§302A-443  Administrative hearing procedures

and subpoena power relating to the education of children with a disability. 

(a)  An impartial hearing may be requested by any parent or guardian of a child

with a disability, or by the department, on any matter relating to the

identification, evaluation, program, or placement of a child with a disability;

provided that the hearing is requested:

     (1)  Within two years of the date the parent,

guardian, or department knew or should have known about the alleged action that

formed the basis of the request for a hearing; and

     (2)  Notwithstanding paragraph (1), within one hundred

and eighty calendar days of a unilateral special education placement, where the

request is for reimbursement of the costs of the placement.

     (b)  Subsection (a) shall not apply to a parent

or guardian of a child with a disability if the parent or guardian was

prevented from requesting the hearing due to:

     (1)  Specific misrepresentations by the department

that it had resolved the problem that formed the basis of the complaint; or

     (2)  The department's withholding from the parent or

guardian information that was required by state or federal laws and regulations

to provide a free, appropriate public education to a child with a disability.

     (c)  The department shall adopt rules that

conform to the requirements of any applicable federal statutes or regulations

pertaining to the impartial hearing based on the education of a child with a

disability.  The rules shall provide that any party may be present at the

proceeding, be accompanied and advised by counsel or individuals with special

knowledge or training with respect to the problems of children with a

disability, may require witnesses to be under oath, cross-examine witnesses,

and obtain a written or electronic verbatim record of the proceedings.

     (d)  Any party to these hearings or the

hearings officer shall have the right to compel the attendance of witnesses

upon subpoena issued by the hearings officer.  The fees for attendance shall be

the same as for the fees of witnesses before circuit court.  In case of the

failure of any person to comply with a subpoena, a circuit court judge of the

judicial circuit in which the witness resides, upon application of the hearings

officer, shall compel attendance of the person.

     (e)  No later than twenty days prior to the

convening of each regular session of the legislature, the department shall

submit a report that provides the total number of requests for a due process

hearing relating to the reimbursement of costs for a child's placement filed by

a parent or guardian of a child with a disability.

     (f)  The department shall be authorized to

monitor any child eligible to receive special education and related services

who is placed, whether as the result of a hearing officer's decision, court

order, or programmatic placement, at the department's expense, whether by

direct payment or through reimbursement to the student's parent, legal

guardian, or legal custodian, in any private school or placement as defined by

federal and state law, including any implementing regulations or rules,

relating to students with disabilities.  Any private school or placement

that receives funding from the department for the placement of a student with a

disability, whether the funding is by direct payment or through reimbursement

to the student's parent, legal guardian, or legal custodian, shall allow the

department access to exercise its authority under this subsection to

monitor any student placed at the private school or placement.  Monitoring

under this subsection shall include but not be limited to:

     (1)  The monitoring of all private schools and

placements to ensure compliance with all applicable federal, state, and county

laws, rules, regulations, and ordinances pertaining to health and safety;

     (2)  The monitoring of all students with disabilities

placed in a private school or placement to ensure that:

         (A)  Each student is receiving academic

education, instruction, and programming as required by the student's

individualized education program; and

         (B)  The curriculum and instruction are

rigorous, based on content standards, and aligned with the Common Core State

Standards;

     (3)  The direct observation of a student with a

disability placed in a private school or placement, with or without notice to

the private school or placement;

     (4)  The review of all records, notes, or

documentation related to students with disabilities placed in a private school

or placement; and

     (5)  The right of the department to talk to the

student's teachers at the private school or placement at reasonable times.

     (g)  Any private school or placement that

receives funds from the department, whether by direct payment or through

reimbursement to the student's parent, legal guardian, or legal custodian,

shall post with the department by April of each year, the itemized rates, fees,

and tuition to be charged for the following school year and shall charge the

department the same itemized rates, fees, or tuition it charges parents, legal

guardians, or legal custodians who unilaterally place a student at its school,

program, or facility.  The department shall only pay for services that are

specified in a student's individualized education program.

     (h)  Any private school or placement that

receives funds from the department, whether by direct payment or through

reimbursement to the student's parent, legal guardian, or legal custodian,

shall provide copies of a student's records to the department within three

business days of receipt of a request for such records.

     (i)  The department shall withhold payment to

any private school or placement that restricts or denies monitoring by the

department pursuant to its authority under subsection (f).

     (j)  Subsections (f) through (i) shall not

apply to those schools that are full and accredited members in good standing of

the Hawaii Association of Independent Schools; provided that the department may

monitor any child at such schools eligible to receive special education and

related services at the department's expense.

     (k)  The department may adopt rules pursuant to

chapter 91 to effectuate subsection (f). [L 1996, c 89, pt of §2; am L 2005, c

158, §2; am L 2008, c 179, §1; am L 2011, c 129, §2]

 

Case Notes

 

  Student's placement at a private school was bilateral due to

hearing officer's approval in July 2006, and therefore, plaintiffs' request for

tuition reimbursement was subject to the two-year statute of limitations in

subsection (a)(1); plaintiffs' request was timely.  550 F. Supp. 2d 1238 (2008).

  Section did not apply as the state statute of limitations in

actions for attorney's fees under the Individuals with Disabilities Education

Act.  621 F. Supp. 2d 1013 (2008).

  Plaintiff parents' claim that Act 129 (L 2011) was invalid,

in that it allowed the department of education to withhold stay put payments if

monitoring was not allowed, was not ripe for judicial review.  Plaintiffs

failed to establish that they or their child would suffer harm from department

of education's actions regarding Act 129, L 2011.  897 F. Supp. 2d 1004 (2012).

  As claim that health department was legally obligated to pay

for child's services at private residential treatment center arose under the

federal Individuals with Disabilities Education Act and child did not pursue

the remedies available under the federal act to establish health department's

obligation to pay for the services, family court lacked jurisdiction to order

the department to pay for the services.  96 H. 272, 30 P.3d 878.