Repeals ninety-day statute of limitation for parents or guardians seeking reimbursement of a child's unilateral special education placement costs. Assigns burden of proof to the DOE in administrative hearings brought under the Individuals with Disabilities Education Act.

A BILL FOR AN ACT

SECTION 1. The Individuals with Disabilities Education Act of 1975, amended in 1997 and 2004 (20 U.S.C. 1400 et seq.) (IDEA), ensures fair and equal access to free and appropriate public education for children with a disability. Prior to the IDEA's enactment, Congress had found that education for children with a disability continued to be impeded by low expectations and an insufficient implementation of scientifically-proven teaching methods. Congress built into the IDEA procedural safeguards to protect families' rights in the event parents or guardians are not satisfied with their child's individualized education program (IEP) provided by the public school administration. These safeguards include, among other things, a right to request an impartial administrative hearing to review the adequacy of an IEP.

Section 302A-443, Hawaii Revised Statues, was passed pursuant to the IDEA and outlines administrative hearing procedures concerning the education of children with a disability. Paragraph (a)(1) sets forth a two-year statute of limitation to request an administrative hearing which commences at the time the petitioner knew or should have known about the alleged action that formed the basis for the hearing. In contrast, paragraph (a)(2) creates a separate, ninety-day statute of limitations to bring an action, if the action seeks cost reimbursement for a unilateral special education placement. This ninety-day statute of limitation reduces the incentive for department officials to seek a negotiated resolution to a dispute when the damages that parents can claim is capped at a mere three months of tuition paid for an alternative placement. It also poses an added burden to parents and guardians to assert a claim of this kind in an unreasonably and arbitrarily brief period of time that can be unjust under the circumstances. Further, the shorter statute of limitation is inconsistent with the two-year statute of limitation provided by HRS §302A-443(a)(1) and should be changed to a uniform two-year statute of limitations.

In addition, both the IDEA and HRS §302A-443 are silent as to which party bears the burden of proof in administrative proceedings brought pursuant to their provisions. In recognition of the special role the department of education plays in the educating children with disabilities, it is only fair that the department bears the burden of proof in administrative proceedings brought under the IDEA. The IDEA and the No Child Left Behind Act both impose affirmative legal duties on the school system to provide highly-qualified teachers, and to implement peer-reviewed, scientifically-based instruction and intervention strategies so that children with a disability may close the achievement gap with non-disabled peers and achieve their developmental and educational goals. An underlying assumption of the IDEA is that the department's erroneous denial of special education services will cause serious harm to a child's long-term development. It should be noted that the department controls much of the information and resources pertaining to a particular child with a disability, including experts and witnesses who work with the child daily, scientifically-based instruction and intervention strategies, and observation and child study team data. This being the case, the department is in the best position to demonstrate that a disabled child's IEP is appropriate to meet the child's unique developmental and educational needs, as well as the heightened requirements of the IDEA. Moreover, parents and guardians often lack the financial resources and access to comparative data involving other similarly situated children with which to mount an effective challenge to the IEP proposed by their child's school. Placing the burden of proof on the department provides an added safeguard that the department's initial IEP is based upon a sound, comprehensive review of the child's unique developmental, educational, and functional needs, and incorporates empirically-validated, peer-reviewed intervention strategies to the greatest extent practicable, which will reduce the number of potential disputes raised by parents.

The purpose of this Act is to clarify the procedures through which the department of education shall provide fair access to free and appropriate public education to children with disabilities by:

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, 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) In an administrative hearing held under this section, the department shall bear the burden of proof, based solely upon the evidence and testimony presented at the hearing, that the action or proposed placement is adequate to meet the appropriate public education needs of the student in the least restrictive environment. If a hearing officer finds against the department and a parent or guardian subsequently seeks reimbursement from the department for a student's alternative private placement, the burden of proof shall be on the parent or guardian to demonstrate that the private placement is appropriate. In any hearing held under this section, the standard of proof shall be by a preponderance of the evidence, except when the issue is whether maintaining the current placement of the child is likely to result in injury to the child or others, in which case the standard is substantial evidence, which is evidence that is more than a preponderance of the evidence."

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

SECTION 4. This Act shall take effect on July 1, 2006.