Hawaii Administrative Rules › Title 8 - DEPARTMENT OF EDUCATION › Subtitle 2 - EDUCATION › Part 1 - PUBLIC SCHOOL › Chapter 60 - PROVISION OF A FREE APPROPRIATE PUBLIC EDUCATION FOR A STUDENT WITH A DISABILITY › Subchapter 1 - GENERAL PROVISIONS › Section 8-60-2 - Definitions

Current through June, 2024
As used in this chapter:
"Act" means the Individuals with Disabilities Education
						Act, as amended. (
						20 U.S.C. section
						1400(a) )
"Assessment" means the administration of specific tests,
						instruments, tools, strategies, and other materials.
"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 student with a disability. The term does not
						include a medical device that is surgically implanted, or the replacement of
						such device.
"Assistive technology service" means any service that
						directly assists a student with a disability in the selection, acquisition, or
						use of an assistive technology device. The term includes:
(1) The evaluation of the needs of a student with a
						disability, including an assistive technology functional evaluation of the
						student in the student's customary environment;
(2) Purchasing, leasing, or otherwise providing for the
						acquisition of assistive technology devices by students with
						disabilities;
(3) Selecting, designing, fitting, customizing, adapting,
						applying, maintaining, repairing, or replacing assistive technology
						devices;
(4) Coordinating and using other therapies,
						interventions, or services with assistive technology devices, such as those
						associated with existing education and rehabilitation plans and
						programs;
(5) Training or technical assistance for a student with a
						disability or, if appropriate, that student's family; and
(6) 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 student.
"Charter school" means a public school as defined in both
						federal and state laws.
"Consent" means that:
(1) The parent has been fully informed of all information
						relevant to the activity for which consent is sought, in the parent's native
						language, or through another mode of communication;
(2) The parent understands and agrees in writing to the
						carrying out of the activity for which the parent's consent is sought, and the
						consent describes that activity and lists the records (if any) that will be
						released and to whom; and
(3)
(A) The parent understands that the granting of consent
						is voluntary on the part of the parent and may be revoked at any time.
(B) 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).
(C) If a parent revokes consent in writing for their
						child's receipt of special education services after the child is initially
						provided special education and related services, the department is not required
						to amend the child's education records to remove any references to the child's
						receipt of special education and related services because of the revocation of
						consent.
"Day" means calendar day unless otherwise indicated as
						business day or school day.
(1) "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 section
						8-60-27(d)(1)(B) 
						).
(2)
(A) School day means any day, including a partial day
						that students are in attendance at school for instructional purposes.
(B) School day has the same meaning for all students in
						school, including students with and without disabilities.
"Department" means the state department of education,
						including charter schools.
"Due process complaint" means a request for an impartial
						hearing process to resolve an alleged violation relating to the identification,
						evaluation, or educational placement of a student with a disability or the
						provision of a FAPE to the student.
"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.
"ESEA" means the Elementary and Secondary Education
						Act.
"Evaluation" means procedures used in accordance with
						sections 8-60-36 through
						8-60-43 to determine whether a
						student has a disability and the nature and extent of the special education and
						related services that the student needs.
"Free appropriate public education" or "FAPE" means
						special education and related services that:
(1) Are provided at public expense, under public
						supervision and direction, and without charge;
(2) Meet the standards of the department, including the
						requirements of this chapter;
(3) Include an appropriate preschool, elementary school,
						or secondary school education in the state involved; and
(4) Are provided in conformity with an individualized
						education program that meets the requirements of sections
						8-60-44 through
						8-60-48.
"Homeless students" has the meaning given the term
						homeless students 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.
"Include" means that the items named are not all of the
						possible items that are covered, whether like or unlike the ones named.
"Independent educational evaluation" or "IEE" means an
						evaluation conducted by a qualified examiner who is not employed by the
						department.
"Individualized education program" or "IEP" means a
						written statement for a student with a disability that is developed, reviewed,
						and revised in accordance with sections
						8-60-44 through
						8-60-48.
"Individualized education program team" means a group of
						individuals described in section §
											8-60-45 that is responsible for
						developing, reviewing, or revising an IEP for a student with a
						disability.
"Individualized family service or support plan" or "IFSP"
						has the meaning given the term in section 636 of the Act.
"Interim alternative educational setting" or "IAES" means
						a temporary placement for a student who has been suspended or otherwise removed
						from his current educational placement for disciplinary reasons in which the
						student continues to receive educational services to enable the student to
						continue to participate in the general education curriculum and to progress
						toward meeting the goals set out in the student's IEP.
"Least restrictive environment" or "LRE" means to the
						maximum extent appropriate, educating students with disabilities, including
						students in public or private institutions or other care facilities, with
						students who are non-disabled and removing students with disabilities from the
						regular educational environment only if the nature or severity of the
						disability is such that education in regular classes with the use of
						supplementary aids and services cannot be achieved satisfactorily.
"Limited English proficient" has the meaning given the
						term in section 9101(25) of the Elementary and Secondary Education Act of 1965,
						as amended,
						20
						U.S.C.6301 et seq. ("ESEA").
"Manifestation determination" means a process triggered
						by a decision to change the placement of a student with a disability because of
						a violation of a code of student conduct to determine:
If the conduct in question was caused by, or had a direct
						and substantial relationship to the student's disability; or
If the conduct in question was the direct result of a
						failure to implement the IEP.
"Mediation" means a voluntary process in which a neutral
						third party (mediator) helps parents and education representatives try to
						resolve issues relating to a student's identification, evaluation, or
						educational placement or the provision of a FAPE.
"Native language". Native language, when used with
						respect to an individual who is limited English proficient, means the
						following:
(A) The language normally used by that individual, or, in
						the case of a student, the language normally used by the parents of the
						student, except as provided in paragraph (2).
(B) In all direct contact with a student (including
						evaluation of the student), the language normally used by the student in the
						home or learning environment.
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).
"Parent" means:
(1) A biological or adoptive parent of a student;
(2) A foster parent, unless state law, rules, or
						contractual obligations with the State prohibit a foster parent from acting as
						a parent;
(3) A guardian generally authorized to act as the
						student's parent, or authorized to make educational decisions for the student
						(but not the State if the student 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 student lives, or an individual who is legally responsible for the
						student's welfare; or
(5) A surrogate parent who has been appointed in
						accordance with section
						8-60-73 or section 639(a)(5) of the
						Act.
The biological or adoptive parent, when attempting to act
						as the parent and when more than one party is qualified to act as a parent,
						shall be presumed to be the parent for purposes of this chapter unless the
						biological or adoptive parent does not have legal authority to make educational
						decisions for the student; except that if a judicial decree or order identifies
						a specific person or persons under paragraphs (1) through (4) to act as the
						"parent" of a student or to make educational decisions on behalf of a student,
						then that person or persons shall be determined to be the "parent" for purposes
						of this chapter.
"Placement" means an appropriate educational setting for
						the implementation of the program for a student with a disability based upon
						the individualized education program. It does not mean the specific location or
						school but the type of placement on the continuum of placement options (e.g.,
						regular classroom with support, special class, special school, etc.).
"Present levels of academic achievement and functional
						performance" means an essential part of the IEP that summarizes the student's
						present levels of academic achievement and functional performance and states
						how the student's disability affects the student's involvement and progress in
						the general education curriculum.
"Prior written notice" or "PWN" means written
						notification given to parents of a student with a disability a reasonable time
						before the department:
(1) Proposes to initiate or change the identification,
						evaluation, or educational placement of the student or the provision of a FAPE
						to the student, or
(2) Refuses to initiate or change the identification,
						evaluation, or educational placement of the student or the provision of a FAPE
						to the student.
"Qualified" means that an individual has met the
						department-approved or department-recognized certification, licensing,
						registration, or other comparable requirements that apply to the area in which
						the individual is providing special education or related services.
"Related services". General definition. Related services
						includes transportation and such developmental, corrective, and other
						supportive services as are required to assist a student with a disability to
						benefit from special education, and includes speech-language pathology and
						audiology services, interpreting services, psychological services, physical and
						occupational therapy, recreation, including therapeutic recreation, early
						identification and assessment of disabilities in students, counseling services,
						including rehabilitation counseling, orientation and mobility services, and
						medical services for diagnostic or evaluation purposes. Related services also
						include school health services and school nurse services, social work services
						in schools, and parent counseling and training.
Related services, with respect to students with
						surgically implanted devices, including cochlear implants.
(1) Do not include a medical device that is surgically
						implanted, the optimization of that device's functioning (e.g., mapping),
						maintenance of that device, or the replacement of that device.
(2) Nothing in paragraph (1):
(A) Limits the right of a student with a surgically
						implanted device (e.g., cochlear implant) to receive related services (as
						defined in the general definition) that are determined by the IEP team to be
						necessary for the student to receive a FAPE;
(B) Limits the responsibility of the department to
						appropriately monitor and maintain medical devices that are needed to maintain
						the health and safety of the student, including breathing, nutrition, or
						operation of other bodily functions, while the student is transported to and
						from school or is at school; or
(C) Prevents the routine checking of an external
						component of a surgically implanted device to make sure it is functioning
						properly, as required in section
						8-60-11(b).
Related services terms are defined as follows:
(1) "Audiology" includes:
(A) Identification of students with hearing loss;
(B) Determination of the range, nature, and degree of
						hearing loss, including referral for medical or other professional attention
						for the habilitation of hearing;
(C) Provision of habilitative activities, such as
						language habilitation, auditory training, speech reading (lip-reading), hearing
						evaluation, and speech conservation;
(D) Creation and administration of programs for
						prevention of hearing loss;
(E) Counseling and guidance of students, parents, and
						teachers regarding hearing loss; and
(F) Determination of students' needs for group and
						individual amplification, selecting and fitting an appropriate aid, and
						evaluating the effectiveness of amplification.
(2) "Counseling services" means services provided by
						qualified social workers, psychologists, guidance counselors, or other
						qualified personnel.
(3) "Early identification and assessment of disabilities
						in students" means the implementation of a formal plan for identifying a
						disability as early as possible in a student's life.
(4) "Interpreting services" includes:
(A) When used with respect to students who are deaf or
						hearing impaired: Oral transliteration services, cued language transliteration
						services, sign language transliteration and interpreting services, and
						transcription services, such as communication access real-time translation
						(CART), C-Print, and Type Well; and
(B) Special interpreting services for students who are
						deaf-blind.
(5) "Medical services" means services provided by a
						licensed physician to determine a student's medically related disability that
						results in the student's need for special education and related
						services.
(6) "Occupational therapy" means services provided by a
						qualified occupational therapist, including:
(A) Improving, developing, or restoring functions
						impaired or lost through illness, injury, or deprivation;
(B) Improving ability to perform tasks for independent
						functioning if functions are impaired or lost; and
(C) Preventing, through early intervention, initial or
						further impairment or loss of function.
(7) "Orientation and mobility services":
(A) Means services provided to blind or visually impaired
						students by qualified personnel to enable those students to attain systematic
						orientation to and safe movement within their environments in school, home, and
						community; and
(B) Includes teaching students the following, as
						appropriate:
(i) Spatial and environmental concepts and use of
						information received by the senses (such as sound, temperature and vibrations)
						to establish, maintain, or regain orientation and line of travel (e.g., using
						sound at a traffic light to cross the street);
(ii) To use the long cane or a service animal to
						supplement visual travel skills or as a tool for safely negotiating the
						environment for students with no available travel vision;
(iii) To understand and use remaining vision and distance
						low vision aids; and
(iv) Other concepts, techniques, and tools.
(8)
(A) "Parent counseling and training" means assisting
						parents in understanding the special needs of their child;
(B) providing parents with information about child
						development; and
(C) helping parents to acquire the necessary skills that
						will allow them to support the implementation of their child's IEP.
(9) "Physical therapy" means services provided by a
						qualified physical therapist.
(10) "Psychological services" includes:
(A) Administering psychological and educational tests,
						and other assessment procedures;
(B) Interpreting assessment results;
(C) Obtaining, integrating, and interpreting information
						about student behavior and conditions relating to learning;
(D) Consulting with other staff members in planning
						school programs to meet the special educational needs of students as indicated
						by psychological tests, interviews, direct observation, and behavioral
						evaluations;
(E) Planning and managing a program of psychological
						services, including psychological counseling for students and parents;
						and
(F) Assisting in developing positive behavioral
						intervention strategies.
(11) "Recreation" includes assessment of leisure
						function; therapeutic recreation services; recreation programs in schools and
						community agencies; and leisure education.
(12) "Rehabilitation counseling services" means services
						provided by qualified personnel in individual or group sessions that focus
						specifically on career development, employment preparation, achieving
						independence, and integration in the workplace and community of a student with
						a disability. The term also includes vocational rehabilitation services
						provided to a student with a disability by vocational rehabilitation programs
						funded under the Rehabilitation Act of 1973, as amended,
						29 U.S.C.
						701 et seq.
(13) "School health services" and "school nurse services"
						means health services that are designed to enable a student with a disability
						to receive a FAPE as described in the student's IEP. School nurse services are
						services provided by a qualified school nurse. School health services are
						services that may be provided by either a qualified school nurse or other
						qualified person.
(14) "Social work services in schools" includes:
(A) Preparing a social or developmental history on a
						student with a disability;
(B) Group and individual counseling with the student and
						family;
(C) Working in partnership with parents and others on
						those problems in a student's living situation (home, school, and community)
						that affect the student's adjustment in school;
(D) Mobilizing school and community resources to enable
						the student to learn as effectively as possible in the student's educational
						program; and
(E) Assisting in developing positive behavioral
						intervention strategies.
(15) "Speech-language pathology services"
						includes:
(A) Identification of students with speech or language
						disabilities;
(B) Diagnosis and appraisal of specific speech or
						language disabilities;
(C) Referral for medical or other professional attention
						necessary for the habilitation of speech or language disabilities;
(D) Provision of speech and language services for the
						habilitation or prevention of communicative impairments; and
(E) Counseling and guidance of parents, students, and
						teachers regarding speech and language disabilities.
(16) "Transportation" includes:
(A) Travel to and from school and between schools;
(B) Travel in and around school buildings; and
(C) Specialized equipment (such as special or adapted
						buses, lifts, and ramps), if required to provide special transportation for a
						student with a disability.
"Resolution session" means a meeting convened within
						fifteen days of a parent filing a due process complaint in which the parent, a
						representative from the department and the relevant member(s) of the IEP team
						discuss the complaint and attempt to resolve the dispute that is the basis of
						the complaint prior to a due process hearing.
"Scientifically based research" has the meaning given the
						term in section 9101(37) of the ESEA.
"Secondary school" means a nonprofit institutional day or
						residential school, including a public secondary charter school that provides
						secondary education, as determined under state law, except that it does not
						include any education beyond grade twelve.
"Services plan" means a written statement that describes
						the special education and related services the department will provide to a
						parentally-placed student with a disability enrolled in a private school who
						has been designated to receive services, including the location of the services
						and any transportation necessary, consistent with section §
											8-60-22, and is developed and
						implemented in accordance with sections
						8-60-23 through
						8-60-25.
"Short-term objectives/benchmarks" means measurable
						intermediate performance steps that will enable parents, students, and
						educators to gauge, at intermediate times during the year, how well the student
						is progressing toward the annual goals by either:
(a) Breaking down the skills described in the goal into
						discrete components; or
(b) Describing the amount of progress the student is
						expected to make within specified segments of the year.
"Special education"
(1) Special education means specially designed
						instruction, at no cost to the parents, to meet the unique needs of a student
						with a disability, including:
(A) Instruction conducted in the classroom, in the home,
						in hospitals and institutions, in the community, and in other settings;
						and
(B) Instruction in physical education.
(2) Special education includes each of the following, if
						the services otherwise meet the requirements of paragraph (1):
(A) Speech-language pathology services, when the speech
						or language disability is the disabling condition;
(B) Travel training; and
(C) Vocational education.
Individual special education terms defined. The terms in
						this definition are defined as follows:
(1) "At no cost" means that all specially-designed
						instruction is provided without charge, but does not preclude incidental fees
						that are normally charged to nondisabled students or their parents as a part of
						the regular education program.
(2) "Physical education" means:
(A) The development of:
(i) Physical and motor fitness;
(ii) Fundamental motor skills and patterns; and
(iii) Skills in aquatics, dance, and individual and group
						games and sports (including intramural and lifetime sports); and
(B) Includes special physical education, adapted physical
						education, movement education, and motor development.
(3) "Specially designed instruction" means adapting, as
						appropriate to the needs of an eligible student, the content, methodology, or
						delivery of instruction:
(A) To address the unique needs of the student that
						result from the student's disability; and
(B) To ensure access of the student to the general
						curriculum, so that the student can meet the educational standards within the
						jurisdiction of the department that apply to all students.
(4) "Travel training" means providing instruction, as
						appropriate, to students with significant cognitive disabilities, and any other
						students with disabilities who require this instruction, to enable them
						to:
(A) Develop an awareness of the environment in which they
						live; and
(B) Learn the skills necessary to move effectively and
						safely from place to place within that environment (e.g., in school, in the
						home, at work, and in the community).
(5) "Vocational education" means organized educational
						programs that are directly related to the preparation of individuals for paid
						or unpaid employment, or for additional preparation for a career not requiring
						a baccalaureate or advanced degree.
"Special education teacher" means a person assigned by
						the department who is highly qualified under state standards to provide the
						specially designed instruction that meets the definition of special education
						in this section. The term "highly qualified" has the meaning given the term in
						section 9101 of the ESEA and
						34 CFR
						200.56.
"State" means the State of Hawaii.
"State complaint" means a written complaint filed with
						the department of education by an organization or individual alleging a
						violation of a requirement of Part B of the Act.
"Student with a disability" means a student residing in
						the State, evaluated in accordance with sections
						8-60-36 through
						8-60-43 as deaf, hard of hearing,
						having an intellectual disability, a developmental delay, a speech or language
						disability, a visual disability (including blindness), an emotional disability,
						an orthopedic disability, autism spectrum disorder, traumatic brain injury, a
						specific learning disability, deaf-blindness, multiple disabilities, or other
						health disability, and who, by reason thereof, needs special education and
						related services.
(1) If it is determined, through an appropriate
						evaluation under sections
						8-60-36 through
						8-60-43, that a student has one of
						the identified disabilities, but only needs a related service and not special
						education, the student is not a student with a disability.
(2) If speech-language pathology services are required by
						the student, the student would be determined to be a student with a disability.
"Supplementary aids and services" means aids, services,
						and other supports that are provided in regular education classes, other
						education-related settings, and in extracurricular and nonacademic settings, to
						enable students with disabilities to be educated with nondisabled students to
						the maximum extent appropriate in accordance with sections
						8-60-15 through
						8-60-17.
"Transition services" means a coordinated set of
						activities for a student with a disability that:
(1) Is designed to be within a results-oriented process,
						that is focused on improving the academic and functional achievement of the
						student with a disability to facilitate the student's movement from school to
						post-school activities, including postsecondary education, vocational
						education, integrated employment (including supported employment), continuing
						and adult education, adult services, independent living, or community
						participation;
(2) Is based on the individual student's needs, taking
						into account the student's strengths, preferences, and interests; and
						includes:
(A) Instruction;
(B) Related services;
(C) Community experiences;
(D) The development of employment and other post-school
						adult living objectives; and
(E) If appropriate, acquisition of daily living skills
						and provision of a functional vocational evaluation.
Transition services for students with disabilities may be
						special education, if provided as specially designed instruction, or a related
						service, if required to assist a student with a disability to benefit from
						special education.
"Ward of the State" means a student who, as determined by
						the State where the student resides, is:
(1) A foster student;
(2) A ward of the State; or
(3) In the custody of a public student welfare agency.
"Ward of the State" does not include a foster student who
						has a foster parent who meets the definition of a parent in this
						section.