Current through March 20, 2024
004.01 All providers of special education
services shall be under the general supervision of the Nebraska Department of
Education for the purpose of meeting the standards of this Chapter. School
districts and approved cooperatives shall ensure that all children with
verified disabilities, from birth through the school year in which the child
reaches age twenty-one, including children who have been suspended or expelled
from school, have available to them a free appropriate public education (FARE)
which includes special education and related services to meet their unique
needs. School districts and approved cooperatives responsibility to ensure the
availability of FARE includes ensuring the availability of FARE for resident
children in detention facilities, correctional facilities, jails, and
prisons.
004.02 The school district
or approved cooperative shall ensure that FARE is available to any individual
child with a disability who needs special education and related services, even
though the child has not failed or been retained in a course or grade and is
advancing from grade to grade.
004.02A The
determination that a child described in 92 NAC 51-004.02 is eligible under this
Chapter must be made on an individual basis by the multidisciplinary evaluation
team.
004.03 Exceptions
to the Requirement to Provide a Free Appropriate Public Education
004.03A Children with disabilities who have
graduated from high school with a regular high school diploma are not eligible
to receive a FARE.
004.03A1 The exception in
92 NAC 51-004.03A does not apply to children who have graduated but have not
been awarded a regular high school diploma.
004.03A2 Graduation from high school with a
regular diploma constitutes a change in placement, requiring written prior
notice in accordance with 92 NAC 51-009.05.
004.03A3 As used in this section, the term
regular high school diploma does not include an alternative
degree that is not fully aligned with the state's academic standards such as a
certificate or a general educational developmental credential (GED).
004.04 At the request of
a parent or guardian, a school district shall issue a certificate of attendance
to a student who receives special education services under 92 NAC 51, who has
reached seventeen years of age, and who has not completed his or her
individualized education program. A school district shall allow a student who
receives a certificate of attendance under this section to participate in the
high school graduation ceremony of such high school with students receiving
high school diplomas. A student may receive only one certificate of attendance
and may participate in only one-graduation ceremony based on such certificate.
The receipt of a certificate of attendance pursuant to this section shall not
affect a school district's obligation to continue to provide special education
services to a student receiving such certificate.
004.04A Section 004.04 does not preclude a
student from receiving a high school diploma by meeting the school district's
graduation requirements established pursuant to Neb. Rev. Stat. §
79-729 or in his or her
individualized education program or receiving a diploma of high school
equivalency under Neb. Rev. Stat. §
79-730 upon completing the
requirements of such section. The school district may allow a student who has
previously participated in a graduation ceremony based on a certificate of
attendance to participate in an additional graduation ceremony when such
student receives a high school diploma.
004.05 Participation in Assessments
004.05A School districts shall include all
public school children with disabilities in all general state and district-wide
assessment programs, including assessments described under section
612(a)(16)(A) of the Individuals with Disabilities Education Act of 2004 (See
Appendix A), with appropriate accommodations and alternate assessments where
necessary and as indicated in their respective individualized education
programs.
004.05B In the case of a
district-wide assessment, the school district shall develop guidelines for the
provision of appropriate accommodations.
004.05C In the case of a district-wide
assessment, the school district shall develop and implement guidelines for the
participation of children with disabilities in alternate assessments for those
children who cannot participate in regular assessments under 92 NAC 51-004.05A
with accommodations as indicated in their respective individualized education
programs. The guidelines shall provide for accommodations and alternate
assessments that:
004.05C1 Are aligned with
the Nebraska Department of Education's challenging academic content standards
and challenging student academic achievement standards; and
004.05C2 If the Nebraska Department of
Education has adopted alternate academic achievement standards permitted under
Section 612(a)(16)(C)(ii)(ll) of the Individuals with Disabilities Education
Act of 2004 (See Appendix A), measure the achievement of children with
disabilities against those standards.
004.05D School districts shall make available
to the public, and report to the public with the same frequency and in the same
detail as they report on the assessment of nondisabled children, the following:
004.05D1 The number of children with
disabilities participating in regular assessments, and the number of those
children who were provided accommodations in order to participate in these
assessments.
004.05D2 The number of
children with disabilities participating in alternate assessments described in
92 NAC 51-004.05C1.
004.05D3 The
number of children with disabilities participating in alternate assessments
described in 92 NAC 51-004.05C2.
004.05D4 The performance results of children
with disabilities on regular assessments and on alternate assessments (if the
number of children with disabilities participating is sufficient to yield
statistically reliable information and reporting that information will not
reveal personally identifiable information about an individual child), compared
with the achievement of all children, including children with disabilities, on
those assessments.
004.05E In the case of a district-wide
assessment, the school district or approved cooperative shall, to the extent
feasible, use universal design principles in developing and administering any
assessments under this Section.
004.06 Reporting of Information Regarding
Children with Disabilities
004.06A Individual
child information shall be reported electronically via the NDE Portal. Each
school district or approved cooperative shall maintain and report the following
information for children with verified disabilities receiving services
according to an individualized education program.
004.06A1 Name (or identifier approved by NDE)
and birthdate;
004.06A2 County,
district of legal residence and building of attendance;
004.06A3 Program and instructional setting
attended;
004.06A4 Type(s) of
disability;
004.06A5
Race/ethnicity, gender, and limited English proficiency;
004.06A6 Type(s) of service
received;
004.06A7 Indication of
percent of time spent receiving special education service (for inclusive and
segregated settings) and in regular education;
004.06A8 Date and reason for exiting special
education;
004.06A9 State Ward
Status and indication of appointment of surrogate if required;
004.06A10 Initial verification date and
disability for children verified pursuant to 92 NAC 51-006.04;
004.06A11 Whether the child received a
regular diploma based on the same standards as general education peers or based
on the goals met in the child's lEP.
004.06B This data shall be updated at least
annually to reflect change(s) in the above information.
004.06C Public special purpose school systems
accredited under 92 NAC 10 and school districts or approved cooperatives shall
prepare an accurate and unduplicated child count as of October 1 of each year.
The October 1 child count shall be approved and submitted electronically by the
portal administrator or designee via the NDE portal on or before October 31 of
each year.
004.06D Public special
purpose school systems accredited under 92 NAC 10 and school districts or
approved cooperatives shall prepare an accurate and unduplicated year-end child
count as of June 30 of each year. The June 30 year-end child count shall be
approved and submitted electronically by the portal administrator or designee
via the NOE portal on or before June 30 of each year.
004.06E School districts and approved
cooperatives shall report their incidences, duration, and count of removals,
suspensions, and expulsions of children receiving special education services by
June 30 of each year. The report must be disaggregated by race/ethnicity,
gender, LEP status and disability category.
004.07 A school district or approved
cooperative shall submit a single district plan, participate in a plan
submitted by a cooperative approved by the Department of Education, or any
combination thereof. The State Board of Education shall approve or disapprove
cooperatives for direct receipt of payment based on the following criteria:
004.07A The cooperative must be administered
by a school district or an Educational Service Unit;
004.07B The participating school districts
have certified that the cooperative is authorized to receive special education
payments due the districts;
004.07C
The cooperative provides evidence of agreements and procedures which provide
for long term operation;
004.07D
The cooperative proposes to operate programs which can be expected to increase
program and financial efficiency and effectiveness; and
004.07E The cooperative provides evidence
that the proportionate financial share as determined by the provisions of
Sections 011 and 012 of each participating school district can be determined
and documented.
004.08
School District or Approved Cooperative Special Education Policies and
Procedures
004.08A The school district or
approved cooperative shall develop, adopt and have on file with the Nebraska
Department of Education current policies, procedures and forms for special
education programs for all resident public and nonpublic school children with
disabilities, in accordance with all applicable state and federal requirements.
Policies and procedures shall govern identification, evaluation and
verification, individualized education program, placement (least restrictive
environment), confidentiality, procedural safeguards, comprehensive system of
personnel development, transportation, and surrogate parents within the school
district or approved cooperative. Additionally, policies and procedures shall
govern free appropriate public education, child find, transition from Part C of
the IDEA to preschool programs, children in nonpublic schools, personnel
standards, performance goals and indicators, participation in assessments,
reporting related to assessment results, and suspension and
expulsion.
004.09 Notice
and Opportunity for Hearing Before Withholding Funds
004.09A A school district or an approved
cooperative shall be notified by certified mail to the head administrator
whenever the Office of Special Education intends to recommend to the State
Board of Education that funds be withheld from the school district or approved
cooperative.
004.09B Within 21
calendar days of the school district's or approved cooperative's receipt of the
notice of the Office of Special Education's intention to recommend withholding
funds to the State Board of Education, the school district or approved
cooperative may request in writing a review by the Commissioner or designee.
Following the review, the Commissioner or designee shall:
004.09B1 Notify the school district or
approved cooperative by certified mail that, based upon the review, (s)he will
recommend to the State Board of Education that funds be withheld from the
school district or approved cooperative, or
004.09B2 Notify the school district or
approved cooperative that funds will not be withheld.
004.09C Within 30 calendar days of receipt of
the notice of the Commissioner's intention to withhold funds, the school
district or approved cooperative may request in writing a hearing before the
State Board of Education. The hearing shall be conducted in accordance with the
hearing procedures of 92 NAC 61, including provisions of that Chapter relating
to evidence.
004.10
Children with Disabilities who are Wards of the State or Court
004.10A Responsibility for the provision and
payment of a free appropriate public education for wards of the state or court
is determined pursuant to Neb. Rev. Stat. §
79-215.
004.11 Special Requirements
004.11A Each school district or approved
cooperative shall take steps to ensure that its children with verified
disabilities have available to them the variety of educational programs and
services available to children without disabilities in the areas served by the
school district including art, music, industrial arts, family consumer science
education, and vocational education.
004.11B Each school district or approved
cooperative shall comply with any federal health or safety requirements that
apply to the facilities that the school district or approved cooperative uses
to provide a free appropriate public education for children with verified
disabilities.
004.11C Each school
district or approved cooperative shall administer or supervise the
administration of all educational programs for children with verified
disabilities.
004.11D Prohibition
on mandatory medication:
004.11D1 The school
districts, approved cooperatives and special education and related services
providers are prohibited from requiring parents to obtain a prescription for
substances identified under Schedules I, II, III, IV or V in section 202(c) of
the Controlled Substances Act (21 U.S.C. 812(c))
for the child as a condition of attending school, receiving an evaluation under
Section 006 of this Chapter, or receiving services under 92 NAC 51.
004.11D2 Nothing in 92 NAC 51-004.11D1 shall
be construed to create a prohibition against teachers and other school
personnel consulting or sharing classroom-based observations with parents or
guardians regarding a child's academic and functional performance, or behavior
in the classroom or school, or regarding the need for evaluation for special
education or related services.
004.12 Innovative Educational Projects
004.12A School districts and approved
cooperatives wishing to conduct innovative educational projects for the purpose
of improving instruction or increasing educational opportunities for children
with disabilities that would result in deviating from the standards in this
Chapter, shall submit a detailed written plan to the Commissioner of Education.
004.12A1 The length of the project must be
specified in the plan, not to exceed three years, and must provide for an
annual review of the progress of the program.
004.12A2 If the submitted project requires a
waiver of any of the provisions of this Chapter which are not required by State
statute and Federal law or regulation, the Commissioner shall submit the plan
to the State Board of Education with recommendations.
004.12A3 The State Board of Education may
approve the requested plan if the plan demonstrates that it promotes quality
learning, equity, accountability^, and that the Commissioner of Education will
be informed annually of the progress and the project results.
004.12A4 The State Board of Education shall
reject the plan if, in its opinion, the plan would not promote quality
learning, equity, accountability or if it does not provide that the
Commissioner of Education will be informed annually of the progress of the
plan. The State Board of Education shall also reject the plan if, in the State
Board of Education's opinion, the plan results in a deviation of standards
contained in this Chapter which are specifically required by statute or federal
law or regulation.
004.13 All school districts or approved
cooperatives shall participate in an ongoing review of their special education
programs for purposes of improving outcomes utilizing the Improving Learning
for Children with Disabilities self assessment process (ILCD).
004.14 All special education programs shall
comply with the requirements of state and federal law and regulation concerning
the education of children with disabilities and shall be monitored at least
once every five years for compliance with state and federal special education
law and regulation.
004.14A Failure to comply
with the provisions of state and federal statute and administrative rules
concerning education of children with disabilities shall result in notification
of school districts or approved cooperatives of the specific program
deficiencies by the Office of Special Education.
004.14B School districts or approved
cooperatives shall be afforded 45 days to respond to the initial notification
with a report of the resolution of the deficiencies or a plan for
resolution.
004.14C School
districts or approved cooperatives failing to respond as set forth in 92 NAC
51-004.14B shall be afforded an additional 30 days following contact from the
Administrator of the Office of Special Education or the designee of the
Administrator to submit a plan for resolution of the deficiencies.
004.14D Deficiencies must be corrected as
soon as possible, and in no case later than one year after the school district
or approved cooperative has been notified of the noncompliance. Deficiencies
not corrected according to the timelines set forth in 92 NAC 51-004.14 shall be
subject to the procedures outlined in 92 NAC 51-004.09.
004.14E Any school district or approved
cooperative not meeting the requirements of this Chapter shall be in violation
of the law. No state or federal funds shall be paid to any school district or
approved cooperative as long as such violation exists, but no deduction shall
be made from any funds required by the Constitution of the State of Nebraska to
be paid to such district or approved cooperative.
004.14F The Nebraska Department of Education
will monitor school districts and approved cooperatives on the implementation
of IDEA as amended in 2004 as required by
34 CFR
300.600 including the enforcement provision
contained in 34 CFR
300.604(a)(1) and (a)(3), (b)(2)(i) and (b)(2)(v) and
(c)(2) and annually report on the districts'
and cooperatives' performance.
004.15 Access to Instructional Materials
004.15A A school district or approved
cooperative that chooses to coordinate with the National Instructional
Materials Access Center (NIMAC) when purchasing print instructional materials
shall enter into a written contract with the publisher of the print
instructional materials to:
004.15A1 Require
the publisher to prepare and, on or before the delivery of the print
instructional materials, provide to the National Instructional Materials Access
Center, electronic files containing the contents of the print instructional
materials using the Instructional Materials Accessibility Standard (NIMAS);
or
004.15A2 Purchase instructional
materials from a publisher that are produced in or may be rendered in
specialized formats.
004.15B Nothing in this section shall be
construed to require a school district or approved cooperative to coordinate
with the National Instructional Materials Access Center. If a school district
or approved cooperative chooses not to coordinate with the National
Instructional Materials Access Center, the school district or approved
cooperative shall provide an assurance to the Nebraska Department of Education
that the school district or approved cooperative will provide instructional
materials to children with blindness or other children with print disabilities
at the same time as other children.