1. (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 of the LEA/public agency may assert any of the protections provided for in this part if the LEA/public agency had knowledge (as determined in accordance with subsection (b) of this section) that the child was a child with a disability before the behavior that precipitated the disciplinary action occurred.

2. (b) Basis of knowledge. An LEA/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 the:

   1. (1) 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. (2) Parent of the child requested an evaluation of the child pursuant to 34 C.F.R. §§ 300.300 – 300.311 and 6 CAR § 130-601 et seq.; or
   3. (3) Teacher of the child, or other personnel of the LEA/public agency, expressed specific concerns about a pattern of behavior demonstrated by the child directly to the director of special education of the agency or other supervisory personnel of the agency.

3. (c) Exception. An LEA/public agency would not be deemed to have knowledge under subsection (b) of this section if either the:

   1. (1) Parent of the child:

      1. (A) Has not allowed an evaluation of the child pursuant to 34 C.F.R. §§ 300.300 – 300.311; or
      2. (B) Has refused services under this part; or
   2. (2) Child has been evaluated in accordance with 34 C.F.R. §§ 300.300 – 300.311 and determined to not be a child with a disability under this part.

4. (d) Conditions that apply if no basis of knowledge.

   1. (1) If an LEA/public agency does not have knowledge that a child is a child with a disability (in accordance with subsections (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 engaged in comparable behaviors consistent with subdivisions (d)(2) – (4) of this section.
   2. (2) If a request is made for an evaluation of the child during the time period in which the child is subjected to disciplinary measures under 34 C.F.R. § 300.530, the evaluation must be conducted in an expedited manner.
   3. (3) Until the evaluation is completed, the child remains in the educational placement determined by school/public agency authorities, which can include suspension or expulsion without educational services.
   4. (4) If the child is determined to be a child with a disability, taking into consideration information from the evaluation conducted by the LEA/public agency and information provided by the parents, the LEA/public agency shall provide special education and related services in accordance with the provisions of this part, including the requirements of 34 C.F.R. §§ 300.530 – 300.536, and Section 612(a)(1)(A) of the Individuals with Disabilities Education Act.

Codification Notes: The Individuals with Disabilities Education Act is codified at 20 U.S.C. § 1400 et seq.