SB2879

SECTION 1. The legislature finds that the partnership between parents, families, professionals, and students is cornerstone to the success of student achievement. From a student's first day of school until the completion of the student's education, hundreds, possibly thousands, of educational decisions will have been made for or by that student. Until a student reaches the age of eighteen, most of those decisions are made by parents, family members, or guardians in consultation with teachers or education officials. However, when a student reaches the age of eighteen, that adult student is presumed to be capable of making the adult student's own educational decisions and has the confidence to participate fully in meetings to make educational decisions, unless determined to be incapable of making decisions. Students at this transition point, regardless of their capacity, may benefit from continued participation, guidance, and advice from the people on whom they have always relied to make educational decisions.

As it relates to the numerous decisions and planning activities related to a student with a disability receiving special education and related services, parents of adult students can only participate in these activities if they are either invited by the student or obtain legal guardianship over the individual. While these options create a vehicle for parental participation, they are not comprehensive enough to meet the diverse needs of the students and families in our State.

The legislature further finds that guardianships are expensive, labor intensive, and involve a time consuming process that relinquishes all decision making authority from the student to the guardian. Some students may have the capacity and desire to make other life decisions for themselves, but do not feel confident in making educational decisions and may require continued assistance. There are also other families that philosophically strive to maintain the rights of their adult children, regardless of their capacity, and are able to do so because of the array of alternatives to guardianship in the health care, welfare, housing, and financial systems. In these instances, guardianship would not be an appropriate option.

The purpose of this Act is to provide a comprehensive array of options for adult students to ensure their ability to make educational decisions that are consistent with the needs of the student in a manner that is respectful to the values of the student and family by:

(1) Establishing a power of attorney for special education;

(2) Establishing the process to appoint a surrogate decision maker for an adult student that lacks capacity; and

(3) Clarifying the authority of a guardian of an adult student.

SECTION 2. Chapter 302A, Hawaii Revised Statutes, is amended by adding a part to be appropriately designated and to read as follows:

"PART . ADULT SPECIAL EDUCATION

§302A‑ Advance special education directives. (a) An adult or emancipated minor may give an individual instruction to assist in the development and implementation of individualized education plans for special education. The instruction may be oral or written. The instruction may be limited to take effect only for the purposes of participating in individualized education plan processes.

(b) An adult or emancipated minor may execute a power of attorney for special education, which may authorize the agent to receive notices and to participate in meetings and all other procedures related to the student's educational program. The power remains in effect notwithstanding the student's later incapacity and may include individual instructions. Unless related to the student by blood, marriage, or adoption, an agent may not be an owner, operator, or employee of the educational institution at which the student is receiving special education services. The power shall be in writing, contain the date of its execution, be signed by the student, and be witnessed by one of the following methods:

(1) Signed by at least two individuals, each of whom witnessed either the signing of the instrument by the student or the student's acknowledgment of the signature of the instrument; or

(2) Acknowledged before a notary public at any place within this State.

(1) A teacher;

(2) An employee of a teacher or school; or

(3) The agent.

(d) At least one of the individuals used as a witness for a power of attorney for special education shall be someone who is neither related to the student by blood, marriage, or adoption.

(e) Unless otherwise specified in a power of attorney for special education, the authority of an agent becomes effective only upon a determination by the student to extend decision making authority to the agent, and ceases to be effective upon a determination that the student has the capacity to make special education decisions and has discharged the agent from doing so.

(f) Unless otherwise specified in a written advance special education directive, a determination that an individual lacks or has recovered capacity, or that another condition exists that affects an individual instruction or the authority of an agent, shall be made by a qualified administrator, such as the student's primary physician, psychologist, psychiatrist or the medical director of the department of health developmental disabilities division.

(g) An agent shall make a special education decision in accordance with the student's individual instructions, if any, and other wishes to the extent known to the agent. Otherwise, the agent shall make the decision in accordance with the agent's determination of the student's best interest. In determining the student's best interest, the agent shall consider the student's personal values to the extent known to the agent.

(h) A special education decision made by an agent for a student shall be effective without judicial approval.

(i) An advance special education directive shall be valid for purposes of this part if it complies with this part, or if it was executed in compliance with the laws of the state where it was executed.

§302A‑ Revocation of advance special education directive. (a) An individual may revoke the designation of an agent only by a signed writing or by personally informing the supervising teacher.

(b) A teacher, agent, guardian, or surrogate who is informed of a revocation shall promptly communicate the fact of the revocation to the supervising teacher and to any educational institution at which the student is receiving special education services.

(c) A decree of annulment, divorce, dissolution of marriage, or legal separation revokes a previous designation of a spouse as agent unless otherwise specified in the decree or in a power of attorney for special education.

(d) An advance special education directive that conflicts with an earlier advance special education directive revokes the earlier directive to the extent of the conflict.

§302A‑ Educational decisions; surrogates. (a) A student may designate or disqualify any individual to act as a surrogate by personally informing the supervising teacher. In the absence of such a designation, or if the designee is not reasonably available, a surrogate may be appointed to make a special education decision for the student.

(b) A surrogate may make a special education decision for a student who is an adult or emancipated minor if the student has been determined by the qualified administrator to lack capacity and no agent or guardian has been appointed or the agent or guardian is not reasonably available. Determinants to lack capacity may include the following:

(1) The student's inability to understand the nature, extent, and probable consequences of a proposed educational program or option, on a continuing or consistent basis;

(2) The student's inability to make a rational evaluation of the benefits or disadvantages of a proposed educational decision or program as compared with the benefits or disadvantages of another proposed educational decision or program, on a continuing or consistent basis; or

(3) The student's inability to communicate such understanding in any meaningful way.

Upon a determination that a student lacks decisional capacity to provide informed consent the qualified administrator or the qualified administrator's designee shall make reasonable efforts to notify the student of the student's lack of capacity. The qualified administrator, or the qualified administrator's designee, shall designate the parent or parents of the adult student to act as the surrogate (unless the student is married, in which event the student's adult spouse shall be designated as educational representative). If the parent or adult spouse is not available or competent to give informed consent, the administrator shall designate a competent individual from among the following, an adult brother or sister, an adult aunt or uncle, or a grandparent. If no one from the previous categories is willing and able to serve as the adult student's educational representative, then an individual (who is not an employee of the department) shall be designated to serve in this capacity (by the department).

(c) If any interested person, the guardian, or qualified administrator believes the student has regained decisional capacity, the qualified administrator shall reexamine the student and determine whether or not the student has regained decisional capacity and shall enter a decision and the basis for such decision into the student's educational record and shall notify the student, the surrogate decision maker, and the person who initiated the redetermination of decisional capacity.

(d) A surrogate who has been designated by the student may make educational decisions for the student that the student could make on the student's own behalf.

(e) The surrogate who has not been designated by the student shall make educational decisions for the student based on the wishes of the student, or, if the wishes of the student are unknown or unclear, on the student's best interest.

(f) A special education decision made by a surrogate for a student is effective without judicial approval.

(g) A supervising teacher shall require a surrogate to provide a written declaration under the penalty of false swearing stating facts and circumstances reasonably sufficient to establish the claimed authority.

§302A‑ Decisions by guardian. (a) A guardian shall comply with the ward's individual instructions and shall not revoke the ward's pre-incapacity advance special education directive unless expressly authorized by a court.

(b) Absent a court order to the contrary, a special education decision of a guardian appointed pursuant to chapter 560 takes precedence over that of an agent.

§302A‑ Obligations of teacher. (a) Before implementing a special education decision made for a student, a supervising teacher, if possible, shall promptly communicate to the student the decision made and the identity of the person making the decision.

(b) A supervising teacher who knows of the existence of an advance special education directive, a revocation of an advance special education directive, or a designation or disqualification of a surrogate shall promptly record its existence in the student's education record and, if it is in writing, shall request a copy and if one is furnished shall arrange for its maintenance in the education record.

(c) A supervising teacher who makes or is informed of a determination that a student lacks or has recovered capacity, or that another condition exists that affects an individual instruction or the authority of an agent, guardian, or surrogate, shall promptly record the determination in the student's educational record and communicate the determination to the student, if possible, and to any person then authorized to make educational decisions for the student.

(d) A teacher or institution providing special education and or related services to a student shall:

(1) Comply with an individual instruction of the student and with a reasonable interpretation of that instruction made by a person then authorized to make educational decisions for the student; and

(2) Comply with a special education decision for the student made by a person then authorized to make educational decisions for the student to the same extent as if the decision had been made by the student while having capacity.

(e) A teacher or institution that declines to comply with the special education decision for the student made by a person then authorized to make educational decisions for the student shall:

(1) Promptly so inform the student, if possible, and any person then authorized to make educational decisions for the student; and

(2) Provide continuing special education and or related services as defined by the individualized education plan to the student until a transfer can be effected.

(f) A teacher or institution may not require or prohibit the execution or revocation of an advance special education directive as a condition for providing special education and or related services.

§302A‑ Educational information. Unless otherwise specified in an advance special education directive, a person then authorized to make educational decisions for a student has the same rights as the student to request, receive, examine, copy, and consent to the disclosure of the Individualized Education Plan or any other educational records.

§302A‑ Immunities. (a) A teacher or institution acting in good faith and in accordance with generally accepted educational standards applicable to the teacher or institution shall not be subject to civil or criminal liability or to discipline for unprofessional conduct for:

(1) Complying with a special education decision of a person apparently having authority to make a special education decision for a student, including a decision to withhold or withdraw special education and or related services;

(2) Declining to comply with a special education decision of a person based on a belief that the person then lacked authority; or

(3) Complying with an advance special education directive and assuming that the directive was valid when made and has not been revoked or terminated.

(b) An individual acting as agent, guardian, or surrogate under this part shall not be subject to civil or criminal liability or to discipline for unprofessional conduct for educational decisions made in good faith.

§302A‑ Effect of copy. A copy of a written advance special education directive, revocation of an advance special education directive, or designation or disqualification of a surrogate has the same effect as the original.

§302A‑ Effect of this part. (a) This part shall not create a presumption concerning the intention of an individual who has not made or who has revoked an advance special education directive.

(b) This part shall not authorize or require a teacher or institution to provide special education and or related services contrary to generally accepted educational standards applicable to the teacher or institution.

(c) This part shall not affect other statutes of this State governing treatment for mental illness of an individual involuntarily committed to a psychiatric facility.

§302A‑ Judicial relief. On petition of a student, the student's agent, guardian, or surrogate, or a teacher or institution involved with the student's education, any court of competent jurisdiction may enjoin or direct a special education decision or order other equitable relief. A proceeding under this section shall be governed by .

§302A‑ Uniformity of application and construction. This part shall be applied and construed to effectuate its general purpose to make uniform the law with respect to the subject of this part among states enacting it."

SECTION 3. There is appropriated out of the general revenues of the State of Hawaii the sum of $ or so much thereof as may be necessary for fiscal year 2008-2009 for the development of rules regarding the transfer of rights.

The sum appropriated shall be expended by the department of education for the purposes of this Act.

SECTION 4. This Act shall take effect on July 1, 2008.

INTRODUCED BY:	_____________________________

THE SENATE	S.B. NO.	2879
TWENTY-FOURTH LEGISLATURE, 2008
STATE OF HAWAII