92 Neb. Admin. Code, ch. 52, § 009

Current through September 17, 2024

Section 92-52-009 - Procedural Safeguards

009.01 Confidentiality and Notice to Parents

009.01A The school district or approved cooperative must ensure that the parents of a child referred for early intervention services are afforded the right to confidentiality of personally identifiable information, including the right to written notice of, and written consent to, the exchange of that information among agencies, consistent with Federal and State laws.

009.01B The parents of infants or toddlers who are referred to, or receive early intervention services, are afforded the opportunity to inspect and review all early intervention records about the child and the child's family that are collected, maintained, or used under 92 NAC 52, including records related to evaluations and assessments, screening, eligibility determinations, development and implementation of IFSPs, provision of FAPE early intervention services, individual complaints involving the child, or any part of the child's early intervention record under 92 NAC 52.

009.01B1 The confidentiality procedures described in 92 NAC 52-009.01B apply to the personally identifiable information of a child and the child's family that:

009.01B1a Is contained in early intervention records collected, used, or maintained by the school district or approved cooperative; and

009.01B1b Applies from the point in time when the child is referred for early intervention services under 92 NAC 52 until the later of when the participating agency is no longer required to maintain or no longer maintains that information under applicable Federal and State laws.

009.02 Records

009.02A The following definitions apply to 92 NAC 52-009.01 through 009.02M2:

009.02A1 Destruction means physical destruction of the record or ensuring that personal identifiers are removed from a record so that the record is no longer personally identifiable under 92 NAC 52-009.02A4.

009.02A2 Early intervention records mean all records regarding a child that are required to be collected, maintained, or used under 92 NAC 52.

009.02A3 Participating agency means any school district or approved cooperative that collects, maintains, or uses personally identifiable information to implement the requirements in 92 NAC 52.

009.02A4 Personally identifiable information means personally identifiable information as defined in 34 CFR 99.3, as amended, except that the term "student" in the definition of personally identifiable information in 34 CFR 99.3 means "child" as used in 92 NAC 52 and any reference to "school" means school district or approved cooperative as used in 92 NAC 52.

009.02B Access Rights

009.02B1 Each participating agency must permit parents to inspect and review any early intervention records relating to their children that are collected, maintained, or used by the agency under 92 NAC 52. The agency must comply with a parent's request to inspect and review records without unnecessary delay and before any meeting regarding an IFSP, or any hearing pursuant to 92 NAC 55, and in no case more than 10 days after the request has been made.

009.02B2 The right to inspect and review early intervention records under this section includes:

009.02B2a The right to a response from the participating agency to reasonable requests for explanations and interpretations of the early intervention records.

009.02B2b The right to request that the participating agency provide copies of the early intervention records containing the information if failure to provide those copies would effectively prevent the parent from exercising the right to inspect and review the records; and

009.02B2c The right to have a representative of the parent inspect and review the early intervention records.

009.02B3 An agency may presume that the parent has authority to inspect and review records relating to his or her child unless the agency has been provided documentation that the parent does not have the authority under applicable State laws governing such matters as custody, foster care, guardianship, separation, and divorce.

009.02C Record of access

009.02C1 Each participating agency must keep a record of parties obtaining access to early intervention records collected, maintained, or used under 92 NAC 52 (except access by parents and authorized representatives and employees of the participating agency), including the name of the party, the date access was given, and the purpose for which the party is authorized to use the early intervention records.

009.02D Records on more than one child

009.02D1 If any early intervention record includes information on more than one child, the parents of those children have the right to inspect and review only the information relating to their child or to be informed of that specific information.

009.02E List of types and locations of information

009.02E1 Each participating agency must provide parents, on request, a list of the types and locations of early intervention records collected, maintained, or used by the agency.

009.02F Fees for records

009.02F1 Each participating agency may charge a fee for copies of records that are made for parents if the fee does not effectively prevent the parents from exercising their right to inspect and review those records, except as provided in 92 NAC 52-009.02F3.

009.02F2 A participating agency may not charge a fee to search for or to retrieve information under this Chapter.

009.02F3 A participating agency must provide at no cost to parents, a copy of each evaluation, assessment of the child, family assessment, and IFSP as soon as possible but in no case more than seven days after each IFSP meeting.

009.02G Amendment of records at a parent's request

009.02G1 A parent who believes that information in the early intervention records collected, maintained, or used is inaccurate, misleading, or violates the privacy or other rights of the child or parent may request that the participating agency that maintains the information amend the information.

009.02G2 The participating agency must decide whether to amend the information in accordance with the request within a reasonable period of time of receipt of the request.

009.02G3 If the participating agency refuses to amend the information in accordance with the request, it must inform the parent of the refusal and advise the parent of the right to a hearing under 92 NAC 52-009.02H.

009.02H Opportunity for a hearing

009.02H1 The participating agency must, on request, provide parents with the opportunity for a hearing to challenge information in their child's early intervention records to ensure that it is not inaccurate, misleading, or otherwise in violation of the privacy or other rights of the child or parents. A parent may request a hearing under the participating agencies' procedures that are consistent with the FERPA hearing requirements in 34 CFR 99.22) .

009.02I Result of hearing

009.02I1 If, as a result of the hearing, the participating agency decides that the information is inaccurate, misleading or in violation of the privacy or other rights of the child or parent, it must amend the information accordingly and so inform the parent in writing.

009.02I2 If, as a result of the hearing, the agency decides that the information is not inaccurate, misleading, or in violation of the privacy or other rights of the child or parent, it must inform the parent of the right to place in the early intervention records it maintains on the child a statement commenting on the information or setting forth any reasons for disagreeing with the decision of the agency.

009.02I3 Any explanation placed in the early intervention records of the child under this section must:

009.02I3a Be maintained by the agency as part of the early intervention records of the child as long as the record or contested portion is maintained by the agency; and

009.02I3b If the early intervention records of the child or the contested portion are disclosed by the agency to any party, the explanation must also be disclosed to the party.

009.02J Hearing procedures

009.02J1 A hearing held under 92 NAC 52-009.02H must be conducted according to the procedures under 34 CFR 99.22.

009.02K Consent prior to disclosure or use

009.02K1 Except as provided in 92 NAC 52-009.02K2, prior parental consent must be obtained before personally identifiable information is:

009.02K1a Disclosed to anyone other than authorized representatives, officials, or employees of participating agencies collecting, maintaining, or using the information under 92 NAC 52, subject to 92 NAC 52-009.02K2; or

009.02K1b Used for any purpose other than meeting a requirement of this part.

009.02K2 A participating agency may not disclose personally identifiable information, as defined in 92 NAC 52-009.02A4, to any party except participating agencies (including the co-lead agencies and early intervention service providers) that are part of the State's early intervention system without parental consent unless authorized to do so pursuant to 34 CFR 303.414(b).

009.02K3 The school district or approved cooperative must provide policies and procedures to be used when a parent refuses to provide consent under 92 NAC 52 (such as a meeting to explain to the parents how their failure to consent affects the ability of their child to receive services under this Chapter) provided that those procedures do not override a parent's right to refuse consent under 92 NAC 52-009.03A.

009.02L Safeguards

009.02L1 Each participating agency must protect the confidentiality of personally identifiable information at the collection, maintenance, use, storage, disclosure, and destruction stages.

009.02L2 One official at each participating agency must assume responsibility for ensuring the confidentiality of any personally identifiable information.

009.02L3 All persons collecting or using personally identifiable information must receive training or instruction regarding the State's policies and procedures under 92 NAC 52-009.01 through 009.02M and 34 CFR Part 99.

009.02L4 Each participating agency must maintain, for public inspection, a current listing of the names and positions of those employees within the agency who may have access to personally identifiable information.

009.02M Destruction of information

009.02M1 The participating agency must inform parents when personally identifiable information collected, maintained, or used under 92 NAC 52 is no longer needed to provide services to the child under Part C of the IDEA, the GEPA provisions in 20 U.S.C. 1232 f, and EDGAR, 34 CFR parts 76 and 80.

009.02M2 Subject to 92 NAC 52- 009.02M 1, the information must be destroyed at the request of the parents. However, a permanent record of a child's name, date of birth, parent contact information (including address and phone number), names of services coordinator(s) and early intervention service provider(s), and exit data (including year and age upon exit, and any programs entered into upon exiting) may be maintained without time limitation.

009.03 Parental Consent and Notice

009.03A Parental consent and ability to decline services

009.03A1 Pursuant to 480 NAC 10, the services coordinator must ensure parental consent is obtained before:

009.03A1a Administering screening procedures under 92 NAC 52-006.03 that are used to determine whether a child is suspected of having a disability;

009.03A1b Initial evaluation and assessments of the child are conducted under 92 NAC 52-006.04 through 006.07; and

009.03A1c FAPE early intervention services are provided to the child under 92 NAC 52.

009.03A2 School districts or approved cooperatives shall ensure parental consent is obtained before:

009.03A2a All evaluation and assessments of the child are conducted pursuant to 92 NAC 52-006.04 through 006.07 except those provided in 009.03A1b;

009.03A2b Public benefits or private insurance is used to pay for FAPE early intervention services if such consent is required under 92 NAC 52-011.03C and 011.04A; and

009.03A2c Disclosure of personally identifiable information by the school district or approved cooperative consistent with 92 NAC 52-009.02K.

009.03A3 If a parent does not give consent under 92 NAC 52-009.03A 2a the school district or approved cooperative must make reasonable efforts to ensure that the parent:

009.03A3a Is fully aware of the nature of the evaluation and assessment of the child or FAPE early intervention services that would be available; and

009.03A3b Understands that the child will not be able to receive the evaluation, assessment, or early intervention service unless consent is given.

009.03A4 The school district or approved cooperative may not use the due process hearing procedures under 92 NAC 55 to challenge a parent's refusal to provide any consent that is required under 92 NAC 52-009.03A 2.

009.03A5 The parents of an infant or toddler with a disability;

009.03A5a Determine whether they, their infant or toddler with a disability, or other family members will accept or decline any early intervention service at any time, in accordance with State law; and

009.03A5b May decline a service after first accepting it, without jeopardizing other FAPE early intervention services under 92 NAC 52.

009.03B Prior written notice and procedural safeguards notice

009.03B1 Except for initial evaluation and assessment, prior written notice must be provided by the school district or approved cooperative to parents a reasonable time before the school district or approved cooperative proposes or refuses, to initiate or change the identification, evaluation, or placement of their infant or toddler, or the provision of FAPE early intervention services to the infant or toddler with a disability and that infant's or toddler's family.

009.03B2 The notice must be in sufficient detail to inform parents about:

009.03B2a The action that is being proposed or refused;

009.03B2b The reasons for taking the action; and

009.03B2c All procedural safeguards that are available under 92 NAC 52-009, including a description of mediation in 92 NAC 52-009.05, how to file a State complaint in 92 NAC 52-009.06 and a due process complaint in the provisions adopted under 92 NAC 55, and any timelines under those procedures.

009.03B3 The notice must be written in language understandable to the general public; and provided in the native language, as defined in 92 NAC 52-003.21, of the parent or other mode of communication used by the parent, unless it is clearly not feasible to do so.

009.03B3a If the native language or other mode of communication of the parent is not a written language, the school district or approved cooperative must take steps to ensure that:

009.03B3a(1) The notice is translated orally or by other means to the parent in the parent's native language or other mode of communication;

009.03B3a(2) The parent understands the notice; and

009.03B3a(3) There is written evidence that the requirements of 92 NAC 52-009.03B 3a have been met.

009.04 Surrogate Parents

009.04A The school districts or approved cooperatives must ensure that the rights of a child under 92 NAC 52 are protected when no parent (as defined in 92 NAC 52-003.20) can be identified); the school district or approved cooperative, after reasonable efforts, cannot locate a parent; or the child is a ward of the State under the laws of Nebraska.

009.04B The duty of the school district or approved cooperative under 92 NAC 52-009.04A, includes the assignment of an individual to act as a surrogate for the parent. This assignment process must include a method for determining whether a child needs a surrogate parent; and assigning a surrogate parent to the child.

009.04B1 In implementing the provisions under this section for children who are wards of the State or placed in foster care, the school district or approved cooperative must consult with the public agency that has been assigned care of the child.

009.04C In the case of a child who is a ward of the State, the surrogate parent, instead of being appointed by the school district or approved cooperative under 92 NAC 52-009.04B may be appointed by the judge overseeing the infant or toddler's case provided that the surrogate parent meets the requirements in 92 NAC 52-009.04D 1 and 009.04E.

009.04D The school district or approved cooperative may select a surrogate parent in any way permitted under State law.

009.04D1 School districts or approved cooperatives must ensure that a person selected as a surrogate parent:

009.04D1a Is not an employee of the co-lead agencies or any other public agency or early intervention service provider that provides early intervention services, education, care, or other services to the child or any family member of the child;

009.04D1b Has no personal or professional interest that conflicts with the interest of the child he or she represents; and

009.04D1c Has knowledge and skills that ensure adequate representation of the child.

009.04E A person who is otherwise qualified to be a surrogate parent under 92 NAC 52-009.04D 1 is not an employee of the school district or approved cooperative solely because he or she is paid by the school district or approved cooperative to serve as a surrogate parent.

009.04F The surrogate parent has the same rights as a parent for all purposes under 92 NAC 52.

009.04G The school district or approved cooperative must make reasonable efforts to ensure the assignment of a surrogate parent not more than 30 days after the school district or approved cooperative determines that the child needs a surrogate parent.

009.05 Mediation

009.05A Parties to disputes involving any matter under 92 NAC 52, including matters arising prior to the filing of a due process complaint, may resolve disputes through a mediation process at any time.

009.05B The mediation process:

009.05B1 Is voluntary on the part of the parties;

009.05B2 Is not be used to deny or delay a parent's right to a due process hearing, or to deny any other rights afforded under 92 NAC 52; and

009.05B3 Is conducted by a qualified and impartial mediator who is trained in effective mediation techniques.

009.05C Mediation Process Requirements

009.05C1 The Nebraska Department of Education maintains a list of individuals who are qualified mediators and are knowledgeable in laws and regulations relating to the provision of FAPE early intervention services.

009.05C2 The Nebraska Department of Education assigns mediators on a random, rotational or other impartial basis.

009.05C3 The Nebraska Department of Education bears the cost of the mediation process including the costs of meetings described in 92 NAC 52-009.05E.

009.05C4 Each session in the mediation process must be scheduled in a timely manner and must be held at a location that is convenient to the parties in the dispute.

009.05C5 If the parties resolve a dispute through the mediation process, the parties must execute a legally binding agreement that sets forth that resolution and that:

009.05C5a States that all discussions that occurred during the mediation process will remain confidential and may not be used as evidence in any subsequent due process hearing or civil proceeding; and

009.05C5b Is signed by both the parent and a representative of the school district or approved cooperative who has the authority to bind such school district or approved cooperative.

009.05C6 A written signed mediation agreement under 92 NAC 52-009.05C 5 is enforceable in any State court of competence jurisdiction or in a district court of the United States.

009.05C7 Discussions that occur during the mediation process must be confidential and may not be used as evidence in any subsequent due process hearing or civil proceeding of any Federal court or State court of Nebraska.

009.05D An individual who serves as a mediator under 92 NAC 52:

009.05D1 May not be an employee of the co-lead agencies or an early intervention provider that is involved in the provision of early intervention services or other services to the child; and

009.05D1a A person who otherwise qualifies as a mediator is not an employee of the co-lead agencies or an early intervention provider solely because he or she is paid by the co-lead agencies or provider to serve as a mediator.

009.05D2 Must not have a personal or professional interest that conflicts with the person's objectivity.

009.05E School districts and approved cooperatives may offer to parents that choose not to use the mediation process an opportunity to meet, at a time and location convenient to the parents, with a disinterested party:

009.05E1 Who is under contract with an appropriate alternative dispute resolution entity, or a parent training and information center or community parent resource center established under section 671 or 672 of the IDEA; and

009.05E2 Who would explain the benefits of, and encourage the use of, the mediation process to the parents.

009.06 Complaints

009.06A An organization or individual may file a signed written complaint under the procedures described in 92 NAC 52-009.06.

009.06B The complaint must include:

009.06B1 A statement that a public agency has violated a requirement of 92 NAC 52;

009.06B2 The facts on which the statement is based;

009.06B3 The signature and contact information for the complainant; and

009.06B4 If alleging violations with respect to a specific child:

009.06B4a The name and address of the residence of the child;

009.06B4b The name of the school district or approved cooperative serving the child;

009.06B4c A description of the nature of the problem of the child, including facts relating to the problem; and

009.06B4d A proposed resolution of the problem to the extent known and available to the party at the time the complaint is filed.

009.06B5 The complaint must allege a violation that occurred not more than one year prior to the date that the complaint is received.

009.06B6 The party filing the complaint must forward a copy of the complaint to the public agency serving the child at the same time the party files the complaint with the Nebraska Department of Education.

009.06C Within 60 days of receipt of a complaint meeting the requirements of 92 NAC 52-009.06B the Nebraska Department of Education will:

009.06C1 Carry out an independent on-site investigation, if the Nebraska Department of Education determines that an investigation is necessary;

009.06C2 Give the complainant the opportunity to submit additional information, either orally or in writing, about the allegations in the complaint;

009.06C3 Provide the public agency with an opportunity to respond to the complaint, including, at a minimum:

009.06C3a At the discretion of the Nebraska Department of Education, a proposal to resolve the complaint; and

009.06C3b An opportunity for a parent who has filed a complaint and the public agency to voluntarily engage in mediation, consistent with 92 NAC 52-009.05;

009.06C4 Review all relevant information and make an independent determination as to whether the public agency is violating a requirement of 92 NAC 52; and

009.06C5 Issue a written decision to the complainant that addresses each allegation in the complaint and contains:

009.06C5a Findings of fact and conclusions; and

009.06C5b The reasons for the Nebraska Department of Education's final decision.

009.06C5c If the Nebraska Department of Education finds a failure to provide appropriate services the final decision must include corrective actions appropriate to address the needs of the infant or toddler with a disability who is the subject of the complaint and the infant's or toddler's family including technical assistance activities, negotiations, and corrective actions to achieve compliance.

009.06D The Nebraska Department of Education will permit an extension of the time limit under 92 NAC 52-009.06C only if:

009.06D1 Exceptional circumstances exist with respect to a particular complaint; or

009.06D2 The parent or individual and the public agency involved agree to extend the time to engage in mediation pursuant to 92 NAC 52-009.06C 3b.

009.06E Complaints which are also the subject of a due process hearing

009.06E1 If a written complaint is received that is also the subject of a due process hearing under 92 NAC 55, or contains multiple issues of which one or more are part of that hearing, the Nebraska Department of Education shall set aside any part of the complaint that is being addressed in the due process hearing until the conclusion of the hearing. However, any issue in the complaint that is not a part of the due process hearing must be resolved using the time limit and procedures described in 92 NAC 52-009.06C and D.

009.06E2 If an issue raised in a complaint filed under 92 NAC 52-009.06 has previously been decided in a due process hearing involving the same parties the due process hearing decision is binding on that issue and the Nebraska Department of Education must inform the complainant to that effect.

009.06E3 A complaint alleging a public agency's failure to implement a due process hearing decision must be resolved by the Nebraska Department of Education.

009.07 Due Process Complaint

009.07A A parent, school district, approved cooperative, or Co-Lead agency may file a due process complaint under 92 NAC 55 relating to the proposal or refusal of a school district or approved cooperative to initiate or change the identification, evaluation, or placement of an infant or toddler under 92 NAC 52 or the provision of FAPE early intervention services to the infant or toddler with a disability and that infant's or toddler's family under 92 NAC 52.

009.07B The due process complaint must allege a violation of 92 NAC 52 that occurred not more than two years before the date the parent or school district or approved cooperative knew, or should have known, about the alleged action that forms the basis of the due process complaint.

009.07B1 The time limitation in 92 NAC 52-009.07B does not apply to a parent if the parent was prevented from filing a due process complaint due to the following:

009.07B1a Specific misrepresentations by a Co-Lead agency or school district or approved cooperative that it had resolved the problem forming the basis of the due process complaint; or

009.07B1b A Co-Lead agency's, school district's, or approved cooperative's failure to provide the parent information that was required under 92 NAC 52 to be provided to the parent.

009.07C The school district or approved cooperative shall inform the parent of any free or low-cost legal or other relevant services available in the area if the parent requests the information or if the parent or school district or approved cooperative files a due process complaint under this subsection.

009.07D Whenever a due process complaint is received the parents or the early intervention service provider involved in the dispute have the opportunity for an impartial due process hearing, consistent with the procedures in 92 NAC 55.

009.07E During the pendency of any proceeding involving a due process complaint under 92 NAC 55, unless the school district or approved cooperative and parents of an infant or toddler with a disability otherwise agree, the child must continue to receive the appropriate FAPE early intervention services in the setting identified in the IFSP that was consented to by the parents.

009.07F If the due process complaint under 92 NAC 55 involves an application for initial services under 92 NAC 52, the child must receive those services that are not in dispute.

009.08 Resolution Process

009.08A The Resolution Meeting

009.08A1 Within 15 days of receiving notice of the parent's due process complaint, and prior to the initiation of a due process hearing, the school district or approved cooperative must convene a meeting with the parent and the relevant member or members of the IFSP Team who have specific knowledge of the facts identified in the due process complaint that:

009.08A1a Includes a representative of the school district or approved cooperative who has decision-making authority on behalf of that agency; and

009.08A1b May not include an attorney of the school district or approved cooperative unless the parent is accompanied by an attorney.

009.08A2 The purpose of the resolution meeting is for the parent of the child to discuss the due process complaint, and the facts that form the basis of the due process complaint so that the school district or approved cooperative has the opportunity to resolve the dispute that is the basis for the due process complaint.

009.08A3 The meeting described in 92 NAC 52-009.08A 1 and 009.08A2 need not be held if:

009.08A3a The parent and school district or approved cooperative agree in writing to waive the meeting; or

009.08A3b The parent and school district or approved cooperative agree to use the mediation process described in 92 NAC 52-009.05.

009.08A4 The parent and the school district or approved cooperative must determine the relevant members of the IFSP Team to attend the meeting.

009.08B Resolution Period

009.08B1 If the school district or approved cooperative has not resolved the due process complaint to the satisfaction of the parties within 30 days of the receipt of the due process complaint, the due process hearing may occur.

009.08B2 Except as provided in 92 NAC 52-009.08C, the timeline for issuing a final decision under 92 NAC 55 begins at the expiration of the 30-day period in 92 NAC 52-009.08B 1.

009.08B3 Except where the parties have jointly agreed to waive the resolution process or to use mediation, notwithstanding 92 NAC 52-009.08B 1 and 009.08B2, the failure of the parent filing a due process complaint to participate in the resolution meeting will delay the timelines for the resolution process and due process hearing until the meeting is held.

009.08B4 If the school district or approved cooperative is unable to obtain the participation of the parent in the resolution meeting after reasonable efforts have been made, including documenting its efforts, the school district or approved cooperative may, at the conclusion of the 30-day period, request that the hearing officer dismiss the parent's due process complaint.

009.08B5 If the school district or approved cooperative fails to hold the resolution meeting specified in 92 NAC 52-009.08A within 15 days of receiving notice of a parent's due process complaint or fails to participate in the resolution meeting, the parent may seek the intervention of a hearing officer to begin the due process hearing timeline.

009.08C The 45-day timeline for the due process hearing described in 92 NAC 55 starts the day after one of the following events:

009.08C1 Both parties agree in writing to waive the resolution meeting;

009.08C2 After either the mediation or resolution meeting starts but before the end of the 30-day period, the parties agree in writing that no agreement is possible; or

009.08C3 If both parties agree in writing to continue the mediation at the end of the 30-day resolution period, but later, the parent or school district or approved cooperative withdraws from the mediation process.

009.08D If a resolution to the dispute is reached at the meeting described in 92 NAC 52-009.08A 1 and 009.08A2, the parties must execute a legally binding agreement that is:

009.08D1 Signed by both the parent and a representative of the school district or approved cooperative who has the authority to bind the agency; and

009.08D2 Enforceable in any State court of competent jurisdiction or in a district court of the United States.

009.08E If the parties execute an agreement pursuant to 92 NAC 52-009.08D, a party may void the agreement within three business days of the agreement's execution.

92 Neb. Admin. Code, ch. 52, § 009