Haw. Code R. § 8-60-31 - Parental consent
(a) Parental
consent for initial evaluation.
(1)
(A) The department shall obtain consent,
consistent with section 8-60-2, from the parent of the student before
conducting an initial evaluation to determine if a student qualifies as a
student with a disability under sections 8-60-2 and 8-60-39, after providing
notice consistent with sections 8-60-58 and 8-60-59;
(B) Parental consent for initial evaluation
shall not be construed as consent for initial provision of special education
and related services;
(C) The
department shall make reasonable efforts to obtain the consent from the parent
for an initial evaluation to determine whether the student is a student with a
disability;
(2) For
initial evaluations only, if the student is a ward of the State and is not
residing with the student's parent, the department is not required to obtain
consent from the parent for an initial evaluation to determine whether the
student is a student with a disability if:
(A) Despite reasonable efforts to do so, the
department cannot discover the whereabouts of the parent of the
student;
(B) The rights of the
parents of the student have been terminated in accordance with state law;
or
(C) The rights of the parent to
make educational decisions have been subrogated by a judge in accordance with
state law and consent for an initial evaluation has been given by an individual
appointed by the judge to represent the student;
(3)
(A) If
the parent of a student enrolled in public school or seeking to be enrolled in
public school does not provide consent for initial evaluation under paragraph
(1), or the parent fails to respond to a request to provide consent, the
department may, but is not required to, pursue the initial evaluation of the
student by utilizing the procedural safeguards in sections 8-60-56 through
8-60-82;
(b) Parental consent for services.
(1) The department is responsible for making
a FAPE available to a student with a disability and shall obtain consent from
the parent of the student before the initial provision of special education and
related services to the student;
(2) The department shall make reasonable
efforts to obtain consent from the parent for the initial provision of special
education and related services to the student;
(3) If the parent of a student fails to
respond to a request for, or refuses to consent to, the initial provision of
special education and related services, the department-
(A) May not use the procedures in subchapter
8 (including the mediation procedures under § 8-60-60 or the due process
procedures under §§ 8-60-61 through 8-60-70) in order to obtain
agreement or a ruling that the services may be provided to the
student;
(B) Will not be considered
to be in violation of the requirement to make FAPE available to the student
because of the failure to provide the student with the special education and
related services for which the parent refuses to or fails to provide consent;
and
(4) If,
at any time subsequent to the initial provision of special education and
related services, the parent of a student revokes consent in writing for the
continued provision of special education and related services, the department-
(A) May not continue to provide special
education and related services to the student, but must provide prior written
notice in accordance with § 8-60-58 before ceasing the provision of
special education and related services;
(B) May not use the procedures in subchapter
8(including the mediation procedures under § 8-60-60 or the due process
procedures under §§ 8-60-61 through 8-60-70) in order to obtain
agreement or a ruling that the services may be provided to the
student;
(C) Will not be considered
to be in violation of the requirement to make FAPE available to the student
because of the failure to provide the student with further special education
and related services; and
(c) Parental consent for reevaluations.
(1) Subject to paragraph (2):
(A) The department shall obtain parental
consent, in accordance with section 8-60-31(a)(1), prior to conducting any
reevaluation of a student with a disability;
(B) If the parent refuses to consent to the
reevaluation, the department may, but is not required to, pursue the
reevaluation by using the consent override procedures described in subsection
(a)(3);
(2) The parental consent described
in paragraph (1) need not be obtained if the department can demonstrate that:
(A) It made reasonable efforts to obtain such
consent; and
(B) The student's
parent has failed to respond.
(d) Other consent requirements.
(1) Parental consent is not required before:
(A) Reviewing existing data as part of an
evaluation or a reevaluation; or
(B) Administering a test or other evaluation
that is administered to all students unless, before administration of that test
or evaluation, consent is required of parents of all students.
(2) The department may not use a
parent's refusal to consent to one service or activity under subsection (a) to
deny the parent or student any other service, benefit, or activity of the
department, except as required by this chapter.
(3)
(A) If
a parent of a student who is home schooled or placed in a private school by the
parents at their own expense does not provide consent for the initial
evaluation or the reevaluation, or the parent fails to respond to a request to
provide consent, the department may not use the consent override procedures
(described in subsections (a)(3) and (c)(1); and
(4) To meet the
reasonable efforts requirement in subsections (a)(1)(C), (a)(2)(A), (b)(2), and
(c)(2)(A), the department shall document its attempts to obtain parental
consent using the procedures in section 8-60-46(d).
Notes
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