Sec. 13a.08.03.10. Students Not Yet Eligible for Special Education and Related Services

A. If a student who has not been identified as a student with a disability engages in behavior that violates any rule or code of conduct of the public agency, the student may assert protection under this chapter if the public agency had knowledge that the student was a student with a disability before the student engaged in the behavior that precipitated the disciplinary action.

B. A public agency shall be deemed to have knowledge that a student is a student with a disability if:

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

(2) The parents have requested an evaluation as set forth in COMAR 13A.05.01.04A(1); or

(3) The student's teacher or other personnel of the public agency have expressed specific concerns about a pattern of behavior demonstrated by the student directly to the public agency director of special education or other public agency supervisory personnel in accordance with COMAR 13A.05.01.04A(1) or local child-find procedures.

C. A public agency is not deemed to have knowledge in accordance with §B of this regulation if:

(1) The parent of the student:

(a) Did not allow the public agency to conduct assessments in accordance with COMAR 13A.05.01.05; or

(b) Refused or revoked consent for services in accordance with COMAR 13A.05.13; or

(2) The public agency:

(a) Conducted an evaluation in accordance with COMAR 13A.05.01.06B and determined that the student was not a student with a disability, or determined that an evaluation was not necessary in accordance with COMAR 13A.05.01.04B(4); and

(b) Provided the student's parents with a written notice of the decision in accordance with COMAR 13A.05.01.12.

D. If a public agency does not have knowledge that a student is a student with a disability before taking disciplinary action, the student may be subject to the same disciplinary measures applied to students without disabilities who engage in comparable behavior.

E. If the public agency receives a written referral, in accordance with COMAR 13A.05.01.04A, during the time period that the student is subject to disciplinary measures, the public agency shall evaluate the student in accordance with COMAR 13A.05.01.04-.06, in an expedited manner.

F. The student shall remain in the educational placement determined appropriate by public agency personnel, including suspension or expulsion without educational services, until the evaluation is completed.

G. If, as a result of the evaluation, as set forth in COMAR 13A.05.01.06B, the IEP team determines that the student is a student with a disability, the public agency shall provide special education and related services.