POLICY LETTER: September 5, 2007 to individual (personally identifiable information redacted)
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POLICY LETTER: September 5, 2007 to individual (personally identifiable information redacted) MS Word
Dated September 5, 2007This letter is in response to your e-mail inquiry received on July 10, 2007, by the Information Resource Center. This response is based on information from your letter along with conversations that a member of the staff in the Office of Special Education and Rehabilitative Services (OSERS) had with you regarding your concerns. You requested the Department of Education's opinion on whether an expulsion hearing may occur before a hearing officer determines whether or not the local educational agency (LEA) did or did not have knowledge that the child was a child with a disability and whether the manifest determination review must be conducted before the expulsion hearing goes forward. In particular you stated that there is a pending expulsion hearing and a pending expedited due process hearing regarding whether or not the LEA had knowledge that your child was a child with a disability. Pursuant to a conversation you had with a member of OSERS's staff, it is our understanding that your child is in the process of being evaluated for special education and related services, but the evaluation process began after the incident that led to the proposed expulsion. You reference sections of Connecticut state law, however, the following is an interpretation of the IDEA and the implementing Part B federal regulations in the context of the facts you have provided.Relevant IDEA provisionsUnder IDEA, there are disciplinary provisions that protect both children with disabilities and children who are not yet determined eligible for special education and related services, but who may be suspected of having a disability. In the situation you described, your child had not been evaluated or determined eligible to receive special education services as a child with a disability when the LEA proposed the disciplinary action. Section 615(k)(1)(E)(ii) of IDEA and 34 CFR 300.530(e)(1) require that, within 10 school days of any decision to change the placement of a child with a disability because of a violation of a code of student conduct, the LEA, the parent, and relevant members of the Individualized Education Program (IEP) Team (as determined by the parent and the LEA), review all relevant information in the student's file, including the child's IEP, any teacher observations, and any relevant information provided by the parents, to determine-(I) if the conduct in question was caused by or had a direct and substantial relationship to, the child's disability; or (II) if the conduct in question was the direct result of thenowledge has been determined and whether the manifest determination review must be conducted before the expulsion hearing. There is nothing in the IDEA or the Part B regulations that requires an LEA to put a disciplinary hearing on hold until a hearing officer determines whether, pursuant to 34 CFR 300.534(b), an LEA did or did not have knowledge that a child is a child with a disability. That being said, however, there is also nothing in either the IDEA or the Part B regulations that would prevent an LEA and parent from agreeing to postpone the expulsion hearing until after the expedited due process hearing is held and the hearing officer issues a decision on the LEA's basis of knowledge. In your case, if the LEA proceeds with the expulsion hearing before the expedited due process hearing, the provisions of 34 CFR 300.534(d) would apply since your child has not yet been determined eligible for special education and related services, you did not request an evaluation until your child was subject to disciplinary measures, and the issue of whether the LEA had a basis of knowledge that your child was a child with a disability has not yet been decided. In that case, the LEA may treat your child like a child not determined eligible for special education and related services and subject your child to disciplinary measures applied to children without disabilities who engage in comparable behaviors. 34 CFR 300.534(d)(i). Your child's evaluation, the request for which was made during the time period in which your child was subjected to disciplinary 'measures, must be conducted in an expedited manner, however, and, until the evaluation is completed, your child must remain in the educational placement determined by school authorities, which can include suspension or expulsion without educational services. 34 CFR 300.534(d)(2)(i) and (ii).If, as a result of the expedited due process hearing, the hearing officer decides that the LEA had a basis of knowledge that your child was a child with disability, the hearing officer has the authority to determine the educational placement of the child and may order that a manifestation determination review be conducted, pursuant to 34 CFR 300.530(e). See 34 CFR 300.532(b)(2).Based on section 607(e) of the IDEA, we are informing you that
TOPIC ADDRESSED: Protections for Children Not Yet Eligible for Special Education and Related Services
SECTION OF IDEA: Part B—Assistance for Education of All Children With Disabilities Section 615—Procedural Safeguards
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Last modified on April 26, 2017