to your child or to others;
(b)considers the appropriateness of your child’s current placement;
(c)considers whether the school district has made reasonable efforts to
minimize the risk of harm in your child’s current placement, including the use
of supplementary aids and services; and (d)determines that the interim
alternative educational setting meets the requirements of paragraph (4).
4. Any interim alternative educational setting
in which your child is placed pursuant to paragraph (1) or paragraph (3) in
this section shall (a)be selected so as to enable your child to continue to
participate in the general curriculum, although in another setting, and to
continue to receive those services and modifications, including those described
in your child’s current IEP, that will enable the child to meet the goals set
out in the IEP; and (b)include services and modifications designed to address
the behavior described in paragraph (1) or paragraph (3) of this section so
that it does not recur
5. If
a disciplinary action is contemplated as described in paragraph (I) or
paragraph (3) of this section for the behavior of your child, not later than
the date on which the decision to take that action is made, you shall be
notified of that decision and of all procedural safeguards accorded under this
section; and immediately, if possible, but in no case later than 10 school days
after the date on which the decision to take that action is made, an IEP Team
and other qualified personnel shall conduct a review of the relationship
between your child’s disability and the behavior subject to the disciplinary
action.
6. In carrying out a review described in
paragraph (5) of this section, the IEP Team may determine that the
behavior of your child was not a manifestation of your child’s disability only
if the IIEP team (a)first considers, in terms of the behavior subject to
disciplinary action, all relevant information including evaluation and
diagnostic results, including such results or other relevant information
supplied by you; observations of your child; and your child’s IEP and
placement; and (b)then determines that in relationship to the behavior subject
to disciplinary action, your child’s IEP and placement were appropriate and the
special education services, supplementary aids and services, and behavior
intervention strategies were provided consistent with your child’s IEP and
placement; your child’s disability did not impair his or her ability to
understand the impact and consequences of the behavior subject to disciplinary
action; and your child’s disability did not impair the ability of your child to
control the behavior subject to disciplinary action.
7. If the IEP
Team determines that the behavior of your child was not a manifestation of his
or her disability, the relevant disciplinary procedures applicable to children
without disabilities may be applied to your child in the same manner in which
they would be applied to children without disabilities except as provided in
section 612(a)(l) of the 1997 Amendments, which states that a free appropriate
public education is available to all children with disabilities residing in the
State between the ages of 3 and 21, inclusive, including children with
disabilities who have been suspended or expelled from school.
8. If you request an expedited due process
hearing regarding a disciplinary action described in paragraph (lb) or
Paragraph (3) to challenge the interim alternative educational setting or the
manifestation determination, your child shall remain in the interim alternative
educational setting pending the decision of the hearing officer or until the
expiration of the time period provided for in paragraph (lb) or paragraph (3),
whichever occurs first, unless you and the State or the school district agree
otherwise.
Page 8 of 9
August 1997