118 STAT. 2728 PUBLIC LAW 108–446—DEC. 3, 2004 and of all procedural safeguards accorded under this sec tion. ‘‘(2) DETERMINATION OF SETTING.—The interim alternative educational setting in subparagraphs (C) and (G) of paragraph (1) shall be determined by the IEP Team. ‘‘(3) APPEAL.— ‘‘(A) IN GENERAL.—The parent of a child with a dis ability who disagrees with any decision regarding place ment, or the manifestation determination under this sub section, or a local educational agency that believes that maintaining the current placement of the child is substan tially likely to result in injury to the child or to others, may request a hearing. ‘‘(B) AUTHORITY OF HEARING OFFICER.— ‘‘(i) IN GENERAL.—A hearing officer shall hear, and make a determination regarding, an appeal requested under subparagraph (A). ‘‘(ii) CHANGE OF PLACEMENT ORDER.—In making the determination under clause (i), the hearing officer may order a change in placement of a child with a disability. In such situations, the hearing officer may— ‘‘(I) return a child with a disability to the placement from which the child was removed; or ‘‘(II) order a change in placement of a child with a disability to an appropriate interim alter native educational setting for not more than 45 school days if the hearing officer determines that maintaining the current placement of such child is substantially likely to result in injury to the child or to others. ‘‘(4) PLACEMENT DURING APPEALS.—When an appeal under paragraph (3) has been requested by either the parent or the local educational agency— ‘‘(A) the 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 (1)(C), whichever occurs first, unless the parent and the State or local educational agency agree otherwise; and ‘‘(B) the State or local educational agency shall arrange for an expedited hearing, which shall occur within 20 school days of the date the hearing is requested and shall result in a determination within 10 school days after the hearing. ‘‘(5) PROTECTIONS FOR CHILDREN NOT YET ELIGIBLE FOR SPECIAL EDUCATION AND RELATED SERVICES.— ‘‘(A) IN GENERAL.—A child who has not been deter mined to be eligible for special education and related serv ices under this part and who has engaged in behavior that violates a code of student conduct, may assert any of the protections provided for in this part if the local educational agency had knowledge (as determined in accordance with this paragraph) that the child was a child with a disability before the behavior that precipitated the disciplinary action occurred. ‘‘(B) BASIS OF KNOWLEDGE.—A local educational agency shall be deemed to have knowledge that a child is a child Deadlines.
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