HAR §8-60-2. Definitions

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 §8-60-2 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 TypeWell; 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. [Eff 11/23/09] (Auth: 20 U.S.C. 1221e-3, 1400(a), 1401(1)-(4), 1401(6), 1401(9), 1401(11), 1401(14)-(15), 1401(18), 1401(20), 1401(23), 1401(26)-(27),1401(29)-(36), 1411(e)(2)(C)(xi), 1412(a)(10)(A), 1413(a)(5) and 7221i(1), 1414(a)-(c), 1414(a)(1)(D), 1414(d)(1)(B); HRS §302A-1112) (Imp: 34 C.F.R. §§300.4-13, 300.15, 300.17, 300.19, 300.22 to 24, 300.27, 300.29 to 30, 300.34 to 35, 300.37, 300.39 to 42, 300.44 to 45, and 300.209) SUBCHAPTER 2 FAPE Requirements