Protections for children not determined eligible for special education and related services.
(a) General. A child who has not been determined to be eligible for special education and related services under this part and who has engaged in behavior that violated a code of student conduct, may assert any of the protections provided for in this part if the public agency had knowledge (as determined in accordance with paragraph (b) of this section) that the child was a child with a disability before the behavior that precipitated the disciplinary action occurred.
(b) Basis of knowledge. A public agency must be deemed to have knowledge that a child is a child with a disability if before the behavior that precipitated the disciplinary action occurred--
(1) The parent of the child expressed concern in writing to supervisory or administrative personnel of the appropriate educational agency, or a teacher of the child, that the child is in need of special education and related services;
(2) The parent of the child requested an evaluation of the child pursuant to Sec. Sec. 300.300 through 300.311; or
(3) The teacher of the child, or other personnel of the LEA, expressed specific concerns about a pattern of behavior demonstrated by the child directly to the director of special education of the agency or to other supervisory personnel of the agency.
(c) Exception. A public agency would not be deemed to have knowledge under paragraph (b) of this section if--
(1) The parent of the child--
(i) Has not allowed an evaluation of the child pursuant to Sec. Sec. 300.300 through 300.311; or
(ii) Has refused services under this part; or
(2) The child has been evaluated in accordance with Sec. Sec. 300.300 through 300.311 and determined to not be a child with a disability under this part.
(d) Conditions that apply if no basis of knowledge. (1) If a public agency does not have knowledge that a child is a child with a disability (in accordance with paragraphs (b) and (c) of this section) prior to taking disciplinary measures against the child, the child may be subjected to the disciplinary measures applied to children without disabilities who engage in comparable behaviors consistent with paragraph (d)(2) of this section.
(2)(i) If a request is made for an evaluation of a child during the time period in which the child is subjected to disciplinary measures under
Sec. 300.530, the evaluation must be conducted in an expedited manner.
(ii) Until the evaluation is completed, the child remains in the educational placement determined by school authorities, which can include suspension or expulsion without educational services.
(iii) If the child is determined to be a child with a disability, taking into consideration information from the evaluation conducted by the agency and information provided by the parents, the agency must provide special education and related services in accordance with this part, including the requirements of Sec. Sec. 300.530 through 300.536 and section 612(a)(1)(A) of the Act.
(Authority: 20 USC. 1415(k)(5))
(Federal Register: August 14, 2006 (Volume 71, Number 156))