Delaware Administrative Code
Title 14 - Education
900 - Special Populations
926 - Children with Disabilities Subpart E Procedural Safeguards for Parents and Children
Section 926-34.0 - Protections for Children not Determined Eligible for Special Education and Related Services

Universal Citation: 14 DE Admin Code 926-34.0

Current through Register Vol. 28, No. 3, September 1, 2024

34.1 General: A child who has not been determined to be eligible for special education and related services under these regulations and who has engaged in behavior that violated a code of student conduct, may assert any of the protections provided for in these regulations if the public agency had knowledge (as determined in accordance with subsection 34.2) that the child was a child with a disability before the behavior that precipitated the disciplinary action occurred.

34.2 Basis of knowledge: A public agency shall be deemed to have knowledge that a child is a child with a disability if before the behavior that precipitated the disciplinary action occurred:

34.2.1 The 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;

34.2.2 The parent of the child requested an evaluation of the child pursuant to 14 DE Admin. Code 925, Sections 1.0 through 12.0; or

34.2.3 The teacher of the child, or other personnel of the LEA, expressed specific concerns about a pattern of behavior demonstrated by the child directly to the director of special education of the agency or to other supervisory personnel of the agency.

34.3 Exception: A public agency would not be deemed to have knowledge under subsection 34.2 if the parent of the child has not allowed an evaluation of the child pursuant to 14 DE Admin. Code 925, Sections 1.0 through 12.0; or has refused services under these regulations; or the child has been evaluated in accordance with 14 DE Admin. Code 925, Sections 1.0 through 12.0 and determined to not be a child with a disability under these regulations.

34.4 Conditions that apply if no basis of knowledge: If a public agency does not have knowledge that a child is a child with a disability (in accordance with subsections 34.2 and 34.3) prior to taking disciplinary measures against the child, the child may be subjected to the disciplinary measures applied to children without disabilities who engage in comparable behaviors consistent with the following requirements:

34.4.1 If a request is made for an evaluation of a child during the time period in which the child is subjected to disciplinary measures in Section 30.0, the evaluation shall be conducted in an expedited manner.

34.4.2 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.

34.4.3 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 these regulations, including the requirements of Sections 30.0 through 36.0 and section 612(a)(1)(A) of the Act.

(Authority: 20 U.S.C. 1415(k)(5); 14 Del.C. § 3110)

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