Toolbox Tuesday: The “shouldaknown kids”

We’re using our Toolbox Tuesdays to review the Q and A released by the Department of Education regarding student discipline.  This week we cover Section I—Protections for Children Not Yet Determined Eligible for Services Under IDEA.  That’s a mouthful, which I have reduced to “the shouldaknown kids.”  These are students who 1) are in your general education population; 2) have violated a provision in your Code of Conduct; and 3) are entitled to all of the legal safeguards that IDEA provides for students with disabilities. In other words, these are kids who are not in special ed, but must be treated as if they were when it comes to discipline.

Here at Daily Dawg HQ we often remind you of the importance of calling your lawyer to get help on specific situations. With regard to this issue, it needs to be put in a different font.  CALL YOUR LAWYER!! This stuff gets way complicated.  The Q and A from DOE basically spells out what the regulations say, so it’s not terribly helpful.  However, there is one specific answer that they offer that may help. They tell us that “generally” a student’s participation in RTI or a multi-tiered system of supports (MTSS) does not mean that the student is a “shouldaknown kid.” That’s the “general rule” but you have to look at the facts. How did the kid get put into Tier Two of RTI? Was it due to a parent expression of concern? Was it because a teacher reported a “pattern of behavior”?

Let me explain why those facts would be important. 

There are three categories of “shouldaknown kids” and three categories of students who are specifically excluded. Let me illustrate with a series of short hypotheticals.  All six of these students are currently in general education. All six have committed an offense that would normally land them in DAEP.  Let’s add that the offense happened on today’s date: January 17, 2023.  But their situations differ. The first three are “shoudaknown kids.” The next three are not.

  1. The parent of Student #1 sent an email to the teacher last week that “expressed concern…that the child is in need of special education and related services.”  That’s a “shouldaknown kid.”
  2. The parent of Student #2 “requested an evaluation of the child’s eligibility…under IDEA.” This happened last week, and was not in writing, but it was definitely a request for an evaluation.  That’s a “shouldaknown kid.”
  3. Student #3’s teacher “expressed specific concerns” about “a pattern of behavior demonstrated by the child directly to” the special education director, or “other supervisory personnel” like the principal.  This happened last week. Student #3 is a “shouldaknown kid.”
  4. Last semester the school sent a written notice proposing to evaluate Student #4, and the parent would not allow it.  Student #4 is not  a “shouldaknown kid” and the school can proceed with disciplinary action.
  5. The school did an evaluation of Student #5, determined the student was eligible and offered an IEP but the parent would not permit it.  Not a “shouldaknown kid.”
  6. Student #6 was in the special education program until last week when the parent gave written notice of the revocation of consent to serve the student in special ed. Not a “shouldaknown kid.”

The most complicated part of dealing with these students is the completion of a manifestation determination when the school has not completed its evaluation, not determined eligibility and not identified any specific disability.  How do you do that?  The DOE says the school should focus on “the suspected disability” and use whatever evaluation data it has.  Of course if the evaluation can be rushed to completion in time for the ARD meeting that will be helpful, but there is no extension of the deadline for the ARD. It must take place within 10 school days of the date when the change of placement is proposed.

Example: let’s consider Student #1.  The student committed a DAEP offense today. But the student is a “shoudaknown kid.”  The ARD must meet to complete the manifestation determination within ten school days—that means by February 1. Can you get the evaluation done in that time?  If not, you deal with what you have and focus on the suspected disability. 


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