Last year, the Nebraska Department of Education released updated Guidance regarding the development of local special education policies and procedures. Since then, we’ve had several schools ask whether they should, shouldn’t, or must update their special education policies and procedures to remain compliant. As policy season looms, we wanted to get everyone on the same page about where things stand.
Your current special education policies and procedures are (probably) compliant.
If you subscribe to our policy service or have purchased our special education procedures document, we are delighted to assure you that your current special education procedures are fully compliant with state and federal law. The Department has confirmed this on numerous occasions since we last updated those policies in 2019. And there haven’t been any relevant changes to the IDEA or Rule 51 since then.
Additionally, while defending clients from Rule 51 complaints we’ve reviewed the special education policies and procedures produced by the Perry Law Firm and believe they are also compliant.
So, if your school utilizes either of these policies and procedures and has kept them updated, you aren’t required to make any changes at this time. However, if you hear anything differently from the Department or any other administrative agency, let us know.
So what’s the hubbub about?
The Department’s Guidance not only discussed the minimum requirements for policies and procedures, but also incorporated several suggestions and recommendations that the Department considers best practices. As a result, unless you compare the Guidance with the text of the IDEA regulations and Rule 51, it can be difficult to distinguish between what is and isn’t required. To make it even more complex, the recommendations call for the development of materials and resources that don’t look like the “procedures” most school districts are familiar with. As a result, many in the educational community were concerned about the vast disparity between the (fully compliant) policies and procedures currently in use and the best practices and recommendations of the Department.
What’s wrong with best practices being incorporated into policies and procedures?
Nothing. . . if you live in a perfect world and follow them perfectly. On the other hand, if you incorporate best practices and recommendations into your policies and procedures and can’t adhere to them with complete fidelity, you could be unnecessarily exposing yourself to liability or a finding of noncompliance – even if you fully complied with Rule 51! Remember, Rule 51 and the IDEA establish the floor for compliance, but you may heighten your obligations through the adoption of local policies and procedures. As a result, we want to make sure that any policies and procedures are developed mindfully and in recognition of what is, and isn’t, required.
Stay tuned. . .
So, for now, it’s time to hurry up and slow down. We’re wary that hasty changes to the policies and procedures will make compliance more difficult, rather than less. We are in the process of working with NDE to create a set of “best practices” resources that we are comfortable providing to districts. That additional resource will not be required but we are hopeful that it will be useful. We will let our KSBlog subscribers know once we have these procedures developed and approved by NDE.
In the meantime, if you have any questions, don’t hesitate to send us an email at ksb@ksbschoollaw.com, or call Karen, Steve, Bobby, Coady, Jordan, Tyler or Sara at (402) 804-8000.
P.S. Without much fanfare, changes to the transition requirements in Rule 51 were signed by the Governor, approved by the Attorney General, and went into effect on May 17, 2022. The most up-to-date version of the rule can be accessed here. Under the new changes, school districts must develop and include transition plans into the IEP of all students “beginning not later than the first IEP to be in effect when the child turns 14.” This change to Rule 51 was necessary to bring the rule into alignment with the change to state law that the Unicameral made last year.
P.P.S. We have had several policy service subscribers ask when our 2022 policy updates will be out. They may be distributed as early as next week, but our hard deadline is that you will have them no later than May 31. We are excited to show our subscribers the cool new interface that we are launching! You will also all be THRILLED to know that this year there are not a ton of required updates. Our policy subscriber webinar is June 9, 2022 at 10:00 a.m. CST.