.06 Interim Alternative Educational Setting.

A. A public agency may remove a student with a disability for up to 45 school days to an interim alternative educational setting if, while at school, on school premises, or at a school function under the jurisdiction of the State or a public agency, the student:

(1) Carries or possesses a weapon;

(2) Knowingly possesses or uses an illegal drug;

(3) Sells or solicits the sale of a controlled substance; or

(4) Inflicts serious bodily injury on another person.

B. The IEP team shall determine the interim alternative educational setting.

C. An interim alternative educational setting shall enable the student with a disability to:

(1) Progress in the general curriculum;

(2) Receive the services and modifications included in the student's IEP;

(3) Meet the goals of the student's IEP; and

(4) Receive services and modifications designed to address the behavior to prevent its recurrence.

D. A student with a disability removed from the student's current placement consistent with §A of this regulation shall:

(1) Continue to receive educational services in another setting, so as to enable the student to continue to participate in the general education curriculum and progress toward meeting the goals set out in the student's IEP; and

(2) Receive, as appropriate, a functional behavioral assessment and behavioral intervention services and modifications designed to address the behavior violation to prevent its recurrence.

E. If a public agency believes the behavior of a student with a disability is likely to result in injury to the student or others, a public agency may request a due process hearing to seek the removal of the student to an interim alternative educational setting.

F. If a public agency maintains that it is dangerous for the student with a disability to be in the current placement during the pendency of the due process hearing, the public agency may request that the due process hearing be expedited.

G. An administrative law judge may order a change in placement to an interim alternative educational setting for not more than 45 school days if the administrative law judge determines that the public agency has demonstrated, beyond a preponderance of the evidence, that maintaining the current placement of the student with a disability is substantially likely to result in injury to the student or others.

H. In making the determination in accordance with §G of this regulation, an administrative law judge shall consider whether:

(1) The student's current placement is appropriate;

(2) The public agency has made reasonable efforts to minimize the risk of harm in the student's current placement, including the use of supplementary aids and services; and

(3) The interim alternative educational setting proposed by the public agency, in consultation with the student's special education teacher, meets the requirements of §C of this regulation.

I. A student with a disability may be removed to an interim alternative educational setting in accordance with §A of this regulation without regard to whether the behavior is determined to be a manifestation of the student's disability.