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  • What is special education?
    • Special education programs in Nebraska are governed by both federal and state law, but in no circumstances may state provisions limit the protections offered under federal law. 
    • Under both federal and state law, school districts must provide each student with a disability with a free appropriate public education (FAPE).
  • Who is eligible for special education?
    • Children, from birth until twenty-one years of age, with a qualifying disability in need of specialized educational services in order to benefit from their education are entitled to receive special education and related services. 
    • Eligible disabilities include: 
      • autism; 
      • behavioral disorder; 
      • deaf-blindness; 
      • developmental delay; 
      • hearing impairment; 
      • mental handicap; 
      • multiple impairments; 
      • orthopedic impairments; 
      • other health impairments; 
      • specific learning disabilities; 
      • speech-language impairment; 
      • traumatic brain injury; and 
      • visual impairment including blindness. 

    20 U.S.C. Sec. 1401(3); 34 C.F.R. Sec. 300.8; 92 NE ADC Ch. 51 Sec. 006.04.

    • A child is not eligible for special education if the determining factor in the child’s exceptional needs is: 
      • a lack of instruction in reading, 
      • a lack of instruction in math, or 
      • limited English proficiency. 

    20 U.S.C. Sec. 1414(b)(5); 34 C.F.R. Sec. 300.306(b); 92 NE ADC Ch. 51 Sec. 006.03C.

    • Each school district or approved collective must also participate in a plan of services for children with disabilities under the age of five. 
    • To establish an Improving Learning for Children with Disabilities (ILCD) operating plan, the school district must involve: 
      • the family members of the children, 
      • representatives of the school district, 
      • the Nebraska Department of Health and Services, 
      • Head Start or Early Head start, 
      • child care providers, and 
      • any other relevant agencies 

    92 NE ADC Ch. 51 Sec. 005.

  • What type of education are children with a qualifying disability entitled to? What is a “free appropriate public education”?
    • Under both federal and state law, school districts must provide each student with a disability with a free appropriate public education (FAPE). 
    • FAPE means special education and related services that: 
      • are provided at public expense and without charge, 
      • meet appropriate standards, 
      • include preschool through secondary education, and 
      • conform with an Individual Education Program (IEP). 20 U.S.C. Sec. 1401(9); 34 C.F.R. 

    Sec. 300.17; 92 NE ADC Ch. 51 Sec. 003.27.

    • Special education must be provided in the least restrictive environment (LRE), and with students who are not disabled (to the extent appropriate). 34 C.F.R. Sec. 300.114. 
    • Special education means specially designed instruction, at no cost to the parent, to meet the unique needs of a child with disabilities: 
      • “adapting, as appropriate to the needs of an eligible child … the content, methodology, or delivery of instruction to address the unique needs of the child that result from the child’s disability and to ensure access of the child to the general curriculum, so that he or she can meet the educational standards within the jurisdiction of the public agency that apply to all children.” 34 C.F.R. Sec. 300.38(b)(3).  
    • An “appropriate” educational program and placement is one that: 
      • is designed to meet a student’s unique needs in accordance to his or her IEP 
      • allows him or her to obtain “educational benefit.” 
      • Allows him or her to be involved in and making progress in the general curriculum. 

    92 NE ADC Ch. 51 Sec. 006.02C5.

  • In addition to a free appropriate public education, are there other services a child with a disability is entitled to? What are “related services”?
    • School districts are required to provide free “related services” 
    • Related services may include: 
      • transportation, 
      • developmental, 
      • corrective, 
      • speech-language pathology and audiology services; 
      • interpreting services; 
      • psychological services; 
      • physical and occupational therapy; 
      • recreation, including therapeutic recreation; 
      • early identification and assessment of disabilities in children; 
      • counseling services, including rehabilitation counseling; 
      • orientation and mobility services; and 
      • medical services for diagnostic or evaluation purposes. 

    92 NE ADC Ch. 51 Sec. 003.54.

    • Related services do not include medical devices that are surgically implanted, such as: 
      • cochlear implants, 
      • the optimization of the device, 
      • the maintenance of the device, or 
      • the replacement of the device. 

    92 NE ADC Ch. 51 Sec. 003.54.

    • All school districts and approved cooperatives are responsible for providing appropriate special education services, under the supervision of the Nebraska Department of Education. 92 NE ADC Ch. 51 Sec. 004.
  • Where should a child receive his/her special education and related services? What is a “least restrictive environment”?
    • Special education must be provided in the least restrictive environment with their nondisabled peers (to the maximum extent appropriate). 
    • Students with disabilities may be removed from the regular educational environment only when the nature or severity of the disability is such that modifications, supplementary aids and services are insufficient in the general education environment. 20 U.S.C. Sec. 1412 (a)(5)(A); 34 C.F.R. Sec. 300.114. 
    • Specialized education can be offered in: 
      • the mainstream classroom, 
      • a resource room, 
      • at home, or 
      • in hospitals or residential programs
  • What is “Child Find”?
    • Each district is responsible for implementing a “Child Find” system to locate, identify, and evaluate students suspected of having a disability in need of special education services, from birth through age twenty-one. NEBRASKA SPECIAL EDUCATION PARENT GUIDE 
    • The school district will also accept referrals for evaluation directly from the parents, other agencies or school districts. 92 NE ADC Ch. 51 Sec. 006.02. 
    • Upon receiving the referral, the school district will first convene a Student Assistance Team to assist the teacher in the provision of general education. 
    • If the Assistance Team is unable to properly educate the student, the multidisciplinary evaluation team to determine whether the student needs special education. 92 NE ADC Ch. 51 Sec. 006.01C.
  • How is a child determined to be eligible for special education? Is there an assessment or evaluation?
    • A multidisciplinary team conducts evaluations or assessments, in the child’s primary language, in all areas of suspected disability that may include an assessment of: 
      • health, 
      • vision, 
      • hearing, 
      • social and emotional status, 
      • general intelligence, 
      • academic performance, 
      • communicative status, and 
      • motor abilities. 92 NE ADC Ch. 51 Sec. 006.02C10. 
    • Parents are entitled to a copy of the report at no cost. 

    92 NE ADC Ch. 51 Sec. 006.03F4.

    • If the parent disagrees with the findings or recommendations, the parent may request an independent education evaluation (IEE), which must be provided at no cost and considered at the child’s IEP. 

    92 NE ADC Ch. 51 Sec. 006.07.

  • Once a child is identified as being eligible for special education, what are the next steps? What is an “IEP” (Individualized Education Program)? Do parents have any say so in the IEP?
    • At the beginning of each school year, the school district must have an IEP in place for each child with a verified disability. 92 NE ADC Ch. 51 Sec. 007.02A. 
    • The IEP outlines in writing the educational program for the student, developed at a meeting by a team including: 
      • the parent, 
      • a special education teacher, 
      • a regular education teacher, and 
      • a district representative who is qualified to provide or supervise the provision of specially designed education. 
    • Other participants may include any individuals who have knowledge or special expertise regarding the child, including related service personnel. 92 NE ADC Ch. 51 Sec. 007.03A. 
    • The IEP must include: 
      • a statement of the child’s present levels of academic achievement; 
      • a statement of measurable annual goals; 
      • a description of benchmarks or short-term objectives; 
      • a description of how the child’s progress will be measured, and when periodic reports of progress will be provided; 
      • a statement of the special education and related services to be provided to the child; 
      • an explanation of the extent to which the child will not participate with nondisabled children in the regular class; 
      • a statement of any individual appropriate accommodations that are necessary to measure the functional performance of the child; and 
      • the expected date for the beginning of the services, and anticipated location and duration of those services 

    92 NE ADC Ch. 51 Sec. 007.07.

    • A student with disabilities is not allowed to participate in any part of a special education program without written parental consent to the IEP. 92 NE ADC Ch. 51 Sec. 009.08. 
    • If a student with an IEP transfers from another state or one Nebraska school district to another within the same school year, the receiving district must: 
      • continue to provide FAPE to the child 
      • provide services comparable to those described in the previously held IEP, until the district either adopts the previously held IEP, or develops and implements a new IEP 51 Sec. 007.08.
  • What if a parent believes the school district is not doing its job (i.e. failing to implement a valid Individualized Education Plan (IEP))?
    • The IEP team must revise the IEP as necessary if the child experiences a lack of expected progress. 92 NE ADC Ch. 51 Sec. 007.10. 
    • If a parent believes the district has failed to implement a valid IEP or has failed to follow special education law, or is discriminating against a student or a group of students, the parent may file a written, signed, complaint directly with the Nebraska Department of Education, Special Populations Office. 
    • The complaint should: 
      • state the relevant problems, 
      • include relevant facts, and 
      • include the child’s name, residency, and school district. 
    • The parent must also provide a copy of the complaint to the school district serving the child at the time the complaint is filed. 92 NE ADC Ch. 51 Sec. 009.11. 
    • Within sixty days of receiving the complaint, the Department of Education, Special Education Office, will review all of the relevant information and provide a written notification of all findings of facts and conclusions to all persons involved. 92 NE ADC Ch. 51 Sec. 009.11C4.
  • What options does a parent have if he or she disagrees with the proposed IEP placement or services? What are the procedures for due process?
    • The parent is entitled to file for due process with the Department of Education within one year of the failure or violation. 92 NE ADC Ch. 51 Sec. 009.11. 
    • The complaint must include: 
      • a statement that the school district has not complied with the special education laws;
      • the facts on which that statement is based; 
      • your signature and contact information; 
      • the name and address of the child; 
      • the name of the school the child is attending; 
      • a description of how the problem is affecting the child; and 
      • and a proposed resolution to the problem. 

    92 NE ADC Ch. 51 Sec. 009.11B.

    • and a decision will be made within sixty days. 
    • The parent and district must participate in an informal resolution meeting within fifteen days unless both parties agree to waive it. 
      • If the parties reach an agreement at the resolution meeting, the agreement must be put in writing 
      • If not revoked within three days, the agreement is binding and enforceable in state or federal court. 92 NE ADC Ch. 51 Sec. 009.13D. 
    • The parent and district can also voluntarily participate in a confidential mediation meeting, an informal resolution meeting to resolve conflicts. 
    • The parent may: 
      • bring an attorney 
      • bring an advocate 
      • present witnesses and evidence 
      • cross-examine witnesses and evidence presented by the district. 

    92 NE ADC Ch. 55 Sec. 007

  • Can a special education student be disciplined?
    • Students with disabilities may be suspended for any one of the misbehaviors on the list of prohibited activities that applies to all students in the code of student conduct 
    • For not more than ten consecutive days, school personnel may remove the student to: 
      • an appropriate alternative educational setting, 
      • another setting, or 
      • suspension 
    • If the disciplinary change would be more than ten consecutive days, it constitutes a change in placement. 
    • The school district, the parent, and the rest of the IEP team must conduct a manifestation determination. 
    • A manifestation determination meeting, held within ten days, is a meeting of the relevant members of the IEP team to determine whether a child with a disability may be expelled or have his placement changed for more than ten consecutive school days for misconduct. 
    • The team must consider two issues: 

    (i) was the behavior caused by, or did it have a direct and substantial relationship to, the
    child’s disability?
    (ii) was the behavior the direct result of the school’s failure to implement the IEP?
    92 NE ADC Ch. 55 Sec. 016.02E.

    • If the team answers yes to either question, the child cannot be expelled and a placement change would require the consent of the parent or a hearing officer’s order. 
    • If the IEP team determines that the behavior is a manifestation of the child’s disability, the child must return to his original placement, unless the parents and school agree otherwise. 
    • If the team denies that the behavior is a manifestation of the child’s disability, the parent may appeal by requesting a due process hearing. 
      • The appeal should be resolved within thirty days, and meanwhile, the child must remain in the interim setting and continue to participate 
    • Schools cannot change special education students’ placements without parental consent or a manifestation determination meeting, except for certain behaviors such as: 
      • Drug involvement 
      • Possession of weapons 
      • Presents a danger to himself or others.
  • Can parents see the school records of their special education child?
    • Parents are guaranteed the opportunity to inspect and review all the education records of their child concerning the child’s identification, evaluation, educational placement, and the provision of FAPE to the child. 
    • If the parent requests records, the district of education agency must provide them within forty-five days and before any meeting regarding an IEP or resolution hearing 
      • If the parent believes that the information in the records is inaccurate, misleading, or violates the privacy rights of the child, the parent may request that the agency amend the record.