Toolbox Tuesday: Toolbox 4.0, Gator Tacos, and the “Shouldaknown Kids.”

I’m pleased to report that Toolbox 4.0 has made its debut! My law partner, Denise Hays, and I presented the new and improved version of the Toolbox at Region 7 in Kilgore last Tuesday. It was delightful to visit East Texas on a beautiful spring day and sample gator tacos—a new one for me—from The Catch, a Kilgore restaurant. I recommend it!

For today’s Toolbox Tuesday we will tell you about a letter from OSEP that addresses what I call the “shouldaknown kids.” These are students who are NOT in your special education program, and yet, they are entitled to the legal protections of the special education law, including a manifestation determination prior to a long term DAEP assignment. The law says that there are some kids that the district is “deemed to have knowledge” that they fall into this category. In other words, “you shouldaknown.”

Who are they? They fall into three categories.

*First, there are students whose parents requested a special education evaluation.

*Second, the students whose parents expressed concerns in writing that the child may need special education services. This written expression of concern must be addressed to supervisory or administrative personnel, or to one of the child’s teachers.

*Third, students for whom a school employee expressed “specific concerns about a pattern of behavior demonstrated by the child.” This expression of concern must go to the special education director or other supervisory personnel.

Students are in one of these three categories only if the request or expression of concern occurs prior to the offense for which disciplinary action is proposed. If mom requests an evaluation on Monday, and the student assaults a teacher on Tuesday, the kid is protected by the law. If the assault is on Monday and the request is on Tuesday, not so.

There are some other specifics about how this works laid out in the regulation at 34 CFR 300.534, but this gives you the basics.

So let’s think about the practical problems that arise when a student falls into the “shouldaknown” category. Consider: the district is expected to conduct a manifestation determination review (MDR) but the student has not even been evaluated, much less determined to be eligible. How does that work? There is a tight timeline (10 school days) for completion of the MDR. Can the district postpone the MDR until the evaluation is completed?

OSEP says no. As the letter points out, the regulations allow for no exceptions to the timeline for conducting the MDR. If the evaluation can be completed prior to that deadline, fine and good. The ARDC will be ready to make an eligibility determination and an MDR. But that will rarely happen. So what do we do if we are unable to complete the evaluation that quickly? OSEP tells us that the school must use available information to determine if the behavior of the student was a manifestation of the “suspected disability.” The letter also states that parents must be given notice of the procedural safeguards they enjoy in conjunction with proposed disciplinary action. Referring the parent to the website where the procedural safeguards are posted is not adequate:

…the public agency would not meet its obligation to provide a parent the notice of procedural safeguards by simply directing a parent to the web site. Rather, a public agency must still offer parents a printed copy of the procedural safeguards notice.

If you are forced to make an MDR based on a “suspected disability” it would seem prudent to also offer to come back and take another look at it after the evaluation is complete. If the evaluation reveals that the student does have a disability that qualified the student for special education, the ARDC can take a second look at the MDR, this time dealing with the established disability—not the suspected one.

This comes from Letter to Nathan, which was issued by OSEP on January 29, 2019.  We found it at 73 IDELR 240.


Tomorrow: Hard Hitting Reporter Rip Snort is on to something.  Or thinks he is.