Rules Amending Title 8

Hawaii Administrative Rules

May 22, 2007

“***HAWAII ADMINISTRATIVE RULES

TITLE 8

DEPARTMENT OF EDUCATION

CHAPTER 60

PROVISION OF A FREE APPROPRIATE PUBLIC EDUCATION FOR A CHILD WITH A DISABILITY

 
Subpart A--General
 
Purposes and Applicability
 
Sec.
8-60-1 Purposes.
8-60-2 Applicability of this partof this chapter to State and local agencies.
 
Definitions Used in This Part
 
8-60-4 Act.
8-60-5 Assistive technology device.
8-60-6 Assistive technology service.
8-60-7 Charter school.
8-60-8 Child with a disability.
8-60-9 Consent.
8-60-10 Core academic subjects.
8-60-11 Day; business day; school day.
8-60-12 Educational service agency.
8-60-13 Elementary school.
8-60-14 Equipment.
8-60-15 Evaluation.
8-60-16 Excess costs.
8-60-17 Free appropriate public education.
8-60-18 Highly qualified special education teachers.
8-60-19 Homeless children.
8-60-20 Include.
8-60-21 Indian and Indian tribe.[Reserved]
8-60-22 Individualized education program.
8-60-23 Individualized education program team.
8-60-24 Individualized family service plan.
8-60-25 Infant or toddler with a disability.
8-60-26 Institution of higher education.
8-60-27 Limited English proficient.
8-60-28 Local educational agency.[Reserved]
8-60-29 Native language.
8-60-30 Parent.
8-60-31 Parent training and information center.
8-60-32 Personally identifiable.
8-60-33 Public agency.
8-60-34 Related services.
8-60-35 Scientifically based research.
8-60-36 Secondary school.
8-60-37 Services plan.
8-60-38 Secretary.
8-60-39 Special education.
8-60-40 State.
8-60-41 State educational agency.
8-60-42 Supplementary aids and services.
8-60-43 Transition services.
8-60-44 Universal design.
8-60-45 Ward of the State.
Subpart B--State Eligibility
 
General
 
8-60-100 Eligibility for assistance.
 
FAPE Requirements
 
8-60-101 Free appropriate public education (FAPE).
8-60-102 Limitation--exception to FAPE for certain ages.
 
Other FAPE Requirements
 
8-60-103 FAPE--methods and payments.
8-60-104 Residential placement.
8-60-105 Assistive technology.
8-60-106 Extended school year services.
8-60-107 Nonacademic services.
8-60-108 Physical education.
8-60-109 Full educational opportunity goal (FEOG).
8-60-110 Program options.
8-60-111 Child find.
8-60-112 Individualized education programs (IEP).
8-60-113 Routine checking of hearing aids and external components of surgically implanted medical devices.
 
Least Restrictive Environment (LRE)
 
8-60-114 LRE requirements.
8-60-115 Continuum of alternative placements.
8-60-116 Placements.
8-60-117 Nonacademic settings.
8-60-118 Children in public or private institutions.
8-60-119 Technical assistance and training activities.
8-60-120 Monitoring activities.
 
Additional Eligibility Requirements
 
8-60-121 Procedural safeguards.
8-60-122 Evaluation.
8-60-123 Confidentiality of personally identifiable information.
8-60-124 Transition of children from the Part C program to preschool programs.
8-60-125-8-60-128 [Reserved]
 
Children in Private Schools
 
8-60-129 State responsibility regarding children in private schools.
 
Children With Disabilities Enrolled by Their Parents in Private Schools
 
8-60-130 Definition of parentally-placed private school children with disabilities.
8-60-131 Child find for parentally-placed private school children with disabilities.
8-60-132 Provision of services for parentally-placed private school children with disabilities--basic requirement.
8-60-133 Expenditures.
8-60-134 Consultation.
8-60-135 Written affirmation.
8-60-136 Compliance.
8-60-137 Equitable services determined.
8-60-138 Equitable services provided.
8-60-139 Location of services and transportation.
8-60-140 Due process complaints and State complaints.
8-60-141 Requirement that funds not benefit a private school.
8-60-142 Use of personnel.
8-60-143 Separate classes prohibited.
8-60-144 Property, equipment, and supplies.
 
Children With Disabilities in Private Schools Placed or Referred by Public Agencies
 
8-60-145 Applicability of Sec. Sec. 8-60-146 through 8-60-147.
8-60-146 Responsibility of SEA.
8-60-147 Implementation by SEA.
 
Children With Disabilities Enrolled by Their Parents in Private Schools When FAPE is at Issue
 
8-60-148 Placement of children by parents when FAPE is at issue.
 
SEA Responsibility for General Supervision and Implementation of Procedural Safeguards
 
8-60-149 SEA responsibility for general supervision.
8-60-150 SEA implementation of procedural safeguards.
 
State Complaint Procedures
 
8-60-151 Adoption of State complaint procedures.
8-60-152 Minimum State complaint procedures.
8-60-153 Filing a complaint.
 
Methods of Ensuring Services
 
8-60-154 Methods of ensuring services.
 
Additional Eligibility Requirements
 
8-60-155 Hearings relating to LEA eligibility.
8-60-156 Personnel qualifications.
8-60-157 Performance goals and indicators.
8-60-158-8-60-161 [Reserved]
8-60-162 Supplementation of State, local, and other Federal funds.
8-60-163 Maintenance of State financial support.
8-60-164 Waiver of requirement regarding supplementing and not supplanting with Part B funds.
8-60-165 Public participation.
8-60-166 Rule of construction.
 
State Advisory Panel
 
8-60-167 State advisory panel.
8-60-168 Membership.
8-60-169 Duties.
 
Other Provisions Required for State Eligibility
 
8-60-170 Suspension and expulsion rates.
8-60-171 Annual description of use of Part B funds.
8-60-172 Access to instructional materials.
8-60-173 Overidentification and disproportionality.
8-60-174 Prohibition on mandatory medication.
8-60-175 SEA as provider of FAPE or direct services.
8-60-176 Exception for prior State plans.[Reserved]
8-60-177 States' sovereign immunity.
 
Department Procedures
 
8-60-178 Determination by the Secretary that a State is eligible to receive a grant.
8-60-179 Notice and hearing before determining that a State is not eligible to receive a grant.
8-60-180 Hearing official or panel.
8-60-181 Hearing procedures.
8-60-182 Initial decision; final decision.
8-60-183 Filing requirements.
8-60-184 Judicial review.
8-60-185 [Reserved]
8-60-186 Assistance under other Federal programs.
 
By-pass for Children in Private Schools
 
8-60-190 By-pass--general.
8-60-191 Provisions for services under a by-pass.
8-60-192 Notice of intent to implement a by-pass.
8-60-193 Request to show cause.
8-60-194 Show cause hearing.
8-60-195 Decision.
8-60-196 Filing requirements.
8-60-197 Judicial review.-
8-60-198 Continuation of a by-pass.[Reserved]
 
State Administration
 
8-60-199 State administration.
Subpart C--Local Educational Agency Eligibility
8-60-200 [Reserved]
Condition of assistance.
8-60-201 Consistency with State policies.
8-60-202 Use of amounts.
8-60-203 Maintenance of effort.
8-60-204 Exception to maintenance of effort.
8-60-205 Adjustment to local fiscal efforts in certain fiscal years.
8-60-206 Schoolwide programs under title I of the ESEA.
8-60-207 Personnel development.
8-60-208 Permissive use of funds.
8-60-209 Treatment of charter schools and their students.
8-60-210 Purchase of instructional materials.-
8-60-211 Information for SEA.[Reserved]
8-60-212 Public information.
8-60-213 Records regarding migratory children with disabilities.
8-60-214-8-60-219 [Reserved]
8-60-220 Exception for prior local plans.
8-60-221 Notification of LEA or State agency in case of ineligibility.
8-60-222 LEA and State agency compliance.
8-60-223 Joint establishment of eligibility.
8-60-224 Requirements for establishing eligibility. 
8-60-225 [Reserved]
8-60-226 Early intervening services.
8-60-227 - Direct services by the SEA.
 8-60-228 State agency eligibility. [Reserved]
8-60-229 Disciplinary information.
8-60-230 SEA flexibility.
 
Subpart D--Evaluations, Eligibility Determinations, Individualized Education Programs, and Educational Placements
 
Parental Consent
 
8-60-300 Parental consent.
 
Evaluations and Reevaluations
 
8-60-301 Initial evaluations.
8-60-302 Screening for instructional purposes is not evaluation.
8-60-303 Reevaluations.
8-60-304 Evaluation procedures.
8-60-305 Additional requirements for evaluations and reevaluations.
8-60-306 Determination of eligibility.
 
Additional Procedures for Identifying Children With Specific Learning 
Disabilities
 
8-60-307 Specific learning disabilities.
8-60-308 Additional group members.
8-60-309 Determining the existence of a specific learning disability.
8-60-310 Observation.
8-60-311 Specific documentation for the eligibility determination.
 
Individualized Education Programs
 
8-60-320 Definition of individualized education program.
8-60-321 IEP Team.
8-60-322 Parent participation.
8-60-323 When IEPs must be in effect.
 
Development of IEP
 
8-60-324 Development, review, and revision of IEP.
8-60-325 Private school placements by public agencies.
8-60-326 [Reserved]
8-60-327 Educational placements.
8-60-328 Alternative means of meeting participation.
Subpart E--Procedural Safeguards
 
Due Process Procedures for Parents and Children
 
8-60-500 Responsibility of SEA and other public agencies.
8-60-501 Opportunity to examine records; parent participation in meetings.
8-60-502 Independent educational evaluation.
8-60-503 Prior notice by the public agency; content of notice.
8-60-504 Procedural safeguards notice.
8-60-505 Electronic mail.
8-60-506 Mediation.
8-60-507 Filing a due process complaint.
8-60-508 Due process complaint.
8-60-509 Model forms.
8-60-510 Resolution process.
8-60-511 Impartial due process hearing.
8-60-512 Hearing rights.
8-60-513 Hearing decisions.
8-60-514 Finality of decision; appeal; impartial review.
8-60-515 Timelines and convenience of hearings and reviews.
8-60-516 Civil action.
8-60-517 Attorneys' fees.
8-60-518 Child's status during proceedings.
8-60-519 Surrogate parents.
8-60-520 Transfer of parental rights at age of majority.
8-60-521-8-60-529 [Reserved]
 
Discipline Procedures
 
8-60-530 Authority of school personnel.
8-60-531 Determination of setting.
8-60-532 Appeal.
8-60-533 Placement during appeals.
8-60-534 Protections for children not determined eligible for special education and related services.
8-60-535 Referral to and action by law enforcement and judicial authorities.
8-60-536 Change of placement because of disciplinary removals.
8-60-537 State enforcement mechanisms.
8-60-538-8-60-599 [Reserved]
 
Subpart F--Monitoring, Enforcement, Confidentiality, and Program Information
 
Monitoring, Technical Assistance, and Enforcement
 
8-60-600 State monitoring and enforcement.
8-60-601 State performance plans and data collection.
8-60-602 State use of targets and reporting.
8-60-603 Secretary's review and determination regarding State performance.
8-60-604 Enforcement.
8-60-605 Withholding funds.
8-60-606 Public attention.
8-60-607 Divided State agency responsibility.
8-60-608 State enforcement.
8-60-609 Rule of construction.
 
Confidentiality of Information
 
8-60-610 Confidentiality.
8-60-611 Definitions.
8-60-612 Notice to parents.
8-60-613 Access rights.
8-60-614 Record of access.
8-60-615 Records on more than one child.
8-60-616 List of types and locations of information.
8-60-617 Fees.
8-60-618 Amendment of records at parent's request.
8-60-619 Opportunity for a hearing.
8-60-620 Result of hearing.
8-60-621 Hearing procedures.
8-60-622 Consent.
8-60-623 Safeguards.
8-60-624 Destruction of information.
8-60-625 Children's rights.
8-60-626 Enforcement.
8-60-627 Department use of personally identifiable information.
 
Reports--Program Information
 
8-60-640 Annual report of children served--report requirement.
8-60-641 Annual report of children served--information required in the report.
8-60-642 Data reporting.
8-60-643 Annual report of children served--certification.
8-60-644 Annual report of children served--criteria for counting children.
8-60-645 Annual report of children served--other responsibilities of the SEA.
8-60-646 Disproportionality.
Subpart G--Authorization, Allotment, Use of Funds, Authorization of Appropriations
 
Allotments, Grants, and Use of Funds
 
8-60-700 Grants to States.
8-60-701  [Reserved]
8-60-702 Technical Assistance
8-60-703 Allocation to the States.
8-60-704 State-level activities.
8-60-705 Subgrants to LEAs.
8-60-706 [Reserved]
 
Secretary of the Interior
 
8-60-707 Use of amounts by Secretary of the Interior.
8-60-708 Submission of information.
8-60-709 Public participation.
8-60-710 Use of funds under Part B of the Act.
8-60-711 Early intervening services.
8-60-712 Payments for education and services for Indian children with disabilities aged three through five.
8-60-713 Plan for coordination of services.
8-60-714 Establishment of advisory board.
8-60-715 Annual reports.- 
8-60-716 Applicable regulations.[Reserved]
 
Definitions That Apply to This Subpart
 
8-60-717 Definitions applicable to allotments, grants, and use of funds.
 
Acquisition of Equipment and Construction or Alteration of Facilities
 
8-60-718 Acquisition of equipment and construction or alteration of facilities.
 
Subpart H--Preschool Grants for Children With Disabilities
8-60-800 In general.
8-60-801-8-60-802 [Reserved]
8-60-803 Definition of State.
8-60-804 Eligibility.
8-60-805 [Reserved]
8-60-806 Eligibility for financial assistance.
8-60-807 Allocations to States.
8-60-808 Increase in funds.
8-60-809 Limitations.
8-60-810 Decrease in funds.
8-60-811 [Reserved]
8-60-812 Reservation for State activities.
8-60-813 State administration.
8-60-814 Other State-level activities.
8-60-815 Subgrants to LEAs.
8-60-816 Allocations to LEAs.
 
8-60-817 Reallocation of LEA funds.
8-60-818 Part C of the Act inapplicable.
Appendix A to Part 300--Excess Costs Calculation
Appendix B to Part 300--Proportionate Share Calculation
Appendix C to Part 300--National Instructional Materials 
Accessibility Standard (NIMAS)
Appendix D to Part 300--Maintenance of Effort and Early Intervening Services
Appendix E to Part 300--Index for IDEA--Part B Regulations (34 CFR Part 300)
 
 Authority: 20 U.S.C. 1221e-3, 1406, 1411-1419, unless otherwise noted.
 
Subpart A--General
 
Purposes and Applicability
 
 
Sec. 8-60-1 Purposes.
 
 The purposes of this partof this chapter are--
 (a) To ensure that all children with disabilities have available to 
them a free appropriate public education that emphasizes special education and related services  designed to meet their unique needs and prepare them for further education, employment, and independent living;
 (b) To ensure that the rights of children with disabilities and their parents are protected;
 (c) To assist States, localities, educational service agencies, and Federal agencies to provide for the education of all children with disabilities; and
 (d) To assess and ensure the effectiveness of efforts to educate children with disabilities.
 
(Authority: 20 U.S.C. 1400(d), HRS §302A-1112) (Imp: 34 C.F.R. §300.1)
 
Sec. 8-60-2 Applicability of this partof this chapter to State and local agencies.
 
 (a) States. This part applies to each State that receives payments under Part B of the Act, as defined in Sec. 8-60-4.
 (b) Public agencies within the State. The provisions of this partof this chapter--
 (1) Apply to all political subdivisions of the State that are involved in the education of children with disabilities, including:
 (i) The State educational agency (SEA).
 (ii) Local educational agencies (LEAs), educational service agencies (ESAs), and public charter schools that are not otherwise included as LEAs or ESAs and are not a school of an LEA or ESA.
 (iii) Other State agencies and schools (such as Departments of Mental Health and Welfare and State schools for children with deafness or children with blindness).
 (iv) State and local juvenile and adult correctional facilities; and 
 (2) Are binding on each public agency in the State that provides special education and related services to children with disabilities, regardless of whether that agency is receiving funds under Part B of the Act.
 (c) Private schools and facilities. Each public agency in the State is responsible for ensuring that the rights and protections under Part B of the Act are given to children with disabilities--
 (1) Referred to or placed in private schools and facilities by that public agency; or
 (2) Placed in private schools by their parents under the provisions of Sec. 8-60-148.
 
(Authority: 20 U.S.C. 1412, HRS §302A-1112) (Imp: 34 C.F.R. §300.2)
 
Definitions Used in This Part
 
 
Sec. 8-60-4 Act.
 
 Act means the Individuals with Disabilities Education Act, as amended.
 
(Authority: 20 U.S.C. 1400(a), HRS §302A-1112) (Imp: 34 C.F.R. §300.4)
 
 
Sec. 8-60-5 Assistive technology device.
 
 Assistive technology device means any item, piece of equipment, or product system, whether acquired commercially off the shelf, modified, or customized, that is used to increase, maintain, or improve the functional capabilities of a child with a disability. The term does not include a medical device that is surgically implanted, or the replacement of such device.
 
(Authority: 20 U.S.C. 1401(1), HRS §302A-1112) (Imp: 34 C.F.R. §300.5)
 
Sec. 8-60-6 Assistive technology service.
 
 Assistive technology service means any service that directly assists a child with a disability in the selection, acquisition, or use of an assistive technology device. The term includes--
 (a) The evaluation of the needs of a child with a disability, including a functional evaluation of the child in the child's customary environment;
 (b) Purchasing, leasing, or otherwise providing for the acquisition of assistive technology devices by children with disabilities;
 (c) Selecting, designing, fitting, customizing, adapting, applying,  maintaining, repairing, or replacing assistive technology devices;
 (d) Coordinating and using other therapies, interventions, or services with assistive technology devices, such as those associated with existing education and rehabilitation plans and programs;
 (e) Training or technical assistance for a child with a disability or, if appropriate, that child's family; and
 (f) Training or technical assistance for professionals (including individuals providing education or rehabilitation services), employers, or other individuals who provide services to, employ, or are otherwise substantially involved in the major life functions of that child.
 
(Authority: 20 U.S.C. 1401(2), HRS §302A-1112) (Imp: 34 C.F.R. §300.6)
 
Sec. 8-60-7 Charter school.
 
 Charter school has the meaning given the term in section 5210(1) of the Elementary and Secondary Education Act of 1965, as amended, 20 U.S.C. 6301 et seq. (ESEA).
 
(Authority: 20 U.S.C. 7221i(1), HRS §302A-1112) (Imp: 34 C.F.R. §300.7).
 
Sec. 8-60-8 Child with a disability.
 
 (a) General. (1) Child with a disability means a child evaluated in accordance with Sec. Sec. 8-60-304 through 8-60-311 as having mental retardation, a hearing impairment (including deafness), a speech or language impairment, a visual impairment (including blindness), a serious emotional disturbance (referred to in this part as ``emotional disturbance''), an orthopedic impairment, autism, traumatic brain injury, an other health impairment, a specific learning disability, deaf-blindness, or multiple disabilities, and who, by reason thereof, needs special education and related services.
 (2)(i) Subject to paragraph (a)(2)(ii) of this section, if it is determined, through an appropriate evaluation under Sec. Sec. 8-60-304 through 8-60-311, that a child has one of the disabilities identified in paragraph (a)(1) of this section, but only needs a related service and not special education, the child is not a child with a disability under this part.
  (ii) If, consistent with Sec. 8-60-39(a)(2), the related service required by the child is considered special education rather than a related service under State standards, the child would be determined to be a child with a disability under paragraph (a)(1) of this section.
 (b) Children aged three through nine experiencing developmental delays. Child with a disability for children aged three through nine (or any subset of that age range, including ages three through five), may, subject to the conditions described in Sec. 8-60-111(b), include a child-
 (1) Who is experiencing developmental delays, as defined by the State and as measured by appropriate diagnostic instruments and procedures, in one or more of the following areas: Physical development, cognitive development, communication development, social or emotional development, or adaptive development; and
 (2) Who, by reason thereof, needs special education and related services.
  (c) Definitions of disability terms. The terms used in this definition of a child with a disability are defined as follows:
 (1)(i) Autism means a developmental disability significantly affecting verbal and nonverbal communication and social interaction, generally evident before age three, that adversely affects a child's educational performance. Other characteristics often associated with autism are engagement in repetitive activities and stereotyped movements, resistance to environmental change or change in daily routines, and unusual responses to sensory experiences.
 (ii) Autism does not apply if a child's educational performance is adversely affected primarily because the child has an emotional disturbance, as defined in paragraph (c)(4) of this section.
 (iii) A child who manifests the characteristics of autism after age three could be identified as having autism if the criteria in paragraph (c)(1)(i) of this section are satisfied.
 (2) Deaf-blindness means concomitant hearing and visual impairments, the combination of which causes such severe communication and other developmental and educational needs that they cannot be accommodated in special education programs solely for children with deafness or children with blindness.
 (3) Deafness means a hearing impairment that is so severe that the child is impaired in processing linguistic information through hearing, with or without amplification that adversely affects a child's educational performance.
 (4)(i) Emotional disturbance means a condition exhibiting one or more of the following characteristics over a long period of time and to a marked degree that adversely affects a child's educational performance:
 (A) An inability to learn that cannot be explained by intellectual, sensory, or health factors.
 (B) An inability to build or maintain satisfactory interpersonal relationships with peers and teachers.
 (C) Inappropriate types of behavior or feelings under normal circumstances.
 (D) A general pervasive mood of unhappiness or depression.
 (E) A tendency to develop physical symptoms or fears associated with personal or school problems.
 (ii) Emotional disturbance includes schizophrenia. The term does not apply to children who are socially maladjusted, unless it is determined that they have an emotional disturbance under paragraph (c)(4)(i) of this section.
 (5) Hearing impairment means an impairment in hearing, whether permanent or fluctuating, that adversely affects a child's educational performance but that is not included under the definition of deafness in this section.
 (6) Mental retardation means significantly subaverage general intellectual functioning, existing concurrently with deficits in adaptive behavior and manifested during the developmental period, that adversely affects a child's educational performance.
 (7) Multiple disabilities means concomitant impairments (such as mental retardation-blindness or mental retardation-orthopedic impairment), the combination of which causes such severe educational needs that they cannot be accommodated in special education programs solely for one of the impairments. Multiple disabilities does not include deaf-blindness.
 (8) Orthopedic impairment means a severe orthopedic impairment that adversely affects a child's educational performance. The term includes impairments caused by a congenital anomaly, impairments caused by disease (e.g., poliomyelitis, bone tuberculosis), and impairments from other causes (e.g., cerebral palsy, amputations, and fractures or burns that cause contractures).
 (9) Other health impairment means having limited strength, vitality, or alertness, including a heightened alertness to environmental stimuli, that results in limited alertness with respect to the educational environment, that--
 (i) Is due to chronic or acute health problems such as asthma, attention deficit disorder or attention deficit hyperactivity disorder, diabetes, epilepsy, a heart condition, hemophilia, lead poisoning, leukemia, nephritis, rheumatic fever, sickle cell anemia, and Tourette syndrome; and
 (ii) Adversely affects a child's educational performance.
 (10) Specific learning disability--(i) General. Specific learning disability means a disorder in one or more of the basic psychological processes involved in understanding or in using language, spoken or written, that may manifest itself in the imperfect ability to listen, think, speak, read, write, spell, or to do mathematical calculations, including conditions such as perceptual disabilities, brain injury, minimal brain dysfunction, dyslexia, and developmental aphasia.
 (ii) Disorders not included. Specific learning disability does not include learning problems that are primarily the result of visual, hearing, or motor disabilities, of mental retardation, of emotional disturbance, or of environmental, cultural, or economic disadvantage.
 (11) Speech or language impairment means a communication disorder, such as stuttering, impaired articulation, a language impairment, or a voice impairment, that adversely affects a child's educational performance.
 (12) Traumatic brain injury means an acquired injury to the brain caused by an external physical force, resulting in total or partial functional disability or psychosocial impairment, or both, that adversely affects a child's educational performance. Traumatic brain injury applies to open or closed head injuries resulting in impairments in one or more areas, such as cognition; language; memory; attention; reasoning; abstract thinking; judgment; problem-solving; sensory, perceptual, and motor abilities; psychosocial behavior; physical functions; information processing; and speech. Traumatic brain injury does not apply to brain injuries that are congenital or degenerative, or to brain injuries induced by birth trauma.
 (13) Visual impairment including blindness means an impairment in vision that, even with correction, adversely affects a child's educational performance. The term includes both partial sight and blindness.
 
(Authority: 20 U.S.C. 1401(3); 1401(30), HRS §302A-1112) (Imp: 34 C.F.R. §300.8)
 
Sec. 8-60-9 Consent.
 
 Consent means that--
 (a) The parent has been fully informed of all information relevant to the activity for which consent is sought, in his or her native language, or other mode of communication;
 (b) The parent understands and agrees in writing to the carrying out of the activity for which his or her consent is sought, and the consent describes that activity and lists the records (if any) that will be released and to whom; and
 (c)(1) The parent understands that the granting of consent is voluntary on the part of the parent and may be revoked at anytime.
 (2) If a parent revokes consent, that revocation is not retroactive (i.e., it does not negate an action that has occurred after the consent was given and before the consent was revoked).
 
(Authority: 20 U.S.C. 1414(a)(1)(D), HRS §302A-1112) (Imp: 34 C.F.R. §300.9)
 
Sec. 8-60-10 Core academic subjects.
 
 Core academic subjects means English, reading or language arts, mathematics, science, foreign languages, civics and government, economics, arts, history, and geography.
 
(Authority: 20 U.S.C. 1401(4), HRS §302A-1112) (Imp: 34 C.F.R. §300.10)
 
Sec. 8-60-11 Day; business day; school day.
 
 (a) Day means calendar day unless otherwise indicated as business day or school day.
 (b) Business day means Monday through Friday, except for Federal and State holidays (unless holidays are specifically included in the designation of business day, as in Sec. 8-60-148(d)(1)(ii)).
 (c)(1) School day means any day, including a partial day that children are in attendance at school for instructional purposes.
 (2) School day has the same meaning for all children in school, including children with and without disabilities.
 
(Authority: 20 U.S.C. 1221e-3, HRS §302A-1112) (Imp: 34 C.F.R. §300.11)
 
Sec. 8-60-12 Educational service agency.
 
 Educational service agency means--
 (a) A regional public multiservice agency--
 (1) Authorized by State law to develop, manage, and provide services or programs to LEAs;
 (2) Recognized as an administrative agency for purposes of the provision of special education and related services provided within public elementary schools and secondary schools of the State;
 (b) Includes any other public institution or agency having administrative control and direction over a public elementary school or secondary school; and
 (c) Includes entities that meet the definition of intermediate educational unit in section 602(23) of the Act as in effect prior to June 4, 1997.
 
(Authority: 20 U.S.C. 1401(5), HRS §302A-1112) (Imp: 34 C.F.R. §300.12)
 
Sec. 8-60-13 Elementary school.
 
 Elementary school means a nonprofit institutional day or residential school, including a public elementary charter school, that provides elementary education, as determined under State law.
 
(Authority: 20 U.S.C. 1401(6), HRS §302A-1112) (Imp: 34 C.F.R. §300.13)
 
Sec. 8-60-14 Equipment.
 
 Equipment means--
 (a) Machinery, utilities, and built-in equipment, and any necessary enclosures or structures to house the machinery, utilities, or equipment; and
 (b) All other items necessary for the functioning of a particular facility as a facility for the provision of educational services, including items such as instructional equipment and necessary furniture; printed, published and audio-visual instructional materials; telecommunications, sensory, and other technological aids and devices; and books, periodicals, documents, and other related materials.
 
(Authority: 20 U.S.C. 1401(7), HRS §302A-1112) (Imp: 34 C.F.R. §300.14)
 
Sec. 8-60-15 Evaluation.
 
 Evaluation means procedures used in accordance with Sec. Sec. 8-60-304 through 8-60-311 to determine whether a child has a disability and the nature and extent of the special education and related services that the child needs.
 
(Authority: 20 U.S.C. 1414(a) (c), HRS §302A-1112) (Imp: 34 C.F.R. §300.15)
 
Sec. 8-60-16 Excess costs.
 
 Excess costs means those costs that are in excess of the average annual per-student expenditure in an LEA during the preceding school year for an elementary school or secondary school student, as may be appropriate, and that must be computed after deducting--
 (a) Amounts received--
 (1) Under Part B of the Act;
 (2) Under Part A of title I of the ESEA; and
 (3) Under Parts A and B of title III of the ESEA and;
 (b) Any State or local funds expended for programs that would qualify for assistance under any of the parts described in paragraph (a) of this section, but excluding any amounts for capital outlay or debt service. (See Appendix A to part 300 for an example of how excess costs must be calculated.)
 
(Authority: 20 U.S.C. 1401(8), HRS §302A-1112) (Imp: 34 C.F.R. §300.16)
 
Sec. 8-60-17 Free appropriate public education.
 
 Free appropriate public education or FAPE means special education and related services that--
 (a) Are provided at public expense, under public supervision and direction, and without charge;
 (b) Meet the standards of the SEA, including the requirements of this partof this chapter;
 (c) Include an appropriate preschool, elementary school, or secondary school education in the State involved; and
 (d) Are provided in conformity with an individualized education program (IEP) that meets the requirements of Sec. Sec. 8-60-320 through 8-60-324.
 
(Authority: 20 U.S.C. 1401(9), HRS §302A-1112) (Imp: 34 C.F.R. §300.17)
 
Sec. 8-60-18 Highly qualified special education teachers.
 
 (a) Requirements for special education teachers teaching core academic subjects. For any public elementary or secondary school special education teacher teaching core academic subjects, the term highly qualified has the meaning given the term in section 9101 of the ESEA and 34 CFR 200.56, except that the requirements for highly qualified also--
 (1) Include the requirements described in paragraph (b) of this section; and
 (2) Include the option for teachers to meet the requirements of section 9101 of the ESEA by meeting the requirements of paragraphs (c) and (d) of this section.
 (b) Requirements for special education teachers in general. (1) When used with respect to any public elementary school or secondary school special education teacher teaching in a the State, highly qualified requires that--
 (i) The teacher has obtained full State certification as a special education teacher (including certification obtained through alternative routes to certification), or passed the State special education teacher licensing examination, and holds a license to teach in the State as a special education teacher, except that when used with respect to any teacher teaching in a public charter school, highly qualified means that the teacher meets the certification or licensing requirements, if any, set forth in the State's public charter school law;
 (ii) The teacher has not had special education certification or licensure requirements waived on an emergency, temporary, or provisional basis; and
 (iii) The teacher holds at least a bachelor's degree.
 (2) A teacher will be considered to meet the standard in paragraph (b)(1)(i) of this section if that teacher is participating in an alternative route to special education certification program under which--
 (i) The teacher--
 (A) Receives high-quality professional development that is sustained, intensive, and classroom-focused in order to have a positive and lasting impact on classroom instruction, before and while teaching;
 (B) Participates in a program of intensive supervision that consists of structured guidance and regular ongoing support for teachers or a teacher mentoring program;
 (C) Assumes functions as a teacher only for a specified period of time not to exceed three years; and
 (D) Demonstrates satisfactory progress toward full certification as prescribed by the State; and
 (ii) The State ensures, through its certification and licensure process, that the provisions in paragraph (b)(2)(i) of this section are met.
 (3) Any public elementary school or secondary school special education teacher teaching in a the State, who is not teaching a core academic subject, is highly qualified if the teacher meets the requirements in paragraph (b)(1) or the requirements in (b)(1)(iii) and (b)(2) of this section.
 (c) Requirements for special education teachers teaching to alternate achievement standards. When used with respect to a special education teacher who teaches core academic subjects exclusively to children who are assessed against alternate achievement standards established under 34 CFR 200.1(d), highly qualified means the teacher, whether new or not new to the profession, may either--
 (1) Meet the applicable requirements of section 9101 of the ESEA and 34 CFR 200.56 for any elementary, middle, or secondary school teacher who is new or not new to the profession; or
 (2) Meet the requirements of paragraph (B) or (C) of section 9101(23) of the ESEA as applied to an elementary school teacher, or, in the case of instruction above the elementary level, meet the requirements of paragraph (B) or (C) of section 9101(23) of the ESEA as applied to an elementary school teacher and have subject matter knowledge appropriate to the level of instruction being provided and needed to effectively teach to those standards, as determined by the 
State.
 (d) Requirements for special education teachers teaching multiple subjects. Subject to paragraph (e) of this section, when used with respect to a special education teacher who teaches two or more core academic subjects exclusively to children with disabilities, highly qualified means that the teacher may either--
 (1) Meet the applicable requirements of section 9101 of the ESEA and 34 CFR 200.56(b) or (c);
 (2) In the case of a teacher who is not new to the profession, demonstrate competence in all the core academic subjects in which the teacher teaches in the same manner as is required for an elementary, middle, or secondary school teacher who is not new to the profession under 34 CFR 200.56(c) which may include a single, high objective uniform State standard of evaluation (HOUSSE) covering multiple subjects; or
 (3) In the case of a new special education teacher who teaches multiple subjects and who is highly qualified in mathematics, language arts, or science, demonstrate, not later than two years after the date of employment, competence in the other core academic subjects in which the teacher teaches in the same manner as is required for an elementary, middle, or secondary school teacher under 34 CFR 200.56(c), which may include a single HOUSSE covering multiple subjects.
 (e) Separate HOUSSE standards for special education teachers. Provided that any adaptations of the State's HOUSSE would not establish a lower standard for the content knowledge requirements for special education teachers and meets all the requirements for a HOUSSE for regular education teachers--
 (1) A The State may develop a separate HOUSSE for special education teachers; and
 (2) The standards described in paragraph (e)(1) of this section may include single HOUSSE evaluations that cover multiple subjects.
 (f) Rule of construction. Notwithstanding any other individual right of action that a parent or student may maintain under this part, nothing in this part shall be construed to create a right of action on behalf of an individual student or class of students for the failure of a particular SEA or LEA employee to be highly qualified, or to prevent a parent from filing a complaint under Sec. Sec. 8-60-151 through 8-60-153 about staff qualifications with the SEA as provided for under this part.
 (g) Applicability of definition to ESEA; and clarification of new special education teacher. (1) A teacher who is highly qualified under this section is considered highly qualified for purposes of the ESEA.
 (2) For purposes of Sec. 8-60-18(d)(3), a fully certified regular education teacher who subsequently becomes fully certified or licensed as a special education teacher is a new special education teacher when first hired as a special education teacher.
 (h) Private school teachers not covered. The requirements in this section do not apply to teachers hired by private elementary schools and secondary schools including private school teachers hired or contracted by LEAs the SEA to provide equitable services to parentally-placed private school children with disabilities under Sec. 8-60-138.
 
(Authority: 20 U.S.C. 1401(10), HRS §302A-1112) (Imp: 34 C.F.R. §300.18)
 
Sec. 8-60-19 Homeless children.
 
 Homeless children has the meaning given the term homeless children and youths in section 725 (42 U.S.C. 11434a) of the McKinney-Vento Homeless Assistance Act, as amended, 42 U.S.C. 11431 et seq.
 
(Authority: 20 U.S.C. 1401(11), HRS §302A-1112) (Imp: 34 C.F.R. §300.19)
 
Sec. 8-60-20 Include.
 
 Include means that the items named are not all of the possible items that are covered, whether like or unlike the ones named.
 
(Authority: 20 U.S.C. 1221e-3, HRS §302A-1112) (Imp: 34 C.F.R. §300.20)
 
Sec. 8-60-21 Indian and Indian tribe.
 
 (a) Indian means an individual who is a member of an Indian tribe.
 (b) Indian tribe means any Federal or State Indian tribe, band, rancheria, pueblo, colony, or community, including any Alaska Native village or regional village corporation (as defined in or established under the Alaska Native Claims Settlement Act, 43 U.S.C. 1601 et seq.).
 (c) Nothing in this definition is intended to indicate that the Secretary of the Interior is required to provide services or funding to a State Indian tribe that is not listed in the Federal Register list of Indian entities recognized as eligible to receive services from the United States, published pursuant to Section 104 of the Federally Recognized Indian Tribe List Act of 1994, 25 U.S.C. 479a-1.
 
(Authority: 20 U.S.C. 1401(12) and (13))[Reserved]
 
Sec. 8-60-22 Individualized education program.
 
 Individualized education program or IEP means a written statement for a child with a disability that is developed, reviewed, and revised in accordance with Sec. Sec. 8-60-320 through 8-60-324.
 
(Authority: 20 U.S.C. 1401(14), HRS §302A-1112) (Imp: 34 C.F.R. §300.22)
 
Sec. 8-60-23 Individualized education program team.
 
  Individualized education program team or IEP Team means a group of  individuals described in Sec. 8-60-321 that is responsible for developing, reviewing, or revising an IEP for a child with a disability.
 
(Authority: 20 U.S.C. 1414(d)(1)(B), HRS §302A-1112) (Imp: 34 C.F.R. §300.23)
 
Sec. 8-60-24 Individualized family service plan.
 
 Individualized family service plan or IFSP has the meaning given the term in section 636 of the Act.
 
(Authority: 20 U.S.C. 1401(15), HRS §302A-1112) (Imp: 34 C.F.R. §300.24)
 
Sec. 8-60-25 Infant or toddler with a disability.
 
 Infant or toddler with a disability--
 (a) Means an individual under three years of age who needs early intervention services because the individual--
 (1) Is experiencing developmental delays, as measured by appropriate diagnostic instruments and procedures in one or more of the areas of cognitive development, physical development, communication development, social or emotional development, and adaptive development; or
 (2) Has a diagnosed physical or mental condition that has a high probability of resulting in developmental delay; and
 (b) May also include, at a State's discretion--
 (1) At-risk infants and toddlers; and
 (2) Children with disabilities who are eligible for services under section 619 and who previously received services under Part C of the Act until such children enter, or are eligible under State law to enter, kindergarten or elementary school, as appropriate, provided that any programs under Part C of the Act serving such children shall include--
 (i) An educational component that promotes school readiness and incorporates pre-literacy, language, and numeracy skills; and
 (ii) A written notification to parents of their rights and responsibilities in determining whether their child will continue to receive services under Part C of the Act or participate in preschool programs under section 619.
 
(Authority: 20 U.S.C. 1401(16) and 1432(5), HRS §302A-1112) (Imp: 34 C.F.R. §300.25)
 
Sec. 8-60-26 Institution of higher education.
 
 Institution of higher education--
 (a) Has the meaning given the term in section 101 of the Higher Education Act of 1965, as amended, 20 U.S.C. 1021 et seq. (HEA); and
 (b) Also includes any community college receiving funds from the Secretary of the Interior under the Tribally Controlled Community College or University Assistance Act of 1978, 25 U.S.C. 1801, et seq.
 
(Authority: 20 U.S.C. 1401(17), HRS §302A-1112) (Imp: 34 C.F.R. §300.26)
 
Sec. 8-60-27 Limited English proficient.
 
 Limited English proficient has the meaning given the term in section 9101(25) of the ESEA.
 
(Authority: 20 U.S.C. 1401(18), HRS §302A-1112) (Imp: 34 C.F.R. §300.27)
 
Sec. 8-60-28 Local educational agency.
 
 (a) General. Local educational agency or LEA means a public board of education or other public authority legally constituted within a State for either administrative control or direction of, or to perform a service function for, public elementary or secondary schools in a city, county, township, school district, or other political subdivision of a State, or for a combination of school districts or counties as are recognized in a State as an administrative agency for its public elementary schools or secondary schools.
 (b) Educational service agencies and other public institutions or 
agencies. The term includes--
 (1) An educational service agency, as defined in Sec. §8-60-12; and
 (2) Any other public institution or agency having administrative control and direction of a public elementary school or secondary school, including a public nonprofit charter school that is established as an LEA under State law.
 (c) BIA funded schools. The term includes an elementary school or secondary school funded by the Bureau of Indian Affairs, and not subject to the jurisdiction of any SEA other than the Bureau of Indian Affairs, but only to the extent that the inclusion makes the school eligible for programs for which specific eligibility is not provided to the school in another provision of law and the school does not have a student population that is smaller than the student population of the LEA receiving assistance under the Act with the xmallest student population.
 
(Authority: 20 U.S.C. 1401(19))[Reserved]
 
Sec. 8-60-29 Native language.
 
 (a) Native language, when used with respect to an individual who is limited English proficient, means the following:
 (1) The language normally used by that individual, or, in the case of a child, the language normally used by the parents of the child, except as provided in paragraph (a)(2) of this section.
 (2) In all direct contact with a child (including evaluation of the child), the language normally used by the child in the home or learning environment.
 (b) For an individual with deafness or blindness, or for an individual with no written language, the mode of communication is that normally used by the individual (such as sign language, Braille, or oral communication).
 
(Authority: 20 U.S.C. 1401(20), HRS §302A-1112) (Imp: 34 C.F.R. §300.29)
 
Sec. 8-60-30 Parent.
 
 (a) Parent means--
 (1) A biological or adoptive parent of a child;
 (2) A foster parent, unless State law, regulations, or contractual obligations with a the State or local entity prohibit a foster parent from acting as a parent;
 (3) A guardian generally authorized to act as the child's parent, or authorized to make educational decisions for the child (but not the State if the child is a ward of the State);
 (4) An individual acting in the place of a biological or adoptive parent (including a grandparent, stepparent, or other relative) with whom the child lives, or an individual who is legally responsible for the child's welfare; or
 (5) A surrogate parent who has been appointed in accordance with Sec. 8-60-519 or section 639(a)(5) of the Act.
 (b) (1) Except as provided in paragraph (b)(2) of this section, the biological or adoptive parent, when attempting to act as the parent under this part and when more than one party is qualified under paragraph (a) of this section to act as a parent, must be presumed to be the parent for purposes of this section unless the biological or adoptive parent does not have legal authority to make educational decisions for the child.
 (2) If a judicial decree or order identifies a specific person or persons under paragraphs (a)(1) through (4) of this section to act as the ``parent'' of a child or to make educational decisions on behalf of a child, then such person or persons shall be determined to be the ``parent'' for purposes of this section.
 
(Authority: 20 U.S.C. 1401(23), HRS §302A-1112) (Imp: 34 C.F.R. §300.30)
 
Sec. 8-60-31 Parent training and information center.
 
 Parent training and information center means a center assisted under sections 671 or 672 of the Act.
 
(Authority: 20 U.S.C. 1401(25), HRS §302A-1112) (Imp: 34 C.F.R. §300.31)
 
Sec. 8-60-32 Personally identifiable.
 
 Personally identifiable means information that contains--
 (a) The name of the child, the child's parent, or other family member;
 (b) The address of the child;
 (c) A personal identifier, such as the child's social security number or student number; or
 (d) A list of personal characteristics or other information that would make it possible to identify the child with reasonable certainty.
 
(Authority: 20 U.S.C. 1415(a), HRS §302A-1112) (Imp: 34 C.F.R. §300.32)
 
Sec. 8-60-