Section 511IAC7-44-9. Protections for students not yet eligible for special education and related services

   (a) A student who has:

(1) not been determined eligible for special education and related services under this article; and

(2) engaged in behavior that violated any rule or code of conduct of the public agency, including any behavior described in this rule;

may assert any of the protections provided for in this article if the public agency had knowledge, as described in subsection (b), that the student was a student with a disability before the behavior that precipitated the disciplinary action occurred.

  (b) A public agency shall be deemed to have knowledge that a student is a student with a disability if any of the following have occurred:

(1) The parent of the student has expressed concern in writing to licensed personnel of the appropriate public agency, or a teacher of the student, that the student is in need of special education and related services.

(2) The parent of the student or the public agency has requested an evaluation of the student under 511 IAC 7-40-4.

(3) The teacher of the student, or other personnel of the public agency, has expressed specific concern about a pattern of behavior demonstrated by the student directly to supervisory personnel of the public agency.

  (c) A public agency shall not be deemed to have knowledge under subsection (b) if any of the following has occurred:

(1) The parent of the student has not allowed an evaluation of the student under 511 IAC 7-40.

(2) The parent of the student has refused services under this article or the Individuals with Disabilities Education Act.

(3) The public agency:

(A) conducted an educational evaluation;

(B) determined that the student was not a student with a disability under this article; and

(C) provided notice to the student's parents of the determination consistent with 511 IAC 7-42-7.

(4) The parent of the student has revoked consent for special education and related services in accordance with 511 IAC 7-42-15.

  (d) If a public agency does not have knowledge, in accordance with subsections (b) and (c), that a student is a student with a disability prior to taking disciplinary measures against the student, the student may be subjected to the same disciplinary measures as measures applied to students without disabilities who have engaged in comparable behaviors, subject to subsections (e) and (f).

  (e) If a referral is made for an initial educational evaluation of a student during the time period in which the student is subjected to:

(1) suspension;

(2) expulsion; or

(3) placement in an interim alternative educational setting;

the evaluation must be conducted in an expedited manner. Until the evaluation is completed, the student remains in the educational placement determined by school authorities, which may include suspension or expulsion without educational services.

  (f) As used in this rule, "expedited evaluation" means that the public agency conducts the evaluation and convenes the CCC within twenty (20) instructional days from the date of the parent's written consent for the evaluation. A copy of the educational evaluation report shall be provided to the parent at the CCC convened to consider the student's identification and eligibility for special education services.

  (g) If the student is determined to be a student with a disability, taking into consideration information:

(1) from the educational evaluation conducted by the public agency; and

(2) provided by the parents;

the public agency shall provide special education and related services in accordance with this article. (Indiana State Board of Education; 511 IAC 7-44-9; filed Jul 14, 2008, 1:24 p.m.: 20080813-IR-511080112FRA; filed Dec 3, 2009, 1:50 p.m.: 20091230-IR-511090057FRA; readopted filed Nov 6, 2014, 3:23 p.m.: 20141203-IR-511140382RFA)