not inaccurate, misleading, or otherwise in violation of the privacy
or other rights of the child.
009.03I Result of Local Administrative Review
009.03I1 If, as a result of the local
administrative review, the participating agency decides that the information is
inaccurate, misleading, or otherwise in violation of the privacy or other
rights of the child, it shall amend the information accordingly and so inform
the parent in writing.
009.03I2 If,
as a result of the local administrative review, the participating agency
decides that the information is not inaccurate, misleading, or otherwise in
violation of the privacy or other rights of the child, the participating agency
shall inform the parent of the right to place in the records the participating
agency maintains on the child, a statement commenting on the information or
setting forth any reasons for disagreeing with the decision of the
participating agency.
009.03I3 Any
explanation placed in the records of the child must:
009.03l3a Be maintained by the participating
agency as part of the records of the child as long as the record or contested
portion is, maintained by the participating agency; and
009.03l3b If the records of the child or the
contested portion is disclosed by the participating agency to any party, the
explanation must also be disclosed to the party.
009.03J Consent for Release of Records
009.03J1 Parental consent must be obtained
before personally identifiable information is disclosed to parties other than
officials of participating agencies in accordance with 92 NAC 51-009.03H1
unless the information is contained in education records and the disclosure is
authorized without parental consent under 34 CFR Part 99.
009.03J2 Except as provided in 92 NAC
51-009.03J3 and 009.03J4, parental consent is not required before personally
identifiable information is released to officials of participating agencies for
purposes of meeting a requirement of this Chapter.
009.03J3 Parental consent, or the consent of
an eligible child who has reached the age of majority, must be obtained before
personally identifiable information is released to officials of participating
agencies providing or paying for transition services in accordance with 92 NAC
51-007.03A10b.
009.03J4 If a child
is enrolled, or is going to enroll in a nonpublic school that is not located in
the school district of the parent's residence, parental consent must be
obtained before any personally identifiable information about the child is
released between officials in the school district where the nonpublic school is
located and officials in the school district of the parent's residence.
009.03K Safeguards
009.03K1 Each participating agency shall
protect the confidentiality of personally identifiable information at
collection, storage, disclosure, and destruction stages.
009.03K2 One official at each participating
agency shall assume responsibility for ensuring the confidentiality of any
personally identifiable information.
009.03K3 All persons collecting or using
personally identifiable information must receive training or instruction
regarding the state's policies and procedures.
009.03K4 Each participating agency shall
maintain, for public inspection, a current listing of the names and positions
of those employees within the participating agency who may have access to
personally identifiable information.
009.03L Records Regarding Migratory Children
with Disabilities
009.03L1 The school district
or approved cooperative shall cooperate in the Federal Secretary of Education's
efforts under section 1413(a)(9) of the Individuals with Disabilities Education
Act of 2004 (See Appendix A) to ensure the linkage of records pertaining to
migratory children with a disability for the purpose of electronically
exchanging among the States, health and education information regarding such
children.
009.03M
Retention and Destruction of Information and Records
009.03M1 The school district or approved
cooperative shall retain special education records for five (5) years after the
completion of the activities for which special education funds were
used.
009.03M2 The school district
or approved cooperative shall inform parents when personally identifiable
information collected, maintained, or used is no longer needed to provide
educational services to the child.
009.03M3 The information which is no longer
necessary to provide educational services to the child, must be destroyed at
the request of the parents. However, a permanent record of a student's name,
address, and phone number, his or her grades, attendance record, classes
attended, grade level completed, and year completed may be maintained without
time limitation.
009.04 Procedural Timelines
009.04A Each of the procedural steps
necessary to provide a free appropriate public education shall be carried out
within the specified time periods.
009.04A1
Referral, notice to parents (See 92 NAC 51-009.05), and parental consent, shall
be completed within a reasonable period of time. The initial multidisciplinary
team evaluation shall be completed within 45 school days of receiving parental
consent for the evaluation.
009.04A1a The 45
school day timeline shall not apply to a school district or approved
cooperative if:
009.04A1a(1) A child enrolls
in a school served by the school district or approved cooperative after the
relevant timeline in 92 NAC 51-009.04A1 has begun and prior to a determination
by the child's previous school district or approved cooperative as to whether
the child is a child with a disability, but only if the subsequent school
district or approved cooperative is making sufficient progress to ensure a
prompt completion of the evaluation, and the parent and subsequent school
district or approved cooperative agree to a specific time when the evaluation
will be completed; or
009.04A1a(2)
The parent of a child repeatedly fails or refuses to produce the child for the
evaluation.
009.04A2 Upon completion of a
multidisciplinary team verification decision, school districts or approved
cooperatives shall provide a reasonable notification and conduct an
individualized education program conference within 30 calendar days.
009.04A3 As soon as possible following
development of the lEP, special education and related services must be made
available to the child in accordance with the child's lEP,
009.05 Prior Written
Notice
009.05A Prior written notice shall be
given to the parents of a child with a disability a reasonable time before a
school district or approved cooperative:
009.05A1 Proposes to initiate or change the
identification, evaluation, or educational placement of a child or the
provision of a free appropriate public education; or
009.05A2 Refuses to initiate or change the
identification, evaluation, or educational placement of the child or the
provision of a free appropriate public education to the child.
009.05B Such prior written notice
shall include:
009.05B1 A description of the
action proposed or refused by the school district or approved
cooperative;
009.05B2 An
explanation of why the school district or approved cooperative proposes or
refuses to take the action;
009.05B3 A description of other options the
lEP team considered and the reasons why those options were rejected;
009.05B4 A description of each evaluation
procedure, assessment, record, or report the school district or approved
cooperative uses as a basis for the proposal or refusal;
009.05B5 A description of any other factors
which are relevant to the school district's or approved cooperative's proposal
or refusal;
009.05B6 A statement
that the parents of a child with a disability have protection under the
procedural safeguards of this Chapter and, if this notice is not an initial
referral for evaluation, the means by which a copy or description of the
procedural safeguards can be obtained; and
009.05B7 Sources for parents to contact to
obtain assistance in understanding the provisions of this Chapter.
009.05C The notice must be written
in language understandable to the general public, and provided in the native
language of the parents or other mode of communication used by the parents
unless it is clearly not feasible to do so.
009.05D If the native language or other mode
of communication of the parents is not a written language, the school district
or approved cooperative shall take steps to ensure:
009.05D1 That the notice is translated orally
or by other means to the parents in his or her native language or other mode of
communication;
009.05D2 That the
parents understand the content of the notice; and
009.05D3 That there is written evidence that
the requirements of this section have been met.
009.06 Procedural Safeguards Notice
009.06A A copy of the procedural safeguards
available to the parents of a child with a disability shall be given by the
school district or approved cooperative to the parents only one time a school
year, except that a copy shall also be given to the parents:
009.06A1 Upon initial referral or parental
request for evaluation;
009.06A2
Upon request by a parent;
009.06A3
Upon receipt by the school district or approved cooperative of the first
occurrence of the filing of a complaint under 92 NAC 51-009.11 and the first
occurrence of filing a special education due process case under 92 NAC 55;
and
009.06A4 In accordance with the
discipline procedures in 92 NAC
51-016.
009.06B The procedural safeguards notice
shall include a full explanation of all of the procedural safeguards relating
to:
009.06B1 Independent educational
evaluation;
009.06B2 Prior written
notice;
009.06B3 Parental
consent;
009.06B4 Access to
educational records;
009.06B5
Opportunity to present and resolve disputes through the due process hearings
and the state complaint procedures including;
009.06B5a The time period in which to file a
state complaint or petition for a due process hearing;
009.06B5b The opportunity for the school
district or approved cooperative to resolve the dispute; and
009.06B5c The difference between the due
process system and the state complaint procedures; including the jurisdiction
of each procedure, what issues may be raised, filing and decisional timelines,
and relevant procedures.
009.06B6 The child's placement during
pendency of due process proceedings;
009.06B7 Procedures for students subject to
placement in an interim alternative educational setting;
009.06B8 Requirements for unilateral
placement by parents of children in nonpublic schools at public
expense;
009.06B9 The availability
of mediation;
009.06B10 Due process
hearings, including requirements for disclosure of evaluation results and
recommendations;
009.06B11 Civil
actions, including the time period in which to file such actions; and
009.06612 Attorney's
fees.
009.06C The notice
of the procedural safeguards provided to the parent must be written in language
understandable to the general public and provided in the native language of the
parent as required by 92 NAC 51-009.05C and 009.05D.
009.06D The school district or approved
cooperative may place a current copy of the procedural safeguards notice on its
Internet website if such website exists.
009.07 A parent of a child with a disability
may elect to receive notices required under this section by an electronic mail
(e-mail) communication, if the school district or approved cooperative makes
such option available.
009.08
Parental Consent
009.08A Parental Consent for
Initial Evaluations
009.08A1 The school
district or approved cooperative proposing to conduct an initial evaluation to
determine if a child qualifies as a child with a disability under 92 NAC
51-003.08 must obtain informed consent, consistent with 92 NAC 51-003.09, from
the parent of the child before conducting the evaluation.
009.08A2 Parental consent for initial
evaluation must not be construed as consent for initial provision of special
education and related services.
009.08A3 The school district or approved
cooperative must make reasonable efforts to obtain the informed consent from
the parent for an initial evaluation to determine whether the child is a child
with a disability.
009.08A4 For
initial evaluations only, if the child is a ward of the State and is not
residing with the child's parent, the school district or approved cooperative
is not required to obtain informed consent from the parent for an initial
evaluation to determine whether the child is a child with a disability if;
009.08A4a Despite reasonable efforts to do
so, the school district or approved cooperative cannot discover the whereabouts
of the parent of the child;
009.08A4b The rights of the parents of the
child have been terminated in accordance with the State law; or
009.08A4c The rights of the parent to make
educational decisions have been subrogated by a judge in accordance with State
law and consent for an initial evaluation has been given by an individual
appointed by the judge to represent the child.
009.08A5 If the parent of a child enrolled in
public school or seeking to be enrolled in public school does not provide
consent for initial evaluation under 92 NAC 51-009.08A1 or the parent fails to
respond to a request to provide consent, the school district or approved
cooperative may, but is not required to, pursue the initial evaluation of the
child by utilizing the procedural safeguards in 92 NAC 51-009 (including the
mediation procedures or the due process procedures), if appropriate.
009.08A5a The school district or approved
cooperative does not violate its obligation under 92 NAC
51-006 to locate and identify the
child as a child with a disability if it declines to pursue the
evaluation.
009.08B Consent for Services
009.08B1 A school district or approved
cooperative that is responsible for making FARE available to a child with a
disability must obtain informed consent from the parent of the child before the
initial provision of special education and related services to the child.
009.08B1a Participation in or attendance at
programs by children with verified disabilities from date of diagnosis to age
five shall be voluntary as specified by the parent.
009.08B2 The school district or approved
cooperative must make reasonable efforts to obtain informed consent from the
parent for the initial provision of special education and related services to
the child.
009.08B3 If the parent
of a child fails to respond to a request for, or refuses to consent to, the
initial provision of special education and related services the school district
or approved cooperative:
009.08B3a May not use
the procedures in 92 NAC 51-009 (including the mediation procedures or the due
process procedures) in order to obtain agreement or a ruling that the services
may be provided to the child.
009.08B3b Will not be considered to be in
violation of the requirement to make a Free Appropriate Public Education (FARE)
available to the child because of the failure to provide the child with the
special education and related services for which the parent refuses to or fails
to provide consent; and
009.08B3c
Is not required to convene an IER team meeting or develop an lEP under 92 NAC
51-007 for the
child.
009.08B4 If at any
time subsequent to the initial provision of special education and related
services, the parent of a child revokes consent in writing for the continued
provision of special education and related services, the school district or
approved cooperative:
009.08B4a May not
continue to provide special education and related services to the child, but
must provide prior written notice in accordance with 92 NAC 51-009.05 before
ceasing the provision of special education and related services.
009.08B4b May not use the procedures in 92
NAC 51-009 (including the mediation procedures and due process procedures) in
order to obtain agreement or a ruling that the services may be provided to the
child.
009.08B4c Will not be
considered to be in violation of the requirement to make a Free Appropriate
Public Education (FARE) available to the child because of the failure to
provide the child with further special education and related services; and
009.08B4d Is not required to
convene an lER team meeting or develop an lER under 92 NAC
51-007 for the child for further
provision of special education and related services.
009.08C Consent for Reevaluations
009.08C1 Subject to 92 NAC 51-009.08C2, each
school district or approved cooperative must obtain informed parental consent,
in accordance with 92 NAC 51-009.08A1, prior to conducting any reevaluation of
a child with a disability.
009.08C1a If the
parent refuses to consent to the reevaluation, the school district or approved
cooperative may, but is not required to, pursue the reevaluation by using the
consent override procedures described in 92 NAC 51-009.08A5. The school
district or approved cooperative does not violate its obligation to locate and
identify the child as a child with a disability if it declines to pursue the
evaluation or reevaluation.
009.08C2 The informed parental consent
described in 92 NAC 51-009.08C1 need not be obtained if the school district or
approved cooperative can demonstrate that:
009.08C2a It made reasonable efforts to
obtain such consent; and
009.08C2b
The child's parent has failed to respond.
009.08D Other Consent Requirements
009.08D1 Parental consent is not required
before:
009.08D1a Reviewing existing data as
part of an evaluation or a reevaluation; or
009.08D1b Administering a test or other
evaluation that is administered to all children unless, before administration
of that test or evaluation, consent is required of parents of all children.
009.08D2 A school
district or approved cooperative may not use a parent's refusal to consent to
one service or activity under 92 NAC 51-009.08A, 92 NAC 51-009.08B or 92 NAC
51-009.08C to deny the parent or child any other service, benefit, or activity
of the school district or approved cooperative, except as required by this
Chapter.
009.08D3 If a parent of a
child who is home schooled or placed in a nonpublic school by the parents at
their own expense does not provide consent for the initial evaluation or the
reevaluation, or the parent fails to respond to a request to provide consent,
the school district or approved cooperative may not use the consent override
procedures (described in 92 NAC 51-009.08A5 and 009.08C1); and
009.08D3a The school district or approved
cooperative is not required to consider the child as eligible for services
under 92 NAC
51-015.
009.08D4 To meet the reasonable efforts
requirement in 92 NAC 51-009.08A3, 009.08A4a, 009.08B2, and 009.08C2a, the
school district or approved cooperative must document its attempts to obtain
parental consent using the procedures in 92 NAC
51-007.06.
009.09 Consent and Insurance (see Section
012.09 for Use of Public Benefits or Insurance)
009.09A Children with Disabilities covered by
Public Benefits or Insurance
009.09A1 Prior to
accessing a child's or parent's public benefits or insurance for the first
time, and after providing notification to the child's parents consistent with
92 NAC 51-009.09A2, school districts or approved cooperatives must obtain
written, parental consent that:
009.09A1a
Meets the requirements of 34
CFR §
99.30 (FERPA) and
34 CFR §
300.622, which consent must specify the
personally identifiable information that may be disclosed (e.g., records or
information about the services that may be provided to a particular child), the
purpose of the disclosure (e.g., billing for services under 34 CFR 300), and
the agency to which the disclosure may be made (e.g., the State's public
benefits or insurance programs (e.g., Medicaid)); and
009.09A1b Specifies that the parent
understands and agrees that the school district or approved cooperative may
access the parent's or child's public benefits or insurance to pay for services
under this Chapter.
009.09A2 Prior to accessing a child's or
parent's public benefits or insurance for the first time, and annually
thereafter, the school district or approved cooperative must provide written
notification, consistent with 92 NAC 51-009.05C and 009.05D, to the child's
parents, that includes:
009.09A2a A statement
of the parental consent provisions in 92 NAC 51-009.09A1a and 009.09A1b of this
section;
009.09A2b A statement of
the "no cost" provisions in paragraphs 92 NAC 51-012.09B1 through
012.09B3;
009.09A2c A statement that
the parents have the right under 34 CFR Part 99 and Part 300 to withdraw their
consent to disclosure of their child's personally identifiable information to
the agency responsible for the administration of the State's public benefits or
insurance program (e.g., Medicaid) at any time; and
009.09A2d A statement that the withdrawal of
consent or refusal to provide consent under 34 CFR Part 99 and Part 300 to
disclose personally identifiable information to the agency responsible for the
administration of the State's public benefits or insurance program (e.g.,
Medicaid) does not relieve the school district or approved cooperative of its
responsibility to ensure that all required services are provided at no cost to
the parents.
009.09B Children with Disabilities covered by
Private Insurance
009.09B1 With regard to
services required to provide FAPE to an eligible child under this Chapter, a
school district or approved cooperative may access the parents' private
insurance proceeds only if the parents provide consent consistent with 92 NAC
51-003.09.
009.09B2 Each time the
school district or approved cooperative proposes to access the parent's private
insurance proceeds, the school district or approved cooperative must;
009.09B2a Obtain parental consent in
accordance with 92 NAC 51-009.09B1; and
009.09B2b Inform the parents that their
refusal to permit the school district or approved cooperative to access their
private insurance does not relieve the school district or approved cooperative
of its responsibility to ensure that all required services are provided at no
cost to the parents.
009.10 Appointment of Surrogates
009.10A Each school district or approved
cooperative shall ensure that the rights of a child with a disability are
protected if:
009.10A1 No parent can be
identified;
009.10A2 The school
district or approved cooperative, after reasonable efforts, cannot locate a
parent;
009.10A3 The child is an
unaccompanied homeless youth; or
009.10A4 The child is a ward of the State or
court.
009.10A4a In the case of a child who is
a ward of the State, such surrogate may alternatively be appointed by the judge
overseeing the child's care provided that the surrogate meets the requirements
in 92 NAC 51-009.10D3.
009.10B The duty of the school district or
approved cooperative under 92 NAC 51-009.10A includes the assignment of an
individual to act as a surrogate for the parents. This must include a method;
009.10B1 For determining whether a child
needs a surrogate parent and,
009.10B2 For assigning a surrogate parent to
the child.
009.10C The
school district or approved cooperative may select a surrogate parent in any
way permitted under State law and the district or approved cooperative shall
make reasonable efforts to ensure the assignment of a surrogate not more than
30 calendar days after there is a determination that the child needs a
surrogate.
009.10D In order to
qualify, a surrogate must be a person who:
009.10D1 Has no personal or professional
interest that conflicts with the interest of the child he or she represents;
009.10D2 Has knowledge and skills
that ensure adequate representation of the child; and
009.10D3 Is not an employee of any public
agency which is involved in the education or care of the child. A person who
otherwise qualifies to be a surrogate parent is not an employee of the agency
solely because he or she is paid by the agency to serve as a surrogate parent.
009.10D3a In the case of a child who is an
unaccompanied homeless youth, appropriate staff of emergency shelters,
transitional shelters, independent living programs, and street outreach
programs may be appointed as temporary surrogate parents without regard to 92
NAC 51-009.10D3, until a surrogate parent can be appointed that meets all the
requirements of 92 NAC 51-009.10D.
009.10E The surrogate may represent the child
in all matters relating to;
009.10E1 The
identification, evaluation, and educational placement of a child; and
009.10E2 The provision of a free
appropriate public education to the child.
009.10F The services of the surrogate parent
shall be terminated when:
009.10F1 The child
is no longer eligible for a surrogate parent under 92 NAC 51-009.10A;
009.10F2 A conflict of interest develops
between the interest of the child and the interest of the surrogate parent;
or
009.10F3 The surrogate parent
fails to fulfill his or her duties as a surrogate parent.
009.10G Issues arising from the selection,
appointment, or removal of a surrogate parent shall be resolved through
hearings established under 92 NAC 55.
009.10H
The surrogate parent and the school district or approved
cooperative which appointed the surrogate parent shall not be liable in civil
actions for damages for acts of the surrogate parent unless such acts
constitute willful and wanton misconduct.
009.11 State Complaint Procedures
009.11A An organization or individual may
file a signed written complaint under the procedures described in 92 NAC
51-009.11B.
009.11B The complaint
must include:
009.11B1 A statement that the
public agency has violated a requirement of 92 NAC 51, 34 CFR 300 or Part B of
the IDEA;
009.11B2 The facts on
which the statement is based;
009.11B3 The signature and contact
information for the complainant; and
009.11B4 If alleging violations with respect
to a specific child -
009.11B4a The name and
address of the residence of the child;
009.11B4b The name of the school the child is
attending;
009.11B4c In the case of
a homeless child or youth within the meaning of section 725(2C) of the
McKinney-Vento Homeless Assistance Act (42 U.S.C.
11434a(2), available contact
information for the child, and the name of the school the child is attending;
009.11B4d A description of the
nature of the problem of the child, including facts relating to the problem;
and
009.11B4e A proposed resolution
of the problem to the extent known and available to the party at the time the
complaint is filed.
009.11B5 The complaint must allege a
violation that occurred not more than one year prior to the date that the
complaint is received in accordance with 92 NAC 51-009.11.
009.11B6 The party filing the complaint must
forward a copy of the complaint to the school district or approved cooperative
serving the child at the same time the party files the complaint with Nebraska
Department of Education Office of Special Education.
009.11C If a complaint meeting the
requirements of 92 NAC 51-009.1 IB is received, the following procedures will
be carried out:
009.11C1 Within fourteen (14)
calendar days of receipt of the written, signed complaint, an assigned Office
of Special Education official shall notify in writing each complainant and the
school district or approved cooperative against which the violation has been
alleged, that the complaint has been received. This written notification shall
include a copy of the complaint and the substance of the alleged violation. The
school district or approved cooperative shall have fourteen (14) calendar days
to submit a written response.
009.11C2 Office of Special Education
officials will provide the school district or approved cooperative with the
opportunity to respond to the complaint, including, at a minimum;
009.11C2a At the discretion of the school
district or approved cooperative, a proposal to resolve the complaint;
and
009.11C2b An opportunity for a
parent who has filed a complaint and the school district or approved
cooperative to voluntarily engage in mediation consistent with 92 NAC
51-009.12.
009.11C3
Office of Special Education officials will investigate each complaint received
from an individual or organization (including an individual or organization
from another state) to determine whether there has been a failure to comply
with this Chapter and may require further written or oral submission of
information by all parties and may conduct an independent on-site investigation
if necessary. The complainant will have the opportunity to submit additional
information either orally or in writing, about the allegation.
009.11C4 Within sixty (60) calendar days of
receipt of a signed written complaint, the Department of Education Office of
Special Education will review all relevant information and provide written
notification of findings of facts and conclusions and the basis for such
findings to all parties involved.
009.11C5 An extension of the time limit in 92
NAC 51-009.11C4 will be permitted only if:
009.11C5a Exceptional circumstances exist
with respect to a particular complaint; or
009.11C5b The parent and the school district
or approved cooperative involved agree to extend the time to engage in
mediation or to engage in other alternative means of dispute
resolution.
009.11C6 If
it is determined there has been a failure to comply, there will be included in
the notification of findings the specific steps which must be taken by the
school district or approved cooperative to bring the school district or
approved cooperative into compliance, including technical assistance,
negotiations and corrective actions necessary to achieve compliance. The
notification shall also set forth a reasonable period of time to voluntarily
comply.
009.11C7 If the school
district or approved cooperative does not demonstrate compliance within the
period of time set forth in the notice of findings, the matter will be subject
to the procedures outlined in 92 NAC 51-004.09.
009.11C8 lies If a written complaint is
received that is also the subject of a due process hearing under 92 NAC 55, or
contains multiple issues of which one or more are part of that hearing, the
Office of Special Education officials shall set aside any part of the state
complaint that is being addressed in the due process hearing, until the
conclusion of the hearing. However, any issue in the state complaint that is
not a part of the due process action must be resolved using the time limit and
procedures described in 92 NAC 51-009.11.
009.11C9 If an issue is raised in a complaint
filed under 92 NAC 51-009.11 that has previously been decided in a due process
hearing involving the same parties:
009.11C9a
The hearing decision is binding; and
009.11C9b The Nebraska Department of
Education must inform the complainant to that effect.
009.11C10 A complaint alleging a school
district's or approved cooperative's failure to implement a due process
decision must be resolved by the Nebraska Department of
Education.
009.12 Mediation
009.12A School districts or approved
cooperatives shall implement the procedures established in Section 009 to allow
parties to resolve disputes involving any matter described in 92 NAC
51-009.05A1 and 009.05A2 including matters arising prior to the filing of a due
process hearing petition through a mediation process which, at a minimum, shall
be available whenever a hearing is requested under 92 NAC 55.
009.12A1 The procedures for seeking mediation
initiated by either the parent(s) or school district or approved cooperative
include:
009.12A1a Contacting the Nebraska
Office of Dispute Resolution who will
009.12A1b Arrange a meeting, invite both
parties and conduct the mediation in an attempt to resolve the
dispute.
009.12B
The procedures shall ensure that the mediation process:
009.12B1 Is voluntary on the part of the
parties;
009.12B2 Is not used to
deny or delay a parent's right to a due process hearing under 92 NAC 55, or to
deny any other rights afforded under this Chapter; and
009.12B3 Is conducted by a qualified and
impartial mediator who is trained in effective mediation
techniques.
009.12C The
school district or approved cooperative may implement the procedures in Section
009 to offer parents and schools or approved cooperatives that choose not to
use the mediation process an opportunity to meet, at a time and location
convenient to the parents, with a disinterested party who is under contract
with:
009.12C1 A parent training and
information center or community parent resource center in this State
established under Section 671 or 672 of the IDEA, or
009.12C2 An appropriate alternative dispute
resolution entity to encourage the use, and explain the benefits of the
mediation process to the parents.
009.12D The Nebraska Department of Education
shall maintain a list of individuals who are qualified mediators and
knowledgeable in laws and regulations relating to the provision of special
education and related services for use by school districts, approved
cooperatives, and parents.
009.12E
The Nebraska Department of Education shall bear the cost of the mediation
process, including the costs of meetings described in 92 NAC
51-009.12C.
009.12F Each session in
a mediation process shall be scheduled in a timely manner and shall be held in
a location that is convenient to the parties to the dispute.
009.12G In the case that a resolution is
reached to resolve the complaint through the mediation process, the parties
shall execute a legally binding agreement that sets forth such resolution and
that:
009.12G1 States that all discussions
that occurred during the mediation process shall be confidential and may not be
used as evidence in any subsequent due process hearing or civil
proceeding;
009.12G2 Is signed by
both the parent and a representative of the agency who has the authority to
bind such agency; and
009.12G3 Is
enforceable in any State court of competent jurisdiction or in a district court
of the United States.
009.12H Discussions that occur during the
mediation process shall be confidential and may not be used as evidence in any
subsequent due process hearings or civil proceedings of any federal court or
state court of a state receiving assistance under Part B of the IDEA as amended
in 2004.
009.12I An individual who
serves as a mediator under this Chapter:
009.12I1 May not be an employee of:
009.12I1a The Nebraska Department of
Education or of the school district or approved cooperative that is involved in
the education or care of the child; or
009.12I1b An agency that is providing direct
services to a child who is the subject of the mediation process; and
009.12I2c Must not have a personal or
professional interest that conflicts with the person's
objectivity.
009.12I2 A
person who otherwise qualifies as a mediator is not an employee of a school
district or approved cooperative or the Nebraska Department of Education solely
because he or she is paid by the agency to serve as a
mediator.
009.13 Resolution Process
009.13A Resolution Meeting
009.13A1 Within 15 days of receiving notice
of the parent's due process complaint, and prior to the initiation of a due
process hearing under 92 NAC 55, the school district or approved cooperative
must convene a meeting with the parent and the relevant member or members of
the lEP team who have specific knowledge of the facts identified in the due
process complaint that:
009.13A1a Includes a
representative of the school district or approved cooperative who has
decision-making authority on behalf of that school district or approved
cooperative; and
009.13A1b May not
include an attorney to the school district or approved cooperative unless the
parent is accompanied by an attorney.
009.13A2 The purpose of the meeting is for
the parent of the child to discuss the due process complaint, and the facts
that form the basis of the due process complaint, so that the school district
or approved cooperative has the opportunity to resolve the dispute that is the
basis for the due process complaint.
009.13A3 The meeting described in 92 NAC
51-009.13A1 and 009.13A2 need not be held if:
009.13A3a The parent and the school district
or approved cooperative agree in writing to waive the meeting; or
009.13A3b The parent and the school district
or approved cooperative agree to use the mediation process described in 92 NAC
51-009.12.
009.13A4 The
parent and the school district or approved cooperative determine the relevant
members of the lEP team to attend the meetings.
009.13B Resolution Period
009.13B1 If the school district or approved
cooperative has not resolved the due process complaint to the satisfaction of
the parent within 30 days of the receipt of the due process complaint, the due
process hearing may occur.
009.13B2
Except as provided in this section, the timeline for issuing a final decision
begins at the expiration of this 30-day period.
009.13B3 Except where the parties have
jointly agreed to waive the resolution process or to use mediation,
notwithstanding 92 NAC 51-009.13B1 and 009.13B2, the failure of the parent
filing a due process complaint to participate in the resolution meeting will
delay the timelines for the resolution process and due process hearing until
the meeting is held.
009.13B4 If
the school district or approved cooperative is unable to obtain the
participation of the parent in the resolution meeting after reasonable efforts
have been made (and documented using the procedures in 92 NAC 51-007.06D), the
school district or approved cooperative may, at the conclusion of the 30-day
period, request that a hearing officer dismiss the parent's due process
complaint.
009.13B5 If the school
district or approved cooperative fails to hold the resolution meeting specified
in 92 NAC 51-009.13A within 15 days of receiving notice of a parent's due
process complaint or fails to participate in the resolution meeting, the parent
may seek the intervention of a hearing officer to begin the due process hearing
I timeline.
009.13C
Adjustments to the 30-day Resolution Period
009.13C1 The 45-day timeline for the due
process hearing starts the day after one of the following events:
009.13C1a Both parties agree in writing to
waive the resolution meeting;
009.13C1b After either the mediation or
resolution meeting starts but before the end of the 30-day period, the parties
agree in writing that no agreement is possible.
009.13C1c If both parties agree in writing to
continue the mediation at the end of the 30-day resolution period, but later,
the parent or the school district or approved cooperative withdraws from the
mediation process.
009.13D Written Settlement Agreement
009.13D1 If a resolution to the dispute is
reached at the meeting described in 92 NAC 51-009.13A1 and 009.13A2, the
parties must execute a legally binding agreement that is:
009.13D1a Signed by both the parent and a
representative of the school district or approved cooperative who has the
authority to bind the school district or approved cooperative; and
009.13D1b Enforceable in any State court of
competent jurisdiction or in a district court of the United States.
009.13E Agreement Review
Period
009.13E1 If the parties execute an
agreement pursuant to 92 NAC 51-009.13D, a party may void the agreement within
3 business days of the agreement's execution.
009.14 Special Education Due Process Hearings
009.14A Whenever a due process complaint has
been received under 92 NAC 55 or Section 016 of this Chapter, the parents or
the school district or approved cooperative shall have an opportunity for an
impartial due process hearing consistent with the procedures in 92 NAC 55 and
92 NAC 51-009.13.
009.14B A parent
or a school district or approved cooperative may initiate a hearing on any of
the matters described in 92 NAC 51-009.05A relating to the identification,
evaluation or educational placement of the child with a disability, or the
provision of FAPE to the child by filing a petition pursuant to 92 NAC
55.
009.14C When a hearing is
initiated under 92 NAC 55, the school district or approved cooperative shall
inform the parents of the availability of mediation described in 92 NAC
51-009.12.
009.14D The school
district or approved cooperative shall inform the parent of any free or
low-cost legal and other relevant services available in the area if the parent
requests the information or if the parent or the school district or approved
cooperative initiates a hearing under 92 NAC 55.
009.14E Any party to a due process hearing
has the right to be accompanied and advised by counsel and by individuals with
special knowledge or training with respect to the problems of children with
disabilities.
Notes
State regulations are updated quarterly; we currently have two versions available. Below is a comparison between our most recent version and the prior quarterly release. More comparison features will be added as we have more versions to compare.
No prior version found.