In recent years, we have noticed an uptick in Rule 51 complaints against school districts. As a refresher, Rule 51 is the administrative code for special education enforced by the Nebraska Department of Education. This summer, our awesome law clerk Amanda went through all the recent final investigative reports posted on NDE’s website and analyzed the data. In general, the percent of investigations requiring corrective action has increased substantially from the 2020-2021 school year through the 2022-2023 school year. From our analysis, we noticed several interesting trends and compliance areas schools should review.
First, prior written notices continue to be an invaluable tool for special education teachers, administrators, and lawyers. In 2022-2023, 37% of the number of issues flagged in the Procedural Safeguards section of Rule 51 (section 009) related to prior written notice. The majority of the investigative reports surrounding this subsection were geared towards instances when a PWN should have been provided and not about the actual substance of the PWN. As a refresher, the NDE tip sheet provides that a district must send a PWN when it “proposes to initiate or change the identification, evaluation, or educational placement of [a] child; proposes to initiate or change the provision of a free, appropriate public education (FAPE to [a] child; refuses to initiate or change the identification, evaluation, or educational placement of [a] child; or refuses to initiate or change the provision of FAPE to [a] child.” The investigative reports provided instances where PWNs were not provided as legally required such as: a district refusing to provide transportation, when amendments to the IEP occur, when there is a change of placement, including a change of placement relating to student discipline, and when the district denies a parent request for services such as additional paraprofessional support or therapy.
In general, the IEP section of Rule 51 (section 007) represents the area with the largest investigative draw. Specifically, 51-007.07, IEP development, had the highest area of corrective actions required. Of those reports, six involved corrective action regarding the supplementary aids/modifications provided in the IEP. What does this mean for schools? IEP teams must include the projected date, frequency, location, and duration in the program modifications and accommodations sections of the IEP. Because of the current SRS programming, this means you will likely need to create an Excel spreadsheet or Google sheet to copy and paste into the IEP which includes the required data. Simply listing “as needed” is not legally sufficient. In addition to this focus area, schools should continue to focus on goal writing, baseline data, and measurement of goals.
Another area of compliance under sections 007.02C and 007.02D is the accessibility of a student’s IEP to each “regular education teacher, special education teacher, related service provider, and other service provider who is responsible for its implementation.” This includes informing the teacher of “his or her specific responsibilities related to implementing the child’s IEP.” Schools must proactively ensure all teachers and service providers (including substitute teachers) receive and review a student’s IEP. It is not legally sufficient to simply place a copy of the student’s IEP in each staff member’s mailbox. We recommend reviewing your internal procedure for informing staff of IEP responsibilities.
If you have questions about these issues or would like to schedule a special education training/PD session for your general education staff, please contact Karen, Steve, Bobby, Coady, Tyler, Sara, or Jordan, or send us all an email at ksb@ksbschoollaw.com.