HAR §8-60-57. Independent educational evaluation

(a) General. (1) The parents of a student with a disability have the right to obtain an independent educational evaluation of the student, subject to subsections (b) through (e). (2) The department shall provide to parents, upon request for an independent educational evaluation, information about where an independent educational evaluation may be obtained, and the department criteria applicable for independent educational evaluations as set forth in subsection (e). (3) For the purposes of this chapter: (A) Independent educational evaluation means an evaluation conducted by a qualified examiner who is not employed by the department; and (B) Public expense means that the department either pays for the full cost of the evaluation or ensures that the evaluation is otherwise provided at no cost to the parent. (b) Parent right to evaluation at public expense. (1) A parent has the right to an independent educational evaluation at public expense if the parent disagrees with an evaluation obtained by the department, subject to the conditions in paragraphs (2) through (4). (2) If a parent requests an independent educational evaluation at public expense, the department shall, without unnecessary delay, either: (A) File a due process complaint to request a hearing to show that its evaluation is appropriate; or (B) Ensure that an independent educational evaluation is provided at public expense, unless the department demonstrates in a hearing pursuant to sections 8-60-61 through 8-60-67 that the evaluation obtained by the parent did not meet department criteria. (3) If the department files a due process complaint notice to request a hearing and the final decision is that the department's evaluation is appropriate, the parent still has the right to an independent educational evaluation, but not at public expense. (4) If a parent requests an independent educational evaluation, the department may ask for the parent's reason why he or she objects to the public evaluation. However, the department may not require the parent to provide an explanation and may not unreasonably delay either providing the independent educational evaluation at public expense or filing a due process complaint to request a due process hearing to defend the public evaluation. (5) A parent is entitled to only one independent educational evaluation at public expense each time the department conducts an evaluation with which the parent disagrees. (c) Parent-initiated evaluations. If the parent obtains an independent educational evaluation at public expense or shares with the department an evaluation obtained at private expense, the results of the evaluation: (1) Shall be considered by the department, if it meets department criteria, in any decision made with respect to the provision of a FAPE to the student; and (2) May be presented by any party as evidence at a hearing on a due process complaint under this chapter regarding that student. (d) Requests for evaluations by hearing officers. If a hearing officer requests an independent educational evaluation as part of a hearing on a due process complaint, the cost of the evaluation shall be at public expense. (e) Department criteria. (1) If an independent educational evaluation is at public expense, the criteria under which the evaluation is obtained, including the location of the evaluation and the qualifications of the examiner, shall be the same as the criteria that the department uses when it initiates an evaluation, to the extent those criteria are consistent with the parent's right to an independent educational evaluation. (2) Except for the criteria described in paragraph (1), the department may not impose conditions or timelines related to obtaining an independent educational evaluation at public expense. [Eff 11/23/09] (Auth: 20 U.S.C. 1415(b)(1) and (d)(2)(A), HRS section 302A-1112) (Imp: 34 C.F.R. section 300.502)