Haw. Code R. § 8-60-79 - Protections for students not determined eligible for special education and related services

(a) General. A student who has not been determined to be eligible for special education and related services and who has engaged in behavior that violated chapter 8-19, may assert any of the protections provided for in this chapter if the department had knowledge (as determined in accordance with subsection (b)) that the student was a student with a disability before the behavior that precipitated the disciplinary action occurred.

(b) Basis of knowledge. The department shall be deemed to have knowledge that a student is a student with a disability if before the behavior that precipitated the disciplinary action occurred:

(1) The parent of the student expressed concern in writing to supervisory or administrative personnel of the department, or a teacher of the student, that the student is in need of special education and related services;

(2) The parent of the student requested an evaluation of the student pursuant to sections 8-60-31 through 8-60-43; or

(3) The teacher of the student, or other personnel of the department, expressed specific concerns about a pattern of behavior demonstrated by the student directly to the director of special education or to other supervisory personnel of the department.

(c) Exception. The department would not be deemed to have knowledge under subsection (b) if:

(1) The parent of the student:

(A) Has not allowed an evaluation of the student pursuant to sections 8-60-31 through 8-60-43; or

(B) Has refused services; or

(2) The student has been evaluated in accordance with sections 8-60-31 through 8-60-43 and determined to not be a student with a disability.

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

(1) If the department does not have knowledge that a student is a student with a disability (in accordance with subsections (b) and (c)) prior to taking disciplinary measures against the student, the student may be subjected to the disciplinary measures applied to students without disabilities who engage in comparable behaviors consistent with paragraph (2).

(2)

(A) If a request is made for an evaluation of a student during the time period in which the student is subjected to disciplinary measures under section 8-60-75, the evaluation shall be conducted in an expedited manner;

(B) Until the evaluation is completed, the student remains in the educational placement determined by school authorities, which can include suspension or expulsion without educational services;

(C) If the student is determined to be a student with a disability, taking into consideration information from the evaluation conducted by the department and information provided by the parents, the department shall provide special education and related services in accordance with this chapter, including the requirements of sections 8-60-75 through 8-60-81 and section 612(a)(1)(A) of the Act.

Notes

Haw. Code R. § 8-60-79

[Eff 11/23/09] (Auth: 20 U.S.C. 1415(k)(5), HRS § 302A-1112) (Imp: 34 C.F.R. §300.534)