34 C.F.R. § 300.527 Protections for children not yet eligible for special education and related services.
Title 34 - Education
(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 any rule or code of conduct of the local educational agency, including any behavior described in §§300.520 or 300.521, may assert any of the protections provided for in this part if the LEA 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. An LEA must be deemed to have knowledge that a child is a child with a disability if— (1) The parent of the child has expressed concern in writing (or orally if the parent does not know how to write or has a disability that prevents a written statement) to personnel of the appropriate educational agency that the child is in need of special education and related services; (2) The behavior or performance of the child demonstrates the need for these services, in accordance with §300.7; (3) The parent of the child has requested an evaluation of the child pursuant to §§300.530–300.536; or (4) The teacher of the child, or other personnel of the local educational agency, has expressed concern about the behavior or performance of the child to the director of special education of the agency or to other personnel in accordance with the agency's established child find or special education referral system. (c) Exception. A public agency would not be deemed to have knowledge under paragraph (b) of this section if, as a result of receiving the information specified in that paragraph, the agency— (1) Either— (i) Conducted an evaluation under §§300.530–300.536, and determined that the child was not a child with a disability under this part; or (ii) Determined that an evaluation was not necessary; and (2) Provided notice to the child's parents of its determination under paragraph (c)(1) of this section, consistent with §300.503. (d) Conditions that apply if no basis of knowledge—(1) General. If an LEA 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 same disciplinary measures as measures applied to children without disabilities who engaged in comparable behaviors consistent with paragraph (d)(2) of this section. (2) Limitations. (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 §300.520 or 300.521, 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 shall provide special education and related services in accordance with the provisions of this part, including the requirements of §§300.520–300.529 and section 612(a)(1)(A) of the Act. (Authority: 20 U.S.C. 1415(k)(8))
Title 34: Education
PART 300—ASSISTANCE TO STATES FOR THE EDUCATION OF CHILDREN WITH DISABILITIES
Subpart E—Procedural Safeguards
Discipline Procedures
§ 300.527 Protections for children not yet eligible for special education and related services.
