Stumped By Student Records

Every August, the KSB Crew rolls out looking for America's greatest drive-ins, diners, and dives staff in-service days in order to prepare educators with the latest legal updates they need to take on the new school year.  If you've had one of us in your building, you know we'd rather get to the questions and issues that matter most to you rather than simply drone through policy and handbook updates (though some of that can't be avoided!).  As a result, we always try to leave time for a good ole game of “Stump-The-Idiot” to take on your toughest questions.  Now, we won't mention which KSB attorney got stumped during Karen's Wyoming leg of presentations, but we did want to share that question and the best lawyerly answer we can give it. . .  it depends!

The Question

A lot of student information in the classroom or other service areas, such as a student's visual schedule or behavior chart, or a staff members' own list of students to receive services, could potentially be seen by other students or visitors to the educational environment.  Is this a FERPA issue?

The Answer

As promised, it depends!  A key threshold question will be whether or not the document or record has been maintained as defined by board policy.  Even if so, a significant amount of this type of information may qualify as “directory information” under federal law and board policy.  Finally, the question will likely turn on who is disclosing the information.

FERPA Protects Records That Are Intentionally Maintained

Start with the rule everyone remembers.  The regulations require that “[t]he parent or eligible student shall provide a signed and dated written consent before an educational agency or institution discloses personally identifiable information from the student's education records,” subject to the exceptions listed elsewhere in the rules.  34 C.F.R. § 99.30(a); see also 34 C.F.R. § 99.31.

The phrase doing the work is “education records.”  The regulations define that term to mean “those records that are: (1) Directly related to a student; and (2) Maintained by an educational agency or institution or by a party acting for the agency or institution.”  34 C.F.R. § 99.3.

Read those two provisions together an

d the answer to a great many classroom questions falls out.  FERPA protects personally identifiable information drawn from records the district maintains.  A document the district does not maintain is not an education record at all, and FERPA never reaches it.

So what does “maintain” mean?  The regulations never say.  FERPA leaves the term undefined, which hands the question to your board.

Your student records policy should answer it.  Pull that policy before the next question lands on your desk and read the definition your board actually adopted.  If the policy says nothing, or if the definition no longer matches how your staff handle records day to day, work with your board to fix it.  A definition that tracks your real procedures protects your staff far better than one drafted for somebody else's district.

The Supreme Court took up the question of applying this limitation to classroom work in Owasso Independent School District No. I-011 v. Falvo, 534 U.S. 426 (2002).  Students in an Oklahoma district scored one another's assignments and reported the results to the teacher.  A parent sued, arguing that the practice disclosed education records without consent.  The Court disagreed.  It held that peer-graded work is not “maintained” within the meaning of FERPA, reasoning that the statute contemplates records kept in a filing cabinet in a records room or on a permanent secure database, not a paper a classmate holds for a few moments.  Id. at 432-33.  The Court also observed that a student grading a classmate's work does not act for the institution.  Id. at 433.  Other students saw the work, and FERPA still did not apply, because nobody maintained it.

Directory Information May Generally Be Disclosed

Even when the district maintains a record, FERPA carves out directory information.  “An educational agency or institution may disclose directory information if it has given public notice to parents of students in attendance and eligible students in attendance” of the types of information it designates, the right to refuse that designation, and the window to object.  34 C.F.R. § 99.37(a).

That carve out reaches further than most people expect.  Boards routinely designate student name, grade level, class assignment, participation in activities, awards received, and in some districts the student schedule itself.  If your board designated it and no parent opted out, you may disclose it.

Pull the policy here too.  Read the list your board adopted and ask two questions.  Does it sweep in information your community would not expect the district to release?  Does it leave out information your staff share every day without a second thought?  Either answer causes problems, and you fix both with the board reviewing policy rather than in the middle of a complaint.

Then track your opt outs.  A parent who refuses the designation converts ordinary directory information into information you must protect.  Those students’ information need closer handling on the bulletin board, in the program, and yes, on the visual schedule.

Who Disclosed

FERPA regulates schools.  It governs disclosures by educational agencies and institutions and by the officials acting for them.  A parent who posts a child's behavior chart on social media, or a student who tells a classmate about a service schedule, does not violate FERPA, because neither one is the school.  Keep the distinction straight in both directions, though.  A parent or student putting information out in public does not clear the district to confirm it.

Examples from the Feds

The office charged with enforcing FERPA has taken up classroom display more than once.  Three sources are worth noting.

•Letter to Westlake City Schools (FPCO Oct. 29, 1990) is the most useful of the set.  FPCO advised that a teacher may not post a roster or listing of student grades by name, Social Security number, or other personal identifier without prior parental consent, and suggested a code that the student and teacher recognize but classmates do not.  It also framed the standard that has governed ever since: FERPA does not interfere with a school's or a classroom teacher's ability to carry out what are generally considered normal and legitimate educational activities, so judging the privacy impact of classroom practice calls for a thoughtful, common sense, and flexible approach.  Display of exemplary student work survived under the “awards received” prong of directory information.  34 C.F.R. § 99.3, subject to the conditions in § 99.37.

•Letter to Parent Regarding Classroom Activities (FPCO Aug. 3, 2018) (Tynes Elementary) repeats the same normal and legitimate educational activities language, applies the same flexible approach, and dismisses a complaint about classroom work.

•The SPPO FAQ asking whether FERPA permits school officials to release information they personally observed draws a clean line.  FERPA reaches education records and personally identifiable information drawn from them.  It does not reach what a school official knows through personal knowledge or observation.

So what is the answer?

If a student has a visual schedule on her desk that includes “speech with Ms. Kathy” at 10:00 on Tuesdays, you probably aren’t violating FERPA the night of parent-teacher conferences.  This visual schedule is not going to be “maintained” by the district and this is a form of directory information since it is functionally a class schedule.  But if you change the facts even a little the whole answer could change.  

Stumped?

It really isn't a good question unless your lawyer can answer with… it depends.  If you have any other questions to stump your favorite school law attorneys, don't hesitate to reach out to us at ksb@ksbschoollaw.com or at 402-804-800

ABA, Meet IEP

The request seemed modest at the time: could the family's ABA provider come in during the transition to kindergarten, just until the student settled? Three years later, the provider is still there, staff plans around her schedule, and the student's day is built partly on her work. The arrangement has quietly become load-bearing, and it is worth understanding what Wyoming Medicaid does — and does not — require of the school when private ABA happens in your building.

Quick note: if you’re a superintendent, principal, or school board member and that introductory paragraph sounded like gibberish to you, maybe just forward this email to your special ed director.  Read on if you love the sound we nerds make when we speak special ed to each other. 

What Wyoming Medicaid actually says

ABA is an eligible school-based service. Under the School-Based Services Program manual, the covered school-based services billable to Medicaid are limited to psychology and counseling, physical therapy, occupational therapy, speech-language and hearing, and nursing and health services, each tied to specific CPT and HCPCS codes. ABA falls within psychology and counseling services.  The manual addresses ABA directly and limits it to students under 21 with an autism spectrum disorder diagnosis, delivered or supervised by a licensed behavior analyst, and written into the student’s IEP or IFSP.  The district itself enrolls as the billing provider, and each rendering practitioner enrolls separately. So if ABA happens in your building, the billing pathway can belong to the district.  Because the manual publishes no ABA-specific code, confirm the correct code with the Department of Health before you bill.

FAPE runs through the IEP, not through Medicaid

Medicaid billing rules and IDEA obligations operate on separate tracks. FAPE means the services the IEP team determines the student needs to make appropriate progress. Medicaid is a funding mechanism that neither adds to nor subtracts from what the IEP must contain. The fact that Wyoming lets a district bill for ABA delivered in school says nothing about whether ABA is a required related service for any particular student. It does not declare that every district must provide ABA, and it does not make the provider's presence an IEP-team decision by default.

The harder question: you already let a private provider in

Many districts have permitted privately retained or Medicaid-funded ABA providers to work with students on campus — and Wyoming permits that too, because Wyoming Medicaid also covers ABA outside the school program, so the provider can bill directly without the school in the loop. Does that access concede that ABA is necessary for FAPE? Generally, no… but possibly yes. Access is not an admission, and allowing a parent-arranged provider into your building as a courtesy does not by itself establish that ABA is educationally necessary. But candidly, untangling whether a student's progress stems from ABA services in the school setting or from the numerous other interventions your district uses can prove difficult.

Additionally, how you've handled that access can create exposure. If the provider's services appear in the IEP, PWN, or meeting minutes, or if staff has built the student's daily programming around the provider, a parent can plausibly argue the district itself treated ABA as necessary for FAPE. That the provider bills Medicaid or the parent’s private insurance independently does not insulate you here — the risk lives in how the district treats the service, not in who cuts the check.  You also run the risk that if the family’s health insurance or Medicaid eligibility cease, they will have a good argument that the school now must pay, because they will argue that you tacitly admitted that ABA was necessary for FAPE by allowing the provider into the building at all. 

Going forward, route any parent request for a parent-selected ABA provider through the IEP team, which decides whether ABA services are necessary for FAPE. Even where the team determines they are, IDEA generally leaves personnel decisions to the district: the school chooses who delivers the services. Note the wrinkle Wyoming adds.  Because Wyoming Medicaid recognizes the district, not just the outside provider, as a billing entity for school-based ABA, a district that concludes ABA is necessary for FAPE may be able to bill Medicaid for its own delivery of it.  Reimbursement does not make the service necessary, but it removes one practical objection. That is a reason to think carefully at the IEP table, and to document the team's reasoning either way.

The throughline in all of this: don't make the decision based on the service, make it based on the kid.  We can't forget the 'I' in IEP stands for individualized, and therefore the IEP team should consider the information.  These situations rarely announce themselves until they're already problems, so if something in this post feels familiar, reach us at ksb@ksbschoollaw.com.

The Steamboat Has Sailed: What Wyoming's ESA Ruling Means for Your District

The Steamboat has left the dock, and it’s sailing straight for your front office.  On May 14, the Wyoming Supreme Court unanimously lifted the injunction that had frozen the Steamboat Legacy Scholarship Act, Wyoming’s school voucher program, for nearly a year (Degenfelder v. WEA, 2026 WY 54).  Applications reopened this month.  In May of 2025, when the Act first became effective, roughly 4,000 families signed up for the program, which provides $7,000 per student for an education savings account to families who withdraw their students from public school.  Income-qualified families — at or below 250% of the federal poverty level, roughly $80,000 for a family of four — can also draw ESA funds for pre-K costs, so if your district runs a pre-K program, this affects you too.

 Here’s the catch: the Court didn’t rule the Act constitutional — it just said that the program could be active while the rest of the case is litigated.  The real fight over whether the Act violates the Wyoming Constitution is still playing out in Laramie County District Court, where intervenors filed a motion for judgment on the pleadings on June 23.  But the justices seemed to telegraph that the court will ultimately rule that the Act does not violate Wyoming’s state constitution. 

Translation: this case could wrap up fast, or drag on through a lengthy appeal.

Either way, the money is moving now, and the fallout for enrollment, staffing, and program planning lands this fall, well before anyone gets a final answer on the constitutional question.

Five things to do now

1. Track withdrawals in real time.  Parents have 15 days after the state approves their ESA contract to notify your district in writing.  Make sure front-office and enrollment staff know a formal withdrawal letter is coming — WDE guidance treats the family’s acceptance email from the Wyoming ESA program as sufficient notice.

2. Decide now whether you’ll sell services to ESA families.  Districts may sell individual classes, activities, and programs to ESA students, but only under a formal parent contract, and you can’t count these students for ADM funding, award credit, or put anything on a transcript.  ESA funds cover far more than tuition; they cover tutoring, AP exam fees, uniforms, even homeschool internet costs.  Expect requests that go beyond a basic class list. If you’re considering it, loop in your school district’s legal counsel before you draft or sign anything.

3. Brief your special education team today.  There are two critical issues your special ed team needs to know about ESA enrollment:

   For students who are already identified as special ed students, your team will have to issue prior written notice confirming their withdrawal from school. You will also need to consider what equitable services you will owe these students when they are not enrolled. 

   For students who are not identified as special ed, you will still owe child find obligations.  It is very likely that your district will receive evaluation requests from families who have no intention of ever enrolling.

4. Standardize your records-request process.  FERPA lets you transfer a complete record to a qualified school that enrolls a former student.  Build one clean, repeatable process now, before the requests start piling up.

5. Budget for both outcomes.  The district court could still strike the Act down, and the WDE has signaled it won’t claw back funds already properly disbursed.  The safest thing to do is to run your enrollment and revenue projections twice, once assuming the program survives, once assuming it doesn’t.

Questions? Reach out to us at ksb@ksbschoollaw.com.

FERPA, the IDEA, and Truancy: A Win for Wyoming School Districts

Good legal news for school districts doesn't come around every day — so when it does, it's worth celebrating.  A recent Wyoming district court decision hands districts two wins at once: (1) FERPA and the IDEA don't stand in the way of the state's attendance laws, and (2) districts unhappy with a special education state complaint decision have a real path to appeal it.

Here's how we got there.  The Wyoming Department of Education found a district in violation of the IDEA for sharing education records — including special education records — with the local prosecuting attorney before that attorney filed a truancy petition.  Instead of accepting the finding, the district pushed back and sought judicial review.  The district won.

A Quick Refresher on FERPA and the IDEA

FERPA's default rule is simple: no disclosing education records without prior written parental consent, unless an exception applies.  The IDEA layers on extra confidentiality protections for special education information, but it doesn't invent its own separate rulebook, it borrows FERPA's.  So wherever FERPA permits a disclosure, the IDEA rides along and permits it too. The juvenile justice exception turns out to fit attendance enforcement almost perfectly.

Wyoming's Truancy Rules in Brief

Wyoming law requires school attendance and puts designated attendance officers in charge of enforcing it.  When an officer determines a child is habitually truant or willfully absent, the officer has to notify the board of trustees and the district attorney (or, where there's no DA, the county attorney).  That attorney can then start proceedings "in the interest of the child" under the Child Protection Act or the Children In Need of Supervision Act. Wyoming's framework treats truancy squarely as a juvenile justice issue, including willful absenteeism.

What the Court Found

On appeal, the court held that FERPA's juvenile justice exception lets districts disclose education records to the district or county attorney handling a truancy referral.  The exception is about who can receive the records, not which records qualify — so it doesn't carve out special education records, and it doesn't limit districts to a one-line notice.

The Catch: This Isn’t A Blanket Pass

Before you get too excited: the court didn't say share everything with anyone.  A habitual-truancy finding doesn't turn a student's entire file into fair game. The exception is purpose-limited.  A district may share records because they relate to the truancy referral and the juvenile system's ability to help the student, not just because the records happen to exist.

A district that treats a truancy declaration as open-ended authorization has stepped outside what this decision actually supports.  The safest way forward is to document the purpose behind every production.  For example, any record you share can be labeled: "Truancy/Juvenile Justice System Matter."  That paper trail is what keeps a disclosure defensible.

The Bigger “Bonus” Win: Districts Can Appeal State Complaint Decisions

This case only reached a courtroom because the school district involved refused to treat WDE's decision as final.  The Department found the district out of compliance and ordered corrective action; the district filed for judicial review instead.  That allowed the court a forum to reverse WDE's decision as contrary to law and arbitrary and capricious.

Wyoming educators have long assumed a state complaint decision is the end of the road.  This case established that it isn't.  If a school district believes WDE has made a legal mistake, it is clear now that the district can seek judicial review.   

The Bottom Line

• Share Truancy Records with Confidence. Districts can give truancy-related education records — special ed records included — to the prosecuting attorney on a referral, as long as the disclosure serves the juvenile justice purpose and the district documents that purpose.

• Losing doesn't mean losing. An unfavorable state complaint decision is a starting point, not the final. When the law and facts are on the district's side, the courthouse door is still open.

Questions? Reach out any time at ksb@ksbschoollaw.com

Before the Monitors Arrive: Auditing Your Use of EAs, Permits, and Long-Term Substitutes

School districts across the country face the same math problem every fall: more special education vacancies than fully certified applicants.  State licensing boards respond with provisional pathways (exception authorizations, permits, long-term substitute assignments) that keep an adult in the classroom while a candidate works toward full certification.  These pathways solve a hiring problem.  In light of recent findings from the Wyoming Department of Education, coupled with a new school year on the horizon, now is the time for districts to review how they supervise and support provisionally licensed staff.

In a recent special monitoring report WDE took issue with one Wyoming District's use of exception authorization ("EA") holders and long-term substitutes serving in special education capacities.  WDE stated the "practice of assigning unlicensed teachers to resource rooms and program rooms must cease."  The IDEA establishes minimum personnel qualifications for individuals providing special education and related services.  34 C.F.R. § 300.156.  Under that regulation, special education teachers must hold full state certification without waiver on an emergency, temporary, or provisional basis.  A provisional credential authorizes someone to work toward licensure, not to stand in for it.

WDE grounded its position in PTSB's October 2023 Director's Memo, which requires that an EA applicant "shall be supervised by a fully licensed educator" and that "the district accepts responsibility for ensuring the applicant completes all requirements and becomes eligible for full licensure."  Significantly, WDE interprets this supervision requirement to reach any educator without full state certification, including long-term substitutes and permit holders, not just EA holders.

WDE announced that it considers direct supervision adequate only when the fully credentialed teacher (1) prepares the lessons and plans the instructional activities the unlicensed staff member carries out, (2) evaluates the progress and achievement of the students the unlicensed staff member serves, and (3) works in close and frequent proximity to the unlicensed staff member.

If WDE's position sounds different from the guidance you understood from PTSB, now is the time to evaluate your practices.  A few practical steps go a long way:

1. Keep a simple supervision log.  A brief weekly record of who planned the lessons, who reviewed student progress, and when the licensed supervisor worked in the classroom shows the district meets all three elements.

2. Pair every provisional staff member with a licensed educator in the same building.  A quick review of assignments before the year starts catches any arrangement that relies on cross-building or once-a-week supervision.

3. Keep progress reporting with licensed staff.  Provisional staff can collect the data; the licensed teacher interprets it and signs the IEP progress reports.

4. Build shared planning time into the schedule.  A common planning period lets the licensed teacher prepare what the provisional staff member will deliver, and the plans themselves become the documentation.

5. Keep an eye on the licensure pathway.  Establishing a regular system to check-in on each provisional educator's coursework and testing progress honors the district's commitment when it accepted the authorization.

While we don't yet know how far WDE will take its directive that assigning "unlicensed" staff to resource rooms and program rooms must cease, districts should prepare to review their practices now.  We will keep you posted as things develop and share any new guidance that comes out.  In the meantime, if you have questions, reach out to us at ksb@ksbschoollaw.com.

ARE YOU READY TO RUMBLE?? Ultimate EDGAR Academy Is Coming!

For the past two years, the US Department of Education has been led by a former WWE executive.  We're not touching that one — but we will say this: when the person at the top knows how to work a crowd and run a high-stakes operation, you probably want your compliance house in order before anyone starts paying attention to you.

And they are paying attention.  Federal education spending is under scrutiny like never before, and the cost of getting grant compliance wrong — unallowable expenses, procurement missteps, missed obligation deadlines — has gone from "uncomfortable audit finding" to "very bad news very fast."

At KSB, we know when to call in a tag team partner.  Federal grant compliance is one of those areas where the rules run deep enough that we regularly bring in specialists ourselves — and we have a great one.

KSB School Law and the Nebraska Department of Education, Office of Special Education have joined forces to bring the EDGAR Academy to Nebraska on Wednesday, October 14, 2026 — and you don't have to be a KSB client to attend.  (You're welcome, everyone.)

You'll spend the day with Tiffany Kesslar of The Bruman Group, who has worked with schools and state education agencies across the country and has a rare gift: she makes the boring interesting, the complex understandable, and the theoretical actionable.  The Bruman Group has been a go-to name in federal education law and grants management for over 45 years, and Tiffany is the real deal.

Training runs 9:00 AM to 3:00 PM at the Nebraska Department of Education's building in Lincoln.  At $610 per person, attendees walk away with a thorough grounding in EDGAR and Uniform Guidance principles, cost allowability, procurement and inventory processes, and obligation timelines — plus coverage of the regulatory updates that took effect July 1, 2025, and proposed changes released May 29, 2026.  Oh, and a copy of the Administrator's Handbook on EDGAR.  (It's a page-turner.  Sort of.)

Nobody's getting hit with a folding chair — but by 3:00 PM, your head will be full of the kind of federal grant knowledge that actually keeps auditors at bay.

This one is especially well-timed for business managers and federal program staff in Nebraska, South Dakota, Wyoming, and Kansas.  For registration and more information, visit the following link.  In the meantime, if you have questions, you know where to reach us: ksb@ksbschoollaw.com.

Before the Monitors Arrive: Auditing Your Use of EAs, Permits, and Long-Term Substitutes

School districts across the country face the same math problem every fall: more special education vacancies than fully certified applicants.  State licensing boards respond with provisional pathways (exception authorizations, permits, long-term substitute assignments) that keep an adult in the classroom while a candidate works toward full certification.  These pathways solve a hiring problem.  In light of recent findings from special monitoring, coupled with a new school year on the horizon, now is the time for districts to review how they supervise and support provisionally licensed staff.

In a recent special monitoring report, the Wyoming Department of Education (“WDE”) took issue with a Wyoming District's use of exception authorization ("EA") holders and long-term substitutes serving in special education capacities.  WDE stated the "practice of assigning unlicensed teachers to resource rooms and program rooms must cease."  The IDEA establishes minimum personnel qualifications for individuals providing special education and related services.  34 C.F.R. § 300.156.  Under that regulation, special education teachers must hold full state certification without waiver on an emergency, temporary, or provisional basis.  A provisional credential authorizes someone to work toward licensure, not to stand in for it.

WDE grounded its position in PTSB's October 2023 Director's Memo, which requires that an EA applicant "shall be supervised by a fully licensed educator" and that "the district accepts responsibility for ensuring the applicant completes all requirements and becomes eligible for full licensure."  Significantly, WDE interprets this supervision requirement to reach any educator without full state certification, including long-term substitutes and permit holders, not just EA holders.

WDE considers direct supervision adequate only when the fully credentialed teacher (1) prepares the lessons and plans the instructional activities the unlicensed staff member carries out, (2) evaluates the progress and achievement of the students the unlicensed staff member serves, and (3) works in close and frequent proximity to the unlicensed staff member.

If WDE's position sounds different from the guidance you understood from PTSB, now is the time to evaluate your practices.  A few practical steps go a long way:

1. Keep a simple supervision log.  A brief weekly record of who planned the lessons, who reviewed student progress, and when the licensed supervisor worked in the classroom shows the district meets all three elements.

2. Pair every provisional staff member with a licensed educator in the same building.  A quick review of assignments before the year starts catches any arrangement that relies on cross-building or once-a-week supervision.

3. Keep progress reporting with licensed staff.  Provisional staff can collect the data; the licensed teacher interprets it and signs the IEP progress reports.

4. Build shared planning time into the schedule.  A common planning period lets the licensed teacher prepare what the provisional staff member will deliver, and the plans themselves become the documentation.

5. Keep an eye on the licensure pathway.  Establishing a regular system to check-in on each provisional educator's coursework and testing progress honors the district's commitment when it accepted the authorization.

While we don't yet know how far WDE will take its directive that assigning "unlicensed" staff to resource rooms and program rooms must cease, districts should prepare to review their practices now.  We will keep you posted as things develop and share any new guidance that comes out.  In the meantime, if you have questions, reach out to us at ksb@ksbschoollaw.com.

Gender Identity and Sports: Some (Legal) Finality?

One of the most hot button issues in education law got a lot of clarity last week.  And in a surprise twist, this will not make extra work for your school.   On June 30, the U.S. Supreme Court decided two cases: West Virginia v. B.P.J. and Little v. Hecox, two cases in which transgender girls sued challenging state laws that barred them from participating on sports teams designated for female athletes.  

So, can states pass laws explicitly limiting participation in women’s sports to biological females?  

Short answer: yes, even if a student takes puberty blockers or receives hormone treatments.  States with these laws on the books (27, including NE, SD, and WY) are permitted to keep them in place.  No policy changes needed.

The Court ruled that neither Title IX nor the Equal Protection Clause requires states to make exceptions for participation of transgender student-athletes.  The rationale was fairly basic.  Title IX has always permitted sex-segregated sports, and “sex” means biological sex, because that’s what it meant in 1972 when Title IX passed.  The Equal Protection clause permits states to create sex-based classifications when they are “substantially related” to an “important” governmental objective (or in nerdy lawyer speak, “intermediate scrutiny”).  According to the Court, the WV and ID laws cleared that hurdle--as would similar laws in other states.

The Court was also clear that the ruling doesn’t impact other related questions.  It doesn’t impact rules in most states that permit biological females to participate on male teams.  States can permit transgender participation, or at least the decision doesn’t prohibit it.  The Court did not make any decision about bathrooms and locker rooms.  This isn’t the end of gender-based litigation, but it does answer one long-running question.  If you have any questions, let us know: ksb@ksbschoollaw.com

P.S. Speaking of Title IX — training season for 26-27 is here. On-demand training goes live July 15:

• New administrators (required): Training on your district's Title IX policy, covering both "skinny" and "full" versions.

• Returning administrators: for "full" policy adopters, this quick refresher on Title IX developments is required; for "skinny" policy adopters, it is recommended but not required.

• All staff (required only for new staff but KSB recommended for everyone): Training on your district's policy and reporting duties, also live July 15. Failing to report Title IX-covered misconduct is one of the biggest legal exposures schools have, so we recommend this for all staff every year.

• Prefer in-person? We can run all of this at a back-to-school inservice — but dates are booking fast, so grab one now. Please email Shari (shari@ksbschoollaw.com).

For additional information and to register for training, CLICK HERE.

P.P.S. Do you know an attorney with a few years of experience who would be a great fit for KSB, even without specialized education law knowledge?  Let that person know that we’re hiring!  

Why Your School Board Needs a Retreat (And What to Actually Do There)

We just got back from our KSB summer retreat, and honestly? We're fired up. Every year we do this twice, once in the winter, once in the summer.  And every year it reminds us why we started this firm in the first place.

We know what you might be thinking: a whole-office retreat, twice a year? Yes. Whole office. Every single person. Not just the attorneys while the administrative staff holds down the fort back home. Everyone. Because continuous improvement isn't a department at KSB, it's baked into who we are. Law firms that leave people behind for retreats, or skip them entirely to protect billable hours, are missing the point. You can't build a great team in pieces.

Here's how ours work: the winter retreat is our end-of-year after-action report. We pull the numbers, look hard at what worked and what didn't, and set the table for the year ahead.  We plan for the fiscal year ahead. The summer retreat is our check-in — are we on track? What's changed? What do our clients need that we haven't figured out yet?  We plan for the school year ahead.  In this way, we’re a lot like boards and administrators who orient themselves in January and plan for the school year during the summer. 

And here's the thing our retreats keep reminding us: growth isn't just about adding clients. It's about going deeper, not just wider.

For us, that means constantly asking what we can do for the schools we serve — before they even know they need it. Policy services. Webinars. Superintendent and building administrator evaluations. In-person workshops.  The goal isn't to be a firm that schools call when something goes wrong (and hope it’s bad enough to make a living). It's to be a firm that helps schools build the kind of governance and policy infrastructure that keeps things from going wrong in the first place. The retreat is where we hold ourselves accountable to that vision.  Some conversations are difficult.  Some are celebrations.  They’re all necessary. 

Okay, But What About Your Board's Retreat?

All of this got us thinking about school board retreats — because the same tension exists there.

A board retreat can feel like a massive investment. You're pulling elected officials and administrators out of their regular lives, possibly paying for a facilitator. And if you're not careful, you walk out with nothing but a very long to-do list, a vague sense of optimism, and a blurry “vision” that fades by October.

So what makes a board retreat actually worth it?

The goal is a strategic plan everyone actually believes in. This sounds obvious, but it's the most common place things go sideways. A strategic plan that lives in a binder on a shelf isn't a strategic plan, it's a document. A real strategic plan is one that every board member and every administrator can speak to, in their own words, without looking it up. If you can't get there, the retreat is actually a great place to build that shared language. What are we here to do? What does success look like in three years? What would have to be true for us to get there? Those questions, asked together, are worth more than any consultant's slide deck.  They all precede the written artifact, but that is where the magic happens.

Don't let the retreat become a complaint session. Every board has things that aren't working. A retreat is a good time to name them, but only if you're also naming the path forward. Facilitated well, a retreat surfaces the right issues and builds consensus around solutions. Facilitated poorly, it's a day of venting with a nice lunch.

Build in some reflection, not just planning. What did we do well this year? Where did we fall short, and why? Boards that skip the retrospective part and go straight to goals tend to repeat the same mistakes in fancier language.

Don't Leave Without Scheduling the Board Self-Evaluation

Here's something that often gets agreed to at a retreat and then quietly slips off the calendar: the board self-evaluation.

At this point in the year, most boards are wrapping up their fiscal year and heading into a new one. The retreat is a natural moment to commit — out loud, with a date on the calendar — to evaluating how the board is functioning as a governance body. Are we staying in our lane — policy and oversight — and letting the superintendent lead? Are we unified in public even when we disagree in the boardroom? Are we making decisions based on data, or based on whoever was loudest at the last community meeting?

Board self-evaluation doesn't have to be painful. Done right, it's actually energizing — because most board members want to be effective. They just don't always have a structured way to talk about it. The retreat is the right moment to agree that you'll create that structure, pick a date in the fall, and assign someone to own it.

Whether you use a formal instrument or a facilitated conversation, the questions are the same: What are we doing well? What do we want to do better? And how will we hold ourselves accountable?

The retreat plants the flag. The self-evaluation, done a few months later, tells you whether you are on track.  It’s also a place to make sure fundamental governance responsibilities that aren’t listed on the strategic plan continue to improve or at least hold steady.  Because a well-done plan can’t include everything.  Maybe your board has always done a great job being present at school events.  Did that continue even though your primary strategic initiatives are to increase staff retention and improve student attendance?

At KSB, we'll be back in the room together in the winter to answer those same questions for ourselves. We think that's what it takes to keep getting better — and we think your board is worth the same investment. 

We can even check and see if Bobby’s mom can make it to give your team haircuts. 

*Schedule a demo of the evaluation platform at https://www.ksbschoollaw.com/evaluation-platform or email ksb@ksbschoollaw.com.*

The Feds Just Reshuffled Special Ed, Civil Rights, and FERPA Oversight: Here is What it Means for You

Your students’ special ed rights are now overseen by a health agency.  Their complaints about privacy and civil rights now go directly to the Department of Justice.  If this gives you pause, good.  It should.  On June 16 the US Department of Education signed four interagency agreements that moved OSERS to HHS and OCR plus the Student Privacy Office to DOJ.  The administration has telegraphed that this was coming since 2025, but warned and ready aren’t the same thing.  There's a lot of noise out there, so here's a clear-eyed picture of what's actually happening and what it means for your district.

The Agreements

ED signed four agreements: HHS absorbs special education and rehabilitative services (OSERS); DOJ takes on civil rights enforcement (OCR), student privacy protection (FERPA), and school desegregation advisory services.  ED retains statutory authority and final decision-making under all four.  Secretary Linda McMahon issued a letter the same day reassuring schools and families that IDEA’s education framework remains intact and “that OSERS and OCR will maintain their independent statutory functions without interruption.”  That's the promise.  Implementation is the question. 

Civil Rights Enforcement Gets Sharper, Maybe

DOJ likely brings a stronger enforcement posture than OCR's traditional complaint-resolution model, and this shift shouldn't come as a surprise.  A complaint moving through a DOJ-assisted investigation may simply feel different from one handled entirely within OCR's traditional framework.  That's not cause for alarm, but it is a reason to take incoming complaints seriously and loop in counsel early, which is a good practice regardless.  This shift didn't come without warning.  Over the past year, headlines have focused primarily on OCR's significant staff reductions, so shifting its functions to an agency with stronger enforcement muscle is a logical next step to achieve the administration's desire to shrink the Department of Education.  The administration launched a joint Title IX Special Investigations Team in 2025 combining OCR and DOJ staff to build enforcement-ready cases from day one.  DOJ recently announced investigations into dozens of districts in California, Illinois, and Michigan over curriculum content and parental opt-out rights, a sign of the enforcement posture districts should expect going forward.  Even if this move comes as no surprise, only time will tell how or whether districts feel its impact.  Traditionally, the DOJ has more muscle but fewer complaint processors.  How they staff this switch to handle thousands of potential complaints is worth monitoring.

On a practical note, if your district is currently in the middle of an OCR investigation, it will not reset.  Stay engaged, meet every deadline and make sure your documentation clearly explains your district's decisions.  If DOJ plays a more active role, the process may feel more formal and legalistic, which is all the more reason to involve your school lawyers in the process early or to get them involved now if you haven’t.

FERPA Oversight Expands

The student privacy agreement gets less press than the civil rights move, but it touches every district directly.  DOJ now reviews FERPA complaints and investigates how districts handle student records, parental access to curriculum, and survey opt-outs.  This administration has prioritized parental rights since Executive Order 14190 (January 2025), and Secretary McMahon signaled intent to clear the FERPA complaint backlog in March 2025.  Districts won't feel this shift immediately, but it does signal that diligent FERPA training and compliance remain essential.

One open question worth watching: the agreement doesn’t make entirely clear who will be responsible for sending student privacy letters going forward.  Unclear lines of authority have a way of meaning things fall through the cracks.  Student Privacy Office complaint investigations have never been speedy and it feels likely that this problem will be exacerbated, at least in the short term. 

Special Education Moves to HHS

This is the move that has generated the most concern and that concern isn’t unreasonable.  OSERS, IDEA and OCR are all pieces of the same special educational puzzle.  Splitting them across HHS and DOJ raises real questions about coordination and institutional knowledge going forward.  

Advocacy groups have raised concerns about the OSERS-to-HHS move, arguing that HHS operates through a health and medical services framework, raising real questions about whether special education oversight belongs in an agency whose default orientation is clinical rather than educational.  Secretary McMahon’s June 16 letter addressed this directly, stating that “IDEA ensures that a child’s disability isn’t viewed as a medical condition that needs to be treated.”  That’s the right legal framing, but the question is whether that holds in practice.  Under the partnership, HHS takes over day-to-day administrative functions, including grant administration, compliance monitoring, data collection, and fund drawdowns, while OSERS retains policy leadership, statutory authority, and technical assistance to states.  FY2026 grants continue through ED's G5 system; future awards will move to HHS's GrantSolutions platform.  At best, this will be a learning curve for a new system; at worst, grant management may become even more complex.  More info on an upcoming training opportunity below.

Bottom Line

Your obligations under IDEA, Section 504, Title II, Title VI, and Title IX have not changed. Students retain their rights, and federal oversight continues, just under a new organizational structure.  The questions around implementation are real and worth watching, but we’re tracking the details closely.  We’ll keep you updated as guidance develops.  Stay focused on compliance, document what you’re doing and loop in legal when you have questions arise.  As always, you can reach us at ksb@ksbschoollaw.com.

One More Thing While We Have You

All of this federal grant reshuffling comes at a moment when grant compliance  (boring things like EDGAR, Uniform Guidance, procurement, obligation deadlines) is under more scrutiny than it's been in years.  The cost of getting it wrong has gone from "uncomfortable audit finding” to “very bad news very fast.”  We have something coming in October that’s directly relevant and we think you’ll be glad we got it on the books when we did.  More details to come soon…..  

You're Running One of the Most Important Institutions in America. Almost Nobody Knows.

Karen got a call last spring from a board member who had spent several days fielding phone calls about a special education student who had been cursing in front of his second-grade peers.  What kind of out-of-control operation are you running over there? - the outraged parents kept demanding.  “They acted like I personally decided to let this kid start swearing,” the board member told Karen.  “I’m a farmer.  I finish cattle.  I’m on the board because I care about the school my kids go to.  They just don’t understand the special ed laws you keep telling us about.”  He was not wrong on any count.

A new study from the Annenberg Institute surveyed more than 8,600 Americans about their knowledge of school boards, and it turns out this school board member’s neighbors are not alone.

Thirty-two percent of respondents couldn’t say whether their local school board members are elected or appointed.  Nearly half had no idea when their board elections are held.  The public’s best guess for voter turnout in school board races was 28 percent.  The actual number is closer to 12 percent.

Meanwhile, 95 percent of those same respondents said school safety was at least somewhat important to them.  Eighty-four percent said the same about school cafeteria food (the quality of which is, sadly, largely dictated by the federal Healthy, Hunger-Free Kids Act of 2010.)  School board election timing came in at 49 percent.

Your community trusts you with the thing they care about most.  They just don’t know who you are, how you got there, or when they had a chance to weigh in.

This Is Not a New Problem.  But Now There’s Data.

School boards collectively oversee nearly $1 trillion in annual spending — comparable to federal Medicare and defense spending.  Board members set attendance zones, negotiate union contracts, approve curriculum, manage multi-million dollar budgets, and make real-time calls about student safety.  They do most of it in near-total obscurity, in communities where local media coverage is thin and voter turnout is thinner.

Here is what board members and superintendents already know and rarely get credit for: the decisions that generate the most public heat are frequently not your decisions at all.  Transgender student policies.  Special education placement requirements.  Teacher tenure protections.  Curriculum mandates.  The federal government writes the rule, or the state passes the law, and your board implements it.  Then you field the calls, the emails, and the two-hour public comment period from a community that has no idea the choice was never yours to make.  (See: our farmer friend above.)

The study’s authors note that public awareness of school board governance is especially low in communities without robust local media — which describes most of Nebraska, South Dakota, and Wyoming precisely. The accountability mechanisms that are supposed to connect boards to their communities are running at a fraction of capacity.  That is not a failure of your board.  It’s a structural reality of governing in rural America.

What the Study Gets Right About Teachers, Too

Here’s a finding that runs against the conventional wisdom: teachers support moving school board elections to the same day as national elections at a rate of 72 percent.  That is higher than the general public’s 55 percent.  The assumption has always been that teachers and their unions benefit from low-turnout off-cycle elections.  Turns out teachers, like most people, just want a more representative process.  This is worth knowing the next time someone tells you your staff is working against the community.

In fact, you should consider sharing the study's findings with your entire board at your next meeting.  The data provides a useful point for a conversation about governance and public accountability.

A Quick Aside

We’ve built a board self-evaluation platform designed for exactly the environment this study describes — one where external accountability is unreliable and boards need a structured internal process to hold themselves to a standard.  If your board is planning a summer retreat or looking for ways to grow as a board, it’s worth a look. Details at ksbschoollaw.com/evaluation-platform or email ksb@ksbschoollaw.com.

Before You Go: Its Policy Season!

Speaking of things the government requires that the public will eventually blame you for — our annual policy webinar walks you through every state and federal update your board policies need to reflect before next school year.  Nebraska subscribers, that’s tomorrow (Tuesday, June 2).  South Dakota subscribers, yours is June 16.  If you’re not subscribed to our policy service, you can find more detail about the service at www.ksbschoollaw.com/policy-service-.

The Clock Was Ticking…Now It’s Snoozing: DOJ Accessibility Rule Delay

Just last week we updated you on the status of the Title II Web Accessibility Standards.  In a rare twist for anything involving lawyers, things have moved quickly.

On Friday, April 17, 2026, the Department of Justice issued an Interim Final Rule delaying the compliance deadline for the new web accessibility standards (we wrote about this just last week for a refresher).  Basically, the DOJ pushed all compliance deadlines back by one year.  Meaning independent school districts with a population of 50,000 or more must comply with the new standards by April 26, 2027.  For districts under that threshold, compliance is now required by April 26, 2028. 

Before you mark your calendars, the DOJ also signaled that it might scrap this rule altogether.  DOJ stated that it intends to pursue future rulemaking on the substance of the 2024 final rule and may issue a Notice of Proposed Rulemaking (NPRM) to gather public comment on potential changes.  In other words, the DOJ may revise the rule further, but it has not yet proposed specific changes.

We will keep you updated here on the blog.  For now, the new compliance deadlines have been extended significantly.  If you have any questions, send us a message at ksb@ksbschoollaw.com.

The Clock Is Ticking…Maybe? DOJ Web Accessibility Rule Update

Way back in 2024, we talked about a new rule from the U.S. Department of Justice (DOJ) regarding web accessibility requirements.  This rule applies to state and local government entities—including public K–12 school systems.  The goal is to ensure that individuals with vision, hearing, cognitive, motor and other impairments can access the information and services public entities make available online.

When do you have to comply?  The law ties compliance deadlines to the size of the entity.  Remember, this rule applies to most public entities, not just schools.  For a city or a county with its own census population, it’s simpler.  For entities run by larger local governments, they use the larger entity’s population.  For example, if a library is run by a city, it uses the city’s population.  

For schools, the rules get a bit funky.  The size of the school depends on if it is an “instrumentality” of a city or county, or if it is “independent” with its own boundaries and governance structure.  For “independent” school districts, for compliance purposes, the size of the district is measured by the Small Area Income and Poverty Estimates (SAIPE).  The DOJ website guides independent school districts to look at the 2022 SAIPE, linked here for Nebraska, South Dakota, and Wyoming.  Other DOJ guidance says to use the “most recent” SAIPE, so if your school is near the 50,000 cutoff line, here’s a link to the 2024 numbers, published by the Census Bureau recently.

For independent school districts with a population of 50,000 or more, compliance with the new standards is expected by April 24, 2026.  For districts under that threshold, compliance is required by April 26, 2027. 

What, exactly, is the accessibility standard?  The rule requires websites and digital content to meet a standard called WCAG 2.1, Level AA standards (2018 version).  If you don’t know exactly what that means, join the club!  It is an international web accessibility standard that the feds adopted wholesale as “the law.”   Its scope is broad and includes:

• Mobile applications

• Social media content

• Digital learning platforms and textbooks

• Online forms, documents, and communications

• In some cases, third-party sites that you link to

Are these rules changing again!?  On February 13, 2026, the DOJ sent a revised version of the Title II web accessibility rule to the Office of Information and Regulatory Affairs (OIRA) for review as an Interim Final Rule (“IFR”).  This matters because:

• An IFR allows DOJ to revise the rule without going through a full public comment process first

• The contents of the revised rule are not yet public

• The rule is actively under federal review, and stakeholder meetings are taking place during this review process

In short, we know the DOJ is considering changes, but we do not know what those changes ultimately will be.  The first deadline—April 24, 2026 for entities of 50,000 or more—remains in effect. While it is possible that the DOJ could modify the rule, there has been no official action to delay or revise the requirements.  If changes are announced, we will provide updates, but for now, districts should plan to comply on schedule.  

Most schools that have contacted us about these rules are already working with their technology staff and web/app providers.  Just as one example, many schools run their websites through Apptegy.  Companies like it promise compliant formats for web content, but schools also need to be familiar with the accessibility rules for things they include in their websites and apps.  If you have any questions, reach out to your school district’s attorney or contact us at ksb@ksbschoollaw.com. 

Spring Professional Development: Two Easy Options

If you’re starting to think about spring professional development and wondering how to fit one more thing into an already full calendar, we can help.  We offer two professional development options that respect teachers’ time and focus on the decisions they actually make every day.

Option 1: On-Demand Video Series

Our new on-demand series is designed for maximum flexibility and minimal disruption:

What School Attorneys Wish Teachers Knew: Legal Perspectives on Everyday School Decisions

• 10 short videos

• Each video runs 10–12 minutes

• Includes discussion questions if you want teachers to debrief with others

Option 2: In-Person Staff Inservice

For schools that prefer live professional learning, we offer in-person staff inservice sessions tailored to your needs.  These sessions focus on real scenarios educators face, provide clear guidance, and leave room for questions that usually start with, “What if…”

If you’re planning spring PD, we’re happy to talk through what would work best for your staff.  Shoot us an email at ksb@ksbschoollaw.com to discuss options and cost.

New 1099 Thresholds: What to Know Now

Is that the chill of a winter storm we feel coming? Or is it just the frigid heart of tax season bearing down on us all? 

One quick update to keep on your radar: 1099 reporting thresholds.

Beginning with payments made after December 31, 2025, the IRS has increased the reporting threshold for Form 1099-MISC and Form 1099-NEC:

• Old threshold: $600

• New threshold: $2,000

This change will be indexed for inflation after 2026, meaning the threshold will almost certainly continue to adjust in future years.

What does this mean for schools? While this won’t impact reporting for the 2025 tax year, it’s a great time to start planning ahead—especially if your school regularly works with independent contractors, consultants, or other non-employees.  As a reminder, we recommend routinely seeking updated W-9s from those individuals.  Lastly, the IRS published instructions regarding these form updates on December 23, 2025.  They are available here. 

If you run into any questions this tax season, our email is ready at ksb@ksbschoollaw.com 

Cold Weather, Hot FMLA Questions

January brings snow days, icy sidewalks, and that perennial winter question: Does this count as FMLA? Yes, it’s mostly lawyers who lose sleep over it. The good news: the Department of Labor has finally cleared the fog—so, for once, attorneys can rest easy, and you can too, just in time for the next weather closure. (P.S. If you need a quick refresher on FMLA leave, before diving into this blog, click here. We also have FMLA training videos available for purchase here.) 

According to the recent letter from the Department of Labor, when faced with a school closure, determining how to count FMLA depends on the type of FMLA leave the employee is using. 

Scenario 1: Employee Is Using FMLA for Less Than a Full Week

Intermittent leave is only available when medically necessary or if agreed to by the employer.  If an employee is approved for intermittent or reduced-schedule FMLA leave, and the school closes for one or more days during that week, and the employee is no longer expected to report to work during the closure, that time does not count against the employee’s leave entitlement. 

• Example: A teacher takes FMLA leave every Friday to care for a parent who has a serious health condition. If the school is closed on Friday due to icy conditions, the day does not count against the employee’s FMLA entitlement because the employee was not required to report to work.

Scenario 2: Employee Is Using FMLA for a Full Workweek

If an employee is on continuous FMLA leave for the entire workweek (which is the default approach), and the school closes for less than a week, then the entire week still counts as one full week of FMLA leave. This means the closure does not reduce the amount of FMLA leave used.  It’s still 1/12 available FMLA leave weeks.

• Example: A teacher is taking bonding time leave after the birth of a child for the next 12 weeks, and the school is closed on Wednesday that week due to snow. Even though the employee is not required to report to work, the employee still uses a full week of FMLA leave. 

The letter clarifies the following do not impact how FMLA leave is counted: 

• Whether the closure was planned or unplanned.

• The reason for the closure (weather, utilities, emergencies, etc.).

• Whether the school later schedules a “make-up” day (an employee’s need for FMLA leave on a make-up day is evaluated independently).

Here’s to clear skies, calm forecasts, and fewer leave questions ahead. But as always, if those questions arise, drop us a message at ksb@ksbschoollaw.com. 

Before Hotmail Was Hot: FERPA’s Pre-Email Predicament

FERPA debuted in the ’70s—an age of rotary phones, typewriters, manila folders—not exactly the dawn of digital communication. Because of that, FERPA’s original framework didn’t contemplate the advent and rise of Hotmail in 1996 (side note: if you still have your Hotmail account, impressive). Since that time, schools and courts have had to figure out how email communication (and DMs on Facebook) intersects with FERPA obligations. 

Under FERPA, an education record is any record that (1) directly relates to a student, and (2) is maintained by the school district. 34 C.F.R. § 99.3. Back in the day, the concept of an education record was simple; it was the hard copies of information that the school locked away in a student’s file in its filing cabinet. 

Questions in 2025 are different.  With email, when does an email that includes a student’s name or school email address begin to relate to that student directly? At what point does a district “maintain” that record? As recently as April 2025, the Student Privacy Policy Office, the federal office tasked with FERPA compliance, recognized that the Department has not “issued any subsequent formal guidance or regulations that specifically addresses the applicability of FERPA to emails.” Letter to Monogue. However, a recent case out of Nevada sheds some helpful light on this very issue.

In the case Clark Cty. Sch. Dist. v. Eighth Judicial Dist. Court, No. 89127, 2025 Nev. LEXIS 66 (Nov. 26, 2025), the court looked at whether emails that are broadly stored in a district’s Google Workspace are education records. Even assuming an email “relates” to a student, the court reasoned that emails may constitute education records, but to be an education record, “the email relating to the student must be deliberately stored by the records custodian as part of that student's records.” 

The word “deliberate” aligns with the historic understanding of what it means to “maintain” a record.  It means that there is an intentional choice to “maintain” the email, as defined by policy.  Emails that exist within the school’s email system lack that intentionality and, according to the court, were not “maintained”. The court further emphasized that just because an email mentions a student, that does not necessarily mean the email “directly relate[s] to and bear a close connection to the student.”

Now, even though this opinion is out of Nevada, districts in other states can walk away with a few important lessons from it.

1. Review your district’s policy. The court, in part of its reasoning, looked to the district’s definition of education record to support its finding that emails sent in the ordinary course of business were not automatically education records.  Nowadays, there are all kinds of records (i.e., attendance and discipline file, grade books, student support services folder, etc.). Your policy should focus on what it means to “maintain” a record, rather than focusing on the type of record. 

2. Routine storage in email servers/databases is not the same as intentional maintenance, assuming your policy defines maintain appropriately. It may be helpful to chat with your tech person to understand better the life of an email in your district’s digital domain.  Clarify with staff what it means to “maintain” records based on your policy. 

3. Emails CAN be education records, even if not specifically identified in your district’s policy. Whether an email is an education record comes down to that fundamental definition: it must (1) directly relate to the student and (2) be maintained. There may be instances where an email (for example, an email sent by an administrator documenting a disciplinary incident and saved in a student’s disciplinary file) is an education record. 

As always, if you have questions, email us at ksb@ksbschoollaw.com, and we may or may not promise that your email will become part of your KSB education record. 

PPACA Reporting 2025: The “Most Wonderful Time of the Year” for… Paperwork?

Just as the holiday season brings its annual flurry of festivities, so too does the other seasonal tradition you know well: PPACA reporting.  Administrators--if your business officials have attended the PPACA reporting workshop before, they also received an email from Shari, but you should forward this on to them just in case.  If you have a new business official, share this like it’s hot.

While the Patient Protection and Affordable Care Act (PPACA) reporting obligations are more than a decade old, they continue to be a source of confusion, especially for those who only dust off the requirements once a year.  Luckily, the 2025 reporting year brings only modest changes, but still enough updates and reminders to justify a fresh review of your processes before you’re buried under a blizzard of 1095-Cs.

Below is a summary of what school districts need to know as we head into 2025 and an invitation to join us for our annual PPACA webinar, where we’ll walk through everything in detail.

What’s New (or Newly Important) for 2025?

1. Electronic Filing Threshold Remains Low

As of last year, the IRS permanently lowered the electronic filing threshold to 10 forms total across all information returns combined.  That means nearly every school district will be required to file 1094-C/1095-C forms electronically.  Now is the time to double-check with your accounting software provider regarding end of the year trainings and verify that your login information works for the IRS AIR system.  

2. Continued Enforcement of Good-Faith Relief Expiration

The IRS has not reinstated good-faith penalty relief.  This means errors in coding or late submissions can result in significant penalties.  Because the IRS is increasingly using automated matching systems to identify discrepancies, accuracy matters more than ever.

3. Affordability Percentage

In 2025, the PPACA affordability threshold is 9.02% of household income.  The IRS recently released the 2026 threshold which is 9.96%.  School districts should review employee premium contributions to confirm compliance.  In the webinar, we’ll explain how these thresholds apply to plans like schools and ESUs have in place, where the insurance year changes over in the middle of the calendar year.

Join Us: Annual PPACA Update & Reporting Webinar

Just as holiday decorations reappear each year, so does PPACA reporting season.  To help ease the process, Bobby and Sara will once again host the Annual PPACA Webinar. We will cover annual reporting requirements, common mistakes we see our clients make annually, a legal update for 2025, and what to look for in 2026.

Date and Time: Wednesday, December 17, 2025 from 9:00-12:00

Where: The webinar will be conducted via Zoom, and all participants will be able to ask questions during and after the presentation.  All registrants will receive a copy of the slides, materials used in the webinar, and this year’s version of the instructions and forms, plus IRS documents establishing affordability, reporting deadlines, etc.

Cost: The cost will be $350 per school.

Register here. 

If you have any questions, please do not hesitate to contact us at ksb@ksbschoollaw.com or 402-804-8000.

Before You Hit Send

As the school year continues to march forward, sometimes it becomes tempting to want to rage reply to a coach who continues to bother you about the booster club tailgate loosen up email practices. We figured now is as good a time as ever to highlight a few basic email reminders that we have seen creeping up as issues for some. While this may seem like a strange topic for lawyers to blog about, we have been in too many cases where well-intended board members, administrators, teachers, and other employees would really like a do-over on communications they sent.

Double Check the Recipients and Attachments

Accidentally hitting “Reply All” or attaching the wrong document is more common than you think and can lead to real FERPA or confidentiality headaches, open meetings issues, and more. Double-check those attachments and give your “To,” “CC,” and “BCC” the once-over. 

Emails Have a Long Shelf Life

Emails sent from school district and service agency or cooperative accounts (and sometimes even personal accounts if used for school business) can be subject to public records requests, discovery, state complaint documentation submission requirements, or internal review. Writing with that in mind helps you stay compliant and protects both you and your district or service agency/cooperative. Always write an email with the thought that it might be read by the Department of Education, an external investigator, and a hearing officer. 

Once You Hit Send, It Is Out of Your Control 

Sometimes emails can take on a life of their own. Once we send something, the recipient has the power to forward and disseminate (even if they shouldn’t) as they see fit. Start from the premise that every email you write could be forwarded, and ask yourself, “Would I be comfortable with this being shared at a board meeting, news outlets, or on Facebook?” If the topic is especially frustrating or contentious, a good practice is to draft the email, but then hold off on sending right away. Get a cup of coffee, walk around the building, and then come back and revisit what you drafted. It’s never a good idea to fire off a quick response in the so-called “heat of the moment.” Give yourself a chance to reflect on whether your email is professional and educationally appropriate before you hit “send.” This is especially true when dealing with difficult situations where you may be close to implementing a “communication diet” or even a ban-and-bar letter. Looking reasonable in all communications up to that point is helpful.

These may seem obvious, but trust us, we get that it’s easy to let the hecticness of all the other aspects of your job push some of these considerations to the side. With that being said, feel free to send your most ready to be forwarded to the world questions to ksb@ksbschoollaw.com. 

Just a quick note: unless your district is already a KSB client, reaching out doesn’t create an attorney-client relationship, and you’ll want to skip any confidential or privileged details in your first message. Once you’re a client however, venting to your attorney (and only your attorney) in an email is the only safe space to vent.  

The Life of a Showgirl: Keeping Student Records Out of the Spotlight

Ever since Taylor dropped The Life of a Showgirl, our office chat hasn’t known peace. The “youth” (minus Jordan but including Bobby) are big fans, while the “olds” (non-derogatory) seem not to understand the cultural importance that is unfolding. But amid all the debate, we found a theme worth borrowing: knowing when to step out of the spotlight. That’s a lesson worth remembering when it comes to student records and a district’s obligations under FERPA. 

Here a few quick FERPA reminders: 

1. FERPA Doesn’t Forbid All Disclosures — Just Unauthorized Ones. Schools can share information without consent only if an exception applies, such as with school officials who have a legitimate educational interest, during health or safety emergencies, or under court orders. When in doubt, pause before sharing and check if an exception applies.

2. Surveillance Videos Can Be Education Records. If a school video is retrieved or used for discipline or maintained in a student’s file, it may become an education record subject to FERPA. Parents may view such videos if redacting other students is impossible without destroying the meaning.

3. Staff Conversations Count. Sharing information from education records in a verbal comment can violate FERPA if it’s shared with someone who lacks a legitimate educational interest or another applicable exception. Confidentiality applies to conversations about protected information as well as documents.

4. Confidentiality Extends Beyond Staff — Train Volunteers and Chaperones. Parent chaperones, tutors, community coaches, and volunteers often see or hear sensitive information during school activities. Provide brief FERPA, IDEA, and 504/ADA privacy training before things like field trips or volunteer events to prevent unintentional disclosures or “gossip” that can violate student confidentiality. 

Looking for a quick training solution? We have a free seven minute training video you can show volunteers and chaperones on FERPA available here.  As always, if you have any questions or want to talk training options (Section 504, IDEA, specific coaching and substitute teacher trainings, etc.), feel free to reach out to your favorite showgirls (ok–that’s a stretch) at ksb@ksbschoollaw.com. 

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