All children should have the same chances to succeed in their academic and personal lives, including those with disabilities. Unfortunately, when children with disabilities enter the public school system, it can sometimes be quite difficult for parents or guardians to get their children proper support and accommodations. However, the United States has a federal law that specifies that public school districts must provide students with disabilities with an Individualized Education Plan (IEP) from kindergarten through twelfth grade. Additionally, many states, Nebraska included, have the power to define and expand these laws. Thus, it is incredibly important to understand how Nebraska regulates and implements IEP law so that you can pursue one for your child.
We've collected the most common questions about IEPs in Nebraska and listed them below. For more information, please schedule a consultation with Lento Law Firm today or call us at 888-535-3686.
What is an IEP?
Under the Individuals with Disabilities Education Act (IDEA), IEPs are legally binding documents that summarize and specify the services, accommodations, and support a specific student with a disability would need to prosper in school. For a student to qualify for help under the IDEA, they must have a listed disability. Eligible disability will fall into one, or more, of the following categories:
- Orthopedic impairment
- Health impairments
- Emotional disturbances
- Intellectual disability
- Hearing impairment
- Deafness
- Speech or language impairment
- Autism
- Visual impairments or blindness
- Traumatic brain injury
- Specific learning disabilities
- Multiple disabilities
According to the IDEA, disabilities that fall under “emotional disturbance” are defined as:
- Having an inability to learn, which is not caused by the student's health, sensory, or intelligence.
- Being able to foster or start relationships with other people.
- Having inappropriate feelings or behaviors under normal situations.
- Sadness or despair.
- Developing physical symptoms or fear because of people or problems at school.
Before your child can receive a comprehensive IEP, there are a few steps that need to be completed first. For instance, if your child's teacher has failed to suggest an IEP evaluation, you will have to request one from the school. During the IEP evaluation, your child, their teacher, and at least one person qualified to conduct the evaluation (like the school psychologist) will meet at a designated time. Together, the teacher and evaluator will run several tests on your child and observe how they behave. Usually, these “tests” include both play sessions and educational instruction. Afterward, the teacher and evaluator will determine if your child needs services to succeed in school.
If they believe your child needs some sort of accommodations, they will schedule an IEP meeting with you, your child, and the other members of their IEP team. At the meeting, you will have a chance to review the IEP evaluation and suggest the services and accommodations you believe your child might benefit from. It is important to note that your suggestions or requests may not be approved by the school. However, you have the right to contest their decision, which we will talk about further down.
Once the meeting is over and the IEP document is complete, everyone present will sign it, and the services are supposed to begin instantly. From there, the IEP will be evaluated each year to see what should be modified, if anything. Of course, the school district might be incredibly slow to offer an IEP meeting or evaluation, or even fight you on the services they agreed to provide. Working with an attorney from the moment you learn your child might need an IEP is the best way to ensure the school takes you and your requests seriously.
Transition Plans
In Nebraska, like all states in the U.S., as the child reaches the age of 14, their IEP will begin to include other needs – like their transition from high school to college, vocational programs, employment, and/or independent living. While the IEPs must be reviewed once a year, the current recommendation is for the documents to be reviewed every quarter or semester when they enter high school.
Additionally, as this is the first year the IEP will consider your student's life after high school, it is also the first year that students will be allowed to join the IEP meeting and make recommendations for themselves. As such, they should definitely be present for these meetings.
Private School Exceptions for Nebraska IEP Regulations
Most federal regulations only extend to public schools, and the IEP law is no different. Therefore, when a parent enrolls their child in a private school, their child has no right to an IEP. To ensure your private school child has access to services and accommodations necessary for their academic success, they need to meet with intermediate units – educational service units. Intermediate units will also meet with the private school administrations in their area to discuss services they can offer prior to meeting with students.
However, when a student with a disability is enrolled in a private school, their local public school district must offer the student an evaluation for special education or special education service. If they determine that the private school student is eligible for either, they must then offer the child a free appropriate public education (FAPE) at the local public school. That being said, the parents can refuse this offer.
Alternatively, there have been cases where public school students are not receiving a FAPE in public school, which is preventing them from achieving their potential, and they are given the option to attend private school with financial help from the public school district. This is extremely rare, though.
Nebraska's Additional Requirements
Though Nebraska has adopted the IDEA regulations, it also provides supplementary services to students with disabilities, including:
- Every Student Succeeds Act (ESSA): This is an initiative for multilingual students and their families to ensure the students have every tool to succeed in life and school.
- Nebraska Department of Education's Office of Coordinated Student Support Services (CSSS): Designed to provide all students with support to improve their social, emotional, behavioral, mental, and physical health and safety.
- Specific procedures for individuals disciplining children with disabilities at school.
Emergency Event Plans & IEPs
The federal government requires all school districts must create detailed procedures for emergency situations, including how students and staff must respond. These procedures are practiced throughout the year for a number of emergencies – like fire drills, active-shooter drills, and tornado warnings.
According to the Federal Guide for Developing High-Quality School Emergency Operations Plans, school districts should include emergency plans in students' IEPs so that if there is an emergency, both the disabled student and their teachers know what to do. Examples of emergency event accommodations can include anything, such as:
- Short-term accommodations for children with temporary abilities.
- A pre-identified quiet place for the child to self-regulate.
- Self-calming strategies.
- Additional practice of emergency procedures so that the child knows what to do and expect.
- One-on-one supervision during transitions – like drills or emergencies.
- Access to sanitation stations or hand sanitizer.
- A peer buddy system.
- Access to emergency medications.
- Access to earplugs or noise-canceling headphones.
- If the child has a service animal, make sure the animal is familiar with as many people from the school as possible and has participated in the drills with the child.
In addition, the school needs to train its faculty and staff on how to respond during an emergency, especially when students with disabilities are in their care. Thus, if your child's IEP does not include services for emergencies, you must notify the school immediately. You do not have to wait for the next IEP meeting to fix the issue. And if your school district pushes back on setting a date and time, you need to contact an attorney immediately. The Lento Law Firm Educational Law Team will be in your corner, negotiating for your child on their behalf.
IDEA Reauthorization
The IDEA was first enacted into law in 1975, but it hasn't been reauthorized since 2004. However, in 2018, the federal government announced the addition of Part B, which provides financial assistance to states so that they can further the education of children with disabilities. To receive the additional financial assistance, states must submit their State Plan and explain how they will use the assistance and what their current policies and procedures look like. The most common issues that the state plan will cover include:
- Nebraska's free appropriate public education policy.
- Limitations to their free appropriate public education for children under the age of three.
- Assistive technology devices or services offered.
- Extended school year services being offered.
- Nonacademic services.
- Residential placements.
- Program options.
- Requirements for physical education.
- Full educational opportunity goal.
- The state's procedures for finding and evaluating children with disabilities.
- Individualized Education Plans.
- Plans for routine checking of hearing aids and external surgically implanted medical devices.
- Least restrictive environment policy requirements.
- Alternative education placements.
Costs
IEP services are supposed to be free for all students, but sometimes, the funding is low, and the state is forced to limit the services that can be offered. Moreover, federal law only requires that school districts provide students with IEPs “reasonable” accommodations. Reasonable accommodations are supposed to level the field between students with disabilities and other students so that they don't fall behind or feel left out.
Thus, it is not uncommon for school districts to cite financial reasons or costs when denying certain services or accommodations. For example, if a student with a hearing impairment requests an interpreter in the classroom, the school could push back that such a service is not reasonable and costs too much. Instead, they might suggest having your child sit at the front of the class so they can read the teacher's lips better. When this happens, your attorney will contact the school or district and negotiate on your child's behalf.
Lack of Funding Does Not End a Student's Right to Education
Further, school districts that cite a lack of funding when denying services or accommodations on an IEP need to explain what other factors are impeding their allowance. That is, cost should not be the only factor when denying a service or accommodation that is not only reasonable but will help the child thrive in school. If you request this information at the IEP meeting, your attorney can review it and help you prepare a defense. Do not accept an insufficient IEP just because your school says they can't afford other accommodations.
At Lento Law Firm, we know that most families are unaware of their ability to push back during IEP meetings. So, we plan our defenses around these issues, doing intense financial investigations to determine what the cost differentials are for the school district. We then leverage that information to get a better outcome. The Lento Law Firm Education Law Team has used its experience and legal know-how to help students with disabilities across the country thrive in school.
SPED: Nebraska Department of Education
According to the IDEA, states are required to create their own dispute resolution process for IEP conflicts. In Nebraska, the Special Education Office (SPED) at the Nebraska Department of Education oversees such complaints.
Once a complaint is made to SPED, they will launch an investigation into the matter. During this investigation, SPED will interview both the complainant and the local education agency (LEA) to determine whether the LEA failed to comply with the laws governing the IEP. The investigation must be completed within 60 calendar days of receiving the complaint. If SPED determines that there was a failure to comply, they will notify the school district of the specific steps they must take to comply. These steps could include anything from technical assistance, negotiations, or correction actions, and they must be done in the time period set forth by SPED.
In some cases, the school district may fail to comply within the specified time period. When this happens, they will be required to explain to all parties involved, as well as the state, why they refused to offer the accommodations or services, the evaluation procedures, assessments, and reports they are using to make this decision, and other options that the IEP team considered. If the parent continues to push back, both parties will be required to attend a due process hearing or enter into mediation.
Sometimes, the matter can be resolved in mediation, but oftentimes, a due process hearing is required. Prior to the due process hearing, the district must convene a meeting with the parent and the IEP team to discuss the complaint again. This is supposed to give the district another opportunity to resolve the issue prior to a hearing. However, if they fail to resolve the complaint within 30 days, then the due process hearing may be scheduled. This additional meeting can only be waived if both the district and the parent agree to waive it in writing. Any resolutions reached during the meeting are legally binding and must be immediately implemented.
Due Process Hearing
When resolutions cannot be made during mediation or the additional IEP meeting described above, parents have the right to a due process hearing. The Nebraska DOE will assign a particular hearing officer to your case. The Hearing Officer must conclude the issue within forty-five days after receiving the initial petition by the DOE.
During the hearing, both sides will have the opportunity to present evidence and witness testimony to support their arguments. They will also have the opportunity to cross-examine one another's evidence and testimony. The point of your defense here is to show the Hearing Officer why your child has the right to the accommodations you've requested and how the school has failed to follow the law. When both sides have been heard fully, the Hearing Officer will review the evidence presented and determine whether the school district should be required to comply with whatever the parent is requesting.
It should be noted that sometimes due process hearings are not about specific accommodations. For instance, if a parent feels that the school district's IEP evaluation team was not properly prepared or equipped to evaluate their child, they can request that the school district pay for an independent evaluation. Generally, independent evaluations are expensive, so most school districts will refuse to pay for them. When this happens, the parent can utilize the due process hearing to get a Hearing Officer to get the school district to pay for it.
At the end of the hearing, the Officer will make their decision. Whatever their decision, either party has the right to appeal it for up to two years in state or federal court.
Like all hearings, there are a tremendous number of procedures and regulations you must follow, which makes advocating on your child's behalf quite difficult, especially after potentially fighting through an already exhausting IEP process. Thus, working with an attorney from the moment you realize your school district is not going to truly accommodate your child is the best way to ensure they are being protected. Lento Law Firm's Educational Law Team will begin gathering evidence and witness testimony for you and devising a defense that is sure to alleviate your stress and overwhelm. You do not have to go through this alone – nor should you. Lento Law Firm is here to help.
Special Considerations for Preschoolers
Though federal law requires a free appropriate public education for children in kindergarten up through the twelfth grade, they have also specified that children with disabilities or developmental delays between the ages of three and five should have similar access to a free appropriate preschool program. These programs are usually called early intervention (EI) programs and are governed by the Nebraska DOE as well.
Under this program, evaluators use an Environmental Rating Scale to determine what a particular student might need to thrive in their preschool classroom. For instance, preschool students with disabilities might need extra snacks throughout the day, occupational therapy, speech and language therapy, audiology services, or other types of therapies and services. Then, just before kindergarten, the DOE is supposed to work with local educational agencies and the parent to create transition plans that will ultimately be adopted into the student's kindergarten IEP.
Protect Your Student's Rights
Children with disabilities have every right to thrive in their academic and personal lives. However, most schools are ill-equipped to offer such services and accommodations without being required to. Thus, the US government has implemented the Individualized Education Plan, which requires that school districts allocate specific funds to be able to provide their disabled students with reasonable accommodations.
IEPs are legally binding documents that schools and school districts must abide by. If they fail to do so, they can be forced to comply by the state of Nebraska. Whether you are just starting the IEP process, are having a hard time getting the school to follow your child's IEP, or believe the school is failing your disabled child in some other way, Lento Law Firm can help.
The Lento Law Firm Education Law Team is highly experienced. Their compassionate nature and competitive attitude promises to get your child the best possible outcome for their situation. Working alone on this problem isn't an option. Call 888-535-3686 today or schedule a consultation online.
