Haw. Code R. § 11-140-11 - Due process hearing procedures

(a) A due process hearing is available for the timely resolution of an individual child complaint by parents regarding the identification, evaluation, or placement of a child, or the Provision of early Intervention Services to the child with delayed development or at biological risk and that child' s family.

(b) A parent seeking a due process hearing shall submit the due process hearing request in writing to the department and it shall include:

(1) The name of the child;

(2) The address of the residence of the child;

(3) The name of the early Intervention provider serving the child;

(4) A description of the nature of the problem of the child relating to the proposed or refused initiation or change, including facts relating to the problem; and

(5) A proposed resolution of the problem to the extent known and available at the time.

(c) The complaint must allege a violation that occurred not more than one year prior to the date that the complaint is received.

(d) Mediation shall be offered to allow parties an opportunity to resolve any matter, including those that arose prior to the filing of a due process complaint, consistent with section 11-140-9.

(e) If the department or early Intervention provider has not sent a prior written notice to the parent regarding the subject matter contained in the parent' s due process complaint, the department or early Intervention provider shall, within ten days of receiving the due process complaint, send a response to the parent that includes:

(1) An explanation of why the department or early Intervention provider proposed or refused to take the action raised in the due process complaint;

(2) A description of other options that the individual family support plan team considered and the reasons why they were rejected;

(3) A description of each evaluation procedure, assessment, record, or report that the department or early Intervention provider used as a basis for the proposed or refused action; and

(4) A description of the other factors that are relevant to the department' s or early Intervention provider's proposed or refused action.

(f) Whenever a due process complaint is received, an impartial due process hearing officer shall be appointed to implement the complaint resolution process. The person shall:

(1) Have knowledge about the provisions of this part and the needs of, and Services available for, eligible children and their families; and

(2) Perform the following duties:

(A) Listen to the presentation of relevant viewpoints about the complaint, examine all Information relevant to the issues, and seek to reach a timely resolution of the due process complaint; and

(B) Maintain and provide a record of the proceedings, including a written decision.

(g) The due process hearing cannot be held until the parent or attorney representing the parent files a complaint that meets the requirements of subsections (b) and (c).

(h) The due process complaint shall be deemed sufficient unless the department notifies the hearing officer and the parent in writing, within fifteen days of receipt of the due process complaint, that the department believes the due process complaint does not meet the requirements in subsections (b) and (c).

(1) Within five days of receipt of the notification, the hearing officer shall make a determination as to whether the due process complaint meets the requirements in subsections (b) and (c) and immediately notify the department and the parent, in writing, of that determination.

(2) The parent may amend the due process complaint only if the department or early Intervention provider consents in writing to the amendment and is given the opportunity to resolve the due process complaint through a resolution process.

(3) If the parent files an amended due process complaint, the timeline to resolve the due process complaint begins again with the filing of an amended due process complaint.

(i) Any parent involved in a due process hearing has the right to:

(1) Be accompanied and advised by counsel and by individuals with special knowledge or training with respect to early Intervention Services for children with delayed development or at biological risk under age three years;

(2) Present evidence and confront, cross-examine, and compel the attendance of witnesses;

(3) Prohibit the introduction of any evidence at the proceeding that has not been disclosed to the parent at least five days before the proceeding;

(4) Obtain a written or electronic verbatim transcription of the hearing at no cost to the parent; and

(5) Receive a written copy of fact and decisions at no cost to the parent.

(j) Any due process hearing shall be held at a time and place that is reasonably convenient to the parents.

(k) The department shall ensure that, not later than thirty days after the receipt of a parent' s due process complaint, the due process hearing is completed and a written decision mailed to each of the parties. However, a hearing officer may grant specific extensions of time beyond the thirty days at the request of either party.

(l) During the pendency of any proceeding involving a due process complaint, unless the department and parent of a child otherwise agree, the child shall continue to receive the appropriate early Intervention Services in the settings identified in the individual family support plan currently being provided. If the complaint involves an application for initial Services under this chapter, the child shall receive those Services that are not in dispute.

(m) Any party aggrieved by the findings and any decision of the due process hearing has the right to bring a civil action in State or federal court under 20 United States Code section 1439.

Notes

Haw. Code R. § 11-140-11

[Eff SEP 20 2013] (Auth: HRS § 321-354) (Imp: HRS § 321-352; 34 C.F.R. §§303.430 to 303.438)