Toolbox Tuesday!! New Q and A from OSERS

The federal Office of Special Education and Rehabilitative Services has updated its Q and A document on the discipline of students with disabilities. Special education directors would be wise to devote some time to studying this document. For today, I want to highlight one important point with regard to the students I sometimes refer to as “the shouldaknown kids.”

These are students who have not been determined to be eligible for special education, and yet, they are entitled to the legal protections that IDEA provides. Why would that be? Because the school is “deemed to have knowledge” that the child is a child with a disability. In other words, the school “shouldaknown” that this child belongs in the special education program.

There are three situations in which the school is “deemed to have knowledge.” Here’s one of them:

The parent has “expressed concern in writing to supervisory or administrative personnel….or to the child’s teacher, that the child is in need of special education and related services.”

Do you think that might apply if the student is being served via Response to Intervention? Suppose that your campus is implementing a multi-tiered system of supports and you have a third grader who is receiving Tier Two services due to concerns over his reading skills. The student then violates the Code of Conduct. Is the student entitled to IDEA legal protections? Is this a “shouldaknown” kid?

OSERS offers this answer: “Generally, no. Participation in an RTI process, in and of itself, does not appear to meet the standard” in the regulations. But anytime the “no” is preceded by “generally” you have to look a little deeper. OSERS offers this example:

For example, if the child’s participation in the RTI process is based on the parent expressing concern in writing to the child’s teacher that the child is in need of special education and related services, and the parent has not prevented the evaluation from occurring, then the LEA would likely be deemed to have knowledge as of the time of receipt of the parent’s written communication.

So in the example I just gave involving that 3rd grader, my answer would be “maybe.” How did the student get to Tier Two? Did the parent ask for a special education referral, and the school responded with “let’s try RTI first”? If that’s how it went down, that “maybe” becomes “probably so.”

And while we’re on that topic, let’s remember that “let’s try RTI first” is a risky answer unless it’s accompanied by a copy of the Procedural Safeguards document and a Prior Written Notice.

Here’s a link to the Q and A.

Study up.


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Tomorrow: Teacher and student on the ground….