“Thought To Be Eligible” and Requests for an Expedited Evaluation
Newsletter Article
What Does “Thought To Be Eligible Really Mean?”
There is often much confusion about the term “thought to be eligible.” Many people, in particular, parents’ counsel, use it interchangeably with “child find,” which is not necessarily the case.
In actuality, the term “thought to be” has a narrow meaning that is clearly defined in the Individuals with Disabilities Education Act (IDEA) regulations. A key thing to remember is that the term “thought to be” is only relevant in disciplinary situations. See 20 U.S.C. 1415(k)(5) and 34 C.F.R. § 300.534 (b). The general rule: if a child is “thought to be eligible,” they get the disciplinary protections of the IDEA (the manifestation determination) even though they have yet to be identified for special education services. That’s it.
Luckily, the determination of whether or not a child is “thought to be eligible” is not left to guesswork – the regulations clearly define only three circumstances where a child can be considered “thought to be eligible.” They are:
a. Before the behavior that precipitated the proposed disciplinary action, the parent of the child expressed concern in writing to supervisory or administrative personnel or a teacher of the child, that the child is in need of special education and related services;
b. Before the behavior that precipitated the proposed disciplinary action, the parent of the child requested an evaluation of the child; or
c. Before the behavior that precipitated the proposed disciplinary action, the teacher of the child, or other district personnel, expressed specific concerns about a pattern of behavior demonstrated by the child directly to the director of special education of the agency or to other supervisory personnel of the agency.
The general rule is that if a child is “thought to be eligible,” they are entitled to the disciplinary protections of the IDEA even though he/she has not yet been identified for special education services. However, whether eligible or “thought to be eligible,” in a disciplinary action if not a manifestation of their disability, the student can be disciplined like any nondisabled student.
There are, however, also some exceptions. Even if the parent can prove the existence of (a), (b), or (c) above, the student loses protected “thought to be eligible” status if:
i) The parent of the child has not allowed an evaluation of the child;
ii) The parent has refused the provision of special education services; or
iii) The child has been evaluated and determined to not be a child with a disability.
Remember that “thought to be eligible” only matters when you have proposed to discipline a non-identified student who may be able to prove “thought to be eligible” status. Any other suspicion that a child may be disabled is simply a question of child find: should the child be evaluated at this point in time?
Expedited Evaluation and Services Provided While an Evaluation is Pending
In situations where consent is sought and/or provided for an initial evaluation during the time that student is subjected to a disciplinary action, the applicable section of the code of the federal regulations provide:
i) If a request is made for an evaluation of a child during the time period in which the child is subjected to the disciplinary measures under section 300.530, the evaluation must be conducted in an expedited manner.
ii) Until the evaluation is completed, the child remains in the educational placement determined by school authorities, which can include suspension or expulsion without educational services.
See 20 U.S.C. 1415(k)(5) and 34 C.F.R. § 300.534 (d).
While the evaluation is pending, there is no obligation by the district to provide a student with a Free Appropriate Public Education (FAPE) or any services since he is a non-identified student (despite the fact the request for the evaluation occurred during the disciplinary action). See 34 C.F.R. Section 300.354 (d)(2)(i) & (ii). Hence all claims asserted by a parent that the district has done something wrong by not providing a FAPE are without merit and superfluous.
Clients who have questions regarding issues discussed in this article, or any education law matter, should feel free to call us at 215-345-9111.