201.5 Students presumed to have a disability for discipline purposes.
(a) General provision.
The parent of a student who has violated any rule or code of conduct of the school district and was not identified as a student with a disability at the time of such behavior may assert any of the protections set forth in this Part, if the school district is deemed to have had knowledge as determined in accordance with subdivision (b) of this section, that the student was a student with a disability before the behavior that precipitated the disciplinary action occurred. Where the school district is deemed to have had knowledge that the student was a student with a disability before such behavior occurred, such student is a “student presumed to have a disability for discipline purposes.”
(b) Basis of knowledge.
Except as otherwise provided in subdivision © of this section, a school district shall be deemed to have knowledge that such student had a disability if prior to the time the behavior occurred:
(1) the parent of such student has expressed concern in writing to supervisory or administrative personnel of the appropriate educational agency or to a teacher of the student that the student is in need of special education, provided that such expression of concern may be oral if the parent does not know how to write or has a disability that prevents a written statement;
(2) the parent of the student has requested an evaluation of the student pursuant to section 200.4 or 200.16 of this Title; or
(3) a teacher of the student, or other personnel of the school district, has expressed specific concerns about a pattern of behavior demonstrated by the student, directly to the director of special education of the school district or to other supervisory personnel of the school district.
A student is not a student presumed to have a disability for discipline purposes if, as a result of receiving the information specified in subdivision (b) of this section:
(1) the parent of the student has not allowed an evaluation of the student pursuant to section 200.4 of this Title; or
(2) the parent of the student has refused services under this Part; or
(3) it was determined that the student is not a student with a disability pursuant to section 200.4 or 200.16 of this Title.
(d) Responsibility for determining whether a student is a student presumed to have a disability.
If it is claimed by the parent of the student or by school district personnel that the school district had a basis for knowledge, in accordance with subdivision (b) of this section, that the student was a student with a disability prior to the time the behavior subject to disciplinary action occurred, it shall be the responsibility of the superintendent of schools, building principal or other school official imposing the suspension or removal to determine whether the student is a student presumed to have a disability.
(e) Conditions that apply if there is no basis for knowledge.
If the superintendent of schools, building principal or other school official imposing the disciplinary removal determines that there is no basis for knowledge that the student is a student with a disability prior to taking disciplinary measures against the student, the student may be subjected to the same disciplinary measures as any other nondisabled student who engaged in comparable behaviors. However, if a request for an individual evaluation is made while such nondisabled student is subjected to a disciplinary removal, an expedited evaluation shall be conducted in accordance with section 201.6 of this Part.
14. Commissioner's responsibilities.
The commissioner shall:
3. Promulgate regulations to assist school districts in implementing this article including, but not limited to, regulations to assist school districts in developing measured, balanced, and age-appropriate responses to violations of this policy, with remedies and procedures following a progressive model that make appropriate use of intervention, discipline and education and provide guidance related to the application of regulations.