OSEP Provides Guidance on Students Not Yet Eligible for Special Education Services

In Letter to Judy Nathan, the Office of Special Education Programs (“OSEP”) responded to a series of three questions regarding what protections are available to students who not yet eligible for special education services. First, the letter clarifies that if the District knows that a student has a disability, but their eligibility for special education services has not yet been determined, that student can assert the disciplinary protections under the Individuals with Disabilities Education Act (“IDEA”). Specifically, within 10 days of any decision to change the student’s placement, the District must hold a manifestation determination review (“MDR”). Second, the letter provides that if a District cannot postpone an MDR to after an evaluation for special education services is complete, that the District must still hold the MDR. It is still possible for the District to hold the MDR without an IEP by convening a group of knowledgeable persons as determined by the parent and District who can adequately determine if the misconduct was a result of the student’s disability. There is nothing in IDEA that prevents the District from holding the MDR in connection with its evaluation and edibility determination, as long as the MDR occurs within 10 days of a change of placement. Third, and finally, the letter asserts procedural safeguards posted on a district website are not adequate to provide parents with notice of their rights to due process. The District is still required to provide the parents with written notice of any decision regarding change of placement, even if this occurs before eligibility is determined.

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