Students Not Yet Determined for Special Education

State Guidance, Behavior

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A student who has not been determined to be eligible for special education and related services who has violated a code of student conduct may assert IDEA discipline protections if the LEA knew or should have known that the student is a student with a disability before the behavior resulting in disciplinary action occurred. The LEA must be deemed to have knowledge if any of the following occurred before the behavior that resulted in disciplinary action:

The parent expressed concern in writing to supervisory or administrative personnel or the student's teacher that the student needs special education and related services.

  • The parent of the student requested an EVALUATION.
  • The student's teacher or other LEA personnel expressed specific concerns about a pattern of behavior demonstrated by the student directly to the director of special education or other supervisory personnel of the LEA.
  • The LEA initiated an evaluation under IDEA, but the evaluation is not yet complete.

The LEA is not considered to have knowledge if:

  • The parent did not allow a special education evaluation of the student.
  • The parent refused special education and related services.
  • The student was found to not be a student with a disability after an evaluation.

If the LEA has KNOWLEDGE that a student is a student with a disability, then the IDEA disciplinary protections, including the manifestation review provisions, apply. In recent guidance OSERS noted that where the LEA cannot conduct or finish the evaluation before the timeline for conducting a manifestation determination review, it would still need to convene a group of knowledgeable persons, as determined by the parent and the LEA, to conduct the manifestation determination review even though the LEA has yet to make its eligibility determination. In these cases, the group would review relevant information (e.g., parent and teacher input and observations, discipline records) to consider the relationship of the student’s behavior to the suspected disability. A determination about the LEA’s failure to implement the IEP would not be possible in the case where the student does not have an IEP. Please refer to questions I-7 and I-8 for additional information.

If the LEA DOES NOT HAVE KNOWLEDGE that the student is a student with a disability, general education
disciplinary procedures are followed. Additionally, more information on protections for students not yet
eligible for Special Education services can be found on TEA’s Discipline and School Removals website.

Request for an Evaluation

When a request is made for an evaluation during the time in which the student is subjected to disciplinary measures, the LEA MUST:

  • Conduct an expedited evaluation: Complete a thorough evaluation in an expedited manner. While neither federal nor state law defines the timeline for an expedited evaluation, guidance from the United States Department of Education explains that an expedited evaluation “should be conducted in a shorter period of time than a typical evaluation conducted [under IDEA].” While the evaluation is ongoing, school personnel may apply the same disciplinary procedures to nondisabled students.
  • Keep the student in the educational placement determined by school authorities: Until the evaluation is completed, the student remains in the educational placement determined by the school authorities, including suspension or expulsion without educational services.
  • Take action based on evaluation results: If the student is determined to be a student with a disability and eligible for special education, taking into consideration information from the evaluation conducted by the LEA and information provided by the parent, the LEA must provide special education and related services including the IDEA discipline protections.