With schools all in session and the excitement of fall (pumpkins, high school athletics, cooler weather, Husker football?), many school administrators have likely already put the last Unicameral session out of their minds. As these blog posts often do, we are here to give you homework (insert collective groans and boos)! LB 705 was signed by the Governor on June 1, 2023. Ultimately, LB 705 made a few substantive changes to the option enrollment laws we want to remind you about today.
If you are a KSB Policy Service Subscriber, you received a memo from us yesterday explaining the changes and all of the new legal and reporting requirements. We also sent an updated sample resolution and a sample denial letter to use to supplement NDE’s option application form. If your district is not a KSB Policy Service Subscriber, let us know if you would like to purchase the additional information and forms.
Special Education Applications. Special education option applications must be reviewed on a case-by-case basis. School districts can no longer declare that the district’s entire special education program is at capacity or set capacity numbers for their special education programs. This change has been in effect since September 2, 2023.
If an option application indicates that a student has an individualized education plan (IEP) or has been diagnosed with a disability as defined under your the director of special education services must review the students’s IEP. The special education director must determine if the school district has the capacity to provide the student with their services and accommodations. If you deny the application, you must identify the programs, services, and accommodations you cannot provide.
Programmatic Capacity. If the school board wants to declare a program, class, or school unavailable (i.e., “closed” for all options students) for the following school year, the board must pass a resolution with such a declaration prior to October 15th of the previous school year, making the effective deadline October 14. This cannot include your special education program. We refer to this as “Programmatic Capacity,” where you declare a program, class, or building closed and unavailable to any option students.
Numeric Capacity. You can still set specific capacity numbers for any “program, class, grade level, or school building” and can set those capacities later in the school year by resolution. The only requirement to act prior to October 15 is for declaring programs, classes, or buildings closed. As an example, you don’t have to decide by October 14 whether the capacity of your third grade classrooms is 20 students or 22 students or 26 students or whatever. As there is no specific statutory deadline for those determinations, your board can make those numeric capacity decisions later in the school year, if it prefers.
Other Standards. The law has always allowed the board to adopt standards beyond capacity. You can still consider and use other standards your board may have implemented in the past. Make sure to apply them without consideration of a student’s disability, prior discipline history, mastery of English, or other extracurricular abilities.
Building Capacity Reporting. Schools must annually establish, publish, and report the capacity for each school building under the district's control “according to procedures, criteria, and deadlines established by the Nebraska Department of Education.” This requirement specifically references “building” capacity. You are not required to publish or report other capacities you set.
Denied Application Reporting. Also, beginning on July 1, 2024, each school will have to report to NDE information related to rejected applications. NDE has indicated that it will require school districts to report (1) the number of option applications denied; (2) an explanation of each denial; and (3) if the applicant stated there was an IEP or student has been diagnosed with a disability, whether the district provided the application the specific reason for denial. NDE must also collect specific information from learning community schools. After discussions with NDE, they will do some form of data collection for this information in 2024 prior to the July 1 deadline, so you should be aggregating this now for all applications you deny.
If you are a KSB policy subscriber, we updated policy 5004 in June to reflect these changes, and we sent out the memo, sample resolution, and sample denial letter yesterday. If you have any questions about option enrollment or would like a copy of the resolution, please email ksb@ksbschoollaw.com or call us at (402) 804-8000.