Haw. Code R. § 8-60-27 - Placement of students by parents when FAPE is at issue
(a)
General. This chapter does not require the department to pay for the cost of
education, including special education and related services, of a student with
a disability at a private school or facility if the department made a FAPE
available to the student and the parents elected to place the student in a
private school or facility. However, the department shall include that student
in the population whose needs are addressed consistent with sections 8-60-21 through 8-60-26.
(b) Disagreements
about a FAPE. Disagreements between the parents and the department regarding
the availability of a program appropriate for the student, and the question of
financial reimbursement, are subject to the due process procedures in sections
8-60-59 through 8-60-74.
(c)
Reimbursement for private school placement. If the parent of a student with a
disability, who previously received special education and related services
under the authority of the department, enrolls the student in a private
preschool, elementary or secondary school without the consent of or referral by
the department, a court or a hearing officer may require the department to
reimburse the parent for the cost of that enrollment if the court or hearing
officer finds that the department had not made a free appropriate public
education available to the student in a timely manner prior to that enrollment
and that the private placement is appropriate.
(1) A parental placement may be found to be
appropriate by a hearing officer or a court even if it does not meet the state
standards that apply to education provided by the department.
(2) The private school shall not be deemed
appropriate for continued placement by the hearing officer, if the private
school does not allow the department to exercise its responsibility to ensure
the provision of a FAPE under section 8-60-29.
(3) The request for a due process hearing
regarding reimbursement of all costs of the unilateral private placement
including special education and related services shall be filed in accordance
with state statute and section 8-60-61.
(d) Limitation on reimbursement. The cost of
reimbursement described in subsection (c) may be reduced or denied:
(1) If:
(A)
At the most recent IEP team meeting that the parents attended prior to removal
of the student from the public school, the parents did not inform the IEP team
that they were rejecting the placement proposed by the department to provide a
FAPE to their student, including stating their concerns and their intent to
enroll their student in a private school at public expense; or
(B) At least ten (10) business days
(including any holidays that occur on a business day) prior to the removal of
the student from the public school, the parents did not give written notice to
the department of the information described in subparagraph (A);
(2) If, prior to the parents'
removal of the student from the public school, the department informed the
parents, through the notice requirements described in section 8-60-58(a)(1), of
its intent to evaluate the student (including a statement of the purpose of the
evaluation that was appropriate and reasonable), but the parents did not make
the student available for the evaluation; or
(3) Upon a judicial finding of
unreasonableness with respect to actions taken by the parents.
(e) Exception. Notwithstanding the
notice requirement in subsection (d)(1), the cost of reimbursement:
(1) Shall not be reduced or denied for
failure to provide the notice if:
(A) The
school prevented the parents from providing the notice;
(B) The parents had not received notice,
pursuant to section 8-60-59, of the notice requirement in subsection (d)(1);
or
(C) Compliance with subsection
(d)(1) would likely result in physical harm to the student; and
(2) May, in the discretion of the
court or a hearing officer, not be reduced or denied for failure to provide
this notice if:
(A) The parents are not
literate or cannot write in English; or
(B) Compliance with subsection (d)(1) would
likely result in serious emotional harm to the student.
Notes
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