Excerpt from Special Education Process Guide for South Carolina
The IDEA allows the parents of a child who has not been determined eligible for special education and related services to assert IDEA protections, including the use of due process, in circumstances when the LEA had knowledge that the child was a child with a disability before the occurrence of the behavior that caused the disciplinary action. (34 CFR § 300.534(a))
There are three circumstances under which the LEA is deemed to have knowledge that the student is a student with a disability:
A public agency would not be deemed to have knowledge if the parent of the child has not allowed an evaluation of the child, has refused special education services for the child, or the child has been evaluated in accordance with §§ 300.300 through 300.311 and determined to not be a child with a disability.
If the parent requests an evaluation and challenges the proposed disciplinary action, and the LEA has had no knowledge of the student’s disability, then it must conduct an expedited evaluation, but the child remains in the educational placement decided upon by school authorities, which may include suspension or expulsion without educational services.
Additional Information:
Q: Do the discipline provisions of the IDEA 2004 extend to children who are in the process of being identified as eligible for special education services?
A: Yes. Federal regulations for the IDEA 2004 state that if a school had knowledge that the child is a child with a disability, the child is covered under these provisions. An LEA is deemed to have knowledge if a teacher or other personnel have expressed specific concerns about a pattern of behavior demonstrated by the child directly to the director of special education or to other supervisory personnel or if the parent of the child requested an evaluation or expressed concerns in writing to district administrative personnel. . Records from the general education intervention process should be maintained in the student's cumulative folder. Such data will provide documentation that if there was a suspected disability at some time in the past, the school made the determination whether or not the child should be referred for an initial evaluation to determine eligibility. Therefore, it is important for schools to maintain records on children as such data could be important should a disciplinary proceeding occur later.
If a child engages in behavior that violates the code of student conduct prior to a determination of his/her eligibility for special education and related services, and the LEA is deemed to have knowledge (the child has been referred for evaluation, for example), the child is entitled to all of the IDEA protections afforded to a child with a disability, unless specific exception applies. In general, once the student is properly referred for an evaluation under IDEA, the LEA would be deemed to have knowledge that the child is a child with a disability for the purposes of IDEA’s disciplinary provisions. However, under § 300.543(c), the LEA is considered NOT to have knowledge that a child is a child with a disability if the parent has not allowed the evaluation of the child under IDEA, the parent refused services, or if the child was evaluated and determined not to be a child with a disability under IDEA. In these instances, the child would be subject to the same disciplinary measures applicable to children without disabilities.
The complete State Process Guide for South Carolina can be accessed at the link below.
http://ed.sc.gov/scdoe/assets/File/districts-schools/special-ed-services/Special%20Ed%20Process%20Guide%20SEPG-2013.pdf