Administrative hearing procedures and subpoena power relating to the education of children with a disability
HRS §302A-443
in effect302A-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]
Source: Hawaii State Legislature (capitol.hawaii.gov), via Internet Archive capturesURL: http://www.capitol.hawaii.gov/hrscurrent/Vol05_Ch0261-0319/HRS0302A/HRS_0302A-0443.htmFetched: 11/10/2026