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  • What is special education?
    • Special education programs in Hawaii are governed by both federal and state law. 
    • Under both federal and state law, school districts must provide each student with a disability with a “free appropriate public education” (FAPE).
  • Who is eligible for special education?
    • Children with a qualifying disability, between the ages of three and eighteen years of age (or twenty-one years of age, if they have not completed high school), are eligible to receive special education and related services. 
    • Eligible disabilities include: 
      • hearing disability (including deafness); 
      • intellectual disability; 
      • speech or language disability; 
      • developmental delay; 
      • visual disability (including blindness); 
      • emotional disability; 
      • orthopedic disability; 
      • autism spectrum disorder; 
      • traumatic brain injury; and 
      • specific learning disability. 

    20 .S.C. Sec. 1401(3); 34 C.F.R. Sec. 300.8; Haw. Code R. Sec. 8-60-21

    • A lack of instruction in reading, a lack of instruction in math, or limited English proficiency cannot be a determinant factor in identifying whether a student has a disability. 

    20 U.S.C. Sec. 1414(b)(5); 34 C.F.R. Sec. 300.306(b); Haw. Code R. § 8-60-38.

  • What type of education are children with a qualifying disability entitled to? What is a “free appropriate public education”?
    • Under both federal and state law, school districts must provide each student with a disability with a FAPE
    • FAPE means special education and related services that: 

    1. Are provided at public expense and without charge
    2. Meet appropriate standards
    3. Include preschool through secondary education
    4. Conform with an Individual Education Program (IEP). 20 U.S.C. Sec.
    1401(9); 34 C.F.R. Sec. 300.17.

    • Special education means specially designed instruction, at no cost to the parent, to meet the unique needs of a child with disabilities: 
      • “adapting, as appropriate to the needs of an eligible child…the content, methodology, or delivery of instruction to address the unique needs of the child that result from the child’s disability and to ensure access of the child to the general curriculum, so that he or she can meet the educational standards within the jurisdiction of the public agency that apply to all children.” 34 C.F.R. Sec. 300.38(b)(3). 
    •  Special education must be provided: 
      • In the least restrictive environment (LRE) 
      • To the extent appropriate, with students who are not disabled. 34 C.F.R. Sec. 300.114. 
    • Special education must include: 
      • instruction conducted in the classroom, in the home, in hospitals and institutions, in the community, and on other settings 
      • instruction in physical education 
      • speech-language pathology services, for relevant speech and language disabilities 
      • travel training 
      • vocational education 

    Haw. Code R. Sec. 8-60-2.

  • In addition to a free appropriate public education, are there other services a child with a disability is entitled to? What are “related services”?
    • In addition to being required to provide a free appropriate public education, the Hawaii Department of Education (HDE) is required to provide “related services”
    • Related services may include any of the following
      • transportation 
      • speech-language pathology; 
      • audiology services; 
      • interpreting services; 
      • psychological services; 
      • physical and occupational therapy; 
      • recreation, including therapeutic recreation; 
      • early identification and assessment of disabilities in students; 
      • counseling services, including rehabilitation counseling; 
      • orientation and mobility services; 
      • medical services for diagnostic or evaluation purposes; 
      • school health services; 
      • school nurse services; 
      • social work services in schools; and 
      • parent counseling and training. 

    Haw. Code R. Sec. 8-60-2.

    • Related services do not include, with respect to students with surgically implanted devices, a medical device that is surgically implanted, the optimization of that device’s functioning, maintenance of that device, nor the replacement of that device. Haw. Code R. Sec. 8-60-2. 
    • “Extended school year services” are special education and related services that are provided to a student with a disability beyond the normal school year of the school department 
    • These services must be: 
      • in accordance with the student’s IEP 
      • provided at no cost to the parent of the student 
      • meet the standards of the HDE. Haw. Code R. Sec. 8-60-7. 
      • provided only if a student’s individual education-plan team determines on an individual basis that the services are necessary for the provision of a FAPE to the student. Haw. Code R. Sec. 8-60-7.
  • Who provides special education?
    • The state education agency and the local school district are both responsible for ensuring that appropriate special education services are delivered. 20 U.S.C. Sec. 1413(a)(1); 20 U.S.C. Sec. 1412(a)(11); 34 C.F.R. Sec. 300.149. 
    • However, the state education agency, the HDE, and the local education agency function as a single system; so the HDE is ultimately responsible for providing special education services
  • Where should a child receive his or her special education and related services? What is a “least restrictive environment”?
    • Special education can be offered in: 
      • Mainstream classrooms 
      • Special classrooms 
      • Special schools 
      • At home 
      • In hospitals or institutions 
      • In private schools (if the HDE makes a determination to provide such services) 

    Haw. Code R. Sec. 8-60-16

    • Special education must be provided in a least restrictive environment. 
      • Children with disabilities must be educated with their nondisabled peers (to the maximum extent appropriate) 
      • Students with disabilities may be removed from the regular educational environment only when the nature or severity of the disability is such that modifications, supplementary aids, and services are not sufficient in the general education environment. 20 U.S.C. Sec. 1412 (a)(5)(A); 34 C.F.R. Sec. 300.114; Haw. Code R. Sec. 8-60-15.
  • How is a child determined to be eligible for special education? Is there an assessment or evaluation?
    • Either a parent of a student or the HDE may request an initial evaluation to determine if a student is a student with a disability. Haw. Code R. Sec. 8-60-33. Haw. Code R. Sec. 8-60-31. 
    • In the evaluation, the HDE gathers a variety of relevant functional, developmental, and academic information about the student, including information provided by the parent, to help in determining 

    (i) whether the student has an eligible disability
    (ii) the content of the student’s IEP. Haw. Code R. Sec. 8-60-36.

    • The assessment, in the student’s native language, must consider the student’s: 
      • Health 
      • Vision 
      • Hearing 
      • social and emotional status 
      • general intelligence 
      • academic performance 
      • communicative status 
      • visual and auditory processing 
      • motor abilities 

    Haw. Code R. Sec. 8-60-36.

    • After the assessment is completed, a group of qualified professionals and the parent determine whether the student has an eligible disability and the educational needs of the student. Haw. Code R. Sec. 8-60-38. 
    • If the parent disagrees with the findings or recommendations, the parent may request an independent education evaluation (IEE). 
      • The district must provide an IEE to the parent at no cost unless it chooses to seek a due process hearing to determine whether its own assessment was legally adequate. Haw. Code R. Sec. 8-60-57.
  • Once a child is identified as being eligible for special education, what are the next steps? What is an “IEP” (Individualized Education Program)? Do parents have any say so in the IEP?
    • Once it is determined that a child is eligible for special education, an IEP is developed for that child. 
    • An IEP outlines in writing the educational program for the student, developed at a meeting by a team including: 
      • the parent  
      • a special education teacher 
      • a regular education teacher 
      • a representative of the HDE 
      • an individual who can interpret the implications of evaluation results (who may be a member of the team other than the parent), 
      • other individuals who have knowledge or special expertise regarding the student whenever appropriate, the student. 

    Haw. Code R. Sec. 8-60-48.

    • The IEP must include
      • a statement of the student’s present levels of educational performance; 
      • a statement of measurable annual goals; 
      • a description of how the child’s progress toward goals will be measured and reported; 
      • a statement of specific special education and related services to be provided to the student; 
      • an explanation of the extent to which the child will not participate with nondisabled child in regular education classes as well as extracurricular and nonacademic activities; 
      • a statement of individual appropriate accommodations for statewide assessments; 
      • the projected date for beginning the special education and related services as well as the anticipated duration, frequency, and location of services and modifications; 
      • transition services needed for students age 14 or older. 

    Haw. Code R. Sec. 8-60-44.

    • Parents must be notified of each IEP team meeting early enough that they will have an opportunity to attend, and meetings must be scheduled at a mutually agreed on time and place. Haw. Code R. Sec. 8-60-46. 
    • Parents must consent before an IEP is implemented. 
    • An IEP must be reviewed at least annually, to determine whether the annual goals for the student are being achieved, and must be revised, as appropriate, to address any lack of expected progress. Haw. Code R. Sec. 8-60-48. 
    • If a student with an IEP transfers from another state and enrolls in a Hawaii public school, within the same school year, the new public school must provide the student with a FAPE. 
      • The FAPE must include services comparable to those described in the student’s IEP from the previous school, until the new public school: 

    (i) conducts an evaluation
    (ii) develops, adopts, and implements, a new IEP.

    Haw. Code R. Sec. 8-60-47.

  • What options does a parent have if he or she disagrees with the proposed IEP placement or services? What are the procedures for due process?
    • If a parent disagrees with or objects to the proposed IEP placement or services, or if the parent believes the district has failed to comply with the child’s IEP, the parent is entitled to file for due process. Haw. Code R. Sec. 8-60-61. 
    • A due process complaint must address a violation that occurred not more than two years before the date the parent or the Department of Education knew or should have known about the violation; 
    • And include
      • the name of the student; 
      • the address of the student or available contact information;
      • the name of the school the student is attending; 
      • a description of the nature of the problem; and 
      • the proposed resolution. 

    Haw. Code R. Sec. 8-60-62.

    • The parent will receive decision within forty-five days after the end of the thirty-day resolution period. 
    • A due process complaint is sufficient, unless: 
      • The party receiving the complaint notifies the hearing officer and the other party in writing, within fifteen days of receiving the due process complaint, that the receiving party believes the due process complaint is not sufficient. Haw. Code R. Sec. 8-60-62. 
    • The parent and the HDE must participate in an informal resolution meeting, including members of the IEP and ad representative of the HDE, unless

    (i) the parties agree to waive the meeting or
    (ii) the parties agree to use the mediation process. Haw. Code R. Sec. 8-60-64.

    • Both parties have three days to revoke their written agreement, but in the event they do not, the agreement is binding and enforceable in state or federal court. Haw. Code R. Sec. 8-60-64. 
    • Parents who waive the resolution session may still participate in mediation, prior to the filing of a due process complaint, and this does not deny or delay a parent’s right to a hearing on a due process complaint. Haw. Code R. Sec. 8-60-60. 
    • If neither the resolution meeting nor mediation results in an agreement, a due process hearing will occur before an impartial hearing officer. Any party at a due process hearing may: 

    (i) be accompanied and advised by counsel;
    (ii) present evidence and confront, cross-examine, and compel the attendance of
    (iii) prohibit the introduction of evidence that has not been disclosed to the party at
    least five days before the hearing;
    (iv) obtain a record of the hearing;
    (v) obtain findings of fact and decisions. Haw. Code R. Sec. 8-60-60.

    • In addition, parents have the right to

    (i) have the student present at the hearing,
    (ii) open the hearing to the public,
    (iii) have the record of the hearing and the findings of fact and decisions provided at no
    cost to the parents. Haw. Code R. Sec. 8-60-60.

    • A decision made at a due process hearing is final, except that it may be appealed in state or federal district court. Haw. Code R. Sec. 8-60-68. 
    • Once a due process complaint has been filed, the student remains at his or her current educational placement, unless
      • Both the parent and the HDE may agree to change the placement or services until receiving outcome of the hearing. 
      • The complaint involves an application for admission to public school, in which case the student will be placed in public school until the proceedings are complete. Haw. Code R. Sec. 8-60-72.
  • Can a special education student be disciplined?
    • For violation of school rules, to the same extent those alternatives are applied to students without disabilities, students with disabilities may be: 
      • placed in an appropriate interim alternative educational setting 
      • another setting, or 
      • suspended for not more than ten cumulative school days 

    Haw. Code R. Sec. 8-60-75.

    • After a student with a disability has been removed from the student’s current placement for ten school days in the same school year, during any subsequent days of removal the Department of Education must provide educational services to the student so the student can: 
      • continue to participate in the general education curriculum 
      • progress toward meeting the goals set out in the student’s IEP 

    Haw. Code R. Sec. 8-60-75.

    • A change in placement occurs when a child is removed either for ten consecutive days or for ten cumulative days and the removal constitutes a pattern. 34 C.F.R. Sec. 300.536(a). 
    • When there has been a change in placement, the child’s parents and relevant members of the IEP team must review the child’s file to determine if: 

    (i) the conduct causing the change in placement was caused by or was related to the
    child’s disability
    (ii) the conduct was caused by the failure to properly implement the IEP. 34 C.F.R. Sec.
    300.530(e); Haw. Code R. Sec. 8-60-75.

    • If the IEP team and the parents determine either that the conduct was caused by the child’s disability or that the conduct was the result of a failure to implement the IEP, then the IEP team must: 

    (i) conduct a functional behavioral assessment
    (ii) create a behavioral intervention plan, if one does not already exist,
    (iii) implement it
    (iv) return the child to the placement from which he or she was removed. 34 C.F.R. Sec.
    300.530(f); Haw. Code R. Sec. 8-60-75.

    • If the conduct was determined to have been the result of a failure of the IEP, the school district must take steps to address the deficiencies of the IEP. 34 C.F.R. Sec. 300.530(e)(3); Haw. Code R. Sec. 8-60-75. 
    • If the behavior that gave rise to the violation is determined not to be a manifestation of the student’s disability, disciplinary procedures may be applied to students with disabilities, in the same manner and for the same duration as would be to students without disabilities (except as provided in Haw. Code R. Sec. 8-60-75(d)). 
      • If a parent of a child with a disability disagrees with the manifestation determination, may appeal the decision by requesting a due process hearing. Haw. Code R. Sec. 8-60-77. 
    • Under certain special circumstances a child may be removed for a period of no more than forty-five school days to an interim alternative educational setting. The special circumstances under which a child may be removed to an interim alternative educational setting exist when: 

    (i) the child possess a weapon at school or at a school function,
    (ii) uses illegal drugs or sells a controlled substance at school or at a school function
    (iii) inflicts serious bodily harm at school or at a school function. 34 C.F.R. Sec.
    300.530(g); Haw. Code R. Sec. 8-60-75.

  • Can parents see the school records of their special education child?
    • A parent of a student with a disability is entitled to inspect and review all education records with respect to: 

    (i) the identification, evaluation, and educational placement of the student;
    (ii) the provision of a FAPE to the student. Haw. Code R. Sec. 8-60-56.

    • In addition, a parent has the right to: 
      • a copy of the student’s IEP at no cost to the parent; 
      • obtain a list of the student’s education records maintained by the HDE; 
      • inspect or review them; 
      • receive from the department, when requested, an explanation or interpretation of those records; 
      • challenge the contents of the records at a hearing; 
      • inspect, review, or obtain information that pertains only to the student in question, if any material or files contain data on more than one person; and 
      • secure copies of records at the parent’s own expense (provided the charge cannot exceed the reproduction cost and in the case of financial hardship, the department may waive the reproduction cost). 

    Haw. Code R. Sec. 8-34-6.