Requires the department of education to prove at administrative hearings regarding the education of a child with a disability that, by a preponderance of the evidence, it has complied with federal and state procedural law, or that it has complied with the requirement of a free appropriate public education in the least restrictive environment, or both. Repeals the requirement that an administrative hearing be requested within 90 days after a unilateral special education placement.

A BILL FOR AN ACT

SECTION 1. The legislature finds that, in 2004, Congress enacted sweeping changes to the Individuals with Disabilities in Education Act, now known as the Individuals with Disabilities Education Improvement Act. Among the most significant changes, Congress brought the Individuals with Disabilities Education Improvement Act into close alignment with the No Child Left Behind Act and in the process raised the standards for educational and functional achievement of disabled children. In the Individuals with Disabilities Education Improvement Act, Congress specifically found that the education of disabled children has been impeded by "low expectations" as well as "insufficient focus" on applying replicable research and proven methods for teaching children with disabilities. Under the Individuals with Disabilities Education Improvement Act, education agencies are required to develop Individualized Education Programs, including special education and related services and supplementary aids and services, based upon peer-reviewed, research-based intervention strategies and incorporating scientifically-based instruction practices to the extent practicable. In addition, special education programs must be crafted to prepare the disabled child for further education, employment, and independent living.

The legislature further finds that erroneous denial of special education services may be expected to cause serious harm to a child's long-term development. The department of education, with its superior access to and control over experts and witnesses who work with the child on a daily basis, and with its superior access to relevant information, including scientifically-based instruction and intervention strategies, observation data, and child study team data, is in the better position to demonstrate that a disabled child's individualized education program is appropriate and meets both the child's unique developmental and educational needs, as well as the heightened requirements of the Individuals with Disabilities Education Improvement Act. In addition, many parents of disabled children lack the financial resources, education, and access to comparative data involving other similarly situated children, with which to effectively challenge the Individualized Education Program being proposed by the school. Placing the burden of proof on the department of education will help avoid disputes by ensuring that the initial determination to provide special education and related services and supplementary aids and services will be based upon sound review of the child's unique developmental, educational, psychosocial, academic, and functional learning needs, incorporating empirically validated, peer-reviewed intervention strategies to the maximum extent practicable.

The purpose of this Act is to restore the burden of proof on the department of education in impartial hearing proceedings. It is also the purpose of this Act, consistent with the provisions of the Individuals with Disabilities Education Improvement Act, to establish a two-year limitations period for bringing any complaint relating to the identification, evaluation, or educational placement of a disabled child, or the provision of a free appropriate public education to the child.

SECTION 2. Section 302A-443, Hawaii Revised Statutes, is amended to read as follows:

"§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, as defined by 20 U.S.C. Section 1401(3), 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[:

(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:

(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 require 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) At any impartial hearing held under this section where the issue is whether the department has complied with the procedural requirements of federal and state law, or whether the department has complied with its obligation to offer a free appropriate public education in the least restrictive environment, or both, the burden of proof shall be on the department to demonstrate compliance by a preponderance of the evidence. If the hearings officer finds that the department has failed to prove compliance and if the parent seeks payment from the department for private placement, the burden of proof shall be on the parent to demonstrate by a preponderance of the evidence that the private placement is appropriate."

SECTION 3. Statutory material to be repealed is bracketed and stricken. New statutory material is underscored.

SECTION 4. This Act shall take effect upon its approval.