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U.S. Department of Education: Promoting Educational Excellence for all Americans

Protections of children not determined eligible for special education and related services (Sec. 300.534)

Comment: A few commenters requested including in Sec. 300.534(b)(1) language allowing the parent of the child to express concerns about his or her child orally to supervisory or administrative personnel, rather than requiring written notification. Other commenters requested clarifying what it means for parents to "express concern" to school personnel.

Discussion: Section 615(k)(5)(B)(i) of the Act clearly states that parents must express concern "in writing" to supervisory or administrative personnel, or a teacher of the child, that their child is in need of special education and related services. To include the language recommended by the commenters in Sec. 300.534(b)(1) to allow the parent of the child to orally express their concerns (as opposed to doing so in writing) is inconsistent with and would impermissibly broaden the requirements in the Act. We do not believe it is necessary to clarify the phrase "express concern" in Sec. 300.534(b) because we believe that, in the context of this section, it is understood to mean that a parent is concerned that his or her child is in need of special education and related services and expresses that concern in writing to the child's teacher or administrative personnel.

Changes: None.

Comment: One commenter recommended adding to the basis of knowledge criteria in Sec. 300.534(b) that if the child were currently receiving early intervening services under Sec. 300.226 the LEA would be deemed to have knowledge that a child is a child with a disability.

Discussion: A public agency will not be considered to have a basis of knowledge under Sec. 300.534(b) merely because a child receives services under the coordinated, early intervening services in section 613(f) of the Act and Sec. 300.226 of these regulations. The basis of knowledge criteria is clearly stated in section 615(k)(5)(B) of the Act and Sec. 300.534. We do not believe that expanding the basis of knowledge provision, as recommended by the commenter, would be appropriate given the specific requirements in the Act. However, if a parent or a teacher of a child receiving early intervening services expresses a concern, in writing, to appropriate agency personnel, that the child may need special education and related services, the public agency would be deemed to have knowledge that the child is a child with a disability under this part.

Changes: None.

Comment: A few commenters recommended removing the requirement in Sec. 300.534(b)(3) that the teacher of the child must express specific concerns regarding a child's pattern of behavior directly to the director of special education of the LEA or to other supervisory personnel of the LEA "in accordance with the agency's established child find or special education referral system." One of the commenters stated that this language is confusing and is not required by the Act. One commenter requested clarifying whether the LEA would be deemed to have knowledge if the information was relayed by a child's teacher in a written manner not consistent with the LEA's referral system.

Discussion: Since not all child find and referral processes in States and LEAs would necessarily meet the requirement in section 615(k)(5)(B)(iii) of the Act that the teacher of the child, or other personnel of the LEA, must express specific concerns about a pattern of behavior demonstrated by the child "directly to the director of special education of such agency or to other supervisory personnel of the agency," we are removing from Sec. 300.534(b)(3) the requirement that concerns be expressed in accordance with the agency's established child find or special education referral system.

We continue to believe the child find and special education referral system is an important function of schools, LEAs, and States. School personnel should refer children for evaluation through the agency's child or special education referral system when the child's behavior or performance indicates that they may have a disability covered under the Act. Having the teacher of a child (or other personnel) express his or her concerns regarding a child in accordance with the agency's established child find or referral system helps ensure that the concerns expressed are specific, rather than casual comments, regarding the behaviors demonstrated by the child and indicate that the child may be a child with a disability under the Act. For these reasons, we would encourage those States and LEAs whose child find or referral processes do not permit teachers to express specific concerns directly to the director of special education of such agency or to other supervisory personnel of the agency, to change these processes to meet this requirement.

Changes: In light of some State child find procedures, we have removed from Sec. 300.534(b)(3) the requirement that the teacher or other LEA personnel must express concerns regarding a child's pattern of behavior in accordance with the agency's established child find or special education referral system.

Comment: Several commenters recommended clarifying that a child who was evaluated and determined ineligible for special education and related services years ago would not be an exception under Sec. 300.534(c) to the basis of knowledge requirement in paragraph (b) of this section. Many commenters recommended that an evaluation and eligibility determination that is more than three years old not prevent deeming an LEA to have a basis of knowledge. One of these commenters specifically recommended revising Sec. 300.534(c)(1)(i) to clarify that a public agency would not be deemed to have knowledge that a child is a child with a disability if the parent of the child has not allowed an evaluation of the child pursuant to Sec. Sec. 300.300 through 300.311 "within three years prior to the incident."

Discussion: The exceptions included in Sec. 300.534(c) track the statutory requirements in section 615(k)(5)(C) of the Act. The intent of Congress in revising section 615(k)(5) of the Act was to "ensure that schools can appropriately discipline students, while maintaining protections for students whom the school had valid reason to know had a disability" and that the provisions in the Act should not have the "unintended consequence of providing a shield against the ability of a school district to be able to appropriately discipline a student." (S. Rpt. No. 108-185, p. 46). We are not including time restrictions, as suggested by the commenters, to the exceptions in paragraph (c) of this section because we believe such restrictions are unnecessary and could have the unintended consequence of hindering the school's ability to appropriately discipline a child. We believe the basis of knowledge provision in Sec. 300.534(b) is sufficient to ensure that a school had valid reason to know that a child may need special education and related services.

Changes: None.

Comment: A few commenters recommended removing Sec. 300.534(c)(1)(i), which states that a public agency would not be deemed to have knowledge that a child is a child with a disability if the parent has not allowed an evaluation of the child pursuant to Sec. Sec. 300.300 through 300.311. The commenters stated that this would deny children with disabilities FAPE and the procedural protections granted children with disabilities removed from their educational placement for disciplinary reasons.

Discussion: The requirement in Sec. 300.534(c)(1)(i), regarding the exception to the basis of knowledge if a parent refuses to consent to an evaluation, is statutory. Further, Sec. 300.300(a)(3), consistent with section 614(a)(1)(D)(ii)(I) of the Act, clearly states that the public agency may, but is not required to, pursue an initial evaluation of a child if the parents refuse to provide consent, or fail to respond to a request to provide consent, for the initial evaluation, by utilizing the Act's due process procedures. If a public agency chooses not to utilize the Act's due process procedures, the LEA is not considered in violation of the requirement to provide FAPE.

Changes: None.

Comment: A few commenters recommended retaining in Sec. 300.534(c)(2) the language in current Sec. 300.527(c)(1)(i) to clarify that the evaluation used to determine whether a child is a child with a disability under this part must be conducted pursuant to Sec. Sec. 300.300 through 300.311.

Discussion: It is accurate that the evaluation referenced in Sec. 300.534(c)(2) must be conducted consistent with the evaluation requirements in Sec. Sec. 300.300 through 300.311. We agree with the commenters that paragraph (c)(2) of this section should be amended to make clear that the evaluation conducted under this paragraph must be conducted consistent with the evaluation requirements in Sec. Sec. 300.300 through 300.311.

Changes: We have amended paragraph (c)(2) to make clear that the evaluation under this provision must be conducted in accordance with Sec. Sec. 300.300 through 300.311.

Comment: A few commenters recommended amending Sec. 300.534(d)(2) to require that if a request is made for an evaluation of a child during the time period in which the child is subjected to a disciplinary removal under Sec. 300.530, the evaluation must be completed within ten days of the parent's request and that an eligibility determination be made within five days of the completion of the evaluation.

Discussion: We do not believe a specific timeline for an expedited evaluation or an eligibility determination should be included in these regulations. What may be required to conduct an evaluation will vary widely depending on the nature and extent of a child's suspected disability and the amount of additional information that would be necessary to make an eligibility determination. However, Sec. 300.534(d)(2)(i), consistent with section 615(k)(5)(D)(ii) of the Act, specifies that the evaluation in these instances be "expedited", which means that an evaluation should be conducted in a shorter period of time than a typical evaluation conducted pursuant to section 614 of the Act, which must be conducted within 60 days of receiving parental consent for the evaluation. (See section 614(a)(1)(C)(i)(I) of the Act). Further, we believe it would be inappropriate to specify the timeframe from the completion of an evaluation to the determination of eligibility when there is no specific statutory basis to do so. The Department has long held that eligibility decisions should be made within a reasonable period of time following the completion of an evaluation.

Changes: None.

Comment: A few commenters stated that Sec. 300.534(d)(2) seems to imply that when a request is made for an expedited evaluation of a child subjected to a disciplinary removal, the child would receive an educational placement and services pending the results of the evaluation.

Discussion: We believe that Sec. 300.534(d) is clear. Section 300.534(d) does not require the provision of services to a child while an expedited evaluation is being conducted, if the public agency did not have a basis of knowledge that the child was a child with a disability. An educational placement under Sec. 300.534(d)(2)(ii) may include a suspension or expulsion without services, if those measures are comparable to disciplinary measures applied to children without disabilities who engage in comparable behavior. Of course, States and LEAs are free to choose to provide services to children under Sec. 300.534(d).

Changes: None.