§8-60-27 - Placement of students by parents when FAPE is at issue.

§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.§8-60-27

(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§8-60-27

(B) Compliance with subsection (d)(1) would likely result in serious emotional harm to the student.

[Eff 11/23/09] (Auth: 20 U.S.C. 1412(a)(10)(C), HRS §302A-1112, §302A-443) (Imp: 34 C.F.R. §300.148)

 

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