Hawaii Admin. Code Title 8 | Hawaii Administrative Rules, Title 8 — Department of Education

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Subtitle 3 PUBLIC LIBRARIES

Chapter 206.2 LIBRARY ENHANCED SERVICES

Subchapter 6 OTHER LIBRARY ENHANCED SERVICES

Haw. Code R. tit. 8, subtit. 3, ch. 206.2, subch. 6, exh. 3

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Haw. Code R. tit. 8, subtit. 3, ch. 206.2, subch. 4 REPEALED

History

R 05/24/2010

Subtitle 1 RULES OF PRACTICE AND PROCEDURE

Chapter 1 RULES OF GENERAL APPLICABILITY

Haw. Code R. § 8-1-1 General

This chapter governs the procedures of the board of education of the State of Hawaii under chapter 296, Hawaii Revised Statutes, and the Hawaii Administrative Procedure Act, and other related acts as may now or hereafter be administered by the board of education.

History

[Eff. AUG 22, 1983] (Auth: HRS § 302A-1112) (Imp: HRS § 302A-1112)

Haw. Code R. § 8-1-2 Definitions

(a) As used in this chapter, unless the context specifically requires otherwise:

"Board" means the board of education.

"Department" means the department of education.

"Party" means each person or agency named or admitted as a party, or properly seeking and entitled as of right to be admitted as a party in a proceeding.

"Persons" includes individuals, partnerships, corporations, associations, or public or private organizations of any character other than agencies.

"Petitioner" means the party on whose behalf a petition or application is made in proceedings involving petitions or applications for permission or authorization which the board may give under statutory or other authority delegated to it.

"Proceedings" means the board's elucidation of the relevant facts and applicable law, consideration thereof and action thereupon with respect to a particular subject within the board's jurisdiction.

"Superintendent" means the superintendent of education.

(b) Unless otherwise specifically stated, the terms used in rules adopted by the board pursuant to powers granted by statute shall have the meaning defined by that statute.

(c) A rule which defines a term without express reference to the statute or to the rules or a portion thereof, defines the term for all purposes as used both in the statute and in the rules, unless the context otherwise specifically requires.

(d) Words importing the singular number may extend and be applied to several persons or things; words importing the plural may include the singular; and words importing the masculine gender may be applied to females.

History

[Eff. AUG 22, 1983] (Auth: HRS § 302A-1112) (Imp: HRS §§ 1-17, 91-1, 302A-101, 302A-1112)

Haw. Code R. § 8-1-3 The board

(a) The office of the board is in Honolulu, Hawaii. All communications to the board shall be addressed to the Board of Education Department of Education,State of Hawaii, Honolulu,Hawaii, unless otherwise specifically directed.

(b) The office of the board shall be open from 7:45 a.m. to 4:30 p.m. of each weekday except Saturday unless otherwise provided by statute or executive order.

(c) The board meets and exercises its powers in any part of the State. The board may meet in executive session, from which the public may be excluded, by a recorded vote of not less than two-thirds of the total membership of the board. However, no order, ruling, contract, appointment or decision shall be finally acted upon at an executive session.

(d) As specifically provided by section 296-6, Hawaii Revised Statutes, a majority of all members to which the board is entitled shall constitute a quorum to transact business. The concurrence of a majority of all the members to which the board is entitled shall be necessary to make any act of the board valid.

(e) The superintendent shall:

(1) Be responsible for carrying out the policies formulated by the board.

(2) Have charge of the board's official records and shall be responsible for the maintenance and custody of the docket, files, and records including the transcripts of testimony and exhibits, with all papers and requests filed in proceedings, the minutes of all action taken by the board, and all its findings, determinations, reports, opinions, orders, rules, and approved forms.

(3) Prepare and have published for the board an annual report of the department's activities, including a summarized fiscal statement which shall be transmitted to the governor and to members of the legislature.

(4) Be authorized to sign all official documents of the department, and all orders and other actions of the boar shall be authenticated or signed by the superintendent or other persons authorized by the board.

(f) All documents required to be filed with the board shall be filed in the office of the board in Honolulu, Hawaii, within the time limits as prescribed by law, rules, or by order of the board; and similarly, requests for public information, copies of official documents, or opportunity to inspect public records shall be made to the board's office.

History

[Eff. AUG 22, 1983] (Auth: HRS § 302A-1112) (Imp:HRS §§ 92-4, 302A-1106, 302A-1111, 302A-1112)

Haw. Code R. § 8-1-4 Public records

(a) The term "public records" as used in this part shall be as defined in section 92-50, Hawaii Revised Statutes, and shall include all rules, written statements of policy or interpretation formulated, adopted, or used by the board, all final opinions and orders, the minutes of the board, and any other material on file in the office of the board unless accorded confidential treatment pursuant to statute or the rules of the board.

(b) All public records shall be available for inspection in the office of the board, Honolulu, Hawaii, during established office hours unless public inspection of the records is in violation of any state or federal law; provided that except where the records are open under any rule of court, the attorney general may determine which records may be withheld from public inspection when the records pertain to the preparation of the prosecution or defense of any action or proceeding to which the board is or may be a party, or when the records do not relate to a matter in violation of law and are deemed necessary for the protection of the character, reputation or business of any person.

(c) Public records printed or reproduced by the board in quantity shall be given to any person requesting the same and paying the actual cost thereof. Photo copies of public records shall be made and given by the superintendent to any person upon request and upon payment of the actual cost thereof.

(d) Requests for public information, for permission to inspect official records, or for copies of public records shall be handled with due regard for the dispatch of other public duties.

History

[Eff. AUG 22, 1983] (Auth: HRS § 302A-1112) (Imp: HRS §§ 92-21, 302A-1112)

Haw. Code R. § 8-1-5 Appearance before the board

(a) An individual may appear in the individual's own behalf, a member of a partnership may represent the partnership, a bona fide officer of a corporation or association may represent the corporation or association and an officer or employee of an agency of the State or a political subdivision of the State may represent the agency in any proceeding before the board.

(b) A person may be represented by or with counsel or other duly qualified representative in any proceeding under chapters 8-1 to 8-4.

(c) When an individual acting in a representative capacity appears in person or signs a paper in practice before the board, the individual's personal appearance or signature shall constitute a representation to the board that under the provisions of chapters 8-1 to 8-4 and the law, the individual is authorized and qualified to represent the particular person on whose behalf the individual acts. The board at any time may require any person transacting business with the board in a representative capacity to show the person's authority and qualification to act in that capacity.

History

[Eff. AUG 22, 1983] (Auth: HRS § 302A-1112) (Imp: HRS §§ 91-9, 92-6, 302A-1112)

Chapter 2 PROCEEDINGS BEFORE THE BOARD

Haw. Code R. § 8-2-1 General

The board, on its own motion, or on petition of any interested person, group, organization, or agency may hold proceedings as it may deem necessary from time to time for the purpose of obtaining information necessary or helpful in the determination of its policies, the carrying out of its duties, or the formulation of its rules. For those purposes, it may subpoena witnesses and require the production of evidence. The procedures of the board, unless specifically prescribed by its administrative rules or by chapter 91, Hawaii Revised Statutes, shall be devised as in the opinion of the board will best serve the purposes of the proceedings.

History

[Eff. AUG 22, 1983] (Auth: HRS § 302A-1112) (Imp: HRS §§ 91-2, 91-6, 92-16, 302A-1112)

Haw. Code R. § 8-2-2 Filing of documents

(a) All pleadings, submittals, petitions, reports, exceptions, briefs, memoranda, and other papers required to be filed with the board in any proceeding shall be filed with the board chairperson. The papers may be sent by mail or hand-carried to the board's office within the time limit, if any, for the filing. The date on which the paper is actually received by the board shall be deemed to be the date of filing.

(b) All papers filed with the board shall be written in ink, typewritten, mimeographed, or printed; shall be plainly legible; shall be on strong durable paper; not larger than 8 1/2" x 14" in size, except that tables, charts and other documents may be larger, folded to the size of the documents to which they are attached.

(c) All papers shall be signed in ink by the party signing the papers or the party's duly authorized agent or attorney. The signature of the person signing the document constitutes a certification that the person has read the document; that to the best of the person's knowledge, information, and belief every statement contained in the instrument is true and no statements are misleading; and that it is not interposed for delay.

(d) Unless otherwise specifically provided by a particular chapter or order of the board, an original and twelve copies of all papers shall be filed unless the papers are printed or mimeographed, in which case twenty-five copies shall be filed.

(e) The initial document filed by any person in any proceeding shall state on the first page thereof who may be served with any documents filed in the proceeding.

History

[Eff. AUG 22, 1983] (Auth: HRS § 302A-1112) (Imp: HRS § 302A-1112)

Haw. Code R. § 8-2-3 Docket

The board chairperson shall maintain a docket of all proceedings and each proceeding shall be assigned a number.

History

[Eff. AUG 22, 1983] (Auth: HRS § 302A-1112) (Imp: HRS § 302A-1112)

Haw. Code R. § 8-2-4 Computation of time

In computing any period of time prescribed by chapters 8-1 to 8-4, or order of the board, the day of the act, event or default, after which the designated period of time is to run, is not to be included unless it is a Saturday, Sunday, or legal holiday in the State, in which event the period runs until the next day which is neither a Saturday, Sunday nor a holiday. Immediate Saturdays, Sundays and holidays shall not be included in a computation when the period of time prescribed or allowed is ten days or less. A half holiday shall be considered as other days and not as a holiday.

History

[Eff. AUG 22, 1983] (Auth: HRS § 302A-1112) (Imp: HRS §§ 1-29, 302A-1112)

Haw. Code R. § 8-2-5 Continuance or extension of time

Whenever a person or agency has a right or is required to take action within the period prescribed or allowed by chapters 8-1 to 8-4, by notice given thereunder or by an order, the board or superintendent, before the expiration of the prescribed period, with or without notice, may extend the period or, upon motion, permit the act to be done after the expiration of a specified period where the failure to act is clearly shown to be the result of excusable neglect.

History

[Eff. AUG 22, 1983] (Auth: HRS § 302A-1112) (Imp: HRS § 302A-1112)

Haw. Code R. § 8-2-6 Amendment of documents

If any document initiating or filed in a proceeding is not in substantial conformity with the applicable rules of the board as to the contents thereof, or is otherwise insufficient, the board, on its own motion, or on motion of any party, may strike or dismiss the document or require its amendment. If amended, the document shall be effective as of the date of the original filing.

History

[Eff. AUG 22, 1983] (Auth: HRS § 302A-1112) (Imp: HRS § 302A-1112)

Haw. Code R. § 8-2-7 Retention of documents by the board

All documents filed with or presented to the board may be retained in the files of the board. However, the board may permit the withdrawal of original documents upon submission of properly authenticated copies to replace the documents.

History

[Eff. AUG 22, 1983] (Auth: HRS § 302A-1112) (Imp: HRS § 302A-1112)

Haw. Code R. § 8-2-8 Public information

(a) Unless otherwise provided by statute, rule, or order of the board, all information contained in any pleading, submittal, petition, statement, recommendation, report, or other document filed with the board pursuant to the requirements of a statute or rule or order of the board shall be available for inspection by the public.

(b) Confidential treatment may be requested where authorized by statute. For good cause shown, the board shall grant the request.

(c) Matters of public record may be inspected in the office of the board during regular office hours. Copies of matters of public record shall be furnished to any person upon request and upon payment of the actual cost thereof as set forth in section 8-1-4.

History

[Eff. AUG 22, 1983] (Auth: HRS § 302A-1112) (Imp: HRS § 302A-1112)

Haw. Code R. § 8-2-9 Board decision

All final orders, opinions or rulings entered by the board in a proceeding and rules adopted by the board shall be served upon the parties or persons participating in the proceeding by regular mail or personal delivery by the board and shall be released for general publication. Copies of published materials shall be available for public inspection in the office of the board or may be obtained upon request and upon payment of charges, if any.

History

[Eff. AUG 22, 1983] (Auth: HRS § 302A-1112) (Imp: HRS §§ 91-2, 302A-1112)

Haw. Code R. § 8-2-10 Counsel for the board

The attorney general or a designated representative serving in the attorney general's capacity as counsel for the board, shall be a party to all proceedings governed by chapters 8-1 to 8-4. The attorney general or designated representative shall be designated as "Counsel for the Board," and shall be served with copies of all papers and documents as are all other parties to the same proceeding.

History

[Eff AUG 22, 1983] (Auth: HRS § 302A-1112) (Imp: HRS § 302A-1112)

Haw. Code R. § 8-2-11 Substitution of parties

Upon motion and for good cause shown, the board may order substitution of parties, except that in case of death of a party, substitution may be ordered without the filing of a motion.

History

[Eff. AUG 22, 1983] (Auth: HRS § 302A-1112) (Imp: HRS § 302A-1112)

Haw. Code R. § 8-2-12 Consolidations

The board, upon its own initiation or upon motion, may consolidate for hearing or for other purposes two or more proceedings which involve substantially the same parties, or issues which are the same or closely related, if it finds that consolidation will be conducive to the proper dispatch of its business, will not unduly delay the proceedings, and will not impair the rights of any party to the proceedings.

History

[Eff. AUG 22, 1983] (Auth: HRS § 302A-1112) (Imp: HRS § 302A-1112)

Chapter 3 RULES APPLICABLE TO RULEMAKING PROCEEDINGS

Haw. Code R. § 8-3-1 Notice of proposed rulemaking

(a) When pursuant to a petition therefor, or upon its own motion, the board proposes to adopt, amend or repeal a rule, notice of proposed rulemaking shall be published at least once in a newspaper of general circulation in the State. The notice shall also be mailed to all persons who filed a timely written request with the board for advance notice of the board's rulemaking proceedings. All notices shall be issued at least twenty days prior to the date set for public hearing. Where a written request for advance notice is filed by a person less than twenty days prior to the date set for public hearing, the notice shall be mailed to the person immediately upon receiving the written request.

(b) A notice of the proposed adoption, amendment or repeal of a rule shall include:

(1) A statement of the date, time, and place where the public hearing shall be held;

(2) Reference to the authority under which the adoption, amendment, or repeal of a rule is proposed;

(3) A statement of the substance of the proposed rulemaking; and

(4) Docket number assigned to the proceeding.

History

[Eff. JAN 30, 1984] (Auth: HRS § 302A-1112) (Imp: HRS §§ 91-2, 302A-1112)

Haw. Code R. § 8-3-2 Further notice of rulemaking

In any rulemaking proceeding where the board deems it warranted, a further notice of proposed rulemaking may be issued by publication thereof in a newspaper of general circulation in the State.

History

[Eff. JAN 30, 1984] (Auth: HRS § 302A-1112) (Imp: HRS § 302A-1112)

Haw. Code R. § 8-3-3 Conduct of hearing

(a) Unless otherwise specifically directed by the board, all public hearings shall be held at Honolulu when the entire State or a major portion thereof is affected by the proposed adoption, amendment or repeal of a rule. When a matter affects only an island or district other than Oahu, then the hearing shall be held on that island or in that district.

(b) Each hearing shall be presided over by a member of the board as approved by the board's chairperson. The hearing shall be conducted in a way as to afford interested persons a reasonable opportunity to be heard on matters relevant to the issues involved and to obtain a clear and orderly record. The presiding officer shall have authority to administer oaths or affirmations and to take other actions which are necessary to the orderly conduct of the hearing.

(c) Each hearing shall be held at the date, time and place set in the notice of hearing, but, thereafter, may be continued by the presiding officer from day to day at the same time and place or to a later date or to a different place without notice other than the announcement at the previous hearing.

(d) At the commencement of the hearing, the presiding officer shall read the notice of hearing and shall then outline briefly the procedure to be followed. Evidence shall then be received with respect to the proposed rulemaking in the order prescribed by the presiding officer.

(e) All interested persons, organizations or agencies shall be given a reasonable opportunity to offer evidence, submit data, views or arguments with respect to the proposed rulemaking. Every witness shall, before proceeding to testify, state the witness' name, address, and whom the witness represents, if any, at the hearing, and shall give other information respecting the witness' appearance as the presiding officer may request. The presiding officer shall confine the evidence to the questions before the hearing but shall not apply the technical rules of evidence. Every witness shall be subject to questioning by the presiding officer, other board members, or the board's attorney, but cross-examination by private persons shall not be permitted except with the express permission of the presiding officer.

(f) Persons, organizations, or agencies may also file with the board within the time period specified in the notice of proposed rulemaking a written protest or other comments or recommendations in support of or in opposition to the proposed rulemaking. The period for filing may be extended by the board by publishing a notice at least once in a newspaper of general circulation in the State.

(g) Unless otherwise specifically ordered by the board or the presiding officer, testimony given at the hearing shall be reported verbatim and shall be approved by the board. All supporting written statements and data offered in evidence at the hearing, and which are deemed by the presiding officer to be authentic and relevant, shall be received in evidence and made a part of the record. Unless the presiding officer finds that the furnishing of copies is impracticable, an original and twelve copies of all exhibits shall be submitted.

History

[Eff. JAN 30, 1984] (Auth: HRS § 302A-1112) (Imp: HRS §§ 91-9, 92-16, 302A-1112)

Haw. Code R. § 8-3-4 Board action

At the final public hearing, the board may make its decision or announce the date when its decision shall be made. The board shall consider all relevant comments and material of record before taking final action in a rulemaking proceeding.

History

[Eff. JAN 30, 1984] (Auth: HRS § 302A-1112) (Imp: HRS § 302A-1112)

Haw. Code R. § 8-3-5 Emergency rulemaking

Notwithstanding sections 8-3-1 through 8-3-4, if the board finds that an imminent peril to public health, safety, or morals requires adoption, amendment or repeal of a rule upon less than twenty days' notice of hearing, and states in writing its reason for the finding, it may proceed without prior notice or hearing or upon abbreviated notice and hearing as it finds practicable to adopt an emergency rule to be effective for a period of not longer than one hundred twenty days without renewal.

History

[Eff. JAN 30, 1984] (Auth: HRS § 302A-1112) (Imp: HRS §§ 91-3, 302A-1112)

Haw. Code R. § 8-3-6 Petitions for adoption, amendment or repeal of rules

(a) Any interested person, organization or agency may petition the board for the adoption, amendment, or repeal of any rule, which is designed to implement, interpret, or prescribe law, policy, organization, procedure or practice requirements of the board.

(b) Petitions for rulemaking shall conform to the requirements of section 8-2-2. A petition for rulemaking shall set forth the text of any proposed rule or amendment or specify the rule proposed to be repealed; shall state concisely the nature of petitioner's interest in the subject matter and petitioner's reasons for seeking the adoption, amendment or repeal of the rule; and shall include any facts, views, arguments and data deemed relevant by the petitioner. A request for the adoption, amendment, or repeal of a rule which does not conform to the requirements set forth in this section may not be considered by the board.

(c) Petitions for rulemaking shall be given a docket number and shall become matter of public record upon filing. The board shall within thirty days following the filing of the petition either deny the Petition in writing or initiate public rulemaking proceedings as set forth in sections 8-3-1 to 8-3-4. No public hearing or other proceedings shall be held with respect to such determination. Where the board determines that the petition does not disclose sufficient reasons to justify the institution of public rulemaking proceedings, or where the petition for rulemaking fails, in material respect, to comply with the requirements of these rules, the board shall deny the petition and the petitioner shall be so notified together with the grounds for denial. The provisions of this section, however, shall not operate to prevent the board, on its own motion, from acting on any matter disclosed in any petition.

History

[Eff. JAN 30, 1984] (Auth: HRS § 302A-1112) (Imp: HRS §§ 91-6, 302A-1112)

Chapter 4 SPECIAL PROCEEDINGS

Haw. Code R. § 8-4-1 Petition for declaratory rulings

(a) On petition of an interested person, the board may issue a declaratory order as to the applicability of any statutory provision or of any rule or order of the board. Petitions for the issuance thereof shall state clearly and concisely the controversy or uncertainty, shall cite the statutory authority involved, shall include a complete statement of the facts and the reasons or grounds prompting the petition, together with full disclosure of petitioner's interest and shall conform to the requirements of section 8-2-2.

(b) The board, upon receipt of the petition, may require the petitioner to file additional data or a memorandum of legal authorities in support of the position taken by the petitioner.

(c) The board, without notice or hearing, may dismiss a petition for declaratory ruling which fails in any material respect to comply with the requirements of this chapter or allow the petitioner a reasonable amount of time to correct defects in the petition.

(d) Although in the usual course of disposition of a petition for a declaratory ruling no formal hearing shall be granted to the petitioner or to a party in interest, the board may order the proceeding set down for hearing. Any petitioner or party in interest, who desires a hearing on a petition for declaratory ruling, shall set forth in detail in the request, the reasons why the matters alleged in the petition, togetherwith supporting affidavits or other written evidence, shall not permit the fair and expeditious disposition of the petition; and to the extent that a request for hearing is dependent upon factual assertion, shall accompany the request by affidavit establishing those facts. In the event a hearing is ordered by the board, chapter 2, Title 8, Administrative Rules, shall govern the proceedings.

(e) Nothwithstanding the other provisions of this section, the board, on its own motion or upon request but without notice or hearing, may issue a declaratory order to terminate a controversy or to remove uncertainty.

History

[Eff. AUG 22, 1983] (Auth: HRS § 302A-1112) (Imp: HRS §§ 91-8, 302A-1112)

Chapter 5 PUBLIC ACCESS TO INFORMATION

Haw. Code R. § 8-5-1 Philosophy

In order to establish education and public library services as an integrated, cooperative enterprise, administrators, teachers and other department personnel shall promote a climate of open two-way communication with the public, excluding matters proscribed by federal or state laws or union-management agreements.

History

[Eff. AUG 22, 1983] (Auth: HRS § 302A-1112) (Imp: HRS §§ 91-2(l), 302A-1112)

Haw. Code R. § 8-5-2 Purpose

This chapter sets forth a description of methods whereby the public may obtain information pertaining to public education and public library services in Hawaii, to express views or submit suggestions, concerns or complaints to the department.

History

[Eff. AUG 22, 1983] (Auth: HRS § 302A-1112) (Imp: HRS §§ 91-2(l), 302A-1112)

Haw. Code R. § 8-5-3 Definitions

As used in this chapter, unless the context indicates otherwise:

"Board" means the board of education.

"Department" means the department of education.

"Information" means data pertaining to the rules, policies, regulations, procedures, programs and structure of the department. It is inclusive of public records, minutes, and publications as defined by State law.

"Public" means any individual, agency or organization desiring information relative to public education in Hawaii or wishing to express views or submit suggestions, concerns or complaints pertaining to public education.

"Public education" means all programs of instruction throughout the State of Hawaii administered by the superintendent of education in accordance with policies adopted by the board pursuant to State law.

"Public library system" means all programs throughout the State of Hawaii administered by the state librarian in accordance with policies adopted by the board pursuant to State law.

History

[Eff. AUG 22, 1983] (Auth: HRS § 302A-1112) (Imp: HRS §§ 91-2(l), 92-9, 93-2, 302A-1112)

Haw. Code R. § 8-5-4 Exclusions and limitations

The term "information" excludes the following:

(1) Education records as defined by section 8-34-3(d);

(2) Data subject to federal or state laws insuring the right of privacy for students, teachers, administrators or other department personnel;

(3) Data pertaining to an action or proceeding involving litigation;

(4) Collective bargaining matters proscribed by law or union-management agreements; and

(5) Data excluded under the provisions of the fair information practice act.

History

[Eff. AUG 22, 1983] (Auth: HRS § 302A-1112) (Imp: HRS §§ 91-2(1), 302A-1112)

Haw. Code R. § 8-5-5 Responsible agents

(a) At the local level, requests for information or submitted suggestions, concerns or complaints pertaining to a specific public school or public library shall be directed to the principal or vice principal of the respective school or to the established school-community council serving that school, or the head librarian of the respective public library.

(b) At the district level, requests for information or submitted suggestions, concerns or complaints pertaining to the procedures, programs or administration of schools or public libraries within a specific district shall be directed to the district superintendent or the district school advisory council serving the respective district, or the library district administrator or the library advisory commission of the respective county.

(c) At the state level, requests for information or submitted suggestions, concerns or complaints pertaining to statewide rules, policies, regulations, procedures, programs, or administration of the department shall be directed to the office of the superintendent, public relations branch, or the state librarian in the case of the public library system.

(d) Requests for information or submitted suggestions, concerns, or complaints pertaining to the administration and procedures of specific offices, branches or sections of the department shall be directed to the appropriate officer having jurisdiction over the offices, branches or sections.

History

[Eff. AUG 22, 1983] (Auth: HRS § 302A-1112) (Imp: HRS §§ 91-2(l), 302A-1112)

Haw. Code R. § 8-5-6 General procedure

Requests for information or submittal of concerns relating to public education or public libraries in Hawaii may be made by telephone, correspondence, at meetings, or by personal visit.

History

[Eff. AUG 22, 1983] (Auth: HRS § 302A-1112) (Imp: HRS §§ 91-2(l), 302A-1112)

Haw. Code R. § 8-5-7 Appeal procedures

(a) Requests or concerns not satisfactorily addressed at the local level shall be directed to the district office in which the school or public library is located.

(b) Requests or concerns not satisfactorily addressed at the district level shall be directed to the office of the superintendent, public relations branch, or the state librarian in the case of the public library system.

(c) These procedures do not exclude the right of an individual, agency, or organization to petition the board directly on any matter relating to public education or public libraries in Hawaii under practices and procedures established by the board.

History

[Eff. AUG 22, 1983] (Auth: HRS § 302A-1112) (Imp: HRS §§ 91-2(1), 302A-1112)

Haw. Code R. § 8-5-8 Time limits

(a) Requests for information or submit suggestions, concerns or complaints relating to local or district level matters, and requiring coordination with other schools or public libraries, districts, or agencies, shall be addressed within three working days.

(b) Requests for general information shall be answered within the same working day whenever possible.

(c) If more time is required to adequately respond to the request or the concern, the requestor shall be so notified and a mutually reasonable time shall be determined for reply.

History

[Eff. AUG 22, 1983] (Auth: HRS § 302A-1112) (Imp: HRS §§ 91-2(1), 302A-1112)

Haw. Code R. § 8-5-9 News releases

(a) News releases on matters relating to board actions, statewide departmental policies, and related information shall be issued by the superintendent or a designee, or the state librarian or a designee.

(b) The district administrators, school principals, head librarians, or designees may release information related to their activities.

(c) Local, district and state offices may release routine factual or statistical data and news stories directly to the media. These authorizations do not apply where there is a necessity for restricting premature disclosure of information which might prejudice the orderly and responsible conduct of government.

History

[Eff. AUG 22, 1983] (Auth: HRS § 302A-1112) (Imp: HRS §§ 91-2(l), 302A-1112)

Haw. Code R. § 8-5-10 Availability of materials

(a) Department rules, policies, and regulations are available in all public libraries, public schools and all major offices of the department. Copies can be examined and reproduced during established working hours.

(b) Minutes of board proceedings and official documents are available for inspection in the office of the board, the office of the superintendent, the office of the state librarian, and are supplied by the state publications distribution center to all public libraries. They may be examined and reproduced during established working hours under procedures set by the board.

(c) Publications that include documents, compilations, journals, reports, statutes, regulations and ordinances pertaining to public education and the public library system are available through the state publications distribution center.

(d) Public records shall be available for inspection at the respective offices having jurisdiction during established working hours.

History

[Eff. AUG 22, 1983] (Auth: HRS § 302A-1112) (Imp: HRS §§ 91-2(l), 92-9, 93-11, 302A-1112)

Haw. Code R. § 8-5-11 Fees

(a) Any person applying for a copy of a public document or record open to inspection by the public shall be charged 25 cents per page.

(b) In the case of general informational materials that are produced for distribution to the public at no charge, certain fees designated by State law shall be waived.

History

[Eff. AUG 22, 1983] (Auth: HRS § 302A-1112) (Imp: HRS §§ 91-2(l), 92-21, 302A-1112)

Haw. Code R. § 8-5-12 Recordkeeping

Requests from the public for general information need not be recorded, although requests received by correspondence shall be retained with a copy of the reply. Disposal of public records shall be carried out in compliance with procedures set forth by State law.

History

[Eff. AUG 22, 1983] (Auth: HRS § 302A-1112) (Imp: HRS §§ 91-2(1), 94-3, 302A-1112)

Chapter 6 CONFIDENTIALITY OF PERSONAL RECORDS

Haw. Code R. § 8-6-1 Definitions

As used in this chapter:

"Days" means working or school days.

"Employee" means any individual employed by the department of education.

"Library patron" means any individual who utilizes the state public library services.

"Parent" means the natural or legal parent, guardian, or other legal custodian of the student.

"Personal record" means any item, collection, or grouping of information about an employee, student, parent, or library patron that is maintained by the department. It includes but is not limited to the employee's, student's, parent's, or library patron's educational, financial, medical, or employment history, or items that contain or make reference to the employee's, student's, parent's, or library patron's name, identifying number, symbol, or other identifying particular assigned to the employee, student, parent, or library patron, such as a finger or voice print or a photograph.

"Student" means any individual who is or has been enrolled and is or has been in attendance at any public school or private school licensed by the department.

History

[Eff. AUG 22, 1983] (Auth: HRS § 302A-1112) (Imp: HRS §§92E, 302A-1112)

Haw. Code R. § 8-6-2 Employee, student, parent, or library patron access to own personal record

(a) All accessible personal records shall be made available for inspection to the employee, student, parent, or library patron to whom it pertains, in a reasonably prompt manner and in a reasonably intelligible form. Where necessary the department shall provide a translation into common terms of any machine readable code, or any code or abbreviation employed for internal department use.

(b) Upon the request of an employee, student, parent, or library patron to gain access to personal records, the department shall permit the employee, student, parent, or library patron to review the record and have a copy made within ten days following the date of the request unless the personal record requested is exempted under section 8-6-5. The ten-day period may be extended for an additional twenty days if the department provides to the employee, student, parent, or library patron, within the initial ten working days, a written explanation of unusual circumstances causing the delay.

(c) The department may charge the employee, student, parent, or library patron for any copies and for the certification of any copies; provided that the charges or fees shall not exceed the actual cost of duplication or of transcription into readable or intelligible form and duplication and shall not include any costs of searching for the record.

History

[Eff. AUG 22, 1983] (Auth: HRS § 302A-1112) (Imp: HRS §§92E, 302A-1112)

Haw. Code R. § 8-6-3 Right to correct personal record

(a) An employee, student, parent, or library patron has a right to have any factual error in that person's personal record corrected and any misrepresentation or misleading entry in the record amended by submitting a written request to the custodian of the personal record.

(b) Within twenty days after receipt of a written request to correct or amend a personal record the custodian of the personal record shall acknowledge the request in writing and promptly:

(1) Make the requested correction or amendment; or

(2) Inform the individual in writing of its refusal to correct or amend the personal record, the reason for the refusal, and the department's procedures for review of the refusal.

History

[Eff. AUG 22, 1983] (Auth: HRS § 302A-1112) (Imp: HRS §§92E, 302A-1112)

Haw. Code R. § 8-6-4 Review procedures concerning access and correction

(a) An employee, student, parent, or library patron who has been refused access to, or correction or amendment of, a personal record may submit a written request to the superintendent of education or the state librarian for a review of the refusal to allow access to, or correction or amendment of, a personal record.

(b) Not later than thirty days after receiving a request for a review of a refusal to allow access to, or correction or amendment of, a personal record, the superintendent of education or the state librarian, or their respective designee, shall make a final determination.

(c) If the superintendent of education or the state librarian, or their respective designee, refuses upon final determination to allow access to, or correction or amendment of, a personal record, the superintendent of education or the state librarian, or their respective designee, shall so state in writing, and:

(1) Permit, whenever appropriate, the employee,student, parent, or library patron to file in the record a concise statement setting forth the reasons for disagreement with the refusal of the department to allow access to, or to correct or amend it; and

(2) Notify the employee, student, parent, or library patron of the applicable procedures for obtaining appropriate judicial remedy.

History

[Eff. AUG 22, 1983] (Auth: HRS § 302A-1112) (Imp: HRS §§92E, 302A-1112)

Haw. Code R. § 8-6-5 Exemptions and limitations on employee, student, parent, or library patron access

The department is not required to grant an employee, student, parent, or library patron access to personal records or information when:

(1) The disclosure would reveal the identity of a source who furnished information to the department under an expressed or implied promise of confidentiality.

(2) Records consist of testing or examination material or scoring keys solely to determine qualifications for appointment or promotion in public employment, or used as or to administer a licensing examination or an academic examination, the disclosure of which would compromise the objectivity, fairness, or effectiveness of the testing or examination process.

(3) Records include investigative reports and materials, related to an upcoming, ongoing, or pending civil or criminal action or administrative proceeding against the employee, student, parent, or library patron.

(4) Required to be withheld from the employee, student, parent, or library patron to whom it pertains by statute or judicial decision or authorized to be so withheld by constitutional or statutory privilege.

History

[Eff. AUG 22, 1983] (Auth: HRS § 302A-1112) (Imp: HRS §§92E, 302A-1112)

Haw. Code R. § 8-6-6 Limitation on public access to personal record

The Department may not disclose or authorize disclosure of personal records by any means of communication to any person other than the employee, student, parent, or library patron to whom the record pertains unless the disclosure is:

(1) To a duly authorized agent of the employee, student, parent, or library patron to whom it pertains;

(2) Of information collected and maintained specifically for the purpose of creating a record available to the general public;

(3) Pursuant to a statute of this state or the federal government that expressly authorized the disclosure;

(4) Pursuant to a showing of compelling circumstances, affecting the health or safety of any employee, student, parent, or library patron; and

(5) Properly authorized for release by the employee, student, parent, or library patron to the authorized agency or person specified.

History

[Eff. AUG 22, 1983] (Auth: HRS § 302A-1112) (Imp: HRS §§92E, 302A-1112)

Haw. Code R. § 8-6-7 Limitations on disclosure of personal record to other agencies

The department may not disclose or authorize disclosure of personal records to any other agency unless the disclosure is:

(1) Compatible with the purpose of which the information was collected or obtained;

(2) Consistent with the conditions or reasonable expectations of use and disclosure under which the information was provided;

(3) Reasonably appears to be proper for the performance of the requesting agency's duties and functions;

(4) To the state archives for purposes of historical preservation, administrative maintenance, or destruction;

(5) To any agency or instrumentality of any governmental jurisdiction within or under the control of the United States, or to a foreign government if specifically authorized by treaty or statute, or for a civil or criminal law enforcement investigation;

(6) To the legislature or any committee or subcommittee thereof;

(7) Pursuant to an order of a court of competent jurisdiction; and

(8) To authorized officials of a department or agency of the federal government for the purpose of auditing or monitoring an agency program that receives federal moneys.

History

[Eff. AUG 22, 1983] (Auth: HRS § 302A-1112) (Imp: HRS §§92E, 302A-1112)

Haw. Code R. § 8-6-8 Access to personal record by order in judicial or administrative proceedings or as required by other law

Nothing in this chapter shall be construed to permit or require the department to withhold or deny access to a personal record, or any information in a personal record:

(1) When the department is ordered to produce, disclose, or allow access to the record or information in the record, or when the discovery of the record or information is allowed by prevailing rules of discovery or by subpoena, in any judicial or administrative proceeding; or

(2) Where any statute, administrative rule, rule of court, judicial decision, or other law authorizes or allows an employee, student, parent, or library patron to gain access to a personal record or to any information in a personal record or requires that the employee, student, parent, or library patron be given such access.

History

[Eff. AUG 22, 1983] (Auth: HRS § 302A-1112) (Imp: HRS §§92E, 302A-1112)

Haw. Code R. § 8-6-9 Violations

A knowing or intentional violation of any provision of this chapter by any employee of the department shall be cause for disciplinary action, including suspension or discharge. Any person may file a complaint with the department alleging such a violation.

History

[Eff. AUG 22, 1983] (Auth: HRS § 302A-1112) (Imp: HRS §§92E, 302A-1112)

Haw. Code R. § 8-6-10 Conflict of law

In the event of a conflict specifically regarding student education records, the provisions of chapter 8-34 shall prevail.

History

[Eff. AUG 22, 1983] (Auth: HRS § 302A-1112) (Imp: HRS §§92E, 302A-1112)

Subtitle 2 EDUCATION

Part 1 PUBLIC SCHOOL

Chapter 7 PUBLIC SCHOOL PERSONNEL: CRIMINAL HISTORY RECORD, EMPLOYMENT HISTORY, AND BACKGROUND CHECKS

Haw. Code R. § 8-7-1 Definitions

As used in this chapter:

"Affected individual" means the person to which a Federal Bureau of Investigation (FBI) identification record pertains.

"Applicant" means a person seeking employment to a position in the department of education.

"Arrest records" means criminal history information obtained from sources other than the FBI pertaining to arrests for alleged criminal behavior.

"Background information" means information pertaining to a person's behavioral history that may indicate a significant risk to the health, safety, or well-being of children.

"Children" means students enrolled in public schools up to grade twelve.

"Clean criminal history record" means that an individual's criminal history record check shows no indication of criminal behavior.

"Criminal conviction record" means criminal history information obtained from sources other than the FBI pertaining to an individual's conviction of a crime.

"Criminal history" means information about a person's actual or alleged criminal offense(s).

"Criminal history record" means evidence of a person's actual or alleged criminal offense(s) (arrests, convictions and supporting information) on file with law enforcement agencies, courts, the Hawaii criminal justice data center or in the national criminal history record files.

"Criminal history record check" means an examination or search for evidence of an individual's criminal history by means of:

(1) A search for the individual's fingerprints in the national criminal history record files and, if found, an analysis and any other information available pertaining thereto; and

(2) A criminal history record check conducted by the Hawaii criminal justice data center.

"Department" means the department of education, State of Hawaii.

"Employee" means a person who is employed or who is seeking employment in a public school or employed by a related government agency or entity contracted by the department in a position which places that person in close proximity to children. Unpaid, volunteers are excluded from this definition.

"Employment history" means information relating to a person's past work experiences.

"FBI identification record" means a listing of certain information taken from fingerprint cards submitted to and retained by the FBI in connection with arrests and, in some instances, includes information taken from fingerprint cards submitted in connection with Federal employment, naturalization, or military service. The FBI identification record is often referred to as a "rap sheet". The identification record includes the name of the agency or institution which submitted the fingerprint card to the FBI. If the fingerprint card concerns a criminal offense, the identification record includes the date arrested or received, the arrest charge, and the disposition of the arrest if known to the FBI. All arrest data included in an identification record are obtained from fingerprint cards, disposition reports and other reports submitted by agencies having criminal justice responsibilities. Therefore, the FBI Identification Division is not the source of the arrest data reflected on an identification record.

"FBI rules to correct the FBI identification record" means rules and regulations published in the Federal Register by the FBI pertaining to the procedure for the affected individual to obtain, review, and request change, correction or updating of any alleged deficiency to the FBI identification record.

"Fingerprinting" means the recording of a person's fingerprints using conventionally accepted equipment and procedures to satisfy the quality, readability, and specifications of the FBI's criminal history record checking requirements.

"Persons who have been employed continuously by the department on a salaried basis prior to July 1, 1990" means salaried employees of the department who were on employment status on June 30,1990, and who continuously remain so employed.

"Position" means a specific office or employment in the department whether occupied or vacant, consisting of a group of all the current duties and responsibilities assigned or delegated by competent authority, requiring the full or part-time employment of one person.

History

[Eff. APR 03, 1992] (Auth: HRS §§ 302A-1112, 846-43) (Imp: HRS § 846-43)

Haw. Code R. § 8-7-2 General rule

(a) Employees and applicants who work in close proximity to children shall be of reputable and responsible character.

(b) The department may refuse to employ, may refuse to issue a teaching certificate to, may terminate the employment of, or may revoke the teaching certificate of any employee or applicant who has a criminal history record, employment history, or background involving violence, alcohol or drug abuse, sex offense, offense involving children or any other circumstance which indicates that the applicant or employee may pose a risk to the health, safety, or well-being of children. The refusal, termination, or revocation action may be based on:

(1) Conviction of a crime, other than a minor traffic offense involving a fine of $50 or less, which indicates that the person poses a risk to the health, safety or well-being of children (the type of criminal offense, when it occurred, and evidence of rehabilitation may be considered in determining whether the criminal history record indicates a risk to children);

(2) Other information or evidence which reflect upon the character and fitness of the person which indicates that the person poses a risk to children;

(3) Failure to accurately and fully complete and submit employment application documents; or

(4) Failure to declare, concealing, or falsifying criminal history, employment history, or background information to the department.

History

[Eff. APR 03, 1992] (Auth: HRS §§ 302A-1112, 846-43) (Imp: HRS § 846-43)

Haw. Code R. § 8-7-3 Applicant or employee duty to provide information

(a) Except as otherwise specified or exempted from criminal history record check requirements, any person who is employed or seeks employment with the department in a position which places that person in close proximity to children is required to provide to the department:

(1) An accurately and fully completed employment application with all requested information and documents including employment references;

(2) A sworn statement indicating:

(A) Whether the person ever had a teaching certificate or other professional license revoked or not renewed;

(B) Whether the person within the past ten years was suspended, fired, asked to resign from employment, or separated from military service under conditions other than honorable;

(C) Whether the person had been convicted of a crime, other than a minor traffic offense involving a fine of $50 or less;

(D) Whether the person had been diagnosed as having a mental or emotional condition which may affect the person's ability to responsibly manage, supervise, control and interact with children; and

(E) A detailed explanation for each of the above when applicable.

(3) A written consent for the department to conduct a criminal history record check;

(4) A written consent for the department to obtain information from current and past employers and references; and

(5) Written permission to be fingerprinted.

(b) Employees and applicants shall cooperate fully and make every reasonable effort to provide information and comply with fingerprinting and other related requirements when so notified and instructed by the department or its representative agents. The department may refuse to hire or terminate any person who willfully fails to cooperate or fails to provide the requested information.

History

[Eff. APR 03, 1992] (Auth: HRS §§ 302A-1112, 846-43) (Imp: HRS § 846-43)

Haw. Code R. § 8-7-4 Fingerprinting requirement

Persons who have been employed continuously by the department on a salaried basis prior to July 1, 1990, shall not be required to undergo criminal history record checks. The department shall require all other employees and may require applicants to undergo fingerprinting to conduct criminal history record checks as may be accommodated by the Hawaii criminal justice data center. Fingerprinting and criminal history record checks shall be conducted without charge to employees and applicants. Employees and applicants shall cooperate fully and make every reasonable effort to comply with fingerprinting and other requirements when so notified and instructed by the department or its representative agents. The department may refuse to hire and may terminate any person who willfully fails to comply or cooperate fully fingerprinting requirements.

History

[Eff. APR 03, 1992] (Auth: HRS §§ 302A-1112, 846-43) (Imp: HRS § 846-43)

Haw. Code R. § 8-7-5 Use of criminal history records results

(a) Information obtained from criminal history record checks shall be used exclusively by the department for the purpose of determining whether or not a person is suitable for working in close proximity to children. Use and release of such information obtained from the FBI shall be subject to federal laws and regulations.

(b) The department may disclose information that an affected individual's criminal nhistory record check shows a "clean criminal history record". Federal law (28 U.S.C. §534) otherwise prohibits the disclosure of criminal history information obtained from the FBI. An FBI identification record and information contained therein, however, may be disclosed to the affected individual when explaining decisions or contemplated decisions resulting in refusal to hire, refusal to issue teaching certificate, termination of employment or revocation of teaching certificate. Information from an FBI identification record may also be disclosed to a union representative with the consent of the affected individual and may also be displayed, with the consent of the affected individual, at an administrative hearing to resolve issues concerning the record's content and use. If desired, the affected individual may also request the correction of FBI criminal history information by following FBI rules to correct the FBI identification record.

(c) Criminal history information obtained from sources other than the FBI may be categorized into criminal convictions and arrest records. Criminal convictions are considered public records and may be disclosed to the general public. Arrest records are private and shall not be released by the department except in the process of verifying the disposition of the arrests, or as otherwise required by law. Information regarding a person's arrest records for offenses that may pose a risk to the health, safety or well-being of children may be used as the basis to delay hiring decisions or for the suspension of employment pending further inquiry and investigation. Arrest records shall not be used as the sole basis to refuse to employ a perspective employee or to terminate an employee.

History

[Eff. APR 03, 1992] (Auth: HRS §§ 302A-1112, 846-43) (Imp: HRS § 846-43)

Haw. Code R. § 8-7-6 Implementation procedures and instructions

(a) The department shall develop necessary plans, procedures, and instructions to implement the provisions of this chapter.

(b) The department may implement the provisions of this chapter incrementally subject to the availability of funds and resources.

History

[Eff. APR 03, 1992] (Auth: HRS §§ 302A-1112, 846-43) (Imp: HRS § 846-43)

Chapter 12 COMPULSORY ATTENDANCE EXCEPTIONS

Haw. Code R. § 8-12-1 Purpose

The department has a legitimate interest in and the responsibility for the appropriate education of all school age children in the State of Hawaii. It is the purpose of this chapter to implement the compulsory attendance exceptions of § 302A-1132, Hawaii Revised Statutes. Implementing the compulsory attendance law is not intended to violate the rights and convictions of parents to home school or otherwise except their child from compulsory attendance. Finally, home schooling is not considered a school initiated educational alternative and is not to be used by a school as a means for releasing students with behavior or disciplinary problems or students lacking credits to graduate from the local public school.

History

[Eff. 11/7/91; am and comp 5/13/00] (Auth: HRS §§ 302A-1112, 302A-1132) (Imp: HRS § 302A-1132)

Haw. Code R. § 8-12-2 Definitions

As used in this chapter:

"Alternative educational program" means an educational program, in a non-school setting other than home schooling, which addresses the standards identified in the Hawaii Content and Performance Standards.

"Department" means the department of education.

"Employment" means suitable, lawful full-time employment of a minimum of forty hours per week.

"Home schooling" means a viable educational option where a parent instructs the parent's own child.

"Local public school" means the school the child would be enrolled in if the child was not excepted from compulsory school attendance.

"Parent" means the natural or legal parent, guardian or other legal custodian of child.

"School age child" means a child who will have arrived at the age of at least six years, and who will not have arrived at the age of eighteen years on or before December 31 of any school year.

"Tutoring" means an alternative educational program where an individual other than the parent instructs a child.

History

[Eff. 11/7/91; am and comp 5/13/00] (Auth: HRS §§ 302A-1112, 302A-1132) (Imp: HRS § 302A-1132)

Haw. Code R. § 8-12-3 Applicability

The provisions of this chapter apply to all school age children residing in the State of Hawaii.

History

[Eff. 11/7/91; comp 5/13/00] (Auth: HRS § 302A-1112) (Imp: HRS §§ 302A-1112, 302A-1132)

Haw. Code R. § 8-12-4 Conditions for exceptions

School age children may be excepted from compulsory school attendance in the following cases:

(1) Where a child is physically or mentally unable to attend school, except for deafness and blindness, of which fact the certificate of a duly licensed physician shall be sufficient evidence;

(2) Where any child who has reached the fifteenth anniversary of birth is suitably and lawfully employed;

(3) Where a family court judge has approved withdrawal from school;

(4) Where the superintendent of education or designee has approved an appropriate, alternative educational program, other than home schooling; and

(5) Where the parent of a school age child has provided notification of intent to home school the child.

History

[Eff. 11/7/91; comp 5/13/00] (Auth: HRS §§ 302A-1112, 302A-1132) (Imp: HRS § 302A-1132)

Haw. Code R. § 8-12-5 Procedures for exceptions due to disabilities

(a) A parent whose child is physically or mentally unable to attend school, deafness and blindness excepted, shall complete and submit Form 4140, Exceptions to Compulsory Education, to the local public school.

(b) A parent whose child is physically or mentally unable to attend school, deafness and blindness excepted, shall also submit sufficient evidence of the identified disabilities to the local public school. A certificate from a duly licensed physician shall be sufficient evidence.

(d) Requests for exceptions due to identified disabilities shall be renewed annually.

History

[Eff. 11/7/91; am and comp 5/13/00] (Auth: HRS §§ 302A-1112, 302A-1132) (Imp: HRS § 302A-1132)

Haw. Code R. § 8-12-6 Procedures for exceptions due to employment

(a) A parent whose child has reached the fifteenth anniversary of birth and is suitably and lawfully employed shall complete and submit Form 4140, Exceptions to Compulsory Education, to the local public school for the principal's recommendation as to whether the exception should be granted. The form shall then be submitted to the district superintendent for approval.

(b) A family court judge may also approve an exception due to employment.

(d) The student's employer shall notify the school within three days if employment is terminated. The student shall return to the school unless the student provides the principal with verification of new employment. (e) Requests for exception due to employment shall be renewed annually.

History

[Eff. 11/7/91; am and comp 5/13/00] (Auth: HRS §§ 302A-1112, 302A-1132) (Imp: HRS § 302A-1132)

Haw. Code R. § 8-12-7 Procedures for exceptions due to family court order

(a) Approval for exceptions due to family court order shall be authorized by a family court judge.

(b) The approval of the family court judge shall be obtained on Form 4140, Exceptions to Compulsory Education, and submitted to the local public school.

History

[Eff. 11/7/91; am and comp 5/13/00] (Auth: HRS §§ 302A-1112, 302A-1132) (Imp: HRS § 302A-1132)

Haw. Code R. § 8-12-8 Procedures for exceptions for alternative educational programs, other than home schooling

(a) The parent of a child requesting a compulsory attendance exception for an alternative educational program other than home schooling shall complete and submit Form 4140, Exceptions to Compulsory Education, to the local public school.

(b) For purposes of this chapter, enrollment in a private school's home study school program shall not be construed as equivalent to attendance at a private school.

(c) The parent requesting an exception under this section shall submit to the local public school principal a planned curriculum for the child along with the Form 4140. The curriculum shall be structured and based on educational objectives as well as the needs of the child, be cumulative and sequential, provide a range of up-to-date knowledge and needed skills, and take into account the interests, needs and abilities of the child. The submittal shall include the following:

(1) The commencement date and ending date of the program;

(2) The number of hours per week the child will spend in instruction which shall average approximately three hours per school day;

(3) The subject areas to be covered in the planned curriculum:

(A) An elementary school curriculum may include the areas of language arts, mathematics, social studies, science, art, music, health and physical education to be offered at the appropriate development stage of the child.

(B) A secondary school curriculum may include the subject areas of social studies, English, mathematics, science, health, physical education and guidance.

(4) The method used to determine mastery of materials and subjects in the curriculum; and

(5) A list of textbooks or other instructional materials which will be used. The list shall be in standard bibliographical format. For books, the author, title, publisher and date of publication shall be indicated. For magazines the author, article title, magazine, date, volume number and pages shall be indicated.

(d) The superintendent or the superintendent's designee may approve withdrawal from school where an appropriate educational program other than home schooling is developed for the child in accordance with the plans and policies of the department.

(e) A request for an exception for an alternative educational program other than home schooling shall be renewed annually.

(f) Further exceptions to the provisions of this chapter concerning a child's alternative educational program may be granted by the superintendent upon the written request of the parent and the recommendations of the principal and the district superintendent.

History

[Eff. 11/7/91; am and comp 5/13/00] (Auth: HRS §§ 302A-1112, 302A-1132) (Imp: HRS § 302A-1132)

Haw. Code R. § 8-12-9 Testing and progress reports of children excepted for alternative educational programs, other than home schooling

(a) Test scores are required for grades identified in the Statewide Testing Program. A child is eligible and required to participate in the Statewide Testing Program at the local public school. Parents shall be responsible for securing necessary details from the principal of the school. The parents may elect to arrange for private testing at their own expense. The tests used shall be comparable to the appropriate criterion or norm-referenced tests used by the department in the grades concerned. The parents shall inform the school principal if private testing will be used for purposes of this chapter.

(b) A narrative progress report and report card from the professional staff or tutor of a child's alternative educational program shall be submitted by the family to the local public school principal at the end of each school year. More frequent progress reports may be requested by the principal.

(c) The narrative report shall include statements of progress in each of the subject areas as well as development in social awareness and understanding of self, understanding of the problems of the society and the culture, and independence in learning. Copies of tests or assignments, if available, shall be attached to the narrative report. Grades for courses shall be submitted. The principal shall judge the adequacy of progress of a child. If progress is not satisfactory, the principal shall meet with the parent to discuss the problems and establish a plan for improvement.

(d) If progress is not satisfactory, the principal may recommend to the district superintendent that the exception be rescinded.

(e) The parent shall notify the principal if the alternative educational program is terminated. The child shall be re-enrolled in the local public school or licensed private school unless satisfactory evidence of a new alternative educational program is presented within five school days after the termination of the former alternative educational program.

(f) At the discretion of the principal of the school, a child may be tested for placement when entering or reentering public school.

History

[Eff. 11/7/91; am and comp 5/13/00] (Auth: HRS §§ 302A-1112, 302A-1132) (Imp: HRS § 302A-1132)

Haw. Code R. § 8-12-10 Instructional personnel of alternative educational programs, other than home schooling

(a) Instructional personnel in the alternative educational program shall be qualified to provide appropriate education to the child served.

(b) Professional staff members or tutors, or both, providing instruction shall be persons who have at a minimum earned a bachelor's degree from an accredited college or university. Satisfactory evidence of the qualifications shall be presented to the local school principal at the time Form 4140 is submitted. This evidence shall include the following:

(1) Names, addresses, and telephone numbers of instructional personnel;

(2) Place of employment, other than the alternative educational program, if any; and

(3) Official transcripts verifying educational background.

(c) Nonprofessional staff, for example, teacher assistants, in the alternative educational program may assist the professional staff but shall not have the full responsibility of instructing the child.

History

[Eff. 11/7/91; am and comp 5/13/00] (Auth: HRS §§ 302A-1112, 302A-1132) (Imp: HRS § 302A-1132)

Haw. Code R. § 8-12-11 High school diploma, alternative education programs, other than home schooling

(a) A child in an alternative educational program other than home schooling who wants a high school diploma shall comply with the requirements outlined in Department of Education Regulation No. 4540.2, High School Graduation Through the Adult Schools.

(b) The diploma shall be awarded by the community school for adults.

History

[Eff. 11/7/91; comp 5/13/00] (Auth: HRS §§ 302A-1112, 302A-1132) (Imp: HRS § 302A-1132)

Haw. Code R. § 8-12-12 College entrance examination, alternative education

A child in an alternative educational program may participate in any college entrance examination which is made available to all other students.

History

[Eff. 11/7/91; comp 5/13/00] (Auth: HRS §§ 302A-1112, 302A-1132) (Imp: HRS § 302A-1132)

Haw. Code R. § 8-12-13 Notification of intent to home school

(a) The parent shall provide the local public school principal with a notice of intent to home educate the child before initiating home schooling. The purpose of notification is to allow the department, upon request of the parent, to assist in the educational efforts. The notice of intent may be submitted on a department developed form (Form 4140) or in a letter containing the following items:

(1) Name, address, and telephone number of the child;

(2) Birthdate and grade level of the child; and

(3) Signature of the parent.

(b) The notice of intent shall be acknowledged by the principal and the district superintendent. The notice of intent is for record keeping purposes and to protect families from unfounded accusations of educational neglect or truancy.

(c) If a child's annual progress report has been submitted as stated in § 8-12-18(b), notification of intent to home school need not be resubmitted annually, except in cases where the child is transferring from one local public school to another, for example, transition from sixth grade to an intermediate school. Then the parents shall notify the principal of the child's new local public school.

(d) The parent(s) submitting a notice to home school a child shall be responsible for the child's total educational program including athletics and other co-curricular activities.

History

[Eff. 11/7/91; am and comp 5/13/00] (Auth: HRS §§ 302A-1112, 302A-1132) (Imp: HRS § 302A-1132)

Haw. Code R. § 8-12-14 Required statutory services

All educational and related services statutorily mandated shall be made available at the home public school site to home-schooled children who have been evaluated and certified as needing educational and related services and who request the services.

History

[Eff. 11/7/91; comp 5/13/00] (Auth: HRS §§ 302A-1112, 302A-1132) (Imp: HRS § 302A-1132)

Haw. Code R. § 8-12-15 Record of curriculum

The parent submitting a notice of intent to home school shall keep a record of the planned curriculum for the child. The curriculum shall be structured and based on educational objectives as well as the needs of the child, be cumulative and sequential, provide a range of up-to-date knowledge and needed skills, and take into account the interests, needs and abilities of the child. The record of the planned curriculum should include the following:

(1) The commencement date and ending date of the program;

(2) A record of the number of hours per week the child spends in instruction;

(3) The subject areas to be covered in the planned curriculum:

(B) A secondary school curriculum may include the subject areas of social studies, English, mathematics, science, health, physical education and guidance.

(4) The method used to determine mastery of materials and subjects in the curriculum; and

(5) A list of textbooks or other instructional materials which will be used. The list shall be in standard bibliographical format. For books, the author, title, publisher and date of publication shall be indicated. For magazines, the author, article title, magazine, date, volume number and pages shall be indicated.

History

[Eff. 11/7/91; comp 5/13/00] (Auth: HRS §§ 302A-1112, 302A-1132) (Imp: HRS § 302A-1132)

Haw. Code R. § 8-12-16 Notification of termination of home schooling

The parent shall notify the principal if home schooling is terminated. A child shall be re-enrolled in the local public school or licensed private school unless a new alternative educational program is presented within five school days after the termination of home schooling.

History

[Eff. 11/7/91; comp 5/13/00] (Auth: HRS §§ 302A-1112, 302A-1132) (Imp: HRS § 302A-1132)

Haw. Code R. § 8-12-17 Educational neglect

If there is reasonable cause for the principal to believe that there is educational neglect, the department in compliance with § 302A-1132, Hawaii Revised Statutes, shall intervene and take appropriate action in accordance with established departmental procedures. Reasonable cause for educational neglect shall not be based on the refusal of parents to comply with any requests which exceed the requirements of this chapter.

History

[Eff. 11/7/91; am and comp 5/13/00] (Auth: HRS §§ 302A-1112, 302A-1132) (Imp: HRS § 302A-1132)

Haw. Code R. § 8-12-18 Testing and progress reports of home-schooled children

(a) Test scores shall be required for grades identified in the Statewide Testing Program, grades three, five, eight, and ten. A child is eligible to participate in the Statewide Testing Program at the local public school. The parent is responsible for securing necessary details from the principal of the local public school. The parent may elect to arrange for private testing at the parent's own expense. The tests used shall be comparable to the appropriate criterion or norm-referenced tests used by the department in the grades concerned. The parent may request and the principal may approve other means of evaluation to meet the Statewide Testing Program requirements.

(b) The parent shall submit to the principal an annual report of a child's progress. One of the following methods shall be used to demonstrate satisfactory progress:

(1) A score on a nationally-normed standardized achievement test which demonstrates grade level achievement appropriate to a child's age;

(2) Progress on a nationally-normed standardized achievement test that is equivalent to one grade level per calendar year, even if the overall achievement falls short of grade level standards;

(3) A written evaluation by a person certified to teach in the State of Hawaii that a child demonstrates appropriate grade level achievement or significant annual advancement commensurate with a child's abilities; or

(4) A written evaluation by the parent which shall include:

(A) A description of the child's progress in each subject area included in the child's curriculum;

(B) Representative samples of the child's work; and

(c) When tests are administered under the Statewide Testing Program for grades three, five, eight, and ten, the parent may choose to have the child participate in the school's testing program and have the results serve as a means of assessing annual progress for that year.

(d) The principal shall review the adequacy of a child's progress. If progress is not adequate, the principal shall meet with the parent to discuss the problems and help establish a plan for improvement. In this case, the principal may request and the parents shall share their record of the child's planned curriculum. When standardized test scores are used, adequate progress shall be considered to be score/stanines in the upper two thirds of the score/stanines. Unless progress is inadequate for two consecutive semesters, based on a child's scores on a norm-referenced test for that grade level or the written evaluation by a person certified to teach in the State of Hawaii, recommendations to enroll the child in a public or private school or to take legal action for educational neglect shall be prohibited. No recommendations shall be made for a child before the third grade.

History

[Eff. 11/7/91; am and comp 5/13/00] (Auth: HRS §§ 302A-1112, 302A-1132) (Imp: HRS § 302A-1132)

Haw. Code R. § 8-12-19 Instructional personnel of home-schooled children

A parent teaching the parent's child at home shall be deemed a qualified instructor.

History

[Eff. 11/7/91; comp 5/13/00] (Auth: HRS §§ 302A-1112, 302A-1132) (Imp: HRS § 302A-1132)

Haw. Code R. § 8-12-20 Credits

No course credits (Carnegie units) are granted for time spent being home-schooled.

History

[Eff. 11/7/91; comp 5/13/00] (Auth: HRS §§ 302A-1112, 302A-1132) (Imp: HRS § 302A-1132)

Haw. Code R. § 8-12-21 High school diploma for home-schooled children

(a) A home-schooled child who wants to earn a high school diploma from the local public high school shall attend high school for a minimum of three full years and meet the credit requirements for graduation.

Satisfactory performance on the Hawaii State Test of Essential Competencies (HSTEC) is also required.

(b) A home-schooled child who wants to earn a high school diploma from the community school for adults shall meet the following requirements:

(1) Be at least sixteen years of age, except in the case of emancipated minors;

(2) Have been home-schooled for at least one semester under Hawaii's home-schooling procedures; and

(3) Take and achieve a satisfactory score on the General Educational Development (GED) test.

The diploma shall be awarded by the community school for adults.

History

[Eff. 11/7/91; am and comp 5/13/00] (Auth: HRS §§ 302A-1112, 302A-1132) (Imp: HRS § 302A-1132)

Haw. Code R. § 8-12-22 College entrance examination and home-schooled children

A child who is being home schooled may participate in any college entrance examination which is made available to all other students. The principal of the local public high school shall, upon request, supply written acknowledgement that a child has been home schooled in compliance with the requirements of this chapter."

History

[Eff. 11/7/91; comp 5/13/00] (Auth: HRS §§ 302A-1112, 302A-1132) (Imp: HRS § 302A-1132)

Chapter 13 GEOGRAPHICAL EXCEPTIONS

Haw. Code R. § 8-13-1 Philosophy

Under Hawaii's laws, all persons of school age are required to attend the school in the geographic area in which they reside. However, permission to attend another school may be granted by the department as provided in this chapter, with the welfare of the student as a major consideration. When a student is granted a geographic exception, the student shall belong to the receiving school and shall enjoy all rights and privileges as are enjoyed by other students at the receiving school except as provided in this chapter.

History

[Eff. 09/30/83; am FEB 22, 1992] (Auth: HRS § 302A-1112) (Imp: HRS § 302A-1143)

Haw. Code R. § 8-13-2 Definitions

As used in this chapter:

"Applicant" means the parents, legal guardian or other legal custodian authorized to represent the student or an eighteen year old student who wishes to apply for a geographic exception.

"Department" means the department of education.

"Exceptional student" means any student who is found eligible for special education and related services.

"Geographic exception" means permission to attend a school other than the student's home school as determined by the student's legal residence.

"Home school" means the school within the geographic attendance area which the student shall attend according to the student's legal residence.

"Home school district" means the school district in which the student's home school is located.

"Legal residence" means the residence of the student's parent(s), legal guardian, or legal custodian. The department shall presume that the student resides with the parents or legal guardian. In the event the student's parents do not reside together in the same school district, the department may presume that the student resides in the school district in which either parent resides. The applicant wishing to rebut the presumption has the burden of proving the student's residence.

"Physical residence" means where the student actually resides.

"Receiving school" means the school outside the geographic area of the student's legal residence.

"Revocation" means the return of a student attending a school on a geographic exception to the student's home school.

"School district" means a group of schools administered by a district superintendent.

History

[Eff. 09/30/83; am FEB 22, 1992] (Auth: HRS § 302A-1112) (Imp: HRS § 302A-1143)

Haw. Code R. § 8-13-3 Applicability

No geographic exception or revocation of geographic exception shall be granted except in accordance with this chapter. The placement of an exceptional student, under the provisions of chapter 8-56, shall not require a geographic exception. This chapter does not apply to "McKinney-Vento Homeless Education Assistance Improvements Act of 2001" eligible students (i.e., homeless students), unless they seek enrollment at a school other than the school of origin or the home school.

History

[Eff. 09/30/83; am 02/22/92; am JUL 11, 2008] (Auth: HRS § 302A-1112) (Imp: HRS § 302A-1143)

Haw. Code R. § 8-13-4 Authority

(a) After communicating with the home school principal, the principal of the receiving school shall approve or disapprove geographic exceptions based on established criteria and procedures consistent with this chapter. The geographic exception shall be approved based on the ability of a school to accommodate the request.

(b) The district superintendent of the receiving school may revoke a geographic exception based on procedures consistent with this chapter.

History

[Eff. 09/30/83; am FEB 22, 1992] (Auth: HRS § 302A-1112) (Imp: HRS § 302A-1143)

Haw. Code R. § 8-13-5 Duration of geographic exception

Geographic exceptions shall be granted through the student's terminal year. All students on a district exception during school year 1991-92 shall be granted a geographic exception through the student's terminal year at the receiving school. The applicant shall notify the receiving school of the intent to discontinue attendance at the receiving school on a form provided by the department.

History

[Eff. 09/30/83; am FEB 22, 1992] (Auth: HRS § 302A-1112) (Imp: HRS § 302A-1143)

Haw. Code R. § 8-13-6 Notification

The department shall inform the applicant of the procedure to request a geographic exception under this chapter and shall make available a copy of Chapter 13, "Geographic Exceptions," to the applicant upon request.

History

[Eff. 09/30/83; am FEB 22, 1992] (Auth: HRS § 302A-1112) (Imp: HRS § 302A-1143)

Haw. Code R. § 8-13-7 Application procedure

(a) The geographic exception process commences in January for the following school year. Applications for exceptions shall be submitted between January 1 and March 1 to facilitate a decision before the end of the school year. However, applications shall be accepted at other time periods whenever unforeseen circumstances arise, for example, transferring into the school system and opting to pursue a program of study offered in another geographic area.

(b) The applicant shall initiate and complete action for a geographic exception by:

(1) Obtaining the application form from any public school;

(2) Explaining on the form the reasons for the geographic exception and attaching substantiating documentation; and

(3) Submitting the completed, signed form to the home or receiving school.

(c) Priority consideration for a geographic exception shall be given to applicants requesting an exception because of any of the following reasons:

(1) Authorized physical residence in the receiving school's geographic attendance area;

(2) Program of study of the receiving school that is not available at the home school;

(3) Siblings of students currently enrolled in the receiving school who will continue to be enrolled in the coming school year; or

(4) Children of staff at the receiving school. The reasons for priority consideration are not ranked and each shall be given equal consideration. An exceptional student may apply for a geographic exception, including priority consideration, as long as the receiving school is capable of providing reasonable accommodations for that student. All other requests for geographic exceptions shall be considered only after priority requests have been accommodated.

(d) A chance selection process shall be implemented by the receiving school on a day predetermined by the department if:

(1) There are more priority requests than there are spaces; or

(2) All priority requests are filled and there are still spaces for some but not all remaining requests.

(e) For applications received by March 1, notification of the decision for priority consideration shall be mailed no later than two weeks after March 1. The notification shall:

(1) Be signed by the receiving school principal and include the effective date of the geographic exception or inclusion of the student in the chance selection process;

(2) Inform the applicant that an alternative student may be selected by the principal if the student is not registered at the receiving school within ten working days from the postmarked date of mailing, unless the student is to be considered in the chance selection process; and

(3) In the case of a denial, explain the reasons for denying the request and that an appeal of the denial may be filed with the district superintendent.

History

[Eff. 09/30/83; am FEB 22, 1992] (Auth: HRS § 302A-1112) (Imp: HRS § 302A-1143)

Haw. Code R. § 8-13-8 Appeal procedure

(a) An applicant may appeal the denial of a geographic exception by filing a request within ten school days of the postmarked date on the denial, for a review by the district superintendent of the receiving school. The form for appealing the denial of a geographic exception request shall be attached to the notification of denial.

(b) The district superintendent of the receiving school shall review the appeal in consultation with the home school district superintendent.

(c) The receiving school district superintendent shall render a written decision within ten school days of the postmarked date of the filing for appeal. The decision of the receiving school district superintendent shall be final.

History

[Eff. 09/30/83; am FEB 22, 1992] (Auth: HRS § 302A-1112) (Imp: HRS § 302A-1143)

Haw. Code R. § 8-13-9 Grounds for revocation

The district superintendent of the receiving school may revoke a geographic exception if the information upon which a geographic exception was granted is found to have been false.

History

[Eff. 09/30/83; am FEB 22, 1992] (Auth: HRS § 302A-1112) (Imp: HRS § 302A-1143)

Haw. Code R. § 8-13-10 Revocation of Geographic exception

(a) The home school principal or receiving school principal may recommend in writing to the receiving school district superintendent the revocation of a geographic exception.

(b) The receiving school district superintendent shall initiate revocation proceedings by providing written notification to the applicant, return receipt requested. The notice shall contain the following:

(1) The reasons for revoking the geographic exception;

(2) A statement regarding the effective date of the recommended revocation. The date shall not be less than eighteen school days after the date the notice is mailed. If a conference is requested, the effective date shall be extended to the last day the receiving school district superintendent has to render a written decision;

(3) A statement that the applicant has a right to request a conference with the receiving school district superintendent to discuss the reasons for the geographic exception and the reasons for revocation;

(4) A statement that the conference with the district superintendent shall be requested in writing; and

(5) A statement that unless a conference is requested by a date specified in the notice, not less than five school days after the notice is mailed, the recommended revocation of the receiving school principal shall be implemented without a conference.

(c) Upon receipt of an appeal of revocation, the receiving school district superintendent shall schedule a conference date within ten school days and shall notify all interested parties of the conference date, time, and place. The conference shall be conducted by the receiving school district superintendent or by a disinterested person designated by the district superintendent who may be an official of the department. The conference shall be conducted in the following manner:

(1) The receiving school district superintendent or a designee shall impartially weigh the evidence and may consider any records or information relevant to the revocation of the geographic exception, provided that the record or information shall be made available to the parents and students;

(2) All parties shall have the right to present evidence, cross examine witnesses and submit rebuttal testimony;

(3) The department shall make a transcript or tape recording of the conference;

(4) At their own expense, parents or students may make a tape recording or obtain a transcript;

(5) In the event the conference is conducted by a person other than the receiving school district superintendent, the recommended decision and record shall be reviewed by the district superintendent who may accept, reject or modify the decision. In the event any change is made, the receiving school district superintendent shall state the reasons therefor in writing. The decision of the receiving school district superintendent shall be final; and

(6) Not later than three school days after the close of the conference, the receiving school district superintendent shall render a decision in writing clearly stating the action to be taken and the reasons therefor. The decision shall be mailed return receipt requested personally delivered.

History

[Eff. 09/30/83; am FEB 22, 1992] (Auth: HRS § 302A-1112) (Imp: HRS § 302A-1143)

Chapter 19 STUDENT MISCONDUCT, DISCIPLINE, SCHOOL SEARCHES AND SEIZURES, REPORTING OFFENSES, POLICE INTERVIEWS AND ARRESTS, RESTITUTION FOR VANDALISM, AND COMPLAINT PROCEDURE AND INVESTIGATION OF DISCRIMINATION, HARASSMENT (INCLUDING SEXUAL HARASSMENT), BULLYING AND/OR RETALIATION

Subchapter 1 GENERAL PROVISIONS

Haw. Code R. § 8-19-1 Philosophy

(a) Hawaii has established and supports a statewide system of public education. The compulsory nature of school attendance ensures that a student shall have the opportunity for an education. In addition to the education provided during the regular school year, the department offers students the opportunity to receive additional instruction and educational services through a self-supporting summer school program on a voluntary attendance basis. The department is committed to:

(1) Provide the student with optimal learning conditions;

(2) Select appropriate teachers for the student's instruction; and

(3) Other programs that will help the student to succeed.

In 1996, the department initiated a collaborative and systemic reform known as the Comprehensive Student Support System (CSSS), which provides a continuum of academic, social, emotional, and physical environmental supports and services to all students to facilitate their learning and their meeting of high educational standards. It is a CSSS community of caring and supportive relationships among students, teachers, families, and agencies working together that promote timely and appropriate services for all students. The goal of the school system is to provide a learning experience in safe, caring, nurturing, and orderly teaching and learning environments.

(b) It is the responsibility of every student to demonstrate respectful, responsible, non-discriminatory, safe, and ethical behaviors on department transportation, or during a department sponsored activity on or off school property. The department supports this through the establishment of a proactive systems approach to schoolwide discipline.

(c) However, when a student's behavior violates established policies, rules, or regulations of the department, state or local laws, the department may take appropriate disciplinary action in accordance with this chapter. The purpose of school-administered discipline is to:

(1) Promote and maintain a safe and secure educational environment;

(2) Teach and acknowledge proper behavior which is beneficial to the educational process and self-development;

(3) Deter students from acts which interfere with the purpose of education or which are self-destructive, self-defeating or anti-social;

(4) Maintain proper student conduct to ensure that educational activities and responsibilities remain uninterrupted; and

(5) Stop any discrimination (including unlawful discrimination), harassment (including sexual harassment), or bullying against a student based on. a protected class.

(d) An educational worker conducting or participating in a school program, activity, or function sponsored or approved by the department, or hired to engage in carrying out an educational function, has a reasonable expectation to be free of undue disruption and threat of disorder or acts of violence, or both, committed against them by students.

(e) In addition to the disciplinary action taken under this chapter, restitution for vandalism or for negligence shall be made in accordance with the provisions of this chapter. The purpose of restitution is to discourage acts of vandalism and negligence and to ensure recovery of the cost of public property damaged by acts of vandalism and negligence.

(f) On occasions it is necessary for police officers to interview students or to take them into custody. This chapter is also intended to safeguard the rights and interests of students in attendance, to cooperate with police officers in the performance of their duties, to preserve the school milieu, and to delineate responsibilities of school personnel.

History

[Eff 9/1/82; am 5/23/86; am and comp 7/19/93; am and comp 5/19/97; comp 2/22/01; am and comp 9/10/09] (Auth: HRS § 302A-1112) (Imp: Hawaii Const. Art. X, § 3; HRS §§ 302A-1101, 302A-1112)

Haw. Code R. § 8-19-2 Definitions

As used in this chapter:

"Abusive language" means verbal messages that use words in an inappropriate way and may include but is not limited to swearing, name-calling, or profanity.

"Assault" means intentionally, knowingly, recklessly, or negligently causing serious bodily injury or bodily injury to another person with or without a dangerous instrument.

"Bullying" means any written, verbal, graphic, or physical act that hurts, harms, humiliates or intimidates a student, including those with protected class statuses, that is sufficiently severe, persistent, or pervasive that it creates an intimidating, threatening, or abusive educational environment.

"Burglary" means entering or remaining without school authorization in a building that is either owned or operated by the department with intent to commit an offense against a person, or against school property or other property located at the school.

"Child Welfare Services" means the Child Welfare Services of the State of Hawaii Department of Human Services.

"Civil Rights Compliance Branch" means the entity within the department responsible for monitoring and/or conducting investigations of discrimination, harassment (including sexual harassment), and/or bullying complaints described in this chapter.

"Class cutting" means an unauthorized absence of a student from class.

"Complex area superintendent" means the chief administrative officer of a complex area and the school complexes therein.

"Contraband" means a property, other than which is unlawful to produce or possess, which, as defined by local school rules, is prohibited on school premises has in the past lead to bodily injury or disruption of school operations.

"Controlled substance" means a drug or substance as defined in parts I through V in chapter 329, Hawaii Revised Statutes.

"Correction and conference with student" means a student meets with an administrator, their teacher(s), and/or parent and receives instruction on demonstrating appropriate behavior.

"Crisis removal" means the immediate exclusion of a student from school in an emergency, because the conduct of the student presents a clear, immediate threat to the physical safety of self or others, or the student is so extremely disruptive as to make the immediate removal of the student necessary to preserve the right of other students to pursue their education free from undue disruption.

"Cyberbullying" means electronically transmitted acts, including but not limited to those transmitted through the Internet, cell phone, or other wireless hand-held device initiated by one student toward another student or employee of the department that hurts, harms, humiliates, or intimidates the student or employee; and is sufficiently severe, persistent or pervasive, that it creates an intimidating, threatening, or abusive educational environment. Cyberbullying can occur:

(1) On campus, or other department premises, on department transportation, or during a department sponsored activity or event on or off school property;

(2) Through a department data system without department authorized communication; or

(3) Through an off campus computer network <, if the conduct impacts the educational environment.

Additionally, cyberbullying may also be based on a person's protected class, including but not limited to, a person's race, color, religion, sex, sexual orientation, gender identity, gender expression, age, national origin, ancestry, disability, physical appearance and characteristics, and socio-economic status.

"Dangerous instrument, or 'substance'" means any explosive device, instrument, material, or chemical, whether animate or inanimate, which in the manner it is used or is intended to be used is known to be capable of producing death or bodily injury. Examples of such items include but are not limited to knives, pipe bomb devices, fireworks, pepper spray, mace, martial arts devices such as sticks and throwing stars; and inanimate objects such as pipes, sticks, or baseball bats swung at a person in a menacing manner so as to cause or threaten bodily injury.

"Dangerous weapon" means an instrument whose sole design and purpose is to inflict bodily injury or death. Examples of such instruments include but are not limited to a dirk, dagger, butterfly knife, switchblade knife, blackjack, slug shot, billy, metal knuckles, or other weapons that inflict bodily injury or death.

"Department" means the department of education.

"Detention" means detaining a student on school campus during non-instructional hours to require the student to carry out in-school educational or other activities as may be prescribed by school officials as a form of disciplinary action for student misconduct.

"Disciplinary transfer" means the removal of a student from the school the student is attending as a result of a violation of section 8-19-6. Disciplinary transfer does not include cases involving the revocation of geographic exceptions under chapter 13 of title 8 under circumstances in which the purpose for granting the geographic exception is no longer valid.

"Discrimination" means excluding the participation in or denying the benefits of the department's administration of its educational programs and activities, or otherwise treating a student differently on the basis of a protected class.

"Dismissal" means the removal of a student from Hawaii public schools for the remainder of the school year or for a period of not less than one calendar year for firearm violations.

"Disorderly conduct" means the following actions or activities on campus or other department premises, on department transportation, or during a department sponsored activity or event on or off school property:

(1) Engaging in fighting or threatening, or in violent or tumultuous behavior such as yelling or screaming, or both;

(2) Making unreasonable noise as to cause disruption of normal school operations;

(3) Making any offensively coarse utterance, gesture, or display, or addressing abusive language to any person present, which is likely to provoke a violent response;

(4) Creating a hazardous or physically offensive condition by any act which is not performed under any authorized license or permit;

(5) Impeding or obstructing any person in a public school for the purpose of begging or soliciting alms or other forms of aid; or

(6) Inappropriate physical contact including but is not limited to consensual sex or consensual touching of body parts, or both.

"Drug paraphernalia" means any equipment, products, or materials of any kind, or combination thereof which is used, intended for use, or designed for use, in planting, harvesting, producing, storing, containing, concealing, injecting, ingesting, inhaling, or otherwise introducing into the human body a controlled substance in violation of this chapter. It includes, but is not limited to:

(1) Kits, devices, equipment, separation gins, balance scales, blenders, bowls, containers, spoons, capsules, balloons, envelopes, other objects used, intended for use, or designed for use in preparing, processing, mixing, storing, or concealing controlled substances;

(2) Hypodermic syringes, needles, and other objects used, intended for use, or designed for use by injecting the controlled substances into the human body;

(3) Objects used, intended for use, or designed for use in ingesting, inhaling, or otherwise introducing marijuana, cocaine, hashish, or hashish oil, or forms of methamphetamine, or anabolic steroids into the human body, such as:

(A) Metal, wooden, glass, acrylic, stone, plastic, or ceramic pipes, water pipes, smoking and carburetion masks, roach clips; meaning objects used to hold burning materials such as marijuana cigarettes, that have become too small or too short to be held in the hand;

(B) Miniature cocaine spoons, and cocaine vials, bongs, ice pipes, or chillers; and

"Educational worker" means any administrator, specialist, counselor, teacher, or employee of the department, or a person who is a volunteer in a school program, activity, or function that is sponsored or approved by the department, or a person hired by the department on a contractual basis and engaged in carrying out an educational function.

"Extortion" means an act committed by a person who:

(1) Obtains, or exerts control over, the property or services of another with intent to deprive that person of the property or services by threatening by word or conduct to:

(A) Cause bodily injury in the future to the person threatened or to any other person;

(B) Cause damage to property;

(D) Expose a secret or publicize an asserted fact, whether true or false, tending to subject some person to hatred, contempt, or ridicule, or to impair the person's credit or business repute;

(E) Reveal any information sought to be concealed by the person threatened or any other person;

(F) Testify provide information, or withhold testimony or information with respect to another's legal claim or defense;

(G) Take or withhold action as a public servant, or cause a public servant to take or withhold such action;

(H) Bring about or continue a strike, boycott, or other similar collective action, to obtain property which is not demanded or received for the benefit of the group which the student purports to represent; or

(I) Do any other act which would not in itself substantially benefit the person committing the act but which is calculated to substantially harm some person with respect to that person's health, safety, education, business, calling, career, financial condition, reputation, or personal relationship;

(2) Compels or induces another person to engage in conduct from which that person has a legal right to abstain or to abstain from conduct in which that person has a legal right to engage by threatening by word or conduct to do any of the actions set forth in paragraph (A) through (I) of this definition; or

(3) Makes or finances any extension of credit, or collects any extension of credit by extortionate means.

"Fighting" means instigating or provoking physical contact involving anger or hostility. Fighting includes but is not limited to:

(1) Engaging in mutual physical contact involving anger or hostility;

(2) Teasing, harassing, threatening, or intimidating others resulting in physical contact involving anger or hostility;

(3) Retaliating physically for teasing, harassing, threatening, or intimidating behavior; verbally inciting; or

(4) Physically supporting a fight by one's presence and encouragement.

"Firearm" means:

(1) Any weapon including but is not limited to a starter gun, shotgun, air guns which includes BB guns, pellet guns, paintball guns, or cross bow or any other instrument which will or is designed to or may readily be converted to expel a projectile;

(2) The frame or receiver of any such weapon;

(3) Any firearm muffler or firearm silencer; or

(4) Any destructive device. The term "destructive device" means:

(A) Any explosive, incendiary, or poison gas:

(i) Bomb;

(ii) Grenade;

(iii) Rocket having a propellant charge;

(iv) Missile having an explosive or incendiary charge;

(v) Mine; or

(vi) Device similar to any of the devices described in the preceding clause;

(B) Any type of weapon which will, or which may be readily converted to expel a projectile, including but is not limited to a weapon that expels a projectile by action of an explosive or other propellant; or

(C) Any combination or parts either designed or intended for use in converting any device described above, and from which a destructive device may be readily assembled. "Forgery" means:

(1) A student signing a name other than the student's own name on a document or;

(2) The illegal production or reproduction of materials such as fundraising or sports event tickets.

"Gambling" means staking or risking something of value upon the outcome of a contest of chance or a future contingent event not under the person's control or influence, upon an agreement or understanding that the person or someone else will receive something of value in the event of a certain outcome. Gambling does not include bona fide business transactions valid under the law of contracts, including but is not limited to contracts for the purchase or sale at a future date of securities or commodities, and agreements to compensate for loss caused by the happening of chance, including but is not limited to contracts of indemnity or guaranty and life, health, or accident insurance.

"Gender expression" means the manner in which a person represents or expresses gender to others, often through behavior, clothing, hairstyles, activities, voice, or mannerisms.

"Gender identity" means a person's internal, deeply-felt sense of being male, female, or other, whether or not that gender-related identity is different from the person's physiology or assigned sex at birth. Everyone has a gender identity.

"Harassment" means any threatening, insulting, or aggressive conduct, which can be written, verbal, or physical, and is directed against a student, including those with protected class status. Harassing conduct must have the effect of:

(1) Placing a student in reasonable fear of have to his or her person or property;

(2) Interfering with a student's educational performance, opportunities, or benefits; or

(3) Disrupting the orderly operation of a school.

"Hazing" means any conduct or method of initiation into any student organization or activity, whether on campus or other department premises, on department transportation, or during a department sponsored activity or event on or off school property, which willfully or recklessly endangers the physical or mental health of any student. Such conduct shall include, but is not limited to whipping, beating, branding, forced calisthenics, exposure to weather, forced consumption of any food, liquor, beverage, drug or other substance, indecent exposure, or any other treatment or forced physical activity which is likely to adversely affect the physical or mental health, or both, or safety of any student, or which subjects any student to extreme mental stress, including deprivation of sleep or rest, extended isolation, or personal humiliation.

"Hijacking" means to extort from another by a threat or a perceived threat.

"Homicide" means causing the death of another person.

"Inappropriate or questionable uses, or both, of internet materials and equipment" means that a student did not adhere to the department's state and school level technology guidelines. Examples of inappropriate or questionable uses of the department's computer and network resources include but are not limited to disabling or bypassing the filters, gambling software, music sharing software, or sexually explicit photographs and pictures that do not support the department's mission and purpose.

"Illicit drugs" means substances, the possession, distribution, ingestion, manufacture, use, sale, or delivery, of which are prohibited under chapter 329, Hawaii Revised Statutes and chapter 712, part IV, Hawaii Revised Statutes.

"Immediate interventions" means individualized services offered as soon as possible, but no later than seventy-two hours after receipt of the complaint, to either or both the complainant/victim or respondent involved in a complaint as appropriate to protect students from possible harassment or bullying, including racial, sexual, or disability discrimination, harassment or bullying. Immediate interventions may be offered prior to an investigation or while an investigation is pending. Immediate interventions pending an investigation may include counseling, extensions of time or other course-related adjustments, modifications of work or class schedules, campus escort services, restrictions on contact between the parties, leaves of absence, increased security and monitoring of certain areas of campus, or other similar accommodations. Immediate interventions may be put in place by the department on a case-by-case and temporary basis after receiving notice of a complaint and before any outcomes -investigatory, disciplinary, or remedial - have been determined. These measures may be instituted to preserve the complainant's/victim's educational experience, ensure the safety of all parties and the broader department community, maintain the integrity of the investigative and/or resolution process, and deter retaliation. Immediate interventions shall be available throughout all phases of an investigation. They may be amended or withdrawn as additional information is gathered.

"Individualized instruction related to student's problem behaviors" means as a result of a disciplinary action the student receives individualized instruction specifically related to the student's problem behaviors. Examples of individualized instruction include but are not limited to the development and implementation of behavior support plans, developing behavioral contracts or social skills training, or a combination of the foregoing.

"Insubordination" means disregard or refusal to obey an order which a teacher, officer, or other employee of the department is entitled to give.

"In-school suspension" means a student is temporarily removed from his/her school program for disciplinary purposes but remains under the direct supervision of school personnel to complete instruction work.

"Interim alternative educational setting" or "lAES" 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 lEP.

"Intoxicating substance use" means the use of any substance, which causes disturbance of the normal physical or mental functioning including but is not limited to alcohol.

"Laser pen/pointer" means a device that emits a bright laser light that appears as a dot on any surface at which it is aimed and is without authorized department purpose and use. Unless authorized, the possession or use is prohibited on campus, or other department premises, on department transportation, or during a department sponsored activity or event on or off school property.

"Leaving campus without consent" means leaving the premises of a school, department facility, or department program without first obtaining permission from school officials.

"Low intensity problem behaviors" means those behaviors that are demonstrated with low frequency, brief engagement, and do not lead to serious harm.

"Mail" or "mailed" means documents sent via:

(1) Regular mail;

(2) Certified mail; or

(3) Return receipt requested.

"Minor problem behaviors" means demonstration of low-intensity problem behaviors that may include, but are not limited to the following.

(1) "Defiance/disrespect/non-compliance" means student engages in brief or low-intensity failure to respond to adult requests;

(2) "Disruption" means student engages in low-intensity, inappropriate disruption;

(3) "Dress code violation" means student wears clothing that is not within the dress code guidelines defined by the school;

(4) "Inappropriate language" means student engages in low-intensity instance of inappropriate language;

(5) "Physical contact" means student engages in non-serious, inappropriate physical contact;

(6) "Property misuse" means student engages in low-intensity misuse of property;

(7) 'Tardy" means a student arrives to school after school has started, or a student arrives at class after class has started, or both.

"Negligence" means the failure to use the care that a prudent and careful person would use under similar circumstances which results in harm to a person or loss, destruction, breakage, or damage of school books, equipment, or of supplies.

"Parent" means the natural or legal parent, legal guardian or other legal custodian of the student. For students eighteen years of age or older, all parental rights herein transfer to the student, unless the natural or legal parent, legal guardian, or other legal custodian has legally obtained decision making rights for the student.

"Property damage" or "vandalism" means:

(1) Damaging the property of the school or another person;

(2) Destroying or defacing school property or facility; or

(3) Destroying or defacing school materials, such as but is not limited to planners, identification nametags, or meal cards.

"Protected class/basis" for the purposes of this chapter includes race, color, religion, sex, sexual orientation, gender identity, gender expression, age, national origin, ancestry, disability, physical appearance and characteristics, and socio-economic status.

"Remedies" are individualized services offered at the conclusion of an investigation that present the educational experience or ensure the safety of all students and the broader department community. Remedies for students may include, but are not limited to, the adjustment of academic schedules and coursework, and the provision of academic, medical and psychological support services.

"Rendering a false alarm" means a student causes a false alarm of fire or other emergency to be transmitted to or within an official or volunteer fire department, any governmental agency, or public utility that deals with emergencies involving danger to life or property.

"Restitution" means monetary or non-monetary repayment to the department or the State of Hawaii for the reasonable value of public school property lost, damaged, broken or destroyed as the result of student negligence or vandalism.

"Retaliation" means an adverse action against a student because they engaged in protected activity. Protected activity includes filing a complaint of discrimination, harassment (including sexual harassment), or bullying; participating in a complaint or investigation proceeding dealing with discrimination, harassment (including sexual harassment), or bullying; inquiring about rights under this chapter; or otherwise opposing acts covered under this chapter. An adverse action is any action that would dissuade a reasonable person from making or supporting a complaint under these rules. Reprisals or retaliation shall be prohibited when there is protected activity that was engaged in good faith.

"Robbery" means, in the course of committing a theft, or hijacking, a student:

(1) Attempts to kill another person, or inflicts or attempts to inflict serious bodily injury upon another person; or

(2) With or without a dangerous instrument:

(A) Uses force against the person with the intent to overcome the owner's physical resistance or physical power of resistance;

(B) Threatens the imminent use of force against the person of anyone who is present with intent to compel acquiescence to the taking of or escaping with the property; or

(C) Inflicts serious bodily injury upon another person. "School" or "public school" means all academic and non-college type schools established and maintained by the department in accordance with state law.

"School books" means library and textbooks.

"School official" means any administrator, specialist, counselor, teacher, school security attendant, or other department employee, responsible for the supervision of students. It does not include individuals whose services are procured.

"School related offenses" means offenses involving school property, or offenses committed on campus, or other department premises, on department transportation, or during a department sponsored activity or event on or off school property.

"School rules" means school wide conduct rules that have been established by the school.

"School staff" means any teacher, officer, or other employee of the department.

"Search" means if after requesting the student to voluntarily relinquish the contraband item(s) and the student refuses and there are reasonable grounds to believe that the student has violated the law or provisions prohibited under this chapter, or If there is a health or safety issue with illicit drugs, dangerous weapons, dangerous instruments or firearms, or a combination of the foregoing, the school official may examine the contents and belongings which may include but are not limited to purses, fanny packs, backpacks, jackets, shoes, socks, or any other outer clothing.

"Seizure" means to take possession of the contraband item(s) that is or are uncovered during a search.

"Serious discipline" means disciplinary actions including dismissals, disciplinary transfers, crisis removals, and suspensions which either exceed ten school days or will result in the student affected being crisis removed or suspended more than a total of ten school days in any single semester.

"Sexual assault" means the act of committing unwanted physical contact of a sexual nature on a person, whether by an acquaintance or by a stranger. Such contact is unwanted when it occurs without consent of the person, or when the person is incapacitated or otherwise incapable of giving consent. Consent means affirmative, conscious, and voluntary agreement to engage in agreed upon forms of sexual contact. If a student is a subject of sexual assault and is under the age of consent, it shall be deemed that no consent was given. Sexual assault is a form of sexual harassment.

"Sexual exploitation" means the violation of the sexual privacy of another, or taking unjust or abusive sexual advantage of another without consent and when such behavior does not otherwise constitute sexual assault. Consent means affirmative, conscious, and voluntary agreement to engage in agreed upon forms of sexual contact. If a student is a subject of sexual exploitation and is under the age of consent, it shall be deemed that no consent was given. Sexual exploitation is a form of sexual harassment.

"Sexual harassment" means any unwanted, unwelcome, or unsolicited verbal or physical act of a sexual nature directed at an individual because of his or her sex. Sexual harassment can include requests for sexual favors or sexual advances when submission to or rejection of the conduct is either an explicit or implicit term or condition of a student's education or participation in a department program, activity or service; or when submission to or rejection of the conduct is used as a basis in decisions affecting that student's education or participation in a department program, activity, or service. Sexual harassment also includes, but is not limited to, sexual misconduct, unwelcome sexual advances, requests for sexual favors, or other verbal, nonverbal, or physical conduct of a sexual nature. it can include conduct such as touching of a sexual nature, making sexual comments, jokes or gestures, writing graffiti or displaying or distributing sexually explicit drawings, pictures or written materials, calling students sexually charged names, spreading sexual rumors, rating students on sexual activity, or circulating, showing, or creating e-mails or websites of a sexual nature. Sexual exploitation and sexual assault also fall under the definition of sexual harassment.

"Sexual orientation" means a person's emotional and sexual attraction to another person based on the gender of the other person. Common terms to describe sexual orientation include, but are not limited to, heterosexual, gay, lesbian, and bisexual. Sexual orientation and gender identity are different.

"Smoking" or "use of tobacco" means possession, use, sale or distribution of tobacco products on campus, or other department premises, on department transportation, or during a department sponsored activity or event on or off school property.

"Stalking" means two or more acts of unwanted behavior, directed at a specific person that is sufficiently serious to cause physical, emotional, or psychological fear or to create a hostile intimidating or abusive educational environment.

"Strip search" means searches, which require the removal of clothing that results in the exposure of the genitals, the female breasts, or underwear or combination thereof.

"Suspension" means exclusion from school for a specific period during a school year.

"Switchblade knife" means any knife having a blade which opens automatically:

(1) By hand pressure applied to a button or other device in the handle of the knife, or

(2) By operation of inertia, gravity, or both.

"Terroristic threatening" means:

(1) A threat, by word or conduct, to cause bodily injury to another person or serious damage to property of another person;

(2) With the intent to cause, or in reckless disregard of the risk of causing evacuation of a building, place of assembly, or facility of public transportation; or

(3) Displaying a "look-alike" gun or weapon.

"Theft" means:

(1) Obtaining, or exerting control over, the property of another and depriving that person of the property;

(2) Obtaining, or exerting control over, the property of another by deceiving and depriving the person of the property;

(3) Obtaining, or exerting control over, the property of another which the person knows to have been lost or mislaid, or to have been delivered under a mistake as to the nature or amount of the property, the identity of the recipient, or other facts, and with the intent to deprive the owner of the property, the person fails to take reasonable measures to discover and notify the owner;

(4) Obtaining services, known by the person to be available only for compensation, by deception, false token, or other means to avoid payment for the services;

(5) Having control over the disposition of services of another to which the person is not entitled and diverts those services to the person's own benefit or to the benefit of a person not entitled thereto;

(6) Failing to make required disposition of funds by:

(A) Obtaining property from anyone upon an agreement, or subject to a known legal obligation, to make specified payment or other disposition, whether from the property or its proceeds or from the person's own property reserved in equivalent amount, and dealing with the property as the person's own and failing to make the required payment or disposition; or

(B) Obtaining personal services from an employee upon agreement or subject to a known legal obligation to make a payment or other disposition of funds to a third person on account of the employment, and intentionally failing to make the payment or disposition at the proper time;

(7) Receiving, retaining, or disposing of the property of another, knowing that it has been stolen, with intent to deprive the owner of the property; or

(8) Shoplifting:

(A) Concealing or taking possession of the goods or merchandise of any department store or department retail establishment, with intent to defraud;

(B) Altering the price tag or other price marking on goods or merchandise of any department store or department [of education] retail establishment, with intent to defraud; or

(C) Transferring the goods or merchandise of any department store or department retail establishment from one container to another, with intent to defraud.

"Trespass" means entering or remaining in or upon the premises of any school, or department facility after reasonable warning or request to leave by school authorities or police officer.

"Truancy" means a student is absent from class(es) or the school campus without authorization from the principal or designee.

History

[Eff 9/1/82; am 5/23/86; am and comp 7/19/93; am and comp 5/19/97; am and comp 2/22/01; am and comp 9/10/09] (Auth: HRS § 302A-1112) (Imp: Hawaii Const. Art. X, § 3; HRS §§ 302A-101, 302A-1101, 302A-1112, 302A-1134, 302A-1134.5)

Haw. Code R. § 8-19-3 Applicability

(a) The provisions of this chapter shall apply to all students enrolled in a public school during the regular school year, summer session, or intersessions regardless of age with the addition that, outside of the hours when school is in session, boarding students are subject to the dormitory rules developed by the school and agreed upon through written consent by the parent(s) or legal guardian(s) of boarding students.

(b) The Hawaii administrative rules for students with disabilities shall apply in the discipline of students who are eligible to receive special education or other services under those chapters.

(c) References to principal or designee in subchapter 2 shall be construed to include summer school director for purposes of discipline in summer school. References to school year in this chapter shall be construed to mean summer session whenever summer school applies.

(d) Discipline during intersessions and in summer school shall be governed by subchapter 3. Discipline of students who receive special education services during an extension of the student's school year shall be governed by subchapter 2 and the guidelines and requirements of the Hawaii administrative rules for students with disabilities.

(e) In all cases of student-related administrative actions and reporting, chapter 8-34 shall apply. In addition, for students who receive special education services, the Hawaii administrative rules for students with disabilities shall prevail.

(f) No action relating to suspension, serious discipline, or restitution for vandalism or negligence shall be taken except in accordance with this chapter.

(g) All matters relating to police interviews or arrests, or both, of students shall be administered in accordance with this chapter.

(h) For conduct by adult(s) towards student(s) based on the student(s)' protected class, refer to chapter 8-89 for guidance.

History

[Eff 9/1/82; am 5/23/86; am and comp 7/19/93; am and comp 5/19/97; am and comp 2/22/01; am and comp 9/10/09] (Auth: HRS § 302A-1112) (Imp: Hawaii Const. Art. X, § 3; HRS 302A-1101)

Haw. Code R. § 8-19-4 Severability

If any provision of this chapter or the application thereof to any person or circumstance is held invalid, the invalidity does not affect other provisions or applications of the chapter that can be given effect without the invalid provision or application, and to this end, the provisions of this chapter are severable.

History

[Eff 5/23/86; comp 7/19/93; comp 5/19/97; comp 2/22/01; comp 9/10/09] (Auth: HRS § 302A-1112) (Imp: HRS § 302A-1112)

Haw. Code R. § 8-19-4.1 Student's right to privacy

(a) Information relating to complaints, investigations, and reports shall remain confidential and will only be shared with appropriate individuals necessary to complete the investigation and decision making process.

(b) Identifiable information regarding a student will not be disclosed without notice to the student's parent or legal guardian.

History

[Eff 11/17/2019] (Auth: HRS § 302A-1112) (Imp: HRS §§ 302A-1101, 302A-1112)

Subchapter 2 STUDENT MISCONDUCT AND DISCIPLINE DURING THE REGULAR SCHOOL YEAR

Haw. Code R. § 8-19-5 Disciplinary actions; authority

(a) Suspensions exceeding ten school days or suspensions that will result in the student being suspended more than a total of ten school days in any single semester, disciplinary transfers, dismissals, and extension of crisis removals shall be approved by complex area superintendent.

(b) Crisis removals and suspensions of ten school days or less may be approved by the principal or designee.

(c) In determining disciplinary actions, the principal or designee shall consider the intention of the offender, the nature and severity of the offense, the impact of the offense on others including whether the action was committed by an individual or a group of individuals such as a gang, the age of the offender, and if the offender was a repeat offender.

History

[Eff 9/1/82; ren § 8-19-4, 5/23/86; am and comp 7/19/93; comp 5/19/97; comp 2/22/01; am and comp 9/10/09] (Auth: HRS §§ 302A-1112, 302A-1002) (Imp: HRS §§ 302A-1112, 302A-1002)

Haw. Code R. § 8-19-6 Prohibited student conduct; class offenses

(a) The following prohibited conduct applies to all students in the public school system, on campus, or other department premises, on department transportation, or during a department sponsored activity or event on or off school property.

(1) Class A offenses:

(A) Assault;

(B) Bullying (for students in grades 9-12);

(D) Cyberbullying (for students in grades 9-12);

(E) Dangerous instrument, or substance; possession or use of;

(F) Dangerous weapons; possession, or use of;

(G) Drug paraphernalia; possession, use, or sale of;

(H) Extortion;

(I) Fighting;

(J) Firearms; possession or use of;

(K) Harassment (for students in grades 9-12);

(L) Homicide;

(M) Illicit drugs; possession, use, or sale of;

(N) Intoxicating substances; possession, use, or sale of;

(O) Property damage or vandalism;

(P) Robbery;

(Q) Sexual assault;

(R) Sexual exploitation;

(S) Sexual harassment (for students in grades 5-12);

(T) Stalking; or

(U) Terroristic threatening.

(2) Class B offenses:

(A) Bullying (for students in grades K-8);

(B) Cyberbullying for students in grades K-8);

(D) Disorderly conduct;

(E) False alarm;

(F) Forgery;

(G) Gambling;

(H) Harassment (for students in grades K-8);

(I) Hazing;

(J) Inappropriate or questionable uses, or both of internet materials or equipment, or both;

(K) Retaliation;

(L) Sexual harassment (for students in grades K-4);

(M) Theft; or

(N) Trespassing.

(3) Class C offenses:

(A) Abusive language;

(B) Class cutting;

(D) Laser pen/laser pointer; possession or use of;

(E) Leaving campus without consent;

(F) Smoking or use of tobacco substances; or

(G) Truancy.

(4) Class D offenses:

(A) Contraband; possession or use of;

(B) Minor problem behaviors; or

(i) Any other conduct as may be prescribed and prohibited by school rules. Individual school rules shall be published or made available for inspection at the school office and shall inform students, school staff, and parents of the prohibited conduct under class A through D of this section.

(ii) No disciplinary action amounting to serious discipline shall be imposed for violation of any individual school rule as a class D offense.

(b) Any student who possesses a firearm shall be dismissed from school for not less than one calendar year period. The possession or use of a firearm is prohibited on campus, or other department premises, on department, or during a department sponsored activity or event on or off school property except for participation in athletic teams, clubs and/or Junior Reserve Officer Training Corp (JROTC) shooting sports programs and marksmanship training, education, and competitions. The superintendent or designee, on a case-by-case basis, may modify the dismissal of a student found to be in possession of a firearm. If a student is dismissed from school, that student shall be provided alternate educational activities or other appropriate assistance as provided in section 8-19-11.

(c) Any student who possesses, sells, or uses a dangerous weapon, switchblade knife or any improperly used knife, intoxicating substance(s), or illicit drug(s) while attending school may be excluded from attending school for up to ninety-two school days. Any student who reasonably appears to be under the influence of, have consumed or used intoxicating substance(s) or illicit drug(s) prior to attending school or attending department-supervised activities held on campus, or other department premises, on department transportation, or during a department sponsored activity or event on or off school property may be excluded from attending school for up to ninety-two school days and the school shall administer a substance use screening tool to determine whether there is a need for the student to be referred for a substance abuse assessment pursuant to section 302A-1134.6(f), Hawaii Revised Statutes. The school administrator shall comply with the provisions of this chapter by conducting an investigation of the reported incident and inform the parent of the disciplinary action. In addition, the school administrator shall arrange for the student to be screened by a trained screener. The designated screener will summarize the results with the student, and inform the school administrator of the results. The school administrator shall then inform the family of the screening results, the early return provisions of the law, and provide a contact list of medical insurance agencies that conduct substance abuse assessments. During the screening the student will be asked a series of questions to determine if the student is at low, high or very-high risk for a substance use problem. If the screening interview indicates high or very- high results, the student will be referred for a formal substance abuse assessment. A formal substance abuse assessment sences to provide expert clinical opinion to determine if a substance abuse problem exists, and if so, offer treatment recommendations. If referred for a substance abuse assessment, students with medical health insurance shall be asked to contact their medical health carrier to schedule an appointment. Professionals who can provide substance abuse assessments include certified substance abuse counselors (CSAC), psychiatrists, advanced practice registered nurses (APRN), psychologists, and licensed clinical social workers. The principal or designee can approve suspensions of one to ten school days. The complex area superintendent shall approve suspensions exceeding ten school days. In exercising this discretion and determining disciplinary actions, the principal or designee shall consider, the nature and severity of the offense, the impact of the offense on others, the age of the offender, and if the offender is a repeat offender. If the student is excluded from attending school, the principal or designee shall ensure that alternate educational activities or other appropriate student support assistance shall be provided, and that the student is referred for appropriate intervention or treatment services, or both, as determined by the principal or designee in consultation with the appropriate school staff or in accordance with the Hawaii administrative rules for students with disabilities, if applicable.

(d) Disciplinary action shall be taken for all class offenses in grades kindergarten through twelve in accordance with procedures established under this chapter and within the following options as determined by the authorities designated in section 8-19-5. Interventions to teach students appropriate behaviors must be instituted when disciplinary actions are imposed. Disciplinary action options may include the following:

(1) Correction and conference with student;

(2) Detention;

(3) Crisis removal;

(4) Individualized instruction related to student's problem behaviors;

(5) In-school suspension;

(6) Interim alternate education setting;

(7) Loss of privileges;

(8) Parent conferences;

(9) Time in office;

(10) Suspension of one to ten school days;

(11) Suspension of eleven or more school days;

(12) Saturday school;

(13) Disciplinary transfer;

(14) Referral to alternative education programs;

(15) Dismissal; or

(16) Restitution.

(e) Students shall be counseled in addition to any disciplinary action taken under subsections (c) and (d).

(f) No action amounting to serious discipline shall be imposed on students for committing class D offenses.

(g) No suspension or serious discipline shall be imposed on any student because of class cutting or truancy.

(h) The disciplinary action options of subsections (c) and (d) shall be construed as disciplinary actions within a school year.

(i) Disciplinary actions may be carried over to the following school year if the offense is committed within twenty school days from the last instructional day for students in that school year.

History

[Eff 9/1/82; am and ren § 8-19-5, 5/23/86; am and comp 7/19/93; am and comp 5/19/97, am and comp 2/22/01; am and comp 9/10/09] (Auth: HRS § 302A-1112) (Imp: HRS §§ 302A-1112, 302A-1134, 302A-1134.5)

Haw. Code R. § 8-19-7 Crisis removal

(a) A principal or designee. In an emergency, may crisis remove a student immediately based upon preliminary inquiry and findings that the student's conduct presents a clear immediate threat to the physical safety of self or others or is so extremely disruptive as to make the student's immediate removal necessary to preserve the right of other students to pursue an education free from undue disruption.

(b) Upon imposition of a crisis removal, schools shall make a good faith effort to inform the parent immediately by telephone.

(c) A follow-up written notice of the crisis removal shall be personally delivered or mailed to the parent. The notice of the crisis removal shall contain the following written statements:

(1) Allegations of the specific acts committed by the student that form the basis of the crisis removal;

(2) The allegations of the specific acts that were substantiated;

(3) A statement of the disciplinary action(s); and

(4) A statement of a conference date, time, and place offered by the school administration to meet with the parent. A copy of the crisis removal notice shall be mailed to the complex area superintendent. In addition to the crisis removal notice required by this subsection, the principal or designee shall attempt to confirm the notice by telephoning the parent.

(d) A student who is the subject of a crisis removal shall be permitted to resume attendance at school as soon as the crisis no longer exists.

(e) A crisis removal shall not continue for more than ten school days, except when approved by the complex area superintendent during an appeal.

History

[Eff 9/1/82; am and ren § 8-19-6, 5/23/86; am and comp 7/19/93; comp 5/19/97; comp 2/22/01; am and comp 9/10/09] (Auth: HRS § 302A-1112) (Imp: HRS § 302A-1112)

Haw. Code R. § 8-19-7.1 Investigation

(a) Immediately after making a crisis removal or whenever the principal or designee has reason to believe that a student has engaged in an activity warranting the imposition of a suspension, the principal or designee shall initiate a thorough investigation. Complaints of discrimination, harassment (including sexual harassment), bullying and/or retaliation are subject to the complaint and investigation provisions of section 8-19-30.

(b) When conducting an investigation, the principal or designee shall make a good faith effort at the earliest point possible to inform the parent about the school's investigation. If after making reasonable attempts, the principal or designee is unable to contact the parent, the school may engage in and complete the investigation. The investigation shall be completed as quickly as possible. If the principal or designee elects to initiate proceedings for the imposition of serious discipline other than crisis removal, the principal or designee upon completion of the investigation, shall make a written report containing a brief summary of the testimony of witnesses interviewed, any other evidence, and the principal or designee's reason(s) for the initiation of disciplinary proceedings.

(c) The principal or designee shall give to the parent notice of the findings against the student. If the student or parent denies the charge(s), the principal or designee shall indicate to the parent and the student the evidence to support the findings of the school official. The student or parent shall be given an opportunity to present the student's version of the incident.

History

[Eff and comp 9/10/09] (Auth: HRS § 302A-1112) (Imp: HRS § 302A-1112)

Haw. Code R. § 8-19-8 Suspension

(a) Whenever a principal or designee has reason to believe that a student has engaged in activity warranting the imposition of suspension, the principal or designee shall immediately conduct an investigation of the incident. Upon completion of the investigation and findings, the student may be suspended if the principal or designee finds that the findings are sustained. The principal or designee shall inform the parent in writing of the findings and the disciplinary actions.

(b) If the student or parent denies the charge(s), the principal or designee shall indicate to the student and parent what evidence school authorities have to support the findings of the school official. The student or parent, or both shall be given an opportunity to present the student's version of the incident. However, where the student is unable to understand the seriousness of the charges, the nature of the proceedings, and consequences thereof, or is of such age, intelligence or experience as to make meaningful discussion difficult, the principal or designee shall request that the parent be present to participate in the discussion.

(c) If the total number of days in any single semester for suspensions exceeds ten school days, the due process procedures of this chapter shall apply unless otherwise indicated by law.

(d) The parent shall be given verbal notice of any suspension regardless of its length. Prior notice for suspension shall be by telephone, if feasible, and the written notice personally delivered or mailed to the parent upon completion of the investigation. The suspension notice shall contain the following written statements:

(1) Allegations of the specific acts committed by the student that form the basis of the suspension;

(2) The allegations of the specific acts that were substantiated;

(3) A statement of the disciplinary action(s); and

(4) A statement of a conference date, time, and place offered by the school administration to meet with the parent.

A copy of the notice shall be mailed to the complex area superintendent. In addition to the notice required by this subsection, the principal shall attempt to confirm the notice by telephoning the parent.

History

[Eff 9/1/82; am and ren § 8-19-7, 5/23/86; am and comp 7/19/93; comp 5/19/97; am and comp 2/22/01; am and comp 9/10/09] (Auth: HRS § 302A-1112) (Imp: HRS § 302A-1112)

Haw. Code R. § 8-19-9 Due process for suspensions exceeding ten days, disciplinary transfer, and dismissal

(a) If, based upon the investigation, the principal or designee believes that a student engaged in an activity which constitutes a violation of this chapter, and if the principal or designee recommends that serious discipline other than crisis removal be imposed, the principal or designee shall immediately notify the complex area superintendent to initiate disciplinary proceedings by obtaining verbal authorization from the complex area superintendent.

(b) Upon obtaining verbal authorization from the complex area superintendent, the principal or the designee will make a good faith effort to inform the parent of:

(1) The serious discipline incident,

(2) The opportunity to appeal, and

(3) That the disciplinary action will be implemented immediately.

(c) Within three school days of the verbal authorization from the complex area superintendent, the principal or designee shall mail a written notice of the serious discipline incident with the appeal form to the parent. A facsimile signature of or an electronic approval confirmation of the complex area superintendent on the serious discipline incident form is sufficient. The written notice of serious discipline shall contain the following statements:

(1) Allegations of the specific acts committed by the student that form the basis of the serious discipline;

(2) The allegations of the specific acts that were substantiated;

(3) A statement of the disciplinary action(s); and

(4) A statement that the parent has a right to an appeal to the complex area superintendent at which time the parent may present evidence, call and cross-examine witnesses, and be represented by legal counsel and to the extent the parent provides a written notice of legal representation at least ten calendar days prior to the appeal.

(5) If the student or parent would like to file an appeal, the appeal must be submitted in writing and received by the complex area superintendent by the close of business of the seventh school day from the date of the issued serious discipline notice. The student shall be permitted to attend the school of the student pending the appeal unless the principal finds the continued presence of the student creates a substantial risk to self or others or to the rights of other students to pursue their education free from disruption. However, the student shall not participate in any extracurricular activities, including but are not limited to athletics, trips, or clubs.

(d) Upon receipt of a written request for an appeal, the complex area superintendent shall, within ten school days, schedule an appeal and shall inform the parent of the date, time, and place. Written notice of the appeal shall be mailed to the parent and principal or designee at least fifteen calendar days before the appeal. The appeal shall be conducted by the complex area superintendent or by an impartial department person, or an impartial designee, who may be an official of the department, designated by the complex area superintendent. The appeal shall be conducted as follows:

(1) The appeal shall be closed unless the student or parent requests that it be public;

(2) Parent and principal or designee have the right to present evidence, cross-examine witnesses, and submit rebuttal testimony;

(3) Parent and principal or designee may be represented by legal counsel;

(4) The complex area superintendent or the impartial department designee need not follow the formal rules of evidence;

(5) The complex area superintendent or the impartial department designee shall impartially weigh the evidence presented;

(6) A parent, at the parent's own expense, may record or obtain a copy of the department's tape recording, or transcript of the department's tape recording of the proceedings only if requested for purposes of court review. The complex area superintendent or the impartial department designee shall record a transcript or tape recording of the proceedings;

(7) The complex area superintendent shall no later than seven school days from the close of the appeal render a decision in writing stating clearly the action(s) to be taken and the bases for such actions. The written decision shall be mailed or personally delivered to the parent, the student's attorney of record, and a copy to the school. If the disciplinary action is upheld, the complex area superintendent shall indicate the total number of suspension days and within the suspension beginning and ending dates take into consideration the number of suspension days the student may have already senced.

(e) The parent may appeal the decision of the complex area superintendent by providing written notice of their appeal and a specific statement whether they are requesting a hearing to the superintendent of education or state level designee identifying the specific issues and arguments with supporting documents and evidence the individual is appealing. The written appeal shall be delivered to the superintendent of education or state level designee within seven school days of the date of the complex area superintendent's written decision. If no specific request is made for a hearing, the superintendent of education or state level designee shall render a decision based upon the entire record of the proceedings of the complex area superintendent and the parent submitted on the appeal. The superintendent of education or state level designee shall render a final written decision. The student shall be permitted to attend the school of the student pending the appeal unless the complex area superintendent finds that the continued presence of the student creates a substantial risk to self or others or to the rights of other students to pursue their education free from disruption. Where the student is to be excluded from school pending the appeal, the superintendent of education or state level designee shall render a decision within twenty-one calendar days of the date of the receipt of the appeal.

(f) Upon written receipt of an appeal, from the parent or the parent's legal counsel, the written decision of the complex area superintendent and all documents and recordings from the proceeding provided for in subsection (d) of this section shall be forwarded to the superintendent of education or state level designee within ten calendar days. The superintendent of education or state level designee shall examine the evidence and render a decision based on the disciplinary action within fourteen calendar days. The decision shall be personally delivered or mailed to the parent or attorney of record. In addition, the parent shall be informed of the right to submit written exceptions to the decision and to present argument to the superintendent of education or state level designee. In the event that a parent should file written exceptions for the length of time of a firearms dismissal or modification based upon a designee's decision, the written exception will be heard by the superintendent of education or the state level designee. Written exceptions and the request to present argument to the superintendent of education or state level designee must be received within five calendar days of the date of the decision rendered by the superintendent of education, designee or state level designee. A parent may submit written exceptions and waive the right to present argument; however, there will be no right to present argument without first submitting written exceptions. If the parent has timely submitted written exceptions and requests the right to present the argument, the superintendent of education or state level designee shall, within two school days of receiving the request to present argument, inform the parent of the specific date, time, and place to present their arguments. The date for presentation of argument shall be no less than five calendar days and no more than fourteen calendar days from the date of the notice informing the parent of the specific date, time, and place to present their arguments. The superintendent of education or state level designee shall mail a written decision to the parent or the attorney of record within fourteen calendar days of the date of the presentation of the argument or in the case where the parent has waived the parent's right to present argument, within fourteen calendar days of the receipt of the parent's written exceptions.

History

[Eff 9/1/82; am and ren § 8-19-8, 5/23/86; am and comp 7/19/93; am and comp 5/19/97; am and comp 2/22/01; am and comp 9/10/09] (Auth: HRS § 302A-1112) (Imp: HRS § 302A-1112)

Haw. Code R. § 8-19-10 Duration of disciplinary actions

(a) If the disciplinary action could not be imposed as result of the appeal process, the disciplinary action may be carried over to the next school year at any public school and does not include summer school.

(b) If the acts, which resulted in disciplinary action, was committed within twenty days from the last instructional day for students in the school year the disciplinary action may be carried over to the next school year at any public school and does not include summer school.

(c) This section shall not apply to firearm violations. Disciplinary action for firearm violations is a mandatory not less than one calendar year.

(d) Other than as described in subsections (a) and (b), no disciplinary action shall continue beyond the school year in which the action was committed.

History

[Eff 9/1/82; ren § 8-19-9, 5/23/86; comp 7/19/93; am and comp 5/19/97; comp 2/22/01; am and comp 9/10/09] (Auth: HRS § 302A-1112) (Imp: HRS §§ 302A-1112, 302A-1134)

Haw. Code R. § 8-19-11 Alternate educational activities and other assistance when students are found to be in violation of this chapter

(a) The complex area superintendent shall ensure that alternate educational activities or active participation of the public or private agencies are provided as appropriate for all students who are crisis removed for a period exceeding ten school days or suspended for a period exceeding ten school days.

(b) For all students who are suspended for one to ten school days, the principal or designee may consider providing alternate educational activities based on student's need.

History

[Eff 9/12/82; am and ren § 8-19-10, 5/23/86; comp 7/19/93; comp 5/19/97; comp 2/22/01; am and comp 9/10/09] (Auth: § 302A-1112) (Imp: HRS §§ 302A-1112, 302A-1128)

Subchapter 3 STUDENT MISCONDUCT AND DISCIPLINE DURING SUMMER SCHOOL

Haw. Code R. § 8-19-12 Disciplinary actions; authority

The summer school director or designee shall impose disciplinary action against any student attending summer school.

History

[Eff 5/23/86; comp 7/19/93; comp 5/19/97; comp 2/22/01; am and comp 9/10/09] (Auth: HRS § 302A-1112) (Imp: HRS § 302A-1112)

Haw. Code R. § 8-19-13 Prohibited student conduct; class offenses

(a) The following prohibited conduct applies to all students in summer school during summer school hours, on campus, or other department premises, on department transportation, or during a department sponsored activity or event on or off school property.

(1) Class A offenses:

(A) Assault;

(B) Bullying (for students in grades 9-12);

(D) Cyber bullying (for students in grades 9-12);

(E) Dangerous instrument, or substance; possession or use of;

(F) Dangerous weapons; possession, or use of;

(G) Drug paraphernalia; possession, use, or sale of;

(H) Extortion;

(I) Fighting;

(J) Firearms; possession or use of;

(K) Harassment (for students in grades 9-12);

(L) Homicide;

(M) Illicit drugs; possession, use, or sale of;

(N) Intoxicating substances; possession, use, or sale of;

(O) Property damage or vandalism;

(P) Robbery;

(Q) Sexual assault;

(R) Sexual exploitation;

(S) Sexual harassment (for students in grades 5-12);

(T) Stalking; or

(U) Terroristic threatening.

(2) Class B offenses:

(A) Bullying (for students in grades K-8);

(B) Cyberbullying (for students in grades K-8);

(D) Disorderly conduct;

(E) False salami;

(F) Forgery;

(G) Gambling;

(H) Harassment (for students in grades K-8);

(I) Hazing;

(J) Inappropriate or questionable uses, or both of internet materials or equipment, or both;

(K) Retaliation;

(L) Sexual harassment (for students in grades K-4);

(M) Theft; or

(N) Trespassing.

(3) Class C offenses:

(A) Abusive language;

(B) Class cutting;

(D) Laser pen/laser pointer; possession or use of;

(E) Leaving campus without consent;

(F) Smoking or use of tobacco substances; or

(G) Truancy.

(4) Class D offenses:

(A) Contraband; possession or use of;

(B) Minor problem behaviors; or

(b) Class C and D offenses: A summer school student who commits two of any class C or D offense as defined in section 8-19-6 in the course of summer school shall receive a warning for the first offense and may be released from summer school for the second offense.

(c) Any student who commits a class A or class B offense shall be dismissed from summer school. The summer school director or designee shall notify and meet with the student and parent prior to dismissal from summer school. The summer school director shall file a report with the complex area superintendent and shall provide a copy to the parent.

(d) A summer school director or designee, in an emergency, may impose a crisis removal of a student immediately after finding that the student's conduct presents an immediate clear threat to the physical safety of self or others or is so extremely disipative as to make the student's immediate removal necessary to preserve the right of other students to pursue an education free from undue disruption. The summer school director or designee shall inform and meet with the student and parent prior to the student's reinstatement in summer school. No student shall be reinstated without the meeting. The summer school director or designee shall file a report with the complex area superintendent and shall provide a copy to the parent.

History

[Eff 5/23/86; am and comp 7/19/93; comp 5/19/97; comp 2/22/01; am and comp 9/10/09] (Auth: HRS § 302A-1112) (Imp: HRS § 302A-1112)

Subchapter 4 SCHOOL SEARCHES AND SEIZURES

Haw. Code R. § 8-19-14 Policy on opening and inspection of student lockers

School lockers provided to the students on campus are subject to opening and inspection (and external dog sniffs) by school officials at any time with or without cause, provided that the searches are not because of the student's race, color, national origin, ancestry, sex, gender identity and expression, religion, disability, or sexual orientation. Section 8-19-15 shall have no applicability to the opening and inspection (and external dog sniffs) of student lockers. None of the restrictions in sections 8-19-15 through 8-19-18 or related to general school searches and seizures shall in any way be construed to create an expectation of privacy in student lockers. Students should assume that their lockers are subject to opening and inspection (and external dog sniffs) any time with or without cause.

History

[Eff 5/23/86; am and comp 7/19/93; comp 5/19/97; comp 2/22/01; am and comp 9/10/09] (Auth: HRS § 302A-1112) (Imp: Hawaii Const. Art. X, § 3; HRS §§ 302A-1101, 302A-1112)

Haw. Code R. § 8-19-15 Policy on general school searches and seizures

Except as provided in section 8-19-14 regarding student lockers, students have a reasonable expectation of privacy in their persons on campus, or other department premises, on department transportation, or during a department sponsored activity or event on or off school property. Schools have an equally legitimate need to maintain order and an environment where learning can take place. In fulfilling this legitimate need, school officials may on occasions need to carry out searches and seizures on campus, or other department premises, on department transportation, or during a department sponsored activity or event on or off school property. As a general policy, except as provided in section 8-19-14 regarding student lockers, the searches and seizures are permissible if there are reasonable grounds to suspect, based on the attendant circumstances that the search will turn up evidence that the student or students have violated or are violating either the law or the student conduct prohibited under this chapter. Searches and seizures conducted by school officials shall abide by the provisions of this subchapter.

History

[Eff 5/23/86; comp 7/19/93; comp 5/19/97; comp 2/22/01; am and com 9/10/09] (Auth: HRS § 302A-1112) (Imp: Hawaii Const. Art. X, § 3; HRS §§ 302A-1101, 302A-1112)

Haw. Code R. § 8-19-16 Authority

Except as provided in section 8-19-14 regarding student lockers, property may be searched if there are reasonable grounds to suspect, based on the attendant circumstances that the search will turn up evidence that student or students, or others on campus, or other department premises, on department transportation, or during a department sponsored activity or event on or off school property have violated the law or the provisions of this chapter. A school official conducting a search shall be accompanied by another school official serving as a witness, unless it is an emergency where prompt action is necessary to protect the health or safety, or both of any person or persons.

History

[Eff 5/23/86; am and comp § 8-19-167 /19/93; comp 5/19/97; comp 2/22/01; am and comp 9/10/09] (Auth: HRS § 302A-1112) (Imp: Hawaii Const. Art. X, § 3; HRS §§ 302A-1101, 302A-1112)

Haw. Code R. § 8-19-17 Conditions under which general school searches and seizures may be carried out

(a) Except as provided in section 8-19-14 regarding student lockers searches and seizures may be carried out by school officials when all of the following conditions are met:

(1) If at the time of the search, there are reasonable grounds to suspect based on the attendant circumstances that the search will turn up evidence that the student or students have violated the law or provisions prohibited under this chapter.

(2) The manner in which the search is to be conducted is reasonably related to the purpose of the search.

(3) The student who will be subjected to a search shall be informed of the purpose of the search and shall be given an opportunity to voluntarily relinquish the evidence sought by the school official.

(b) The principal or designee of the school shall be informed by the school official who will conduct the search that a search is to be conducted and of the purpose of the search unless it is an emergency where immediate action is necessary to protect the health or safety, or both of a person or persons.

(c) If more than one student is suspected of committing a violation, then, if practical and not a risk to health or safety, the school official conducting the search shall start with the student most suspected of having the item sought in the search.

History

[Eff 5/23/86; am and comp 7/19/93; am and comp 5/19/97; comp 2/22/01; am and comp 9/10/09] (Auth: HRS §§ 302A-1112, 703-309(2)) (Imp: Hawaii Const. Art. X, § 3, HRS §§ 302A-1101, 302A-1112, 703-309(2))

Haw. Code R. § 8-19-18 Prohibited searches and seizures

Except as provided in section 8-19-14 regarding student lockers:

(1) Random searches are prohibited.

(2) Strip searches are prohibited.

(3) A school official shall not conduct a search requiring bodily contact of a student except when such a search is necessary to prevent harm to the health or safety, or both of a person or persons.

(4) In the course of a search, the use of force against a student is prohibited unless the school official believes that the force to be used is necessary to prevent harm to the health or safety, or both of a person or persons or where the student physically resists the search.

(5) A search conducted under the provisions of this subchapter shall be limited to the object or objects for which the search was conducted. However, any other object observed during a search may be seized by a school official when possession of the object is a violation of law or the provisions of this chapter, or when non-seizure may pose a threat to the health or safety, or both of a person or persons, including the school official conducting the search.

History

[Eff 5/23/86; comp 7/19/93; comp 5/19/97; comp 2/22/01; am and comp 9/10/09] (Auth: HRS § 302A-1112) (Imp: Hawaii Const. Art. X, § 3; HRS §§ 302A-1101, 302A-1112)

Subchapter 5 REPORTING OFFENSES

Haw. Code R. § 8-19-19 Reporting class A and class B offenses occurring in school

(a) Any teacher, official, or other employee of the department who is a witness to a class A or class B offense as defined in this chapter, or who has reasonable cause to believe that a class A or class B offense has been committed or will be committed, against a student, teacher, official, or other employee of the department, or involving school property, shall promptly report the incident to the principal or designee. Nothing in this subsection shall be construed to prohibit or prevent a teacher, official, or other employee of the department from reporting class C or class D offenses to the principal or designee.

(b) Upon receiving a class A or class B offense report, the principal or designee shall conduct an investigation to determine whether the behavior requires a direct call to the police or whether the behavior can be handled through school disciplinary procedures. The principal or designee shall call the police whenever there is perceived danger and the behavior cannot be handled by the school staff.

(c) The principal or designee shall record the incident information into the department's electronic database system within five school days of the reported offense.

(d) The principal or designee shall notify the reporting teacher, official, or other employee, of the disciplinary action, if any, taken on the class offense(s) within five school days after the incident is reported in accordance with subsection (c).

History

[Eff 9/1/82; am and ren § 8-19-11, 5/23/86; am and comp 7/19/93; comp 5/19/97; comp 2/22/01; am and comp 9/10/09] (Auth: HRS §§ 302A-1112, 302A-1002) (Imp: HRS §§ 302A-1112, 302A-1002)

Haw. Code R. § 8-19-20 Indemnity upon reporting offenses

Any teacher, official, or other employee of the department who in good faith reports as required under § 8-19-19 shall be indemnified and held harmless in accordance with section 302A-1003, Hawaii Revised Statutes.

History

[Eff 9/1/82; am and ren § 8-19-12, 5/23/86; am and comp 7/19/93; comp 5/19/97; comp 2/22/01; am and comp 9/10/09] (Auth: HRS §§ 302A-1112, 302A-1003) (Imp: HRS §§ 302A-1112, 302A-1003)

Haw. Code R. § 8-19-21 Failure to report class A or class B offenses occurring in school; consequences

(a) The superintendent of education shall furnish an annual written notice to all schools and offices that failure to report class A or class B offenses occurring on campus, or other department premises, on department transportation, or during a department sponsored activity or event on or off school property may result in disciplinary actions against responsible teachers, officials, or other employees of the department. Disciplinary actions may include:

(1) Oral warning;

(2) Written warning;

(3) Suspension without pay;

(4) Demotion; or

(5) Dismissal.

(b) Teachers, officials, or other employees of the department who fail to report offenses as required by section 8-19-19 may be disciplined in accordance with the regulations and procedures of the department.

(c) Any teacher, official, or other employee of the department who is disciplined for failure to report class A or class B offenses occurring on campus, or other department premises, on department transportation, or during a department sponsored event on or off property shall have the right to appeal the disciplinary action as provided by state law or the regulations and procedures of the department or applicable collective bargaining agreements.

History

[Eff 9/1/82; am and ren § 8-19-13, 5/23/86; am and comp 7/19/93; comp 5/19/97; comp 2/22/01; am and comp 9/10/09] (Auth: HRS §§ 302A-1112, 302A-1002) (Imp: HRS §§ 302A-1112, 302A-1002)

Subchapter 6 POLICE INTERVIEWS AND ARRESTS

Haw. Code R. § 8-19-22 Police interviews in school for school-related offenses

(a) Police officers may appear at a school to question a student. Upon arrival at the school, the police officer shall be directed to the principal or designee to request permission to interview a student. If permission to interview a student is to be granted, the principal or designee shall make an effort to inform the parent of the police interview and the right to be present when the interview is conducted. The interview may be conducted if the principal or designee is unable to inform the parent or if the parent is informed and declines to be present, or if after a reasonable period of time after the notice is given the parent fails to appear at school for the police interview.

(b) The principal or designee shall be present during a police interview unless excluded by the police officer.

History

[Eff 9/1/82; am and ren § 8-19-14, 5/23/86; am and comp 7/19/93; comp 5/19/97; comp 2/22/01; am and comp 9/10/09] (Auth: HRS § 302A-1112) (Imp: Hawaii Const. Art. X, § 3; HRS §§ 302A-1101, 302A-1112)

Haw. Code R. § 8-19-23 Police interviews in school for non-school-related offenses

(a) Police officers shall contact the school and advise the principal or designee of the nature and circumstances of the visit. Upon arrival at the school, the police officer shall be directed to the principal or designee to request permission to interview a student.

(b) Prior to any interview, the principal or designee shall inform the parent of the right to be present while the police interview is conducted. The interview can take place upon obtaining verbal consent from the parent. The notification and consent requirements of this subsection shall not be followed if the nature of the interview involves child abuse or other offenses where a parent or household member is suspected of committing an offense against the student.

(c) The principal or designee shall keep a log and record the student's name, the date of the police interview, and the police officer's name and badge number and police report number if available.

(d) If the student is arrested by the police, the principal or designee shall follow the procedure prescribed in section 8-19-24.

History

[Eff 9/1/82; am and ren § 8-19-15, 5/23/86; am and comp 7/19/93; am and comp 5/19/97; comp 2/22/01; am and comp 9/10/09] (Auth: HRS § 302A-1112) (Imp: Hawaii Const. Art. X, § 3; HRS §§ 302A-1101, 302A-1112)

Haw. Code R. § 8-19-24 Police arrests in school

Police shall be directed to the principal or designee. Whenever possible the student shall be sent to the principal's office for the police officer to effect the pending arrest. Upon police arrival to arrest a student, the principal or designee shall make a good faith effort to inform the parent.

History

[Eff 9/1/82; am and ren § 8-19-16, 5/23/86; am and comp 7/19/93; comp 5/19/97; comp 2/22/01; am and comp 9/10/09] (Auth: HRS 302A-1112) (Imp: Hawaii Const. Art. X, § 3; HRS §§ 302A-1101, 302A-1112)

Subchapter 7 RESTITUTION FOR VANDALISM

Haw. Code R. § 8-19-25 Liability for vandalism

(a) When any student is found to be responsible for an act of vandalism against any public school building, facility, or ground, restitution shall be made by the student or parent. There shall be no restitution when vandalism cannot be proved to have been committed by the student.

(b) Notwithstanding the provisions of this chapter, the State may elect to bring any appropriate action for the recovery of damages to school properties.

(c) If a student is to be disciplined for an act of vandalism under this chapter, restitution procedures shall be initiated only after the disciplinary procedures of this chapter have been completed and the principal or designee conducting the investigation has reason to believe that the student has violated the provisions of this chapter.

History

[Eff 5/23/86; comp 7/19/93; comp 5/19/97; comp 2/22/01; am and comp 9/10/09] (Auth: HRS § 302A-1112) (Imp: HRS §§ 302A-1112, 302A-1153)

Haw. Code R. § 8-19-26 Procedures applicable to vandalism

(a) Whenever a principal or designee has reason to believe that a student may be responsible for an act of vandalism against any public school building, facility or ground, the principal or designee shall immediately initiate an investigation.

(b) If the vandalism is an act which subjects the student to disciplinary action under this chapter, the principal or designee shall include as part of the investigation required under sections 8-19-7, 8-19-8, 8-19-9, and 8-19-10, a determination of the facts and circumstances that support restitution under this subchapter. Further action related to restitution shall be held in abeyance until disciplinary action has been determined and appeal procedures have been exhausted.

(c) If after the investigation, the principal or designee has reason to believe that a student is responsible for the vandalism, the principal or designee shall schedule a conference with the student and parent. Attendance at the conference shall be limited to the principal or designee, student, and parent.

(d) Advance written notice of the conference shall be made on departmental forms, which shall be delivered by mail to the parent. No student or parent shall be required to make restitution in any manner unless the parent has been notified and has been given an opportunity to be heard. The notice shall inform the parent of the findings and the date, time, and location of the conference. The notice shall be mailed at least fifteen calendar days before the date of the conference. When necessary to achieve effective communication the notice shall be provided in the native language of the parent. The school may use other means of communication, such as the telephone, to augment the written communication between the school and the parent.

(1) The parent shall respond to the notice within seven calendar days from the date of the notice.

(2) The conference date provided for in the notice may be rescheduled if the parent of the student contacts the school to arrange for a new conference date. The request to reschedule the conference shall be made within seven calendar days of the date of the notice.

(3) The conference and an informal settlement may be agreed upon in cases where damages do not exceed $3,500. If a settlement is reached, a written agreement for restitution shall be executed between the parent and school. A written agreement shall be executed only if the damages do not exceed $3,500.

(e) If a parent fails to respond to the notice within the time limit, the principal or designee may:

(1) Reschedule the conference date if the principal or designee determines that the failure to respond was for good cause or if it is In the best interest of the school or student; or

(2) Inform the parent in writing that a notice was given for an opportunity to be heard at a conference with the principal or designee, and because of the failure to respond to the notice, the matter shall be referred to the complex area superintendent by the principal or designee for further action.

(f) The conference shall be conducted in the following manner:

(1) The parties present at the conference shall be the principal or designee, student, and parent. Except for the principal or designee of the school in which the vandalism occurred, the student, and the parent, no other person shall be permitted to be present at the conference for any reason.

(2) At the conference, the principal or designee of the school in which the vandalism occurred shall present the findings of the investigation and the restitution requirements.

(3) If the student and the parent agree with the amount and manner in which restitution is to be made, the principal or designee, the student and the parent shall execute a written agreement on departmental forms which shall specify the manner in which restitution is to be made and the time period within which the restitution shall be completed, provided that the damages do not exceed $3,500. Restitution may be made in any manner, including monetary restitution by the student and parent. If damages exceed $3,500, the matter shall be referred to the complex area superintendent who shall refer the matter to the attorney general for further action.

(4) When the restitution is completed, all records and documents regarding the investigation and conference shall be maintained at the school for three years. No information about the investigation, conference and the actions taken shall be communicated to any person not directly involved in the proceedings.

(5) If a written agreement is executed and the parent or student fails to comply with the terms of the agreement, the principal or designee may forward the matter to the complex area superintendent. The complex area superintendent shall review the matter and take appropriate action, which may include referral to the attorney general for further action.

(6) If the student and the parent do not agree with the findings made by the principal or designee, the principal or designee shall transmit all the records and documents regarding the investigation and conference, and shall report the findings and circumstances of the matter to the complex area superintendent who shall review the matter and take appropriate action which may include referral of the matter to the attorney general for further action. If damages exceed $3,500, the matter shall be referred to the attorney general for further action.

History

[Eff 5/23/86; am and comp 7/19/93; comp 5/19/97; comp 2/22/01; am and comp 9/10/09] (Auth: HRS § 302A-1112) (Imp: HRS §§ 302A-1112, 302A-1153)

Haw. Code R. § 8-19-27 REPEALED

History

R 2/22/01
The repealed version of this section by Hawaii Administrative Rules Listing of Filings, 2019-01, November, eff. 11/17/2019 is not yet available.

Haw. Code R. § 8-19-28 REPEALED

History

R 2/22/01
The repealed version of this section by Hawaii Administrative Rules Listing of Filings, 2019-01, November, eff. 11/17/2019 is not yet available.

Haw. Code R. § 8-19-29 REPEALED

History

R 2/22/01
The repealed version of this section by Hawaii Administrative Rules Listing of Filings, 2019-01, November, eff. 11/17/2019 is not yet available.

Subchapter 8 COMPLAINTS PROCEDURE AND INVESTIGATION OF DISCRIMINATION, HARASSMENT (INCLUDING SEXUAL HARASSMENT), BULLYING AND/OR RETALIATION

Haw. Code R. § 8-19-30 Complaint procedure

(a) The department will take immediate and appropriate steps to stop any discrimination, harassment (including sexual harassment), or bullying against a student, including those based on a protected class as defined in section 8-19-2, to prevent its recurrence and to remedy discriminatory effects on the complainant/victim or others, if appropriate.

(b) Complaints regarding inappropriate behavior or stemming from allegations that fall under this chapter may be filed at any time by:

(1) Students who experience discrimination, harassment (including sexual harassment), bullying, or retaliation;

(2) Students who witness discrimination, harassment (including sexual harassment), bullying, or retaliation against another student;

(3) Parents, legal guardians, educational representatives, or individuals with a power of attorney who know about or witness discrimination, harassment (Including sexual harassment), bullying, or retaliation against a student; or

(4) Employees, staff, or volunteers who witness or know about discrimination, harassment (including sexual harassment), bullying, or retaliation against a student.

(c) Complaints alleging violations of this chapter may be made using the Department of Education Hawaii Administrative Rules Title 8, Chapter 19 Complaint Form, and the complaint may be filed at any time. Individuals who do not have access to or prefer not to use the Department of Education Hawaii Administrative Rules Title 8, Chapter 19 Complaint Form may nonetheless make a complaint, either in writing or orally, by providing the following information:

(1) The name of the respondent or a sufficient description of the respondent so that an identity can be determined;

(2) The date(s) when the alleged discrimination, harassment (including sexual harassment), bullying, or retaliation allegedly occurred;

(3) A factual description of how the discrimination, harassment (including sexual harassment), bullying, or retaliation allegedly occurred and the protected basis of the complaint, if any;

(4) A description of the injury or harass, if any; and

(5) Attachments, if any, documenting the alleged conduct.

(d) Written complaints may be given to any teacher or staff, principal, vice-principal, complex area superintendent, or the Civil Rights Compliance Branch. Verbal complaints may be made either in person or over the phone to any teacher or staff, principal, vice-principal, complex area superintendent, or the Civil Rights Compliance Branch.

(e) The principal or designee or complex area superintendent, in consultation with the Civil Rights Compliance Branch, will assess the complaint to determine if the factual allegations allege actionable discrimination, harassment (including sexual harassment), bullying, or retaliation. Complaints that do not fall under the subchapter will be referred to the appropriate office or administrator for review.

(f) When a complaint is filed, the principal or designee will either:

(1) Immediately initiate an investigation pursuant to section 8-19-31; or

(2) If deemed appropriate, offer the parties an opportunity to resolve the complaint informally before any formal investigation process begins. This informal process will only be used if the parties voluntarily agree to participate. The parties are not required to resolve the complaint directly with each other. Once the informal process is initiated, either party has the right to end the informal process at any time, which will result in starting the formal investigative process.

Informal resolution is not appropriate in cases where:

(1) the allegation is serious enough that it appears to place the complainant/victim or any other person at physical risk;

(2) the incident has resulted in a criminal charge;

(3) the incident involves a referral to the police or Child Welfare Services;

(4) the complaint involves an allegation of severe, persistent or pervasive bullying or other serious form of discrimination;

(5) there is a pending investigation against the respondent;

(6) there is an objective and obvious power imbalance between the parties; or

(7) an investigation is otherwise appropriate under the circumstances. If informal resolution is not appropriate, or if the parties are unable to come to a resolution, an investigation will be initiated by the principal or designee in accordance with section 8-19-31.

(g) Both parties may make a request for immediate interventions to the principal, any vice principal, the complex area superintendent, or the Civil Rights Compliance Branch. The principal or designee may institute immediate interventions without a request, if they deem them appropriate. Immediate interventions will be considered by the principal or designee, in consultation with the Civil Rights Compliance Branch, and if it is determined that Immediate interventions are necessary, the principal or designee will implement the immediate interventions. The Civil Rights Compliance Branch will ensure that such immediate interventions are taken. Failure to comply with the terms of immediate interventions may be considered a separate violation, which may result in a separate investigation, findings, and determination.

History

[Eff 11/17/2019] (Auth: HRS § 302A-1112) (lmp: HRS §§ 302A-1101, 302A-1112; 5 U.S.C. § 301, 42 U.S.C. §2000d et seq., 34 C.F.R. § 100.9; 34 C.F.R. §101.11)

Haw. Code R. § 8-19-31 Investigation

(a) When a complaint is made, the principal or designee will assign an impartial school level investigator ("investigator") to conduct a thorough and impartial investigation. Once an investigation is initiated, the principal or designee shall make a good faith effort at the earliest point possible to inform the parents about the investigation. If after making reasonable attempts, the principal or designee is unable to contact the parent, the investigator may engage in and complete the investigation.

The complainant/victim and respondent will be allowed to provide the names of witnesses who they believe have information relevant to the complaint and provide evidence that they believe is relevant to the complaint.

(b) Once the investigator has obtained the necessary relevant information and documents, the investigator will analyze and document the available evidence, objectively evaluate the credibility of parties and witnesses, synthesize all available evidence, including inculpatory and exculpatory evidence, and take into account the unique and complex circumstances of each case. Once that is complete, the investigator will prepare findings of fact and make a determination on any appropriate action that needs to be taken to end any discrimination, harassment, bullying, or retaliation and prevent its recurrence and remedy its effects on the complainant/victim and the department community. The investigator will forward their findings to the principal or designee, who will determine whether the facts constitute prohibited student conduct under either section 8-19-6(a) or 8-19-13(a). Any disciplinary actions taken will be subject to the provisions of sections 8-19-5 through 8-19-13, as applicable, including the right to appeal.

(c) At the conclusion of the investigation, the principal or designee, in consultation with the Civil Rights Compliance Branch, shall determine whether any remedies will be provided to any individual involved in the investigation. If it is determined that remedies will be provided, the principal or designee will implement the remedies. The complainant/victim will be provided written notification of whether the allegations have been substantiated, the outcome of the investigation, any remedies provided, and any other actions taken by the department that directly relate to the complainant/victim. The respondent will be provided written notification of whether the allegations have been substantiated, the outcome of the investigation, any remedies provided, and any other actions taken by the department that directly relate to the respondent.

(d) The investigator will seek to complete the investigation within five school days from the date the investigator was assigned the matter. If the investigation takes longer than five days, the investigator will notify the parties in writing of the delay, provide reasons for the delay, and the length of additional time needed to complete the investigation.

History

[Eff 11/17/2019] (Auth: HRS § 302A-1112) (Imp: HRS §§ 302A-1101, 302A-1112; 5 U.S.C. § 301, 42 U.S.C. §2000d et seq., 34 C.F.R. § 100.9; 34 C.F.R. §101.11)

Haw. Code R. § 8-19-32 Continued investigation

The department will investigate allegations of violations of this subchapter even absent a filing of a formal complaint or if a complaint has been withdrawn.

History

[Eff 11/17/2019] (Auth: HRS § 302A-1112)

Haw. Code R. § 8-19-33 Language assistance, writing assistance, or reasonable accommodation

Any individual making a complaint or participating in an investigation that requires language assistance or writing assistance shall be afforded such assistance by the department. Any individuals with disabilities who require reasonable accommodation(s) to make a complaint or participate in an investigation shall be afforded such assistance by the department.

History

[Eff 11/17/2019] (Auth: HRS § 302A-1112)

Haw. Code R. § 8-19-34 Retaliation prohibited

Retaliation and retaliatory harassment is prohibited against any person because the person engaged in a protected activity.

History

[Eff 11/17/2019] (Auth: HRS § 302A-1112)

Haw. Code R. § 8-19-35 Right to seek other relief

Nothing in this chapter shall be construed to limit or waive the right of the complainant/victim to seek other relief as provided under federal and state laws. A complainant/victim has the right to file a discrimination complaint with the federal or state government, including law enforcement agencies:

(1) Without filing a complaint under this chapter;

(2) At the same time a complaint is filed or an incident is reported under this chapter;

(3) At any time during the pendency of a complaint filed or an incident reported under this chapter; or

(4) After a complaint filed or incident reported under this chapter has been addressed. [Eff NOV 17 2019] (Auth: HRS § 302A-1112)

2. Material, except source notes and other notes, to be repealed is bracketed and stricken. New material is underscored.

3. Additions to update source notes and other notes to reflect these amendments and compilation are not underscored.

4. These amendments to and compilation of chapter 8-19, Hawaii Administrative Rules, shall take effect ten days after filing with the office of the Lieutenant Governor.

History

[Eff 11/17/2019] (Auth: HRS § 302A-1112)

Chapter 27 TRANSPORTATION OF STUDENTS

Haw. Code R. § 8-27-1 Statement of purpose

The purpose of this chapter is to facilitate compliance with the State compulsory attendance law, and to comply with section 302A-406, Hawaii Revised Statutes, and Federal law relating to the provision for a free appropriate public education specifically the provision of transportation services to students with disabilities and to provide access to equal educational opportunity without undue transportation hardships.

History

[Eff 3/3/84; comp 9/5/95; am and comp 3/29/03] (Auth: HRS § 302A-1112) (Imp: Hawaii Const. Art. X, § 3; HRS §§ 302A-1101, 302A-1112, 302A-1132, 302A-406; P.L. 107-110)

Haw. Code R. § 8-27-2 Definitions

As used in this chapter, unless the context indicates otherwise:

"A mile or more" or any other terra of distance shall be measured by the shortest walking distance between the closest public access to the student's residence to the closest accessible area of the school or the student's bus stop, as measured by the department.

"Assistant superintendent" means the assistant superintendent of the office of facilities and operations.

"A student with physical and/or health problems" means a student with a temporary (ten or more school days) condition who, because of the condition, is unable to walk to school as determined by the department;

"Board" means the board of education.

"Bus pass" means a current pass used by all bus riders when riding the school bus.

"Charter school" means a public school holding a charter to operate as a charter school under chapter 302D, Hawaii Revised Statutes, including start-up and conversion charter schools, that have the flexibility to implement alternative frameworks with regard to curriculum, facilities management, instructional approach, length of the school day, week, or year, and personnel management,

"Curb-to-curb transportation" means transportation services provided to students who are not able to utilize regular modes of transportation whose pick-up shall be from the closest public access to the student's residence.

"Department" means the department of education.

"Elementary" means grades kindergarten through 5.

"Family" means a unit living together under one roof including the father, mother, brothers, or sisters, adopted siblings, either legally or by custom, and the grandparents of the student.

''Fare" means the amount the student pays to ride the school bus each way between home and school.

"Geographic exception" has the same meaning as defined in section 8-13-2.

"Homeless" means a student who is eligible under the "McKinney-Vento Homeless Education Assistance Improvements Act of 2001".

"Home school" has the same meaning as defined in section 8-13-2.

"Individualized Education Program" or "lEP" 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.

"Mileage transportation reimbursement" means payment which may be made by the department to reimburse parents, guardians, or designees for mileage costs of providing transportation for students who qualify for fixed route transportation or to parents, guardians, or designees of students with disabilities who are eligible for transportation as a related service.

"Public school attendance area" means the area encompassed by boundaries established by the department within which the public school is situated, and is the designated school that students residing in that area must attend.

"Redistricting" means a redefining of a school attendance area.

"Related service" or "related aids and service" means transportation and such developmental, corrective, and other supportive services as are required to assist a child with a disability to benefit from special education and the general education curriculum.

"School of origin" means the school that a student eligible under the "McKinney-Vento Homeless Education Assistance Improvements Act of 2001" was attending when permanently housed, or the school in which a student eligible under the McKinney-Vento Homeless Education Assistance Improvements Act of 2001" was last enrolled.

"Secondary" means grades 6 through 12.

"Section 504 " means Section 504 of the Rehabilitation Act of 1973, as amended. [Eff 08/20/09] (Auth: HRS § 302A-1112) (Imp: HRS § 302A-1112)

"Student" means any student who is attending public school classes in grades kindergarten to twelve, operated by the department.

"Student with a disability" has the same definition as "student with a disability" under § 8-60-2.

"Subsidy" means a sum of money granted by the department to assist parents and guardians with the student fare portion of the price of home-school-home transportation services.

History

[Eff 3/3/84; comp 9/5/95; am and comp 3/29/03; am and comp 6/15/09] (Auth: HRS § 302A-1112) (Imp: Hawaii Const. Art. X, § 3; HRS §§ 302A-1101, 302A-1112, 302A-406; P.L. 107-110)

Haw. Code R. § 8-27-3 Fare

(a) The fare is $125 per ride The State shall pay for any cost in excess of the student fare The department may increase or decrease the fare, through rulemaking, provided the fare does not exceed 50% of the cost to provide transportation services (not including the cost of curb-to-curb, mid-day, and after-school transportation services for students with disabilities), rounded to the nearest 5 cents.

(b) When fares are pre-paid, the fare for a period greater than a school academic quarter shall be the number of trips for the period multiplied by the fare less five percent of the cost. The department may provide reimbursement to schools for the cost to schools of the school bus program. Funds to provide reimbursement to schools shall come from collection of fares.

History

[Eff 3/3/84; am and comp 9/5/95; am and comp 3/29/03; am and comp 6/15/09] (Auth: HRS § 302A-1112) (Imp: Hawaii Const. Art. X, § 3; HRS §§ 302A-1101, 302A-1112, 302A-406)

Haw. Code R. § 8-27-4 Limitations

(a) This chapter is conditioned upon the amount of funds made available to the department to provide transportation to students.

(b) Transportation shall be limited to transportation of students from the home to school and return. Transportation from home to school and return shall be from a designated school bus stop unless curb-to-curb transportation services, travel to and from school and between schools, travel in and around school buildings, and specialized equipment (such as special or adapted buses, lifts, and ramps), are required to provide special transportation for a student with a disability pursuant to a student's lEP or Section 504.

(c) When transportation other than to and from school and a location other than a student's home is requested, it shall be referred to the department. The department may provide transportation if there are no additional costs involved.

(d) The transportation may be provided to students during the school year, as determined by the department.

(e) Any elementary student capable of walking may be required to walk or provide the student's own transportation to and from school or to and from a bus stop located more than one mile from the nearest public access to the student's residence. Any secondary student capable of walking may be required to walk or provide the student's own transportation to and from school or to and from a bus stop located more than 1.5 miles from the nearest public access to the student's residence.

(f) Elementary students who are required by the department to attend a school out of their public school attendance area shall not be eligible for transportation if their school is less than one mile from their residence and provided that they are capable of walking. Secondary students who are required by the department to attend a school out of their public school attendance area shall not be eligible for transportation if their school is less than 1.5 miles from their residence and provided that they are capable of walking.

(g) Students who attend charter schools, learning centers, or schools outside of their public school attendance area, as determined by the students' legal residence, shall not be eligible for transportation or transportation subsidy. This subsection does not apply to:

(1) Students with disabilities who attend a public school, which includes charter schools, if transportation is required as a related service pursuant to the students lEP or Section 504;

(2) Students with disabilities who are programmatically placed by the IBP team at a public school, which includes charter schools, private school, or facility outside of the student's home school attendance area, as determined by the student's legal residence, if transportation is required as a related service pursuant to the student's lEP or Section 504; and

(3) Students who are homeless and are attending their school of origin based upon a feasibility determination made by a school administrator, or are awaiting the outcome of the department's dispute resolution process for McKinney-Vento eligible students.

History

[Eff 3/3/84; comp 9/5/95; am and comp 3/29/03; am and comp 6/15/09] (Auth: HRS § 302A-1112) (Imp: Hawaii Const. Art. X, § 3; HRS §§ 302A-1101, 302A-1112, 302A-406, HAR chapter 8-13; P.L. 107-110)

Haw. Code R. § 8-27-5 Eligibility

(a) fare free riders shall include:

(1) Students who receive transportation under the provisions of Hawaii administrative rules for students with disabilities;

(2) Students who have been identified on their application for transportation services as homeless;

(3) Students who have been identified on their application for transportation services as a foster child. The foster parent shall provide a copy of a family court order or a letter from a case worker on official department of human services letterhead for verification purposes; or

(4) Elementary students who reside a mile or more from school, and secondary students who reside 1.5 miles or more from school, attend the school in their public school attendance area, and are:

(A) A member of a family receiving financial assistance pursuant to department of human services administrative rules; or

(B) A member of a family which meets current income poverty guidelines of the United States Department of Agriculture criteria to receive free school lunch, or for schools that participate in the federal Community Eligibility Provision program or other program that provides all students with free lunch regardless of each individual family's income, a family which has been certified eligible by the department of human services to participate in the Supplemental Nutrition Assistance Program;

(D) Transferred to another school because of a grade transfer from one school to another, but the student shall receive transportation only for the time that the student would have been in the grade which was transferred;

(E) Transferred to another school because the school was consolidated, but the student shall receive transportation only for the remaining number of years that the student would have been in attendance at the school which was consolidated;

(F) Required by the department to attend a school other than the school in the student's public school attendance area; or

(G) Directed by the district to attend another school because the student's public school attendance area was redefined (redistricted), but the student shall be eligible to receive fare free transportation for only the time the student would have been attending the school that was redistricted.

(b) Fare riders shall include:

(1) Elementary students who reside a mile or more from school, and secondary students who reside 1.5 miles or more from school in their public school attendance area; or

(2) Elementary students not eligible for transportation because they reside less than one mile from school or are on geographic exception and secondary students not eligible for transportation because they reside less than 1.5 miles from school or are on geographic exception; provided there are unused seats on the bus and accommodation will not result in additional cost to the State as determined by the department.

(c) A mileage transportation reimbursement may be made available to parents, guardians, or designees at the Internal Revenue Service's (IRS) standard mileage reimbursement rate for Hawaii used in computing the value of business use of an automobile. Future increases or decreases in the mileage reimbursement amount shall be effective the first day of January after an IRS rate change. Procedures relating to mileage transportation reimbursement have been developed by the department.

History

[Eff 3/3/84; am and comp 9/5/95; am and comp 3/29/03; am and comp 6/15/09] (Auth: HRS § 302A-1112) (Imp: Hawaii Const. Art. X, § 3; HRS §§ 302A-1101, 302A-1112, 302A-406, HAR § 8-37-4; P.L. 107-110)

Haw. Code R. § 8-27-6 Application procedures

Any parent, legal guardian, or adult person with whom the student resides, or any student eighteen years or older may apply for transportation in accordance with the following procedures;

(1) Application forms for transportation shall be available from the bus company or the school the student attends. The application must be completed and returned to the student's school;

(2) Application for alternate drop off and/or pick up to or from locations other than the student's home under section 8-27-4 (b) shall be communicated to the school by the parent, guardian, or person authorized by a student's lEP or Section 504. The school shall, under procedures established by the department, initiate the process to request such transportation; and

(3) Application for elementary students who reside less than one mile from school, secondary students who reside less than 1.5 miles from school, students with physical and/or health problems, or students who are on geographic exception under section 8-27-5(b)(2) shall be made by submitting a written request to the school the student attends.

History

[Eff 3/3/84; comp 9/5/95; am and comp 3/29/03; am and comp 6/15/09] (Auth: HRS § 302A-1112) (Imp: Hawaii Const. Art. X, § 3; HRS §§ 302A-1101, 302A-1112, 302A-406)

Haw. Code R. § 8-27-7 Curb-to-curb transportation procedures

Students and parents or guardians who do not comply with the procedures in this section may be denied transportation. For students receiving curb-to-curb transportation, parents or guardians shall;

(1) Provide emergency information pertaining to the safety of the child prior to receiving transportation;

(2) Provide supervision or designate a responsible alternate to provide supervision during the time the bus arrives to pick up and drop off the child. Any exception to this requirement shall be made only with the written consent of the principal; and

(3) Observe procedures relating to student absences, disaster, illness, and carrying of articles on the bus.

History

[Eff 3/3/84; comp 9/5/95; am and comp 3/29/03; am and comp 6/15/09] (Auth: HRS § 302A-1112) (Imp: Hawaii Const. Art. X, § 3; HRS §§ 302A-1101, 302A-1112, 302A-406)

Haw. Code R. § 8-27-8 Exemption from the one-mile and 15-mile qualifying distances

(a) An exemption from the one-mile and 1.5-mile distances required under section 8-27-5 may be granted by the assistant superintendent on a year to year basis if an exemption is necessary for the health and safety of students if other options that will mitigate hazards are not available or are not cost effective,

(b) Applications for exemptions shall be submitted to the assistant superintendent and shall state the specific exemption requested, the reasons why the exemption should be granted, the duration of the exemption, and any other pertinent information.

(c) The assistant superintendent shall advise the applicant of the decision within thirty calendar days after receiving an application.

(d) Exemptions granted under this section shall terminate when the hazardous conditions are corrected or otherwise cease to exist.

History

[Eff 3/3/84; comp 9/5/95; am and comp 3/29/03; am and comp 6/15/09] (Auth: HRS § 302A-1112) (Imp: Hawaii Const. Art. X, § 3; HRS §§ 302A-1101, 302A-1112, 302A-406)

Haw. Code R. § 8-27-9 Transportation as "related service" or "related aids and service"

Students with disabilities who attend a public school, which includes charter schools, or are programmatically placed by the lEP team at a public school, which includes charter schools, private school, or facility outside of the student's home school attendance area as determined by the student's legal residence and require transportation as a related service shall be provided transportation in accordance with the student's lEP or Section 504. Parents, guardians, or designees of students receiving transportation services who do not comply with applicable procedural requirements as established by the department may have transportation services suspended or denied. Complex area superintendents shall review, approve, and be responsible for transportation requests other than home to school and return.

History

[Eff 3/3/84; comp 9/5/95; am and comp 3/29/03; am and comp 6/15/09] (Auth: HRS §§ 302A-1112, 302A-406) (Imp: 20 C.F.R. §§300.1(a), 300.4, 300.13(a), 300.13(b)(13), 300.550(b)(2), 300.522(d); HRS §§ 302A-406, 301-22, 301-25)

Haw. Code R. § 8-27-10 Appeals

(a) Any person aggrieved by a decision made pursuant to this chapter may appeal that decision to the superintendent within thirty calendar days after that decision. The appeal shall be in writing and shall state the:

(1) Pertinent facts of the case;

(2) Decision of the department;

(3) Reason or reasons why the person appealing feels that the decision was incorrect;

(4) Reasons why the person is aggrieved; and

(5) Remedy the person seeks.

(b) The written decision of the superintendent or the superintendent's designee shall be mailed by certified mail, return receipt requested, to the person appealing not later than thirty calendar days after receipt of the appeal.

History

[Eff 3/3/84; comp 9/5/95; comp 3/29/03; am and comp 6/15/09] (Auth: HRS § 302A-1112) (Imp: Hawaii Const. Art. X, § 3; HRS §§ 302A-1101, 302A-1112, 302A-406)

Chapter 28 TRANSPORTATION SAFETY

Haw. Code R. § 8-28-1 Purpose

The purpose of this chapter is to provide safe transportation of students by setting safety regulations relating to passenger conduct, passenger safety instructions, disciplinary procedures, and school bus driver's responsibility and authority.

History

[Eff. NOV 15, 1984] (Auth: HRS § 302A-1112) (Imp: HRS §§ 286-181, 302A-1112)

Haw. Code R. § 8-28-2 Definitions

As used in this chapter:

"Department" means the department of education.

"Parent" means the natural or legal parent, guardian or other legal custodian of the student.

"Principal" means the principal of the school the student attends or the principal's designee.

"School bus" means any publicly or privately owned motor vehicle used to transport pupils to and from a school as defined in section 298-41, Hawaii Revised Statutes, or school functions or school related events except:

(1) A motor vehicle used for transportation of students attending schools above the twelfth grade or pupils over eighteen years of age;

(2) A privately owned passenger vehicle when the transportation is provided without compensation of any kind; or

(3) A motor vehicle used for transportation of pupils together with other passengers as a part of the regularly scheduled operation of a mass transit system.

"Student" means students in grades kindergarten through twelve and in special education classes who are passengers in a school bus that is under contract with or operated by the State.

History

[Eff. NOV 15, 1984] (Auth: HRS § 302A-1112) (Imp: HRS §§ 286-181, 302A-1112)

Haw. Code R. § 8-28-3 School bus driver's responsibility and authority

Students being transported in a school bus under contract with or operated by the State shall be under the authority of and directly responsible to the driver of the bus. The driver of a school bus shall permit rides only to students assigned or eligible to ride a school bus as determined by the department and may assign students to sit in specific seats on the school bus. The driver of the school bus shall make reasonable efforts to insure that student riders observe the passenger safety code. However, drivers shall not refuse rides to eligible riders or eject students en route unless it is an emergency. In an emergency, the emergency procedure in paragraph (2) of this section shall apply. Drivers shall observe the following procedures:

(1) In reporting infractions of the safety code, the driver shall submit a written report to the principal not later than two school days after the incident occurs on the form provided by the department. If the report is not submitted within two school days after the incident occurs, the principal may refuse to consider the case. Whenever possible, the driver shall inform the student that the student is being reported.

(2) In an emergency in which a student attacks or otherwise endangers other students or the driver, the driver shall stop at the nearest safe location to make reasonable efforts for self-protection and protection of other students. In the event the driver cannot make the protective efforts, the driver shall set the brakes and gear to secure the bus, remove the ignition keys, evacuate noninvolved students from the bus and call for police assistance. If there is no telephone nearby, the driver may obtain the assistance of other motorists or pedestrians to call the police. The driver shall verbally inform the school of the action taken immediately after completing the run and submit a written report not later than two school days after the incident occurs. The driver may refuse to transport a student if the student's behavior would jeopardize the safety of other passengers or the driver. Before that action is taken, the driver shall inform the driver's supervisor, parent, and school principal. The driver shall not continue to refuse transportation if the school principal notifies the driver that the student can be transported.

(3) If the driver suspects or observes use of drugs on the bus, the driver shall radio in the information to the company, request police assistance and give the approximate time of arrival at the school, or if it is an afternoon run, the approximate time of arrival at the suspect's or violator's bus stop. The dispatcher shall request the district police to meet the bus at the school or at the bus stop. If the bus has no radio, the driver shall report the incident to the principal and the bus company supervisor after the driver has discharged all students. The bus company supervisor and principal shall notify the police of the incident. The driver shall not threaten nor order students off the bus en route. In the event an emergency where a student endangers other students or the driver, the emergency procedure in paragraph (2) of this section shall apply. The driver shall not search students nor detain students by force on the bus. If the police or school officials are not at the loading area or bus stop, students shall be permitted to leave.

History

[Eff. NOV 5, 1984] (Auth: HRS § 302A-1112) (Imp: HRS §§ 286-181, 302A-1112)

Haw. Code R. § 8-28-4 Responsibility and authority of department personnel

(a) Upon receipt of a driver's written report, the school principal shall conduct an investigation of the incident. The principal shall give the student oral or written notice of the report against the student. If the student denies the charge, the student shall be given an opportunity to present the student's version of the incident.

(b) If the principal finds that the charges are sustained, the student may be precluded from riding the bus, or given a warning. The bus driver and parent shall be sent a copy of the report and the results of the investigation. If the preclusion is necessary, the principal shall give notice of any preclusion regardless of its length to the student, parent and bus driver. The notice shall state:

(1) The specific acts allegedly committed by the student which form the basis of the action;

(2) The rule allegedly violated;

(3) The length of the preclusion; and

(4) That the parent may request a conference with the principal or request a hearing before the district superintendent if the preclusion exceeds ten days.

(c) If the preclusion exceeds ten days, the parent may request a hearing before the district superintendent within five school days from the date of receipt of the notice. Upon receipt of a request for a hearing, the district superintendent shall schedule a hearing within ten school days of receiving the request and shall notify all interested parties of its date, time and place. The student may be permitted to ride the bus after preclusion of ten days pending the results of the hearing unless the district superintendent finds that the student's continued presence on the bus will jeopardize the safety of other passengers or the driver. The hearing shall be conducted by the district superintendent or by an impartial person, designated by the district superintendent, who may be an official of the department. The hearing shall be conducted as follows:

(1) It shall be private unless the student or parent requests that it be public;

(2) All parties have the right to present evidence, cross-examine witnesses and submit rebuttal testimony;

(3) The district superintendent or the district superintendent's designee need not follow the formal rules of evidence;

(4) The district superintendent or the district superintendent's designee shall impartially weigh the evidence. The district superintendent may request and consider any records or information relevant to the charge or disposition, provided that the record of information shall be made available to the student and parent or their representative;

(5) Parties to the proceeding may make a transcript or recording of the hearing at their own expense;

(6) Not later than three school days after the close of the hearing, the district superintendent shall render a decision in writing stating clearly the action to be taken and the reasons therefore; the decision shall be mailed, certified mail, return receipt requested, or personally delivered to the student, parent, and driver;

(7) In the event the hearing is conducted by a person other than the district superintendent, the recommended decision and record shall be reviewed by the district superintendent who may accept, reject or modify the decision, provided that in the event any change is made, the district superintendent shall state reasons, therefor, in writing. In reviewing the recommended decision, the district superintendent shall not consider matters outside of the case record; and

(8) The decision of the district superintendent shall be final.

(d) The school principal shall observe the following procedures when a driver reports refusal of transportation for a student because of safety reasons:

(1) The principal shall conduct an immediate investigation of the incident upon receipt of the driver's report and provide measures to prevent recurrences of the incident in consultation with the parent, student, bus driver and school staff who are familiar with the student.

(2) If it appears that the continued presence of the student on the bus would jeopardize the safety of other passengers or the driver, the principal may preclude the student from riding the bus in accordance with subsection (b) of this section. If the transportation is provided to the student as a "related service" as defined in chapter 8-36, Administrative Rules, entitled, "Provision of a Free Appropriate Public Education For Exceptional Children Who Are Handicapped", the principal shall request the department of accounting and general services to provide alternate transportation.

History

[Eff. NOV 15, 1984] (Auth: HRS § 302A-1112) (Imp: HRS §§ 286-181, 302A-1112)

Haw. Code R. § 8-28-5 Passenger safety instruction

At least once during each school year each school principal shall provide safety instructions to school bus riders in grades kindergarten through twelve. The instruction shall be appropriate to the type of transportation services that the student receives.

History

[Eff. NOV 15, 1984] (Auth: HRS 302A-1112) (Imp: HRS §§ 286-181, 302A-1112)

Haw. Code R. § 8-28-6 Passenger Safety code

All students riding school buses shall abide by the following requirements.

(1) At the designated school bus stop and while boarding, students shall:

(A) Not bring children who will not be passengers on the bus or animals to the bus stop;

(B) Be on time at the designated school bus stop to help keep the bus on schedule;

(D) Refrain from loud talking at bus stops which may disturb nearby residents;

(E) Refrain from littering or defacing property at bus stops;

(F) Line up in an orderly, single file and wait until the bus comes to a complete stop before attempting to board the bus;

(G) Walk on the side of the road facing traffic to get to the bus stop if there are no sidewalks;

(H) Not bring articles on the bus that may cause injury to passengers or carry on articles which cannot be stored safely;

(I) Use the handrail and watch their step when boarding the bus.

(2) While on the bus, students shall:

(A) Keep hands and heads inside the bus at all times;

(B) Refrain from loud talking and laughing which may divert the driver's attention and result in a serious accident;

(C) Treat bus equipment as valuable furniture. Damage to seats,windows, and other equipment shall be paid for by the offender or the offender's parent;

(D) Not eat or drink any beverages on a regular trip to and from school unless necessary for medical reasons;

(E) Refrain from tampering with the bus or any of its equipment;

(F) Keep books, packages, coats, and all other objects out of the aisle;

(G) Remain in the bus in case of a road emergency, unless directed to do otherwise by the bus driver;

(H) Refrain from throwing anything out of the bus window;

(I) Remain in their seat while the bus is in motion;

(J) Refrain from smoking, drinking, gambling, fighting, or any other behavior that will endanger health or morals; and

(K) Obey the driver.

(3) When leaving the bus and crossing streets, students shall observe the following procedures:

(A) Students shall not leave the bus at other than their regular bus stops unless proper authorization has been given in advance by the school principal;

(B) Use the handrail and watch their step when getting off the bus

(C) At bus stops where the activation of the four red alternating flashing lights on the bus is prohibited by State law, students shall cross at nearby crosswalks or intersections. If there are none nearby, students shall wait until the bus leaves the stop and look at both sides of the street to see that there are no vehicles approaching before crossing. Students shall avoid crossing at curves or hills or locations where visibility of oncoming vehicles is limited;

(D) At bus stops where the activation of the four alternating flashing lights on the bus is required by State law or county ordinance, students shall walk twelve feet in front of the bus and look to see if the alternating red lamps on the top portion of the school bus are flashing. If the lamps are flashing, they shall look at the driver and wait for the driver to give the signal to cross. If the red lamps are not flashing, students shall not cross the street and shall notify the driver that the red warning lamps are not working and ask the driver for assistance in crossing the street.

(4) Students shall ride designated buses at specified times and locations assigned.

History

[Eff. 11/15/84; am JUL 20, 1989] (Auth: HRS § 302A-1112) (Imp: HRS §§ 286-181, 302A-1112)

Chapter 30 PUBLIC SUMMER SCHOOL TUITIONS

Haw. Code R. § 8-30-1 Definition of terms

As used in this chapter:

"Board" means the board of education.

"Department" means the department of education.

"Regular summer school program" means the department of education's program of instruction during the summer as regulated by the 2400 series of policies and regulations of the department.

"Special education summer school program" means the department of education's program of instruction during the summer for students with disabilities as defined by state law and as regulated by the 2400 series of policies and regulations of the department.

History

[Eff 8/22/1983; am and comp 5/17/2010] (Auth: HRS § 302A-1112) (Imp: Hawaii Const. Art. X, § 3; HRS §§ 302A-1101, 302A-1112)

Haw. Code R. § 8-30-2 Tuition schedule of regular and special education summer school programs

(a) The tuition shall be established by the superintendent of the department, upon approval by the board. Any adjustment shall be applied to the next scheduled summer school session and shall not be applied retroactively to tuition fees already collected.

(b) Tuition shall be paid prior to the first session of a summer school class. The director of a summer school may authorize delayed tuition payments in justifiable cases of hardship.

(1) Full refund -- Prior to the first day of summer school;

(2) Fifty per cent refund -- Up to the first week of summer school;

(3) Twenty-five per cent refund -- Up to the second week of summer school;

(4) No refund shall be made after the second week of summer school.

(d) Tuition payments shall be refunded according to the following schedule for a three-week session:

(1) Full refund -- Prior to the first day of summer school;

(2) Thirty-five per cent refund -- Up to the first week of summer school;

(3) No refund shall be made after the first week of summer school.

(e) Tuition payments may be waived by the district superintendent or designee according to the following criteria, on a first-come-first-served basis, provided state appropriated funds are made available to cover the tuition waivers:

(1) Student received free lunch or milk during the preceding regular school year by reasons of family income or hardship;

(2) Student received free bus transportation during the preceding regular school year by reason of public assistance;

(3) Current eligibility for state public assistance, or

(4) Family size and annual family gross income schedule established by the U.S. Secretary of Agriculture for the provision of free school lunch or milk or both, to students in the preceding regular school year.

History

[Eff. 8/22/83; am 8/28/1986; am and comp 5/17/2010] (Auth: HRS § 302A-1112) (Imp: HRS §§ 302A-1112, 302A-1310)

Chapter 31 TOBACCO FREE SCHOOL SYSTEM

Haw. Code R. § 8-31-1 Purpose

The public school system strives to provide its students with a safe and secure learning environment, as well as appropriate instruction and school experiences that mutually reinforce good personal health and safety practices. The present practice of condoning tobacco use by employees and other adults on public school campuses, at off-campus events, and at district and state offices seriously undermines and contradicts instruction to students regarding the health hazards of tobacco use. The purpose of this chapter is to implement the tobacco free school system policy. Accordingly, this chapter sets forth who shall be responsible for implementing the tobacco free school system policy, as well as how the policy shall be enforced. This chapter also provides for counseling and rehabilitation assistance to employees who wish to stop smoking.

History

[Eff. MAY 08, 1993] (Auth: HRS §§ 302A-1112, 328K-5) (Imp: HRS §§ 302A-1101, 302A-1111, 328K-2, 328K-5, 328K-13)

Haw. Code R. § 8-31-2 Definitions

As used in this chapter, unless a different meaning clearly appears in the context:

"Authorized school visitors" means persons other than school employees and students who are authorized by the principal or designee to conduct business, attend or participate in a school-sponsored program or activity, or otherwise physically enter the school campus or off-campus site under the operational control of the principal or designee.

"Off-campus site" means a place or facility other than the school campus, which is used to conduct school-sponsored programs and activities and which is under the operational control of the principal or designee, including privately and commercially owned facilities which the department leases for community school for adults.

"Operational control" means having jurisdiction over the conduct of events, activities, and attending or participating persons on the school campus or at an off-campus site. With respect to an off-campus site, such as ballrooms, dining facilities, theaters, conference facilities, and recreation or athletic facilities, operational control is exercised by the principal or designee over that facility or portion of the facility which is leased for the exclusive use of the school.

"Other use of tobacco products" means chewing, inhaling and any other form of consuming tobacco products other than by smoking.

"School" means any regular school, special school, or community school for adults operated by the department of education.

"School campus" means the buildings and grounds of a school.

"School employee" means administrators, teachers, and support staff employed by the school, any volunteer, and all employees of the district and state offices of the department of education who perform their jobs on a school campus or off-campus site under the operational control of the principal or designee.

"School vehicle" means any publicly or privately owned motor vehicle used to transport students to and from school campuses or off-campus sites, except:

(1) A privately owned passenger vehicle when the transportation is provided without compensation of any kind by the school; or

(2) A motor vehicle operated as part of the regularly scheduled operation of a mass transit system serving the general public.

"Smoking" means the act of inhaling or exhaling upon, burning, or carrying any lit cigarette, cigar, or pipe.

"Tobacco product" means any substance that contains tobacco, including, but not limited to, chewing tobacco, cigarettes, cigars, pipes, snuff, smoking tobacco, and smokeless tobacco.

History

[Eff. MAY 08, 1983] (Auth: HRS §§ 302A-1112, 328K-5) (Imp: HRS §§ 302A-1101, 302A-1111, 328K-2, 328K-5, 328K-13)

Haw. Code R. § 8-31-3 Tobacco free school system

(a) Effective September 1, 1993, smoking and other use of tobacco products shall be prohibited at all times, including the following:

(1) On public school campuses, school vehicles, and off-campus sites under the operational control of the principal or designee, except as part of a bona-fide classroom instruction or theatrical production approved by the principal; and

(2) In all buildings and facilities, or portions thereof, which are assigned to the district and state offices of the department of education, and which are under the supervision of the district superintendent, assistant superintendents, the superintendent of education, or their designees.

(b) The above prohibitions shall apply to all persons, including the following:

(1) Students enrolled in community schools for adults, school employees, authorized school visitors and guests;

(2) Persons participating in or attending a non-school activity or event conducted on the school campus when school is not in session; and

(3) Employees, visitors, and guests of district and state offices.

History

[Eff. MAY 08 1993] (Auth: HRS §§ 302A-1112, 328K-5) (Imp: HRS §§ 302A-1101, 302A-1111, 328K-2, 328K-5, 328K-13)

Haw. Code R. § 8-31-4 Implementation responsibility and authority

(a) Each principal shall be responsible for implementing the provisions of section 8-31-3 with respect to the school campus, school vehicles, and off-campus sites under the operational control of the principal. The principal shall:

(1) Give written notice by letter to students enrolled in community schools for adults and school employees, and written notice by sign to authorized visitors and guests, that the school is a tobacco free school which conforms to the requirements of this chapter;

(2) Take appropriate sanctions in accordance with section 8-31-5 against violators; and

(3) Assist school employees in obtaining counseling and rehabilitation services relating to smoking cessation.

(b) Assistant superintendents, district superintendents, and branch directors in the office of the superintendent shall be responsible for implementing the provisions of section 8-31-3 with respect to district and state offices. These officials shall:

(1) Give due written notice to employees, visitors, guests that smoking and the use of other tobacco products are prohibited in the buildings and facilities, or portions thereof, under their respective supervision pursuant to section 8-31-3;

(2) Take appropriate sanctions in accordance with section 8-31-5 against violators;

(3) Assist employees in obtaining counseling and rehabilitation services relating to smoking cessation

(c) The office of personnel services shall be responsible for developing necessary regulations and procedures, and providing schools, district offices, and state offices with implementation assistance regarding employment and employee assistance.

(d) The office of business services shall be responsible for developing necessary regulations and procedures, providing schools, district offices, and state offices with implementation assistance regarding posting appropriate signs and notices prohibiting smoking and the use of tobacco products pursuant to section 8-31-3, and for coordinating the statewide implementation of the tobacco free school system policy in collaboration with the office of personnel services and district offices.

History

[Eff. MAY 08, 1993] (Auth: HRS §§ 302A-1112, 328K-5) (Imp: HRS §§ 302A-1101, 302A-1111, 328K-2, 328K-5, 328K-13, 328K-15)

Haw. Code R. § 8-31-5 Enforcement procedures

The provisions of § 8-31-3 shall be enforced as follows:

(1) School employees who violate the policy shall be disciplined in accordance with regulations and procedures 5110 of the school code or civil service regulations, as applicable; and

(2) Students enrolled in community school for adults, authorized school visitors and guests who violate the policy will first be warned and, if necessary, declared trespassers and removed from the school campus, school vehicle, or off-campus site with the assistance of the police in accordance with section 708-813(c), HRS.

History

[Eff. MAY 08, 1993] (Auth: HRS §§ 302A-1112, 328K-5) (Imp: HRS §§ 302A-1101, 302A-1111, 328K-2, 328K-5, 328K-13, 328K-15)

Haw. Code R. § 8-31-6 Counseling and rehabilitation assistance

The department of education shall assist school employees in obtaining appropriate counseling and rehabilitation services relating to voluntary smoking cessation. The department may provide such services directly, or may refer school employees to services offered by other government and private agencies and community organizations. Services shall be made available prior to the implementation of section 8-31-3.

History

[Eff. MAY 08, 1993] (Auth: HRS § 302A-1112) (Imp: HRS §§ 302A-1101, 302A-1111)

Chapter 32 COLLECTION OF AUTHORIZED FEES AND CHARGES

Haw. Code R. § 8-32-1 Definition

As used in this chapter, "co-curricular activities" means student activities which are authorized by the school principal and which complement classroom instruction by providing learning experiences which meet individual needs and develop citizenship skills and positive attitudes in less formal settings.

History

[Eff 8/23/84; comp 9/1/95; comp 9/28/02] (Auth: HRS § 302A-1112) (Imp: HRS § 302A-1130)

Haw. Code R. § 8-32-2 Fees and charges for co-curricular activities

Fees and charges for co-curricular activities. Schools may assess and collect special fees and charges from pupils for co-curricular activities. The maximum allowable charges for class dues (middle/intermediate and high schools), student association fees, and school club dues shall be established by the board of education. A school principal may establish fees and charges at amounts which are lower than the maximum amounts allowable under this section.

History

[Eff 8/23/84; am and comp 9/1/95; am and comp 9/28/02] (Auth: HRS §302A-[1130]1112) (Imp: HRS §302A-[1112]1130)

Haw. Code R. § 8-32-3 Collection, disposition. and use of fees and charges

Collection, disposition, and use of fees and charges.

(a) The school principal or designee shall be responsible for collecting fees and charges for co-curricular activities. The monies collected shall be deposited into each school's insured checking or savings account.

(b) Monies collected shall be expended for the direct benefit of students and shall be limited to the support of activities for which the student is charged.

History

[Eff 8/23/84; am and comp 9/1/95; comp 9/28/02] (Auth: HRS §§ 302A-1112, 302A-1130) (Imp: HRS § 302A-1130)

Haw. Code R. § 8-32-4 Refunds for the regular school year

The school shall retain one-tenth of all fees, dues, assessments and rental for each month or fraction thereof that school is attended by the student. The remainder shall be refunded to the student who, upon enrollment in another school, shall pay fees for only the number of whole months remaining in the school year. June shall be counted as a whole month. No refund shall be made after the eighth month of school.

History

[Eff 8/23/84; comp 9/1/95; comp 9/28/02] (Auth: HRS §§ 302A-1112, 302A-1130) (Imp: HRS § 302A-1130)

Haw. Code R. § 8-32-5 Other fees

The superintendent shall determine the maximum allowable charge for athletic books, yearbooks, newspapers, and caps and gowns.

History

[Eff 8/23/84; am and comp 9/1/95; am and comp 9/28/02] (Auth: HRS §§ 302A-1112, 302A-1130) (Imp: HRS § 302A-1130)

Chapter 33 ADULT EDUCATION FEES

Haw. Code R. § 8-33-1 Financing adult education program

The financial support for the adult education program shall be in part from fees collected from students enrolled, and in part from public funds appropriated for this purpose in accordance with state and federal laws. Administrative and supervisory costs, costs of instruction and all other necessary expenses not covered by fees and other authorized charges shall be paid from funds appropriated for this purpose.

History

[Eff. 3/30/86; comp MAY 19, 1997] (Auth: HRS §§ 302A-1112, 302A-435) (Imp: HRS §§ 302A-1112, 302A-435; 20 U.S.C. §1203 )

Haw. Code R. § 8-33-2 Instructional fees

Students enrolling in adult education classes may be assessed instructional fees. The superintendent of education shall set the amount of the instructional fees, in accordance with the recommendations of the advisory council, based upon the cost per instructional hour for each adult education class. No instructional fee shall be assessed for adult basic education (ABE) classes and senior citizens' program classes.

History

[Eff. 3/30/86; am and comp MAY 19, 1997] (Auth: HRS §§ 302A-1112, 302A-435) (Imp: HRS §§ 302A-1112, 302A-435)

Haw. Code R. § 8-33-3 Equipment fees

Students enrolling in adult education homemaking, art, industrial arts, and business education classes may be assessed equipment fees. The superintendent of education shall set the equipment fee in accordance with the recommendations of the advisory council. An equipment fee shall be based upon the cost of maintenance and repair of equipment used in a class.

History

[Eff. 3/30/86; am and comp MAY 19, 1997] (Auth: HRS §§ 302-1112, 302A-435) (Imp: HRS §§ 302A-1112, 302A-435)

Haw. Code R. § 8-33-4 Supply and material fees

Students in adult education classes may be assessed supply and material fees to defray the cost of instructor-provided expendable supplies and materials, such as food items or clothing material, used in the classroom and which are necessary for conducting the class. Supply and material fees shall be determined by the instructor by pro rating the actual cost of instructor-provided supplies and materials among students enrolled in the class. Supply and material fees shall be reviewed and approved by the principal.

History

[Eff. 3/30/86; comp MAY 19, 1997] (Auth: HRS §§ 302A-1112, 302A-435) (Imp: HRS §§ 302A-1112, 302A-435)

Haw. Code R. § 8-33-5 General educational development testing fees

Each adult education student taking a general educational development (GED) test shall be assessed a fee. The superintendent of education, with the recommendation of the advisory council, shall set the fee amount, provided that the general educational development testing fee shall be based upon the cost of test materials and proctor services.

History

[Eff. 3/30/86; am and comp MAY 19, 1997] (Auth: HRS §§ 302A-1112, 302A-435) (Imp: HRS §§ 302A-1112, 302A-435)

Haw. Code R. § 8-33-6 Waiver of fees

All fees that may be assessed for adult education by the department of education may be waived by the principal for the following categories of students:

(1) Adults registered with the department of labor and industrial relations who are unemployed when they enroll in courses which will assist them in securing employment;

(2) Adults certified by the department of human services as indigent when they enroll in classes which will assist them to become self-sustaining; and

(3) Veterans who are entitled to federal educational assistance upon authorization of the veterans administration. Fees shall be charged against federal funds in accordance with veterans administration contract regulations.

History

[Eff. 3/30/86; am and comp MAY 19, 1997] (Auth: HRS §§ 302A-1112, 302A-435) (Imp: HRS §§ 302A-1112, 302A-435)

Haw. Code R. § 8-33-7 Refunds for withdrawal from adult education classes

A student who withdraws from an adult education class shall be refunded fees paid for the classes as follows:

(1) Instructional and equipment fees shall be refunded in full if the student withdraws prior to the second meeting of the class. Refunds of instructional and equipment fees shall not be made to the student who withdraws after the second meeting of the class has convened;

(2) Supply and material fees shall be refunded in full if student withdraws prior to the second meeting of the class. One-half of the supply and material fees shall be refunded if the student withdraws at any time from the second meeting until one-half of the total scheduled class meetings have been held. Refunds of supply and material fees shall not be made to the student who withdraws after one-half of the total scheduled class meetings have been held.

History

[Eff. 3/30/86; comp MAY 19, 1997] (Auth: HRS §§ 302A-1112, 02A-435) (Imp: HRS §§ 302A-1112, 302A-435) [Eff. MAR 30, 1986] (Auth: HRS § 296-12) (Imp: HRS § 296-12)

Chapter 34 PROTECTION OF EDUCATIONAL RIGHTS AND PRIVACY OF STUDENTS AND PARENTS

Haw. Code R. § 8-34-1 Philosophy

Schools maintain extensive information about students for legitimate educational use as instruction, guidance, counseling and research. However, if released or used improperly, the information may intrude upon the privacy of students and their families. Therefore, it is imperative that there be recognition of the school's needs for relevant data for the student's benefit and the protection of an individual's rights of privacy. In the event of a conflict regarding confidentiality of education records specifically relating to children who are handicapped or are suspected of being handicapped, section 8-36-7 shall prevail.

History

[Eff. AUG 23, 1984] (Auth: HRS § 302A-1112) (Imp: HRS §§ 302A-1101, 302A-1112)

Haw. Code R. § 8-34-2 Purpose

This chapter sets forth requirements to ensure the protection of the educational rights and privacy of students and parents in conformance with federal laws. If any change occurs in the federal laws, those changes in the federal law shall control.

History

[Eff. AUG 23, 1984] (Auth: HRS § 302A-1112) (Imp: HRS §§ 302A-1101, 302A-1112; 20 U.S.C. 1232g, 34 C.F.R. 99.2)

Haw. Code R. § 8-34-3 Definitions

As used in this chapter:

"Days" means working or school days.

"Department" means the department of education.

"Directory information" means the student's name, date and place of birth, address, telephone, dates of attendance, class level, major field of study, participation in officially recognized activities, and sports, weight and height if member of an athletic team, awards received, graduation date, and the most recent previous educational agency or institution attended.

"Education records" means all records, files, documents, and other materials maintained by the department, which contain information directly related to an individual student. Excluded are the following:

(1) Private notes and records in the possession of instructional, supervisory, administrative, and support personnel of the department, which are not accessible or divulged to anyone except to the person who substitutes in a particular job;

(2) Confidential communication protected by law;

(3) Records maintained by law enforcement units on a school campus used only for law enforcement purposes and which are kept apart from the education records and are available only to law enforcement officials of the same jurisdiction;

(4) Department personnel employment records;

(5) Records of a physician, psychiatrist, psychologist, or other recognized professional or paraprofessional maintained for the treatment of a student eighteen years or older and which may be reviewed by a physician or other professional designed by the student.

"Eligible student" means a person at least eighteen years of age who is or was a student.

"Parent" means the natural or legal parent, guardian or other legal custodian of the student.

"Right to inspect" means the right of a parent, eligible student, or a designated representative to inspect under the supervision of personnel of the department information concerning the student in question.

"Student" means a person who is or has been in attendance in school and whose education records are maintained by the department.

History

[Eff. AUG 23, 1984] (Auth: HRS § 302A-1112) (Imp: HRS §§ 302A-1101, 302A-1112; 20 U.S.C. 1232g, 34 C.F.R. 99.3)

Haw. Code R. § 8-34-4 Rights of parents and students

(a) Parents shall have the following rights with respect to the education records of their children:

(1) Inspect, review, challenge or obtain copies thereof;

(2) Allow others to review them; and

(3) Grant permission for their release.

(b) The rights of parents shall be transferred to the student who has attained eighteen years of age.

(c) Students under eighteen years of age shall have the right to receive all educational data pertinent to facilitating instruction, guidance and counseling.

History

[Eff. AUG 23, 1984] (Auth: HRS § 302A-1112) (Imp: HRS §§ 302A-1101, 302A-1112; 20 U.S.C. 1232g, 34 C.F.R. 99.4, 99.5, 99.6 )

Haw. Code R. § 8-34-5 Applicability

This chapter shall apply to the education records of all students who are or have been enrolled in Hawaii's public schools.

History

[Eff. AUG 23, 1984] (Auth: HRS § 302A-1112) (Imp: HRS §§ 302A-1101, 2A-1112)

Haw. Code R. § 8-34-6 Access rights to education records

An eligible student or parent shall have the right to:

(1) Obtain a list of that student's education records maintained by the department;

(2) Inspect or review them;

(3) Receive from the department, when requested, an explanation or interpretation of those records pursuant to section 8-34-9(a);

(4) Challenge the contents of the records at a hearing;

(5) Inspect, review, or obtain information that pertains only to the student in question, if any material or files contain data on more than one person;

(6) Secure copies of records at one's own expense, provided the charge shall not exceed the actual reproduction cost. In case of financial hardship, the department may waive the reproduction cost; and

(7) Other access rights as are provided in section 8-36-7(l).

History

[Eff. AUG 23, 1984] (Auth: HRS 302A-1112) (Imp: HRS §§ 302A-1101, 302A-1112; 20 U.S.C. 1232g, 34 C.F.R. 99.5, 99.6 )

Haw. Code R. § 8-34-7 Destruction of records

The department may destroy or expunge any records of a student when they no longer are appropriate, relevant, or required under department rules. However, when an eligible student or parent requests access to the records,access shall be granted prior to the destruction of records. Additional provisions relating to destruction of records shall be complied with in conformance of section 8-36-7(2).

History

[Eff. AUG 23, 1984] (Auth: HRS § 302A-1112) (Imp: HRS §§ 302A-1101, 302A-1112; 20 U.S.C 1232g, 34 C.F.R. 99.13 )

Haw. Code R. § 8-34-8 Notification

(a) The department shall inform eligible students or parents annually of:

(1) Kinds of education records that are maintained by the department;

(2) Name and position of official responsible for maintenance of each type of records, who has access to each type and why they are needed;

(3) Department rules and policies governing review and expunging of records;

(4) Procedures for challenging their contents;

(5) Charge to be made for reproducing copies;

(6) Categories of data designated as directory information; and

(7) Other rights and requirements under this chapter.

(b) The notice provided to a parent or eligible student under this section shall be in the language of the parent or eligible student.

History

[Eff. AUG 23, 1984] (Auth: HRS § 302A-1112) (Imp: HRS §§ 302A-1101, 302A-8-34-10 1112; 20 U.S.C. 1232g, 34 C.F.R. 99.5, 99.6 )

Haw. Code R. § 8-34-9 Procedure for granting access

(a) When an eligible student or parent requests access to the student's education records, they shall be made available within a reasonable period of time but in no event more than thirty days after the request.

(b) The department shall comply with parent requests under section 8-36-73).

(c) The department shall notify the eligible student or parent in writing of the time, date, and place for the review of the records.

History

[Eff. AUG 23, 1984] (Auth: HRS § 302A-1112) (Imp: HRS §§ 302A-1101, 302A-1112; 20 U.S.C. 1232g, 34 C.F.R. 99.11)

Haw. Code R. § 8-34-10 Review and challenge of record contents

An eligible student or parent may request:

(1) A meeting with school personnel to review the student's education records. Every effort shall be made to resolve differences through informal meetings and discussions;

(2) The right to file a written explanation on points in question if the school disagrees on expunging or changing the contents. Additional requirements shall be as set forth in section 8-36-7(4); and

(3) The right to a hearing to challenge, correct, or delete data considered inaccurate, inappropriate, or misleading, if agreement is not reached. The hearing shall not be conducted unless specifically requested orally or in writing within ten days after the conference.

History

[Eff. AUG 23, 1984] (Auth: HRS§ 302A-1112) (Imp: HRS §§ 302A-1101, 302A-1112; 20 U.S.C. 1232g, 34 C.F.R. 99.20)

Haw. Code R. § 8-34-11 Hearing

After receiving the request, the district superintendent shall schedule a hearing within ten days. The district superintendent shall notify all interested parties of its date, time and place. The district superintendent or a disinterested designee, who may be an official of the department, shall conduct the hearing under the following conditions:

(1) It shall be private unless requested otherwise by the eligible student or parent;

(2) All parties shall have the right to present evidence, cross-examine witnesses and submit rebuttal testimony;

(3) The district superintendent or designee need not follow the formal rules of evidence. The district superintendent or designee shall weigh the data impartially, may request and consider any additional information relevant to the education records, provided the material first has been made available to the eligible student, parent, or representative;

(4) The department shall make a transcript or tape recording of the hearing. The eligible student or parent may record or obtain a copy of the proceedings at that person's own expense;

(5) The district superintendent shall render a decision in writing not later than five days after the close of the hearing. This decision, based on the hearing record and supportive evidence, shall state clearly the action to be taken and the reasons therefor. It shall be mailed return receipt requested or personally delivered to the eligible student or parent; and

(6) If the hearing is conducted by a person other than the district superintendent, the district superintendent shall review the recommended decision and proceedings. The district superintendent may accept, reject, or modify the decision. In the event of any change, the district superintendent shall state the reasons in writing. In reviewing the recommended decision, the district superintendent shall not consider matters outside the case record except with the consensus of both the student and parent.

History

[Eff. AUG 23, 1984] (Auth: HRS § 302A-1112) (Imp: HRS §§ 302A-1101, 302A-1112; 20 U.S.C. 1232g, 34 C.F.R. 99.21, 99.22 )

Haw. Code R. § 8-34-12 Appeal to the superintendent

(a) The eligible student or parent may appeal to the superintendent of education within ten days of the receipt date of the district superintendent's notification of action. The superintendent shall render a final determination within five days.

(b) The superintendent's determination of each act or law at issue shall be sent to the eligible student or parent by certified mail return receipt requested. The notification shall inform the party of the right to file exceptions to the decision and to present argument to the superintendent at a specified date, time, and place.

History

[Eff. AUG 23, 1984] (Auth: HRS § 302A-1112) (Imp: HRS §§92F, 302A-1101, 302A-1112; 20 U.S.C. 1232g, 34 C.F.R. 99.21, 99.22 )

Haw. Code R. § 8-34-13 Review board

Federal law permits an appeal to the review board. The final decision is rendered by the Secretary of the Department of Education.

History

[Eff. AUG 23, 1984] (Auth: HRS § 302A-1112) (Imp: HRS §§ 302A-1101, 302A-1112; 20 U.S.C. 1232g, 34 -C.F.R. 99.60)

Haw. Code R. § 8-34-14 Consent to release records

(a) The department shall not make accessible nor release any education records or personally identifiable information without the written consent of the eligible student or parent. Exceptions to this shall be:

(1) Department officials who have a legitimate educational interest in the records;

(2) Officials of other schools where the student intends to matriculate, provided the eligible student or parent has prior notification of a request for that information. The eligible student or parent may request a copy of the records for review or request an appointment for a hearing to challenge the contents thereof;

(3) Authorized representatives including contractors of:

(A) The Comptroller General of the United States; and

(B) The United States Secretary of Education;

(4) Department staff including contractors who by the nature of their responsibilities must have access to education and other records for audit and evaluation purposes or for the enforcement of certain federal regulations. The data collected shall protect the personal identity of students or their parents and shall be destroyed when the particular project needs or requirements are met;

(5) Organizations of educational agencies or institutions for the purpose of developing, validating, and administering predictive tests, if that information will not permit the identification of any person by the organization receiving the information;

(6) Department approved accrediting organizations to facilitate the accreditation process;

(7) The department may release information from the education records to appropriate persons in connection with an emergency if the knowledge of that information is necessary to protect the health or safety of a student or other persons. The factors which shall be taken into account in determining whether records may be released under this section include:

(A) Seriousness of the threat to the health or safety of the student or other persons;

(B) Need for the records to meet the emergency;

(D) Extent to which time is of the essence in dealing with the situation;

(8) Those authorized by state statutes either to receive or to disclose the information before November 19, 1974 which is the effective date of the Family Educational Rights and Privacy Act;

(9) Parents of a dependent student as defined in section 152 of the Internal Revenue Code of 1954;

(10) Appropriate authorities when the information is furnished in compliance with judicial order, or pursuant to any lawfully issued subpoena, upon condition that parents or the eligible student are notified of all orders or subpoena in advance of the compliance therewith by the department.

(b) Authorization for written consent shall contain the following:

(1) Date and signature of person authorizing release of the record;

(2) Kinds of records to be released;

(3) Reasons for release; and

(4) Name of person to receive or examine the records.

(c) Where parents are separated or divorced, a written parental consent may be obtained from either parent, subject to any agreement between the parents or court order governing the rights of the parents.

(d) In the case of a student, except as provided in subsection (e), a party independent of the institution shall be appointed pursuant to state and local law to give written parental consent.

(e) In the case of an exceptional student, as defined chapter 8-36, whose legal guardian is not known, unavailable, or is an institution, a party appointed pursuant to state law and independent of the institution and the department of education shall have authority to give a written parental consent.

(f) Personal information shall be transferred to a third party only on condition it will not be shared without the written consent of the eligible student or parent.

(g) The department shall give public notice of the kinds of directory information on students that are available. Within ten days after the notice, a parent may request that certain data be withheld except with prior consent.

(h) Additional consent procedures shall be as provided in section 8-36-7(6).

History

[Eff. AUG 23, 1984] (Auth: HRS § 302A-1112) (Imp: HRS §§ 302A-1101, 302A-1112; 20 U.S.C. 1232g, 34 C.F.R. 99.30, 99.31, 99.33, 99.34, 99.35, 99.36, 99.37)

Haw. Code R. § 8-34-15 Recording of requests

The department shall maintain with each student's education records a log of all persons requesting access to the data and the reasons therefor. Exceptions to this shall be as provided in section 8-34-14.

History

[Eff. AUG 23, 1984] (Auth: HRS § 302A-1112) (Imp: HRS §§ 302A-1101. 302A-1112; 20 U.S.C. 1232g, 34 C.F.R. 99.32)

Chapter 37 SCHOOL LUNCH PROGRAM

Haw. Code R. § 8-37-1 Purposes

A school lunch program shall be provided in the public schools for the purposes of providing students with a nutritious meal at a minimum cost, providing learning experiences, and establishing desirable food habits.

History

[Eff. 11/2/81; comp 8/28/95] (Auth: HRS § 302A-1112) (Imp: HRS §§ 302A-1112, 302A-404, 302A-405)

Haw. Code R. § 8-37-2 Participation in federal programs

The public schools shall participate in the benefits of the National School Lunch Program, School Breakfast Program, and the Commodity Program to the extent possible and in so doing shall cooperate with the state office in maintaining standards, complying with regulations, and submitting required reports and information.

History

[Eff. 11/2/81; am 11/28/83; comp 8/28/95] (Auth: HRS § 302A-1112) (Imp: HRS §§ 302A-1112, 302A-404, 302A-405; 42 U.S.C. 1772, 1779, 7 C.F.R. 215; 42 U.S.C. 1773, 1779, 7 C.F.R. 220; 42 U.S.C. 1772, 1773, 1779, 7 C.F.R. 245; 43 U.S.C. 1751-60, 7 C.F.R. 245)

Haw. Code R. § 8-37-3 Meal price

The price of meals shall be established by the superintendent of education upon approval of the board and in accordance with state and federal laws and regulations.

History

[Eff. 11/2/81; am and comp 8/28/95; am and comp 6/15/09] (Auth: HRS § 302A-1112) (Imp: HRS § 302A-1112, 302A-404, 302A-405)

Haw. Code R. § 8-37-4 Eligibility

(a) Eligibility for free or reduced priced meals shall be determined by the department in accordance with the requirements set forth in the Code of Federal Regulations, title 7, part 245, "Determining Eligibility for Free and Reduced Price Meals and Free Milk."

(b) Prior to the beginning of school, or during the first week of school, the department shall disseminate information and applications for free or reduced price meals as follows:

(1) A public release shall be provided to the local news media, the unemployment office, and to any major employers contemplating large layoffs in the area from which the school draws its attendance. The public release shall contain the same information provided to households under paragraph (2).

(2) The department shall distribute letters to the households of all enrolled students to inform them that they may apply for free or reduced priced meals. The letter shall contain the following:

(A) The reduced price eligibility criteria and an explanation that households with income at or below the reduced price criteria would be eligible for either free or reduced price meals.

(B) An explanation of how and where to apply for free or reduced price meals.

(D) An explanation that the information on the application is subject to verification during the school year.

(E) A statement that recipients must notify the department during the school year of any increase in income of over $50 per month or of $600 a year, or such other amounts as the relevant federal programs shall require, or of any decrease in household size.

(F) A statement that a household may apply for benefits at any time during the school year as its family income circumstances change.

(G) A statement that children having parents or guardians who become unemployed are eligible for benefits, provided that the loss of income causes household income to be within the eligibility criteria.

(H) A statement that, in certain cases, foster children are eligible for benefits regardless of the income of the household with whom they reside.

(I) The statement: "In the operation of the child feeding programs, no child will be discriminated against because of race, sex, color, national origin, age or handicap."

(J) A statement that the decision of the department with respect to the application may be appealed.

(K) A statement that an application is attached.

History

[Eff. 11/28/83; comp and ren § 8-37-3.1 8/28/95; am and comp 6/15/09] (Auth: HRS § 302A-1112) (Imp: HRS §§ 302A-1112; 42 U.S.C.1772, 1773, 1779, 7 C.F.R. 245; 43 U.S.C. 1751-60, 7 C.F.R. 245)

Haw. Code R. § 8-37-5 Application for free or reduced price meals

(a) The information requested by the department shall be limited to that needed to determine whether a household meets the eligibility criteria for free or reduced price meals and shall provide such information as the relevant federal programs shall require.

(b) Applications shall be distributed to each household and completed and returned to the school office. The superintendent of education or authorized designee shall review and approve applications.

(1) State whether the application has been approved for free meals, reduced price meals, or whether application has been denied.

(2) Explain the reason for not qualifying if the application is not approved and inform the applicant of:

(A) The right to discuss the matter with a representative of the department designated by the superintendent.

(B) The right to an impartial hearing which can be arranged by the hearing officer. The request for a hearing shall be made within ten days of the notice of disapproval.

History

[Eff. 11/28/83; comp and ren § 8-37-3.2 8/28/95; am and comp 6/15/09] (Auth: HRS § 302A-1112) (Imp: HRS § 302A-1112; 42 U.S.C. 1772, 1773, 1779, 7 C.F.R. 245; 43 U.S.C. 1751-60, 7 C.F.R. 245)

Haw. Code R. § 8-37-6 Verification of eligibility

(a) As used in this chapter, "verification" means confirmation of eligibility for free or reduced price benefits under the school lunch program. At a minimum, verification shall include confirmation of income eligibility. Verification shall be conducted in accordance with the requirements of the relevant federal program. Verification efforts shall not delay the initial approval of applications. An application shall be approved if it contains the minimum documentation required by the relevant federal program and meets the income eligibility criteria for free or reduced price benefits.

(b) Households selected for verification shall be informed of the following:

(1) They have been selected for verification;

(2) They are required to submit the required verification information to confirm eligibility for free or reduced price benefits;

(3) The types of information or documents acceptable to the department and the name and phone number of a school official who can assist in the verification effort;

(4) They may submit proof of current eligibility for food stamp benefits in lieu of income information if they are participating in the food stamp program; and

(5) Failure to cooperate with verification efforts will result in termination of benefits.

(d) The department shall reduce or terminate benefits if its verification efforts fail to confirm eligibility for free or reduced price benefits or the household fails to cooperate with the department's verification efforts.

(e) The household shall be notified in writing of the reduction or termination of benefits ten days prior to the actual reduction or termination of benefits. The day the notice is sent shall be the first day of the notice period. The notice shall advise the household of:

(1) The change;

(2) The reasons for the change;

(3) The right to appeal and that the appeal must be filed within the ten day advance notice period to ensure continued benefits while awaiting a hearing and decision;

(4) How to appeal; and

(5) The right to reapply at any time during the school year.

History

[Eff. 11/28/83; am, comp and ren § 8-37-3.3 8/28/95; am and comp 6/15/09] (Auth: HRS § 302A-1112) (Imp: HRS §§ 302A-1112; 42 U.S.C. 1772, 1773, 1779, 7 C.F.R. 245; 43 U.S.C. 1751-60, 7 C.F.R. 245)

Haw. Code R. § 8-37-7 Hearing of appeals

(a) Upon an oral or written request for a hearing, the department shall schedule the hearing with reasonable promptness and convenience. The department shall provide adequate notice with respect to the time and place of the hearing.

(b) The hearing shall be conducted in the following manner:

(1) The applicant may be assisted by an attorney or other person;

(2) The applicant shall be given an opportunity, before and during the hearing, to examine documents and records presented to support the decision being appealed;

(3) The applicant shall be given an opportunity to present oral or documentary evidence and argument supporting the appeal;

(4) The applicant shall be given an opportunity to question or refute any testimony or other evidence and to cross-examine any adverse witnesses;

(5) The hearing shall be conducted and decision made by an official who did not participate in the decision being appealed or in any previous conference;

(6) The decision of the hearing official shall be based on the oral and documentary evidence presented at the hearing and made part of the hearing record;

(7) The parties involved, including any designated representative, shall be notified in writing of the decision of the hearing official; and

(8) A written record shall be maintained for each hearing which shall include:

(A) The decision under appeal;

(B) The documentary evidence presented;

(D) The decision of the hearing officer and the reasons for the decision; and

(E) A copy of the notification to the parties involved of the hearing official's decision.

(c) The written record of the hearing shall be preserved for three years and shall be available for examination by parties concerned or their representatives at any reasonable time and place during the period.

(d) When a household appeals an adverse action that affects its benefits and requests an impartial hearing, benefits shall be continued while the household awaits the hearing and decision:

(1) Households that have been approved for benefits and that are subject to a reduction or termination of benefits later in the same school year shall receive continued benefits if they appeal the action within the ten advance notice period.

(2) Households that are denied benefits upon application shall not receive benefits.

History

[Eff. 11/28/83; comp and ren § 8-37-3.4 8/28/95] (Auth: HRS § 302A-1112) (Imp: HRS § 302A-1112; 42 U.S.C. 1772, 1773, 1779, 7 C.F.R. 245; 43 U.S.C. 1751-60, 7 C.F.R. 245)

Haw. Code R. § 8-37-8 Persons to be served

Persons to be served by the school cafeteria are students, teachers, and other members of the school staff, as well as district and state office personnel and board of education members when they are at the school on official business, and persons who are guests of the school. Any exception shall be cleared in advance with the complex area superintendent.

History

[Eff. 11/2/81; comp and ren § 8-37-4 8/28/95; am and comp 6/15/09] (Auth: HRS § 302A-1112) (Imp: HRS § 302A-1112)

Haw. Code R. § 8-37-9 Competing with private businesses

School cafeterias shall not operate so as to compete with private businesses by catering to non-school persons or organizations. They are not to solicit or accept orders for food from school when such food is to be taken from the school for non-school use. Community colleges are exempted for essential training purposes as approved by their respective advisory committees.

History

[Eff. 11/2/81; comp and ren § 8-37-5 8/28/95] (Auth: HRS § 302A-1112) (Imp: HRS § 302A-1112)

Haw. Code R. § 8-37-10 Use of student help in the cafeteria

Students shall assist in the cafeteria as part of their duties in school services. Not more than one full day of cafeteria duty in any one month or more than a total of seven full days in one school year shall be required of any student. Any exception must be approved by the complex area superintendent.

History

[Eff. 11/2/81; comp and ren § 8-37-6 8/28/95; am and comp 6/15/09] (Auth: HRS § 302A-1112) (Imp: HRS § 302A-1112)

Chapter 38 CONSOLIDATION OF PUBLIC SCHOOLS

Haw. Code R. § 8-38-1 Purpose

The purpose of this chapter is to:

(1) State the conditions which indicate the need to consider the consolidation of schools to achieve significant reductions in operating or capital expenditures or to ensure equal educational opportunity for students;

(2) Provide procedures and guidelines to determine whether a school should be consolidated; and

(3) Ensure that parents and other parties are informed of proposed consolidations and are given the opportunity to express their views at a public hearing.

History

[Eff. 8/23/84; comp 2/1/01; am and comp 6/15/09] (Auth: HRS § 302A-1112) (Imp: HRS §§ 302A-1112, 302A-1129)

Haw. Code R. § 8-38-2 Definitions

As used in this chapter:

"Board" means the board of education.

"Consolidation" means the closing of one or more existing schools and the transfer of all the students enrolled at the closed school to another school. It shall not mean the transfer of one or more grade levels to another school.

"Days" means calendar days.

"Department" means the department of education.

"Superintendent" means the superintendent of the department.

History

[Eff. 8/23/84; am and comp 2/1/01; am and comp 6/15/09] (Auth: HRS § 302A-1112) (Imp: HRS §§ 302A-101, 302A-1107, 302A-1112, 302A-1129)

Haw. Code R. § 8-38-3 Conditions under which a study is required

The superintendent shall initiate a study to determine whether a school should be consolidated if:

(1) One third or more of the square footage in the existing facilities requires replacement or improvements to meet prescribed standards;

(2) One third or more of the available classrooms are in excess of the teaching station and educational program needs of the school; or

(3) Enrollment decline and staff reductions have or will reduce the capability of the school to provide the range of educational opportunities offered at adjoining schools with larger enrollments; provided, preliminary data indicate that adjoining schools can accommodate any relocated students without substantial capital improvement expenditures for additional facilities.

History

[Eff. 8/23/84; comp 2/1/01; am and comp 6/15/09] (Auth: HRS § 302A-1112) (Imp: HRS §§ 302A-1112, 302A-1129)

Haw. Code R. § 8-38-4 Procedures and guidelines

(a) When a consolidation study must be initiated in accordance with section 8-38-3, the superintendent shall submit a written report to the board that the department will initiate a consolidation study and the reasons why a consolidation study is being conducted. Following the submission of such report to the board, the department may conduct the consolidation study.

(b) Based upon findings of the consolidation study, the superintendent shall then render a written report to the board, which shall include, but not be limited to, the following considerations:

(1) The advantages and disadvantages of consolidation in respect to efficient school administration and providing equal educational opportunity;

(2) The adequacy of facilities, equipment, programs, transportation service, and other support services at the school which may be closed and the school to which students may be transferred;

(3) Social impact on the children, schools, community and those involved in the consolidation;

(4) The net financial savings that may be realized from consolidation, including projections of additional expenditures at the school which may receive transferred students;

(5) Potential new residential developments, projected changes in enrollment, and other relevant demographic considerations;

(6) Suitability of using portions of the school facilities to accommodate space requirements of other department or state activities; and

(7) A suggested timetable for implementation if consolidation is recommended.

(c) Upon receiving the report, the board shall review the report and direct the superintendent, who shall designate a department official as the hearing officer, to conduct a public hearing within sixty days of the board's receipt of the report to receive community input on the report. Said report shall be posted on the department's website and hard copies shall be made available for review at the affected school(s). The superintendent shall notify members of the community of the public hearing by placing a notice in a newspaper of general or area circulation in the State and by such other means as the [district] superintendent determines appropriate.

(d) The superintendent shall submit a summary of the public hearing and the superintendent's recommendations to the board within thirty days of the close of the public hearing.

(e) The board shall conduct such proceedings as it deems appropriate to reach a decision on the consolidation proposal. The decision of the board shall be final."

History

[Eff. 8/23/84; am and comp 2/1/01; am and comp 6/15/09] (Auth: HRS § 302A-1112) (Imp: HRS §§ 302A-1112, 302A-1129)

Chapter 39 USE OF SCHOOL BUILDINGS, FACILITIES, AND GROUNDS

Haw. Code R. § 8-39-1 General rule

All public school buildings, facilities, and grounds shall be available for general recreational purposes and for public and community use whenever these activities do not interfere with the normal and usual activities of the school and its pupils as provided by law. This general rule shall be carried out within the policy of the department of education that no available public school building, facility, or grounds shall be denied for use by the public and community on the grounds of race, color, religion, sex, age, national origin, or disability. The department of education shall not assist any public or community group which discriminates on the basis of sex by making available for use public school buildings, facilities, and grounds, except for groups specifically exempted by the provisions of 20 U.S.C. 1691, 1682 (Title IX, Education Amendments of 1972), or exempted by the Secretary of the U.S. Department of Education.

History

[Eff. 11/17/84; am and comp JUN 22, 1996] (Auth: HRS § 302A-1112) (Imp: 20 U.S.C. 1681 et seq., 901; Title IX, 34 C.F.R. 106; Title VI, 42 U.S.C. 200d et seq., 601-603; 34 C.F.R. 100; 42 U.S.C. 6101, 302; 42 U.S.C. 6102, 303; 45 C.F.R. 90; 29 U.S.C. 794; 34 C.F.R. 104; Hawaii Const. Art. 1, 3; HRS § 302A-1101; Hawaii Const. Art. X, 3; HRS §§ 302A-1112, 302A-1001, 302A-1149, 302A-1147, 302A-1148, 302A-1150)

Haw. Code R. § 8-39-2 Applications

Applications for the use of buildings, facilities, or grounds shall be submitted in writing in accordance with the department's rules.

History

[Eff. 11/17/84; comp JUN 22, 1996] (Auth: HRS § 302A-1112) (Imp: HRS §§ 302A-1128, 302A-1112, 302A-1147, 302A-1148)

Haw. Code R. § 8-39-3 Categories of use

Use of school buildings, facilities, or grounds shall be classified as follows:

(1) Type I. Department of education, school sponsored and school-related activities.

(2) Type II. Governmental agencies, not for profit community educational or recreational activities, youth clubs, athletic teams, labor organizations or service clubs conducting general recreational activities, community affairs, or public hearings for which no admission charge is made, collection taken or offering received during the use of school facilities. Student child-care activities conducted by non-profit organizations who have received tax exemption from the State department of taxation shall be classified as Type II use even if there is a charge.

(3) Type III. Governmental agencies, community groups, churches, business enterprises, labor unions or individuals who:

(A) Charge participants a fee, tuition, collect donations, contributions or offerings; or

(B) Conduct fund raising activities, or meetings or services to promote a business, product, or religion; or

History

(Eff. 11/17/84; am and comp JUN 22, 1996] (Auth: HRS § 302A-1112) (Imp: HRS §§ 302A-1112, 302A-408, 302A-1147, 302A-1148, 302A-1149, 302A-1150)

Haw. Code R. § 8-39-4 Approvals

(a) For periods of use not exceeding twelve consecutive months:

(1) Applications for Type I, II, and III uses shall be filled out by applicant and shall be approved or disapproved by the school's principal or a designee;

(b) For periods of use exceeding twelve consecutive months, all applications shall be initially processed by the school and final approval given by the land board of the department of land and natural resources.

History

[Eff. 11/17/84; am and comp JUN 22, 1996] (Auth: HRS § 302A-1112) (Imp: HRS §§ 302A-1112, 302A-1148)

Haw. Code R. § 8-39-5 Fees and service charges

(a) The rental fees and service charges applicable to the use of school facilities shall be determined by the superintendent of education to recover costs.

(b) The fees and charges shall be revised by the superintendent of education when necessary during the odd year of a fiscal biennium based on the following criteria:

(1) The rental fees for the use of school facilities shall be calculated on the basis of current average construction costs for classrooms and support facilities or average cost estimates provided by the department of accounting and general services. The daily charge shall be determined by amortizing the cost over forty years and multiplying by a common factor determined by the department.

(2) The utility charges shall be assessed according to the type of facility and the number of hours the facility is used. The utility charge shall be calculated by the department based on the actual amount charged by the utility company of the appropriate island. The charge shall cover costs which would not have been incurred if the facility was not utilized.

(3) The custodial charges shall be based on the current average negotiated wages at the start of the fiscal biennium.

(1) Type I user:

(A) No rental fee for use of school facilities.

(B) The service charge for custodial services if required beyond the school day shall be for a minimum of two hours. The total service charge shall be the current wages multiplied by the number of hours the custodian(s) is on duty.

(D) Examples of Type I users: school related activities, school parent-teacher-student organizations, school community based councils, department of education in-service workshops and meetings, all A+ programs, county department of parks and recreation use of facilities per joint-use agreement, primary and general elections including trainingn for election officials, and school directed after school, night, or weekend activities.

(2) Type II user:

(A) No rental fee for use of school facilities.

(D) Examples of Type II users: federal, state, and county agencies, nonprofit community organizations, youth athletic teams, private preschool and after school programs endorsed by the department of education, public hearings and meetings, and other educational or recreational activities approved by the school where no fees are assessed or collected.

(3) Type III user:

(A) A rental fee shall be assessed.

(B) The service charge for custodial services when required by the school shall be for a minimum of two hours. The total custodial charge shall be the current wages multiplied by the number of hours the custodian(s) is on duty.

(D) Examples of Type III users: organizations, groups, or individuals who do not belong to Type I or Type II category; churches, private schools, universities, business enterprises, special interest classes, and other individuals, organizations, or activities utilizing school facilities and charging a fee or tuition, or collecting a donation or offering.

History

[Eff. 11/17/84; am and comp JUN 22, 1996] (Auth: HRS § 296-12) (Imp: HRS §§ 296-12, 298-23)

Haw. Code R. § 8-39-6 Collection, disposition, and use of fees and charges

(a) The school principal or designee shall be responsible for the collection of fees and charges from the users of school buildings, facilities, or grounds. The moneys collected shall be deposited into a special fund. Statutory special fund assessments shall first be deducted from rental fees collected. Seventy per cent of the rental fees collected shall then be credited to the school and thirty per cent shall be credited to the district. One hundred per cent of charges for custodial services and utilities shall be deposited to reimburse the custodial and the utilities account of the school.

(b) Each school and district may expend the net proceeds of rental fees collected. The expenditures shall not be limited to:

(1) Replacement of custodial and janitorial supplies; and

(2) Repairs, maintenance and replacement of equipment.

History

[Eff. 11/17/84; am and comp JUN 22, 1996] (Auth: HRS § 302A-1148) (Imp: HRS § 302A-1148)

Haw. Code R. § 8-39-7 Other requirements

(a) Applicants shall comply with state laws and county ordinances and state and county rules including, but not limited to:

(1) Fire code;

(2) Fieldhouse and gym rules;

(3) Police protection rules; and

(4) Rules of the state department of health.

(b) Applicant agrees to assume cost of repairs for damages incurred to buildings, grounds, and equipment whether accidental or otherwise at the time of use.

(c) Applicants shall be required to execute a release form as provided by the department releasing the State of Hawaii from any responsibility or claim arising out of injuries or damages, or both, incurred during the use of buildings, facilities, or grounds to conduct applicant's activities.

(d) Carnivals and fairs, and non-department sponsored athletic events which involve large crowds or greater risk, or both, for personal injury to participants due to the type of activity shall be required to carry general liability coverage in the amount of $1,000,000 per incident of personal injury with the State of Hawaii named as the additional insured. A fair organizer or promoter who charges participants for the use of parts of a facility or tables in a facility shall assure that each of the participants carries adequate liability insurance for an amount determined by the State of Hawaii.

(e) Police protection shall be provided as follows:

(1) Except as determined by the principal or the district superintendent, a minimum of one police officer shall be on duty for events using the gymnasium, auditorium, cafetorium or for swimming meets, carnivals, and fairs;

(2) Applicant shall arrange to hire and to pay for police protection and shall submit the names of officers hired to the school prior to the event.

(f) Electrical service lines and meters for carnivals, fairs, and other large activities shall be dealt with as follows:

(1) Applicants shall provide and pay for the installation of necessary electrical service lines and meters;

(2) Connection of electrical lines to a school's system shall be prohibited.

(g) Swimming pool use requirement:

(1) A certified lifeguard shall be on duty at all times that the pool is in use;

(2) The organization using the pool shall provide one responsible adult for every twenty-five swimmers:

(h) Alterations, modifications, and renovations: all alterations to school facilities shall be approved by the department of accounting and general services and the department of education.

History

[Eff. 11/17/84; am and comp JUN 22, 1996] (Auth: HRS § 302A-1112) (Imp: HRS § 302A-1112)

Haw. Code R. § 8-39-8 Use of auditorium by groups employing union workers

When school auditoriums or similar facilities are made available to public or community groups and the groups employ union stage workers or machine operators, or both, one or more school staff selected and assigned by the principal or the principal's designated assistant shall be present at each performance to run school-owned equipment and shall be paid going rates for the type of service performed. Payments shall be made by those renting the auditorium. In addition, skilled stage workers such as operators of projectors, stage lights, sound equipment, and spotlights shall be employed by the sponsor as needed.

History

[Eff. 11/17/84; am and comp JUN 22, 1996] (Auth: HRS § 302A-1112) (Imp: HRS § 302A-1112)

Haw. Code R. § 8-39-9 Alcoholic beverages and tobacco substances

Alcoholic beverages and tobacco substances shall not be sold, consumed or used on school grounds or in school buildings or facilities.

History

[Eff. 11/17/84; am and comp JUN 22, 1996] (Auth: HRS § 302A-1112) (Imp: HRS § 302A-1112)

Haw. Code R. § 8-39-10 Use of buildings as sleeping quarters

In the event of a public emergency, the superintendent or a designated representative may authorize school facilities to be used as sleeping quarters. Under any other circumstances, the district superintendent may entertain and approve applications for use of school facilities as sleeping quarters by Types I, II, and III users.

History

[Eff. 11/17/84; comp JUN 22, 1996] (Auth: HRS § 296-12) (Imp: HRS §§ 27-9, 296-12)

Haw. Code R. § 8-39-11 Use of buildings by organizations for political purposes

When school facilities are used for campaign purposes, organizations shall pay the appropriate fees as a Type III user.

History

[Eff. 11/17/84; am and comp JUN 22, 1996] (Auth: HRS § 302A-1112) (Imp: HRS § 302A-1112)

Haw. Code R. § 8-39-12 Subleasing

Users of school buildings, facilities, and grounds shall not sublease the property to other individuals, groups, or organizations, provided that this restriction shall not apply to craft fair promoters or organizations who rent school facilities for a fair and, in turn, charge participating vendors or sellers a fee for the use of sections or tables as long as the fair promoters or organizations maintain adequate liability insurance coverage which includes the liabilities of each of the individuals or organizations licensed by the fair promoters or organizations.

History

[Eff. 11/17/84; am and comp JUN 22, 1996] (Auth: HRS § 302A-1112) (Imp: HRS § 302A-1112)

Haw. Code R. § 8-39-13 Loss of rental privileges

Applicants who have outstanding accounts with the school or department, or both, have fraudulently subscribed to erroneous information on the use of facilities application form, or have previously misused the department's property, grounds or facilities may be denied the use of school facilities.

History

[Eff. 11/17/84; am and comp JUN 22, 1996] (Auth: HRS § 302A-1112) (Imp: HRS § 302A-1112)

Haw. Code R. § 8-39-14 Appeal process

Applicants who have been denied the use of school buildings, facilities, and grounds may appeal the decision with the district superintendent. The district superintendent's decision shall be final.

History

[Eff. 11/17/84; am and comp JUN 22, 1996] (Auth: HRS § 302A-1112) (Imp: HRS § 302A-1112)

Chapter 40 USE OF KITCHEN AND FOOD PREPARATION EQUIPMENT

Haw. Code R. § 8-40-1 General rule

Kitchen and food preparation equipment of the public schools may be used by school and community-related organizations. The foregoing general rule shall be carried out within the policy of the department of education that no available public school building, facility, or ground shall be denied for use by the public and community on the grounds of race, color, religion, sex, age, national origin, or handicap. The department of education shall not assist any public or community group which discriminates on the basis of race, color, sex, national origin, or handicap by making available for use public school buildings, facilities and grounds, except for groups specifically exempted by the federal or State law.

History

[Eff. AUG 22, 1983] (Auth: HRS § 302A-1112) (Imp: HRS § 302A-1112; 20 U. S C. 1681, §901; 42 U.S.C. 2000d, §§ 601 - 603, 6101, §§ 3 - 2, 6102, § 303; 29 U.S.C. 706)

Haw. Code R. § 8-40-2 Applications

Applications for the use of kitchen and food preparation equipment shall be submitted in writing to the school principal for approval.

History

[Eff. AUG 22, 1983] (Auth: HRS § 302A-1112) (Imp: HRS §§ 302A-1112, 302A-1148)

Haw. Code R. § 8-40-3 Supervision of use

The kitchen and food preparation equipment may be used to prepare and serve food only if permanent school food services personnel from the base kitchen are on duty to supervise proper use of equipment and clean up of work area. The sponsoring organization shall accept assignment of school food services personnel at the level determined by the principal and the school food services manager to be essential to assure adequate supervision of use of equipment and clean up of work area.

History

[Eff. AUG 22, 1983] (Auth: HRS § 302A-1112) (Imp: HRS §§ 302A-1112, 302A-1148)

Haw. Code R. § 8-40-4 Removal of equipment

Cafeteria equipment, including dining tables and chairs, shall not be loaned or moved from the cafeteria for other than school purposes. There shall be no exception to this section.

History

[Eff. AUG 22, 1983] (Auth: HRS § 302A-1112) (Imp: HRS § 302A-1112)

Haw. Code R. § 8-40-5 Public emergency

In the event of a public emergency, the kitchen and food preparation equipment shall be made available as required by the superintendent or the superintendent's authorized representative.

History

[Eff. AUG. 22, 1983] (Auth: HRS § 302A-1112) (Imp: HRS §§ 127-9, 302A-1112)

Haw. Code R. § 8-40-6 Fees

(a) Fees related to actual costs shall be assessed. A charge of $10 per hour for a minimum of two hours shall be assessed for the first school food services employee scheduled. For additional school food services personnel scheduled, a charge of $8 per hour for a minimum of two hours shall be assessed. All hours worked in excess of the two hour minimum shall result in additional assessment at the hourly rates indicated.

(b) The superintendent may annually revise the average hourly utility cost for kitchen use. This hourly cost shall be charged for each hour of kitchen use.

(c) A charge equal to that charged the department of education shall be assessed when the amount of trash or garbage generated requires an extra pick-up by the refuse collector.

(d) A community-related organization shall pay a deposit of $50 prior to use of kitchen. The user organization shall be liable for any replacement or repair costs which may exceed the amount of deposit. The deposit shall be returned once all charges have been paid by the organization to the department of education and the principal and school food services manager approve release of deposit less any charges for lost or damaged equipment, or both.

(e) Failure by the organization to meet all financial obligations to the department of education within thirty days shall warrant forfeiture of deposit and denial of use of any school kitchen for a period of up to two years.

History

[Eff. AUG 22, 1983] (Auth: HRS § 302A-1112) (Imp: HRS §§ 302A-1112, 302A-1148)

Haw. Code R. § 8-40-7 Collection, disposition, and use of fees and charges

(a) The school principal or designee shall be responsible for the collection of fees and charges from the users of kitchen and food preparation equipment. The moneys shall be deposited into a special revenue fund.

(b) The office of business services is authorized to expend money collected from the use of kitchen and food preparation equipment. The expenditures from the special revenue fund shall be limited to the school food service program.

History

[Eff. AUG 22, 1983] (Auth: HRS § 302A-1148) (Imp: HRS § 302A-1148)

Chapter 45 COMMUNITY SPONSORED ACTIVITIES

Haw. Code R. § 8-45-1 General rule

(a) The department shall cooperate with individuals, community organizations and agencies desiring to sponsor activities in the public schools when activities are in keeping with the purposes and educational aims of the schools, do not result in an undue disruption or loss of instructional time for the student, do not impose an unreasonable added workload on the staff of the school, and require no direct monetary assessment of the student for in-classroom activities.

(b) The primary educational aims of the school and the needs and interests of its pupils shall be the first consideration at all times.

(c) Schools shall not be used to promote private interests and causes that have not gained general approval as being for the general welfare. Schools shall not be used to promote religious causes.

(d) Schools shall not be used for direct or indirect sales promotion of goods or services nor for concealed, misleading, or extravagant advertising.

(e) All materials or activities initiated by private sources shall be judged on grounds of their:

(1) Direct contribution to educational values;

(2) Factual accuracy; and

(3) Good taste.

(f) Proposed activities relating to curriculum in the schools shall be reviewed by the department's office of instructional services for accuracy and conformity with the established curriculum.

History

[Eff. 5/2/93; am and comp MAR 11, 1996] (Auth: HRS § 302A-1112) (Imp: Hawaii Const. Art. I, § 3; HRS §§ 302A-1101, 302A-1112, 302A-1139)

Haw. Code R. § 8-45-2 Application procedures

Agencies and individuals desiring to sponsor activities and programs in the schools shall complete form 117 and return it with copies of relevant informational materials to the community sponsored activities committee for evaluation and recommendation before June 1 of each year for activities planned for the following year. When the activity is to be conducted on a limited scale and not statewide, the request shall be filed with the district superintendent.

History

[Eff. 5/2/83; am and comp MAR 11, 1996] (Auth: HRS § 302A-1112) (Imp: HRS § 302A-1112)

Haw. Code R. § 8-45-3 Sponsor's responsibility

The sponsor of the activity is responsible for the preparation and circulation of all informational materials and for other administrative work required in the conduct of the activity including the grading, judging or evaluation of the participants.

History

[Eff. 5/2/83; comp MAR 11, 1996] (Auth: HRS § 302A-1112) (Imp: HRS §§ 302A-1112)

Haw. Code R. § 8-45-4 School cooperation with sponsors

Schools may cooperate with sponsors of approved activities by making announcements, posting notices, and communicating information on these activities by other appropriate means to interested students.

History

[Eff. 5/2/83; am and comp MAR 11, 1996] (Auth: HRS § 302A-1112) (Imp: Hawaii Const. Art. I, § 3; HRS §§ 302A-1101, 302A-1112)

Haw. Code R. § 8-45-5 Committee's recommended list of activities

The community sponsored activities committee shall submit a recommended list of activities and programs to the superintendent.

History

[Eff. 5/2/83; am and comp MAR 11, 1996] (Auth: HRS § 302A-1112) (Imp: HRS § 302A-1112)

Haw. Code R. § 8-45-6 Approval required

All statewide community sponsored activities shall have the prior approval of the superintendent.

History

[Eff. 5/2/83; am and comp MAR 11, 1996] (Auth: HRS § 302A-1112) (Imp: Hawaii Const. Art. I, § 3; HRS §§ 302A-1101, 302A-1112).

Chapter 46 COMMUNITY FUND-RAISING DRIVES AMONG STUDENTS

Haw. Code R. § 8-46-1 General rule

Community sponsored fund-drives and money-raising activities are prohibited at the student level.

History

[Eff. 5/2/83; comp MAR 11, 1996] (Auth: HRS § 302A-1112) (Imp: HRS § 302A-1112)

Haw. Code R. § 8-46-2 Educational materials

Appropriate educational materials which may be provided by fund-drive sponsors may be used as part of the regular instructional program.

History

[Eff. 5/2/83; comp MAR 11, 1996] (Auth: HRS § 302A-1112) (Imp: HRS § 302A-1112)

Haw. Code R. § 8-46-3 Exceptions

Exceptions to this chapter shall be made only by the superintendent. Exceptions shall be based on the following criteria:

(1) Eleemosynary or charitable, non-profit organizations may submit an application to sponsor one fund-raising activity per organization per school year provided there is no direct monetary assessment of the student;

(2) Fund raising activities shall be educationally sound and based on positive humanitarian values with emphasis on heightening social consciousness;

(3) Projects shall enhance the educational objectives and have strong instructional values;

(4) No project shall be approved that accrues benefits to a profit-making organization;

(5) Parents shall complete a permission form for voluntary participation of the student in fund-raising activities; and

(6) Projects granted an exception shall also comply with the requirements of chapter 45 of title 8, Hawaii Administrative Rules, relating to community sponsored activities.

History

[Eff. 5/2/83; am and comp MAR 11, 1996] (Auth: HRS § 302A-1112) (Imp: HRS § 302A-1112)

Chapter 49 POLITICS AND THE SCHOOL PROGRAM

Haw. Code R. § 8-49-1 Definitions

As used in this chapter:

"Candidate" means a person as defined in § 11-191(3), Hawaii Revised Statutes.

"Department" means the Hawaii State department of education.

"Political party" means a party as defined in § 11-61, Hawaii Revised Statutes.

History

[Eff. MAY 02, 1983] (Auth: HRS § 302A-1112) (Imp: HRS § 302A-1112)

Haw. Code R. § 8-49-2 Candidates for political office

Persons running for political office are permitted to make campaign speeches to students as part of the school program, provided all other candidates for the same office are allowed equal representation in the program.

History

[Eff. MAY 02, 1983] (Auth: HRS § 302A-1112) (Imp: HRS § 302A-1112)

Haw. Code R. § 8-49-3 Political party policies

Representatives of all recognized political parties, in equal numbers, who may or may not be candidates for political office, may be invited to schools to discuss their party, its policies, principles and platform.

History

[Eff. MAY 02, 1983] (Auth: HRS § 302A-1112) (Imp: HRS § 302A-1112)

Haw. Code R. § 8-49-4 Youth political clubs

Youth political clubs, whose activities and meetings take place outside of school, shall be encouraged in the high schools, provided:

(1) They are not promoted by the school.

(2) Teachers who volunteer as club advisors do not bring into the classroom any phase of the club's activity.

History

[Eff. MAY 02, 1983] (Auth: HRS § 302A-1112) (Imp: HRS § 302A-1112)

Haw. Code R. § 8-49-5 Teacher groups

Teacher groups meeting in school facilities during regular school hours are not permitted to invite individual candidates for campaign purposes. Candidates for office may be invited to teacher group meetings in school facilities outside of school hours.

History

[Eff. MAY 02, 1983] (Auth: HRS § 302A-1112) (Imp: HRS § 302A-1112)

Haw. Code R. § 8-49-6 Rewarding students for supporting a single candidate or party; prohibition and penalties

No teacher, officer or other employee of the department shall reward any student by the granting of credit, grade, or other forms of recognition as the result of such student supporting a single candidate or party by request of or encouragement from a teacher, officer or other employee of the department. Any teacher, officer, or other employee of the department who violates this section may be disciplined in accordance with the regulations and procedures of the department.

History

[Eff. MAY 02, 1983] (Auth: HRS § 302A-1112) (Imp: HRS § 302A-1112)

Chapter 50 PERSONAL PROPERTY ON SCHOOL PREMISES

Haw. Code R. § 8-50-1 Liability for property left at school

A school shall not be liable for the loss or damage to property left at a school by individuals or organizations.

History

[Eff. MAY 02, 1983] (Auth: HRS § 302A-1112) (Imp: HRS § 302A-1112)

Haw. Code R. § 8-50-2 Release of department liability

Individuals or responsible officers of an organization, desiring to leave property at a school, shall consult with the principal or designee and sign a statement relieving the department of any liability for loss or damage to the property.

History

[Eff. MAY 02, 1983] (Auth: HRS § 302A-1112) (Imp: HRS § 302A-1112)

Haw. Code R. § 8-50-3 Disposition of lost and found items

(a) All schools and department of education offices are to make every reasonable effort to return all money or property found in school premises to the rightful owner in accordance with the law. A record shall be kept of all such money and property and a report of same made to the chief of police of the county.

(b) Parents are to be notified through the Parent-Teacher Association, school bulletin, or by other appropriate means each year, of money and property found on school premises. Parents shall be informed that prompt action should be taken to recover lost items and be advised that appropriate disposition shall be made of any unclaimed money and property.

(c) All money or property found on school premises and reported or delivered by the finder to the school office or other office shall be returned to its rightful owner upon establishment of ownership. If no right of ownership is established, the money or property shall be returned to the person who found it after forty-five days following the report to the chief of police of the county where the item was found.

(d) The school shall maintain a list of all property found and turned in to the school office or other office. The list shall include the date, a description of the item found, and the name of the finder. A copy of the list shall be transmitted to the chief of police of the county where the item was found. Schools shall transmit the list during winter recess, spring recess, or immediately following the close of school. A record of the disposition of the item shall be documented by the school forty-five days following the report to the chief of police of the county where the item was found.

History

[Eff. MAY 02, 1983] (Auth: HRS § 302A-1112) (Imp: HRS §§ 302A-1112, 52-15)

Chapter 51 PROVISION OF APPROPRIATE EDUCATIONAL PROGRAMS AND OPPORTUNITIES FOR EXCEPTIONAL CHILDREN WHO ARE GIFTED AND TALENTED

Haw. Code R. § 8-51-1 Purpose

(a) All children and youth have the right to develop their potential to the fullest. Recognizing this right, the department of education accepts the obligation to assist all students to develop their potential and recognizes that this goal can best be accomplished by providing appropriate educational opportunities.

(b) The department further recognizes the wide range of interests, motivations, and talents among students and believes that this diversity must be considered in the design and delivery of educational opportunities. Among these students are those who have demonstrated superior achievement or possess the potential for superior achievement. These students constitute a valuable and irreplaceable human resource because of their potential for making significant contributions to society. It is not possible to measure the loss to society, as well as to themselves, when educational opportunities are not in keeping with the particular needs and abilities of such students.

(c) The department is committed to providing appropriate educational opportunities at each school for its students. The department therefore acknowledges the necessity to identify gifted and talented students in various areas of giftedness and talent in every school and to make available appropriate educational opportunities, insofar as financial and physical resources are available within the department. The purpose of this chapter is to establish the procedures for the identification, programming and placement of gifted and talented students.

History

[Eff. AUG 23, 1984] (Auth: HRS §§ 302A-1112, 302A-444, 302A-445) (Imp: HRS § 302A-445)

Haw. Code R. § 8-51-2 Definitions

As used in this chapter:

"Appropriate educational opportunity" means department approved programs as described in A State Plan for Providing Appropriate Educational Opportunities for the Gifted and Talented, department of education, September 1977, and the Hawaii State Guidelines and Procedures for Gifted and Talented Education, department of education, June 1982.

"Consent" means the parent approves of the proposed program for the gifted or talented student after:

(1) The parent has been provided information relevant to the educational program for which the consent is sought, including a description of that option; and

(2) The parent is informed that parental consent is required before placement is made.

"Creative ability" means capacity of a student to engage consistently in divergent thinking and unique productivity, or conceptualization at high levels.

"Days" means department workdays.

"Department" means the department of education, State of Hawaii.

"Gifted students" means students with test scores or performances substantially and consistently above average and who also meet other multiple identification and selection criteria of the school.

"Identification" means those procedures that are designed to systematically screen and select students.

"Intellectual ability" means ability to perform or accomplish cognitive operations at two standard deviations above the norm as measured on a department approved standardized ability test or other evaluation measures.

"Leadership capability" means ability evident in those students who manifest a natural propensity to assume leadership roles in group activities.

"Parent" or "Parents" means the natural or legal parent, guardian, custodian, or a person acting as a parent of a child such as a grandparent or stepparent.

"Performing or visual arts ability" means ability evident in students who, as compared to their age-mates, demonstrate exceptional skill or potential in areas such as art, dance, music, drama, or speech.

"Potential for superior achievement" means present or latent superior ability as determined by analysis of test scores, performance or other means of identification.

"Program" or "Programs" means appropriate educational options which are provided to a gifted or talented student in accordance with the school's plan.

"Psychomotor ability" means aptitude displayed through body movements with demonstrated high ability or attainment in either gross or fine manipulative activities such as athletic, dance or mechanical skills.

"Specific academic ability" means ability exhibited by students whose academic potential or academic performance in one or two specific curricular areas, such as mathematics or languages, exceeds what is normally expected of students, such as functioning at two standard deviations above the mean on department approved achievement tests.

"Student" means a person subject to the State's compulsory school attendance law and who is enrolled in and attending a public school administered by the department.

"Superior achievement" means student achievement which is consistent and substantially above average as measured by standardized test scores or performances as judged by professionals and experts in their fields.

"Talented students" means students who meet the school's multiple identification and selection criteria largely based on the students' products or performance.

History

[Eff. AUG 23, 1984] (Auth: HRS §§ 302A-1112, 302A-444, 302A-445) (Imp: HRS § 302A-445)

Haw. Code R. § 8-51-3 Applicability

Any action relating to identification, program, placement, or evaluation of students who are gifted and talented or who may be potentially gifted and talented, shall be undertaken in accordance with this chapter. This chapter applies to all persons who are subject to the State's compulsory school attendance law and who are enrolled in and attending a public school administered by the department.

History

[Eff. AUG 23, 1984] (Auth: HRS §§ 302A-1112, 302A-444, 302A-445) (Imp: HRS § 302A-445)

Haw. Code R. § 8-51-4 Authority

The principal and district superintendent shall provide students who are gifted and talented an appropriate public education in accordance with this chapter and within available funding, or other resources.

History

[Eff. AUG 23, 1984] (Auth: HRS §§ 302A-1112, 302A-444, 302A-445) (Imp: HRS § 302A-445)

Haw. Code R. § 8-51-5 School committee for gifted and talented

(a) Each school shall have a school committee for gifted and talented composed of at least three members, one of whom shall be a school administrator or designee. The principal shall appoint its members from among teachers, parents, department of education administrators, counselors, and professional experts.

(b) Responsibilities of the committee shall include the following:

(1) Reviewing the student profiles of the eligible candidates;

(2) Rating each candidate using an individual student rating matrix form, or case study form;

(3) Recommending the selection of students for placement in a gifted and talented program; and

(4) Periodically reviewing gifted and talented students' progress for possible revision of their program.

History

[Eff. AUG 23, 1984] (Auth: HRS §§ 302A-1112, 302A-444, 302A-445) (Imp: HRS § 302A-445)

Haw. Code R. § 8-51-6 Identification procedures

Gifted and talented students shall be identified by the schools in accordance with the following procedures:

(1) The school shall initially screen its student enrollment for gifted and talented students by using multiple factors, including test scores,nominations, students' products, and past records;

(2) The school shall administer additional assessment instruments as needed to those students so identified;

(3) The school shall compile data on these students by using a matrix or case study form;

(4) The school committee for gifted and talented shall review the data and recommend to the principal or designee the selection of students for participation in an appropriate gifted and talented program, and

(5) The principal or designee shall make the selections and obtain consent for placement of students in a gifted and talented program.

History

[Eff. AUG 23, 1984] (Auth: HRS §§ 302A-1112, 302A-444, 302A-445) (Imp: HRS § 302A-445)

Haw. Code R. § 8-51-7 Criteria for selection

Students who participate in programs for gifted talented shall meet the following two criteria:

(1) Demonstrate, or show potential for, superior achievement through available assessment instruments, observations and rating scales in one of the following areas of giftedness and talent:

(A) Intellectual ability;

(B) Specific academic ability;

(D) Leadership capability;

(E) Psychomotor ability; or

(F) Performing and visual arts ability; and

(2) Meet the standards and requirements of the school's gifted and talented program through additional factors and measures.

History

[Eff. AUG 23, 1984] (Auth: HRS §§ 302A-1112, 302A-444, 302A-445) (Imp: HRS § 302A-445)

Haw. Code R. § 8-51-8 Placement and programming

(a) Placement of gifted and talented students shall be in appropriate educational settings in accordance with the school's program for gifted and talented, as approved by the district superintendent. Placement shall be made with consent of the parent.

(b) Programs for gifted and talented students shall be flexible and provide special emphases as follows:

(1) Progression of students at their own rate and in accordance with their special interests and talents;

(2) Diversity of high level learning experiences in school and community;

(3) Time to be with other students of similar ability so they may learn from each other;

(4) Guidance activities to understand themselves better, to develop interpersonal skills, and to make the best use of their educational opportunities.

History

[Eff. AUG 23, 1984] (Auth: HRS §§ 302A-1112, 302A-444, 302A-445) (Imp: HRS § 302A-445)

Haw. Code R. § 8-51-9 Recordkeeping

Records shall be maintained and updated yearly by the school for each student participating in a gifted and talented program. The records shall be made a part of the student's permanent educational record.

History

[Eff. AUG 23, 1984] (Auth: HRS §§ 302A-1112, 302A-444, 302A-445) (Imp: HRS § 302A-445)

Haw. Code R. § 8-51-10 Reevaluation

A reevaluation may be requested after the student has participated in a gifted and talented program for at least thirty days, if the student, teacher, or parent does not consider the placement to be appropriate and of benefit to the student. Reevaluation may result in maintaining or revising the student's educational setting or program.

History

[Eff. AUG 23, 1984] (Auth: HRS §§ 302A-1112, 302A-444, 302A-445) (Imp: HRS § 302A-445)

Chapter 52 EDUCATIONAL OFFICER CLASSIFICATION/COMPENSATION APPEAL SYSTEM

Haw. Code R. § 8-52-1 Purpose

The purpose of this chapter is to establish a classification and compensation appeal system for educational officers of the department of education.

History

[Eff. NOV 28, 1988] (Auth: HRS § 302A-620) (Imp: HRS § 302A-620)

Haw. Code R. § 8-52-2 Definition of terms

As used in this chapter:

"Affected classes" means the unappealed classes in the same series of the appealed class.

"Affected persons" means persons affected by the classification/compensation plan who believe that their respective positions are improperly classed or that their respective classes are improperly priced.

"Appellant" means an educational officer who files a classification appeal; and an educational officer, the exclusive representative, or the Department in a pricing appeal.

"Board" means the educational officer classification/compensation appeals board.

"Chairperson" means the chairperson of the educational officer classification/compensation appeals board.

"Class" or "Class of work" means the logical and reasonable grouping of duties and responsibilities and their identification with respect to kind or subject matter of work, level of difficulty and responsibility, and qualification requirements of the work, so that positions which conform substantially to the same class will receive like treatment in the matter of title and salary assignments.

"Compensation plan" means the schematic listing of educational officer position classifications and the salary ranges as assigned in the Department of Education Educational Officer Classification/Compensation System.

"Department" means the Hawaii state department of education.

"New class" means a class which did not exist within the classification/compensation plan at the time of the last biennial review and represents a new concept of work for which an initial pricing action was taken.

"Party" means each person or agency named or admitted as a party or properly seeking and entitled as of right to be admitted as a party in a proceeding.

"Pricing" means the process of assigning classes to appropriate salary ranges.

"Pricing appeal" means a formal request to change the compensation plan or salary range assignment of a class.

History

[Eff. NOV 28, 1988] (Auth: HRS § 302A-620) (Imp: HRS § 302A-620)

Haw. Code R. § 8-52-3 Administration of board

(a) The chairperson of the board shall be responsible for the administrative functions of the board.

(b) Appeal hearings and board meetings shall be scheduled at the discretion of the board chairperson.

History

[Eff. NOV 28, 1988] (Auth: HRS § 302A-620) (Imp: HRS § 302A-620)

Haw. Code R. § 8-52-4 Hearing and notice

(a) In appeal cases, all appeal cases, all appellants shall be given an opportunity for a hearing as scheduled.

(b) The notice of hearing shall include a statement of:

(1) The date, time, place, and nature of the hearing;

(2) The legal authority under which the hearing is to be held; and

(3) That the appellant may retain counsel or be represented if the appellant so desires.

History

[Eff. NOV 28, 1988] (Auth: HRS § 302A-620) (Imp: HRS § 302A-620)

Haw. Code R. § 8-52-5 Records of hearings

The board shall keep an accurate record of the appeal matters discussed and the views of the participants. The record shall include, but not be limited to:

(1) The date, time, and place of the meeting.

(2) The members of the board recorded as either present or absent;

(3) The substance of all matters proposed, discussed or decided; and a record, by individual member, of any votes taken; and

(4) Any other information that any member of the board requests be included or reflected in the minutes.

History

[Eff. NOV 28, 1988] (Auth: HRS § 302A-620) (Imp: HRS § 302A-620)

Haw. Code R. § 8-52-6 Validation of decisions

A majority of two (2) votes is necessary to validate any decision made by the board. Validated decisions shall be binding on both parties.

History

[Eff. NOV 28, 1988] (Auth: HRS § 302A-620) (Imp: HRS § 302A-620)

Haw. Code R. § 8-52-7 Appeal of action

(a) Any classification or pricing action by the department on an educational officer position, whether to change a position classification or not, is appealable to board. A classification appeal may be submitted by the incumbent educational officer, or immediate supervisor if the subject position is vacant. A pricing appeal may be submitted by the incumbent educational officer, the exclusive representative, or the department. All petitions for appeal shall be filed with the board within twenty (20) days from the date set by the board for receipt of these appeals.

(b) The appeal shall be submitted on the form prescribed setting forth the basis for the disagreement with the action taken with reference to the work of the position and the relevant class or classes of work. In no case shall an appeal be filed based on work not officially documented on the position description.

(d) An appellant may be represented by the exclusive bargaining agent or other representative authorized by the appellant.

(e) The appeal of classification action shall take precedence over a pricing appeal by the same appellant. A disagreement on the classification of a position shall be resolved prior to any consideration of the pricing of the subject class.

History

[Eff. NOV 28, 1988] (Auth: HRS § 302A-620) (Imp: HRS § 302A-620)

Haw. Code R. § 8-52-8 Pricing

(a) Pricing for 10-month educational officer classes shall be determined on the basis of relationships among such 10-month classes, and pricing for 12-month educational officer classes shall be determined on the basis of relationships among 12-month classes. Notwithstanding these parameters, any other relevant testimony and evidence may be considered.

(b) Within the respective categories of 10-month and 12-month educational officer classes, there shall be a consistent and logical relationship among classes so that there shall be like pricing for substantially comparable classes and dissimilar pricing commensurate with the degree of substantial differences between related classes.

(c) Reasonable salary relationships shall prevail among educational officer classes within the respective categories in consideration of such factors as nature and scope of authority, level of responsibility and complexity, consequences of actions, interpersonal relationships, and knowledge and skill requirements. Factors deemed relevant shall be considered separately and in combination in pricing determinations.

History

[Eff. NOV 28, 1988] (Auth: HRS § 302A-620) (Imp: HRS § 302A-620)

Haw. Code R. § 8-52-9 Proceedings before the board

(a) Limitations to appearances before the board shall be as follows:

(1) No person who has been associated with the board as a member, officer, employee, or counsel shall be permitted to appear before the board in behalf of, or to represent in any manner, any party in connection with any proceeding or matter that the person has handled or passed upon while associated in any capacity with the board.

(2) No person appearing before the board in any proceeding or matter shall, in relation thereto, knowingly accept assistance from and compensate any individual who would be barred by this subsection.

(3) No person who has been associated with the board as a member, officer, employee, or counsel shall be permitted to appear before the board in behalf of, or to represent in any manner, any person or agency in connection with any proceeding or matter that was pending before the board at the time of that person's association, unless that person shall first have obtained the written consent of the board, upon a verified showing that the person did not give personal consideration to the matter or proceeding as to which consent is sought or gain particular knowledge of the facts thereof during that person's association with the board. This subsection shall not apply to any person or agency who has terminated association with the board for a period of five (5) years.

(b) The board, upon its own initiative or upon motion, may consolidate two or more appeals for hearing or for other purposes if they involve substantially the same parties, issues or classes that are the same or closely related, if it finds that the consolidation will be conducive to the proper dispatch of its business.

(1) All appeals and other papers required to be filed with the board in any proceeding shall be filed at the Department of Education, 1390 Miller Street, Room 300, Honolulu, Hawaii 96813, within the time period prescribed by the order of the board. The date of filing shall be deemed to be the date on which the petition is actually received by the board or the date of the postmark, if mailed. Petitions not mailed shall be delivered in person by the appellant or the appellant's representative for time-stamping at the time of delivery.

(2) Appeals shall be made on the appropriate form for classification or compensation (pricing) appeals. The forms shall be made available at all state and district offices, or through the exclusive representative for educational officers. Additional information may be attached to the appeal form being submitted.

(3) Unless otherwise specified, an original and seven copies of all papers shall be filed.

(4) If any document filed in an appeal is not in substantial conformity with the applicable rules of the board as to the contents therein, or is otherwise insufficient, the board on its own motion or motion of any party may strike the document or require its amendment. Five days or the balance of the period for filing, whichever is greater, shall be allowed to submit amended documents. If amended, the document shall be effective as of the date of receipt of the amendment.

(5) All documents filed with or presented to the board shall be retained in its files.

(d) All computations of time shall be based on calendar days, except that when the last day of any computation falls on a non-working day (Saturday, Sunday and holidays), the last day shall be considered to be the first working day after the non-working day.

(e) All decisions made by the board in any appeal shall be served upon the parties participating in the appeal by regular mail or personal delivery, or as otherwise mutually agreed to by the board and the parties involved.

History

[Eff. NOV 28, 1988] (Auth: HRS § 302A-620) (Imp: HRS § 302A-620)

Chapter 54 TEACHER LICENSING STANDARDS

Subchapter 1 GENERAL PROVISIONS

Haw. Code R. § 8-54-1 Statement of purpose

(a) All of Hawaii's public school children deserve to be taught by teachers who are qualified to practice the profession of teaching. The provision of quality education for all public school children is a critical function of state government. The highest standards must be applied to the training of teachers, the screening of applicants for employment and the continued employment of teachers. Teacher standards strengthen the school system's accountability to the public by ensuring that qualified teachers are employed in the public school system.

(b) The purpose of this chapter is to set the standards by which public school teachers shall be licensed and relicensed. These standards shall be established by the Hawaii teacher standards board.

History

[Eff 6/13/97; comp 7/18/98; comp 12/20/01; am and comp 8/13/04] (Auth: HRS § 302A-803) (Imp: HRS §§ 302A-801 to -808)

Haw. Code R. § 8-54-1.1 Authority

The Hawaii teacher standards board shall administer the licensing and relicensing process in accordance with applicable provisions in chapter 302A, Hawai'i Revised Statutes, and the standards provided in this chapter. No person paid under the salary schedule contained in the unit 05 collective bargaining agreement shall serve as a teacher in the department or a charter school without first having obtained a license or permit from the board in such form as the board determines. The superintendent of the department of education and charter school administrator shall administer the emergency hire process in accordance with applicable provisions in sections 302A-801-808, Hawai'i Revised Statutes and the standards provided in this chapter.

History

[Eff 6/13/97; comp 7/18/98; comp 12/20/01; am and comp 8/13/04; am and comp 10/27/11; am and ren § 8-54-1.1 10/30/14] (Auth: HRS § 302A-803) (Imp: HRS §§ 302A-801 to -808)

Haw. Code R. § 8-54-2 [Repealed]

History

R 10/30/14

Haw. Code R. § 8-54-2.1 Applicability

Any action relating to the screening and hiring of teacher applicants by the department or charter schools shall be in accordance with the standards provided in this chapter. All licenses and permits issued by the board shall be renewable provided the licensee or permittee continues to satisfy the board's standards and the renewal requirements.

History

[Eff 6/13/97; comp 7/18/98; comp 12/20/01; am and comp 8/13/04; am and comp 10/27/11; am and ren § 8-54-2.1 10/30/14] (Auth: HRS § 302A-805) (Imp: HRS §§ 302A-801 to -808)

Haw. Code R. § 8-54-2.2 Delegation of Powers

(a) The board delegates authority to the Executive Director to complete the actions set forth in subsections (b) and (c). All delegated actions will be presented to the board at their next regularly scheduled meeting.

(b) The Executive Director is authorized to grant initial licenses, added fields and permits when the following criteria have been met:

(1) All forms, tests and documentation for meeting licensing and permit requirements have been submitted by the applicant and received by the board's office;

(2) Forms and documentation are complete;

(3) There are no professional fitness issues; and

(4) All fees have been paid.

(c) The Executive Director is further authorized to grant license and permit renewals when the following criteria have been met:

(1) All forms and documentation for meeting renewal requirements have been submitted by the applicant and received by the board's office;

(2) Forms and documentation are complete;

(3) There are no professional fitness issues; and

(4) All fees have been paid.

History

[Eff 10/27/11; am and ren § 8.54-2.2 10/30/14] (Auth: HRS § 302A-803) (Imp: HRS §§ 302A-801 to -808)

Haw. Code R. § 8-54-2.3 Electronic capture of documents

Electronic records of the board as may be certified by the custodian of records, shall constitute the official business records of the board.

History

[Eff 8/13/04; comp 8/13/04; am and comp 10/27/11; am and ren § 8-54-2.1 10/30/14] (Auth: HRS § 302A-803) (Imp: HRS §§ 302A-801 to -808)

Haw. Code R. § 8-54-2.4 License and permit fees

(a) The payment of fees is a requirement for issuance of the license or permit. In the case of an approved payment plan for payment of license or renewal fees, interval payments shall be made according to the payment plan agreement and if in non-compliance may be grounds for appropriate action.

(b) If a licensee fails to pay the license or permit fees, the license or permit may be automatically forfeited until the licensee or permittee restores the license in a manner determined by the board.

(d) When the board is fiscally able to apply a discount for online applications and renewals, it may decrease the amount charged to the applicant, licensee or permittee for fee payments made using the online licensing system. The board shall specify the length of time the discount will be in effect at a regularly scheduled meeting. Nothing shall require the continuance of an online discount when the board determines it cannot fiscally do so.

(e) The following fees shall be applicable when applying for a license or permit:

| Provisional license fee per year not more than | $64 | | --- | --- | | Standard license fee per year not more than | $64 | | Advanced license fee per year not more than | $64 | | Permit fee per year not more than | $64 | | License application fee | $25 | | Student Teaching Permit | no charge | | Adding a licensing field to an existing license, per field | $25 | | Non DOE/Charter School name change | $25 | | Late payment of license, permit or renewal fee | $25 | | Restoration fee | $25 | | SATEP Data Entry Correction Fee per error | $300 | | Registration Fee for Out of State Education | | | Preparation Providers operating in Hawaii | $500 | | Review fee for each license field | $500 | | State Review fee for units | $1,000 |

History

[Eff 10/30/14; Am 9/5/2019] (Auth: HRS § 302A-803) (Imp: HRS §§ 302A-801 to -808)

Haw. Code R. § 8-54-2.5 Approved payment plan

(a) As allowed by the board, a licensee or permittee may elect to participate in various payment plans set forth by the board to pay license and renewal fees.

(b) Failure to keep compliant with timely and complete payments shall be regarded as failure to pay required fees for license or renewal and shall be grounds for automatic forfeiture of the license or permit. A person with a forfeited license is prohibited from engaging in the teaching profession.

(c) The board may restore a forfeited license under these circumstances if the licensee becomes current with all payments. Failure to restore in a timely manner as determined by the board shall cause the forfeited license to be terminated. A person with a terminated license must apply for a new license or permit and meet current application requirements.

History

[Eff 10/30/14] (Auth: HRS § 302A-803) (Imp: HRS §§ 302A-801 to -808)

Haw. Code R. § 8-54-2.6 Hawai'i teacher standards board special fund

All fees collected shall be deposited in the Hawai'i teacher standards board special fund established within the state treasury. All other monies received by the board as appropriations, fines, grants or donations shall be deposited in the special fund. The fund shall be administered by the department and used to pay the expenses of the board, including but not limited to, the payment of all operational personnel costs and reimbursements of board members for travel expenses incurred.

History

[Eff 6/13/97; comp 7/18/98; comp 12/20/01; am and comp 8/13/04; comp 10/27/11; am and ren § 8-54-2.6 10/30/14] (Auth: HRS § 302A-806) (Imp: HRS §§ 302A-801 to -808) § 8-54-3

Haw. Code R. § 8-54-3 Definitions

As used in this chapter:

"Accreditation" means a process for assessing and enhancing academic and educational quality through peer review. National accreditation informs the public that an institution has a professional education unit that has met state, professional, and institutional standards of educational quality. National accrediting bodies are approved by the US Department of Education to accredit teacher education programs.

"Board" means the Hawaii teacher standards board.

"Censure" means a formal or stern warning given by the board.

"Charter schools" means public schools holding charters to operate as charter schools under chapter 302D, including start-up and conversion charter schools, that have the flexibility to implement alternative frameworks with regard to curriculum, facilities management, instructional approach, length of the school day, week, or year, and personnel management.

"Charter School Administrator" means head of a local school board of a Charter School.

"Code of Ethics" means the contents of Appendix D, which describes the desired conduct of P-12 teachers as members of the teaching profession.

"Condition" means a qualification, restriction, limitation, or requirement imposed on the licensee or permittee that must be true or done.

"Criminal action against children" means any crime involving minors deemed by the Hawaii teacher standards board to have a direct bearing on an individual's ability to serve as a teacher.

"Cultural Growth and Development Plan" means a plan to develop the cultural and professional knowledge, skills and dispositions to effectively integrate Hawaiian ways of knowing, learning and teaching and increase instructional proficiency in the Hawaiian language, history and culture for an individual holding a special permit to teach in Kaia'õlelo-Kaiapuni Hawai'i, Hawaiian Language Immersion, and Hawaiian Knowledge classrooms. The plan will be developed for the permittee in collaboration with the Office of Hawaiian Education and a Hawaiian Immersion educator preparation program.

"Deny" means to withhold or refuse to grant a license or permit.

"Department" means the department of education.

"Educator Preparation Provider" means a teacher, school counselor or school librarian preparation program that meets the board's state approval performance standards and has been reviewed and approved in an approval process specified by the board.

"Emergency Hire" means an unlicensed employee of a public school paid under the salary schedule contained in the unit 05 collective bargaining agreement.

"Employer" means any public, charter, independent or private school which hires teachers, school counselors and school librarians.

"Executive Director" means the executive officer of the Hawaii teacher standards board.

"Experience" means contracted service in a P-12 school setting in the license field and/or level required to grant a Hawaii license or permit.

"Fee" means any monetary amount assessed to process, issue, modify, correct, or approve a license or permit. Fee also means any monetary amount assessed to process, issue, modify, correct, or approve a teacher education program; or to an institution for the processing or correction of data or information.

"Felony" is defined as those acts which are criminal acts defined as felonies by the Hawaii Revised Statutes or similar criminal acts which were committed in other jurisdictions.

"Forfeit" or "forfeited" or "forfeiture" shall refer to and mean the status of a license or permit that has been automatically cancelled for failure to renew the license or permit, or for failure to comply with the provisions of section 8-54-2.4.

"Internet crimes" means internet crimes as defined by Hawaii Revised Statutes.

"License" means the document signifying recognition granted by the board to practice the profession of teaching.

"Licensee" means the holder of a valid Hawaii teaching license.

"Meritorious New Teacher Candidate" means a designation awarded to teacher candidates in states approved by the board who meet rigorous criteria in areas that have been shown to correlate with student learning gains; strong verbal skills; a high level of mastery of their subject matter; in-depth student teaching; and excellence in their professional program.

"Misdemeanor" for the purpose of these rules is defined as those misdemeanor convictions that pose a substantial risk of harm to the health, safety or welfare of students, minors or others.

"National Board Certification" means the voluntary advanced certification developed and administered by the National Board for Professional Teaching Standards.

"Payment plan" shall refer to and mean a binding agreement on the licensee or permittee to make required payments in a timely manner to comply with license, permit, or renewal requirements.

"Permit" means a limited duty special permit as defined by § 8-54-9.6.

"PRAXIS" means the set of tests developed and administered by the Educational Testing Service.

"Private Employer" for purposes of teacher licensure refers to non-public employers of teachers.

"Program" means a planned sequence of courses and experiences for the purpose of preparing teachers and other school professionals to work in pre-kindergarten through twelfth grade settings. Programs may lead to a degree, a recommendation for a state license, both, or neither.

"Public school" means an academic and non-college type school established and maintained by the department of education or a charter school chartered by the board of education in accordance with law.

"Reinstate" or "reinstatement" shall refer to and mean a determination by the board to allow a person who has met requirements set by the board to engage in the practice of teaching following a license or permit suspension or disciplinary condition.

"Renew" or "renewal" means a determination by the board, prior to expiration of a license or permit, to grant additional years of validity based on the number of years the license or permit is eligible to be renewed.

"Reprimand" shall have the same meaning as "Censure".

"Revocation" means loss of a teaching license or permit for not less than five years.

"Sex offense" means sexual offenses as defined by Hawai'i Revised Statutes.

"School Counselor" means a person whose duties are primarily promoting and enhancing the learning process within the context of academic development, career development and personal/social development and may also include the same definition as "teacher" for purposes of this chapter.

"School Librarian" means a person whose duties are primarily administering the library media program at the individual school level and also includes the same definition as "teacher" for purposes of this chapter.

"Specialized Professional Associations" or 'SPAs" are national organizations that represent teachers, professional education faculty, and other school professionals who teach a specific subject matter, teach students at a specific developmental level, teach students with specific needs, or provide services to students.

"State-approved teacher education program" means a teacher preparation program that meets the board's state approval performance standards and has been reviewed and approved by the board.

"Superintendent" means the state superintendent of the department of education.

"Suspension" means temporary loss of a teaching license/permit for not more than five (5) years due to a disciplinary action by the board.

"Teacher" means a person whose duties in the public school system are primarily teaching or instruction of students or related activities centered primarily on students and who is in close and continuous contact with students, and shall include but not be limited to classroom teachers, school librarians, counselors, registrars, and special education teachers.

"Teacher Leader" means an educator identified by his/her employer who assumes formally or informally one or more of a wide array of leadership roles to support teaching and learning.

"Terminate" or "Terminated" or "Termination" shall refer to and mean the status of a license or permit that has been automatically cancelled for failure to timely restore a forfeited license or permit.

"Unit" or "professional education unit" means the college, school, department, or other administrative body in colleges, universities, or other organizations with the responsibility for managing or coordinating all programs offered for the initial and advanced preparation of teachers and other school professionals, regardless of where these programs are administratively housed in an institution. The professional education unit must include in its accreditation review all programs offered by the institution for the purpose of preparing teachers and other school professionals to work in pre-kindergarten through twelfth grade settings.

"Valid license or valid permit" means a license or permit issued or renewed by the board after all criteria set by the board have been met and authorizes the licensee or permittee to engage in the teaching profession.

"Warning" means an admonition relating to a violation of the Code of Ethics that the board deems not warranting a censure or other disciplinary action.

History

[Eff 6/13/97; comp 7/18/98; comp 12/20/01; am and comp 8/13/04; am and comp 11/9/07; am and comp] (Auth: HRS § 302A-803) (Imp: HRS §§ 302A-801 to -808)

Haw. Code R. § 8-54-3.1 Penalties

(a) Any person who engages in the profession of teaching as a classroom teacher, school librarian or school counselor in a public school without first being issued a license or permit shall be fined $500 per school year.

(b) Any employer who knowingly or intentionally violates this chapter by employing an individual as a public school classroom teacher, school librarian or school counselor who does not possess a valid license or permit may be fined $500 per school year.

History

[Eff 6/13/97; comp 7/18/98; comp 12/20/01; am and comp 8/13/04; comp 10/27/11; am and ren § 8-54-3.1 10/30/14; Am 9/5/2019] (Auth: HRS § 302A-808) (Imp: HRS §§ 302A-801 to -808)

Haw. Code R. § 8-54-4 [Repealed]

History

R 10/30/14

Haw. Code R. § 8-54-5 [Repealed]

History

R 10/30/14

Haw. Code R. § 8-54-6 [Repealed]

History

R 10/30/14

Haw. Code R. § 8-54-7 [Repealed]

History

R 10/30/14

Haw. Code R. § 8-54-8 [Repealed]

History

R 10/30/14

Haw. Code R. § 8-54-9 [Repealed]

History

R 10/30/14

Subchapter 2 LICENSE AND PERMITS; RENEWALS

Haw. Code R. § 8-54-9.1 Provisional license

(a) A nonrenewable provisional license may be granted to an applicant for three (3) years provided that the individual has met the following criteria:

(1) Possesses a baccalaureate degree from a regionally accredited institution or the equivalent from a non-U.S. institution;

(2) Satisfactorily completed a State-approved teacher, librarian or counselor education program;

(3) Demonstrated basic skills and subject area competency in a manner prescribed by the board;

(4) Obtained clearance in the professional fitness check; and

(5) Pays license fees as established by the board.

[Eff 10/30/14] (Auth: HRS § 302A-802) (Imp: HRS §§ 302A-801 to -808)

(b) A non-renewable provisional license may be granted to an applicant for three (3) years provided that the individual has met the following criteria:

(1) Possesses a baccalaureate degree from a regionally accredited institution or the equivalent from a non-U.S. institution;

(2) Possesses a valid unrevoked provisional, or equivalent, teaching license from another state issued for the first time on or after July 1, 2006;

(3) Obtained clearance in the professional fitness check; and

(4) Pays license fee established by the board.

History

[Eff 9/5/2019] (Auth: HRS § 302A-802) (Imp: HRS §§ 302A-801 to -808)

Haw. Code R. § 8-54-9.2 Standard license

(a) A renewable Standard license may be granted to an applicant for five (5) years provided that the individual has met the following criteria:

(1) Possesses a baccalaureate degree from a regionally accredited institution or the equivalent from a non-U.S. institution;

(2) Satisfactorily completed a State-approved teacher, librarian or counselor education program;

(3) Demonstrated basic skills and subject area competency in a manner prescribed by the board;

(4) Obtained clearance in the professional fitness check;

(5) Pays license fees as established by the board; and

(6) Submits verification of at least three (3) out of the last five (5) years of contracted full time teaching experience in a P-12 setting in Hawaii or another state.

(b) A renewable standard license may also be granted to an applicant for five (5) years provided that the individual has met the following criteria:

(1) Possesses a baccalaureate degree from a regionally accredited institution or the equivalent from a non-U.S. institution;

(2) Possesses a valid National Board Certification in the field for which a license is sought and holds a valid license from a state that participates in the Interstate Agreement on Qualification of Personnel;

(3) Obtained clearance in the professional fitness check;

(4) Pays license fees as established by the board; and

(5) Submits verification of at least three (3) out of the last five (5) years of contracted full time teaching experience in a P-12 setting in Hawaii or another state.

(c) A renewable standard license may also be granted to an applicant for five (5) years provided that the individual has met the following criteria:

(1) Possesses a baccalaureate degree from a regionally accredited institution or the equivalent from a non-U.S. institution;

(2) Has received the Meritorious New Teacher Candidate (MNTC) designation on their valid teaching license from a state that is a signatory to the MNTC program;

(3) Obtained clearance in the professional fitness check:

(4) Pays license fees as established by the board; and

(5) Submits verification of at least three (3) out of the last five (5) years of contracted full time teaching experience in a P-12 setting in Hawaii or another state.

(d) A renewable standard license may also be granted to an applicant for five (5) years provided that the individual has met the following criteria:

(1) Possesses a baccalaureate degree from a regionally accredited institution or the equivalent from a non-U.S. institution;

(2) Possesses a valid unrevoked teaching license from another state issued for the first time on or after July 1, 2006;

(3) Obtained clearance in the professional fitness check;

(4) Pays license fees as established by the board; and

(5) Submits verification of at least three (3) out of the last five (5) years of contracted full time teaching experience in a P-12 setting in Hawaii or another state.

(e) A renewable standard license may also be granted to an applicant for five (5) years provided that the individual has met the following criteria:

(1) Possesses a baccalaureate degree from a regionally accredited institution or the equivalent from a non-U.S. institution;

(2) Possesses a valid unrevoked teaching license issued before July 1, 2006, from another state for at least three (3) out of the last five (5) years;

(3) Passed all licensing tests required by the State which issued the valid license being used to apply under this section. If the other state did not test for subject area and basic skills competency the applicant must demonstrate basic skills and subject area competency in a manner prescribed by the board;

(4) Obtained clearance in the professional fitness check;

(5) Pays license fees as established by the board; and

(6) Submits verification of at least three (3) out of the last five (5) years of contracted full time teaching experience in a P-12 setting in Hawaii or another state.

(f) A renewable standard license may also be granted to an applicant for five (5) years provided that the individual has met the following criteria:

(1) Possesses a baccalaureate degree from a regionally accredited institution or the equivalent from a non-U.S. institution;

(2) Pass a board approved performance assessment normed for Hawaii in combination with any other requirements determined by a Hawaii preparation program to be recommended for licensure by the program;

(3) Demonstrated basic skills and subject area competency in a manner prescribed by the board;

(4) Obtained clearance in the professional fitness check;

(5) Pays license fees as established by the board; and

(6) Submits verification of at least three (3) out of the last five (5) years of contracted full time teaching experience in a P-12 setting in Hawaii or another state.

History

[Eff 10/30/14; Am 9/5/2019] (Auth: HRS § 302A-802) (Imp: HRS §§ 302A-801 to -808)

Haw. Code R. § 8-54-9.3 Advanced license

(a) A renewable advanced license may be granted to an applicant for ten (10) years provided that individual has met the following criteria:

(1) Possesses a baccalaureate degree from a regionally accredited institution or the equivalent from a non-U.S. institution;

(2) Possesses a valid unrevoked National Board Certification by the National Board for Professional Teaching Standards in the field for which a license is sought;

(3) Holds a valid teaching license from Hawai'i or a state that participates in the Interstate Agreement on Qualification of Personnel, chapter 315, Hawaii Revised Statutes;

(4) Provides documentation of five (5) years within the last eight (8) years of contracted full-time teaching experience in a P-12 school setting under a current and valid Hawai'i Standard License or an equivalent license issued by another state;

(5) Obtained clearance in the professional fitness check; and (6) Pays license fees as established by the board.

(b) A renewable advanced license may also be granted to an applicant for ten (10) years provided that individual has met the following criteria;

(1) Has been granted a master's, specialist or doctoral degree or has passed a minimum of thirty hours of graduate coursework from a regionally accredited institution either in an area relevant to the field for which a license is sought or which improves professional practice;

(2) Holds a valid standard teaching license from Hawai'i or from a state that participates in the Interstate Agreement on Qualification of Personnel;

(3) Provides documentation of five (5) years within the last eight (8) years of contracted full-time teaching experience in a P-12 school setting under a current and valid Hawai'i Standard License or an equivalent license issued by another state;

(4) Obtained clearance in the professional fitness check; and

(5) Pays license fees as established by the board.

(c) A renewable advanced license may also be granted to an applicant for ten (10) years provided that individual has met the following criteria:

(1) Possesses a baccalaureate degree from a regionally accredited institution or the equivalent from a non-U.S. institution;

(2) Is designated as a teacher leader or master teacher by the Hawaii Department of Education, Hawaii Charter School or a member school of the Hawaii Association of Independent Schools;

(3) Holds a valid Hawaii standard teaching license or from a state that participates in the Interstate Agreement on Qualification of Personnel;

(5) Obtained clearance in the professional fitness check; and

(6) Pays license fees as established by the board.

History

[Eff 10/30/14; Am 9/5/2019] (Auth: HRS § 302A-802) (Imp: HRS §§ 302A-801 to -808)

Haw. Code R. § 8-54-9.4 Emergency hires

(a) An individual who is unable to meet the requirements for a license may be issued a special permit for eligibility to be considered for employment by a public school for a period not to exceed one (1) year at a time, renewable up to a total of three (3) years, provided that the person:

(1) Possesses a baccalaureate degree from a regionally accredited institution or the equivalent from a non-U.S. institution;

(2) Submits an official transcript from the issuing institution;

(3) Is actively pursuing appropriate licensing, through the following:

(A) Is enrolled in a professional educator preparation program accepted for licensure by the board; or

(B) A state approved teacher, librarian or counselor education program has been satisfactorily completed, takes the examinations or meets other options for verifying basic skills and subject area competency accepted for licensure by the board; and

(D) Applied for an Emergency Hire permit in a manner prescribed by the board; and

(E) Pays the fees- to practice the profession of teaching as specified in § 8-54-2.4.

(b) The public school may reemploy an emergency hire one (1) year at a time, up to a total of three (3) years, provided that emergency hire:

(1) Is actively pursuing licensing; and

(2) Submits evidence of satisfactory process towards obtaining a provisional or standard license.

History

[Eff 10/27/11; am and ren § 8-54-9.4 10/30/14; Am 9/5/2019] (Auth: MRS § 302A-803-804) (Imp: HRS §§ 302A-801 to -808)

Haw. Code R. § 8-54-9.5 Adding a field to a license

(a) If a licensee wants to add additional teaching fields to their teaching license the person shall:

(1) Complete a state-approved teacher education program that includes appropriate experiences in a P-12 setting in the new field; or

(2) Submit documentation of meeting content knowledge verification for licensure in the new field using a method specified by the board and submit one of the following:

(A) The equivalent of one (1) year of satisfactory half time or more contracted P-12 teaching experience in the new field within the last five (5) years of application date; or

(B) Submit verification of three (3) or more years of contracted P-12 experience within the last five (5) years of application date in the same license grade level span under a Hawai'i Standard License or its equivalent in another state; or

(D) Submit verification of previous completion of a state approved educator preparation program in the same license grade level as the new field; or

(3) Possess an Advanced License in one field and submit one of the following:

(A) The equivalent of a content major in the new field; or

(B) Passing score for the subject area test in the new field; and

(C) The grade level(s) of the new license field(s) must be the same as the existing license level (s) unless the applicant submits verification as outlined in 8-54-9.5 (2) A - D for the new level(s).

(b) Adding school librarian, reading specialist, literacy specialist, and early childhood education as a field shall be subject to the provisions of (a) (1) of this subsection.

(c) Upon submittal of appropriate documentation of the method selected by the licensee and receipt of the required fees, and subject to meeting all requirements, the board will add the new field to the license. The licensee's license will include the new teaching field and be subject to the same expiration date for renewal of the current license.

History

[Eff 7/1/01; am and comp 12/20/01; am and comp 8/13/04; am and comp 11/9/07; am and comp 10/27/11; am and ren § 8-54-9.5 10/30/14; Am 9/5/2019] (Auth: HRS § 302A-802-803) (Imp: HRS §§ 302A-801 to -808)

Haw. Code R. § 8-54-9.6 Limited duty special permit

(a) The board may grant a limited duty special permit to an individual employed by a public school where instruction is conducted primarily in the medium of Hawaiian or Hawaiian Knowledge based schools provided the individual submits the following documentation to the board:

(1) Holds the minimum of a high school diploma;

(2) Is assessed as proficient in the Hawaiian language by the Office of Hawaiian Education in collaboration with a Hawaiian Language Immersion educator preparation program;

(3) Completes thirty (30) hours of induction by the Office of Hawaiian Education in collaboration with a Hawaiian Language Immersion educator preparation program;

(4) Submits a cultural growth plan on how the individual will obtain licensure, to be monitored annually by the Office of Hawaiian Education in collaboration with a Hawaiian Language Immersion educator preparation program;

(5) Meets the Professional Fitness requirements;

(6) Pays the fee to practice the profession of teaching.

Limited duty special permits for Hawaiian education shall be issued one year at a time for a term of five years and shall be renewable once for an additional five (5) years, issued one year at a time, provided that the individual continues to meet the permit criteria.

(b) The board may also grant a five-year limited duty special permit to an individual recommended by the Superintendent or charter school administrator to provide instruction in career and technical education provided that the individual submits the following documentation to the Board:

(1) A valid industry license or certification, if one exists, in the field in which instruction will be offered; and

(2) Three (3) years of satisfactory full-time experience in the field in which instruction will be offered. This provision shall remain in effect as long as:

(A) The department's and charter schools' annual report to the board includes career and technical education as an official shortage area; and

(B) The department and charter school suspend the requirement of a baccalaureate degree for career and

(D) Teacher preparation programs offer courses to prepare a permit-holder for classroom instruction and classroom responsibilities.

Limited duty special permits for career and technical education shall be renewable once for an additional five (5) years provided that the instructor continues to meet the permit criteria.

(c) The board may also grant a one-year limited duty special permit to an individual recommended by a Hawaii state approved teacher education program to serve as a student teacher, provided that the individual submits the following documentation to the Board:

(1) A completed Student Teaching Permit application in a form approved by the board; and

(2) Meets the professional fitness requirements. This permit may be renewed as many times as the individual is recommended by the Hawaii preparation program.

History

[Eff 11-9-07; am and comp 10/27/11; am and ren § 8-54-9.6 10/30/14; Am 9/5/2019] (Auth: HRS § 302A-803-804) (Imp: HRS §§ 302A-801 to -808)

Haw. Code R. § 8-54-9.7 License and permit renewal criteria; term; forfeiture; restoration; termination

(a) The board shall determine the criteria that shall be considered for renewal of a license or permit of which shall minimally include the performance standards contained in Appendix A, B, C, which are incorporated at the end of this chapter, link with the licensee's subject matter field and with teaching and pedagogy, incorporate multiple criteria, be professionally credible, and provide public accountability.

(b) By or before the expiration date of the current licensure or permit period each licensee or permittee shall be responsible for timely renewing the license or permit and satisfying the renewal requirements provided by law and this chapter.

(c) At the time of license renewal, each licensee shall submit a completed renewal application and all applicable fees, and shall comply with any other renewal requirements. Renewals may be completed through an online renewal system.

(d) The board may renew a teaching license provided the licensee meets renewal requirements.

(e) A licensee holding a standard license must renew their license every five (5) years.

(f) A licensee holding an advanced license must renew their license every ten (10) years. Licensees using NBPTS route to acquire the advanced license must also renew their National Board Certification to keep their advanced license.

(g) Licensees holding the field of "Teacher Leader" on their Standard or Advanced License must verify continued experience as a Teacher Leader as defined by the board. Licensees unable to verify leadership experience will have this field removed from their renewed license.

(h) The failure to timely renew a license or permit, the failure to pay all applicable renewal fees, the dishonoring of any check upon first deposit, or the failure to comply with any other renewal requirements provided by law or this chapter shall cause the automatic forfeiture of the license and permit, whether involuntarily or voluntarily and without any prior consultation or notice to the licensee. A person with a forfeited license or permit is prohibited from engaging in the teaching profession.

(i) A licensee or permittee shall have two (2) years to restore the license/permit after automatic forfeiture. Proof of compliance with the renewal requirements and payment of all assessed renewal and late fees will be required for restoration. A license or permit that is timely restored shall constitute a valid teaching license.

(j) The failure to timely restore a forfeited license or permit shall cause the automatic termination of the license and permit, whether involuntarily or voluntarily and without any prior consultation or notice to the licensee. A person holding a terminated license or permit shall be required to apply for a new license or permit and meet current application requirements.

History

[Eff 10/30/14; Am 9/5/2019] (Auth: HRS § 302A-803) (Imp: HRS §§ 302A-801 to -808)

Haw. Code R. § 8-54-9.8 License renewal audit

(a) The board shall conduct random audits of licensees who have renewed their license to ensure that renewals are in compliance with the criteria set by the board.

(b) The board will collect a minimum of one hundred twenty (120) audit samples annually, but not to exceed one hundred eighty (180) annually, and conduct all reviews of renewal documentation, drawn randomly from those renewals occurring from July 1, 2010, and thereafter.

(c) Licensees whose five-year or ten-year licenses expire on July 1, 2010, or later shall meet the audit guidelines set by the board. Acceptance of the licensee's audit documentation shall result in a license renewal, provided the licensee has paid the necessary fees specified by the board.

(d) A licensee selected for audit shall be required to submit documentation for audit in a manner prescribed by the board. If a licensee fails to respond to a request for audit the board may institute disciplinary action against the licensee for failure to demonstrate compliance with renewal requirements.

(e) The board may contract with an independent, external organization to conduct the random audits and evaluate the renewals and their compliance with the criteria set forth by the board. The board may also commission the organization to review and evaluate the effectiveness of the renewal process.

History

[Eff 10/30/14; Am 9/5/2019] (Auth: HRS § 302A-805) (Imp: HRS §§ 302A-801 to -808)

Subchapter 3 DISCIPLINE

Haw. Code R. § 8-54-9.13 Disciplinary action; basis

(a) The Code of Ethics contained in Appendix D sets forth expected professional behaviors of teachers and forms the basis for disciplinary action taken by the board against a licensee. The provisions of section 8-54-9.14 also constitute behaviors for which disciplinary action may be taken by the board against a licensee.

(b) The board may impose disciplinary action upon a licensee's license after a hearing conducted in accordance with chapter 91.

History

[Eff 10/30/14] (Auth: HRS § 302A-803, § 302A-807) (Imp: HRS §§ 302A-801 to -808)

Haw. Code R. § 8-54-9.14 Grounds for refusal to renew, reinstate, or restore, and for revocation, suspension, denial, or condition of a license or permit

In addition to any other acts or conditions provided by law, the board may refuse to renew, reinstate or restore, or may deny, revoke, suspend, or condition in any manner, any license for any one or more of the following acts or conditions on the part of the licensee, permittee or the applicant thereof:

(1) A felony conviction;

(2) Misdemeanor convictions as defined in this chapter;

(3) Conviction of crimes against children and sexual offenses;

(4) Having sexual contact with a minor or student;

(5) Possessing, producing, or distributing illegal images or images of minors or students;

(6) Committing a crime on school premises or while fulfilling the duties of a teacher;

(7) Practicing the profession of teaching while possessing, using, distributing or being under the influence of illegal drugs;

(8) Practicing the profession of teaching in a manner contrary to the recognized standards of ethics adopted by the Hawai'i Teacher Standards Board in its Code of Ethics;

(9) Practicing the profession of teaching with a fraudulent teaching license;

(10) Making and/or submitting false, inaccurate or misleading statements and/or documents in applying for a license, permit, license or permit update, or renewal;

(11) Having a license or permit denied, revoked, not renewed or suspended by another jurisdiction;

(12) Violation of any condition or limitation on a licensee's license;

(13) Misrepresents or falsifies information on their application;

(14) Provides falsified or fraudulent documents with an application;

(15) Does not meet the board's licensing or renewal requirements;

(16) Does not meet the professional fitness portion of the application; or

(17) Does not pay the required license or permit fees.

History

[Eff 10/30/14] (Auth: HRS § 302A-803, § 302A-807) (Imp: HRS §§ 302A-801 to -808)

Haw. Code R. § 8-54-9.15 Forms of disciplinary sanctions

Notwithstanding any other powers of the board to discipline a license the board may impose the following:

(1) The revocation of a license or permit the duration of which shall be set by the board but may not be less than five (5) years; provided that conviction of crimes against children and sexual offenses may result in the lifetime revocation of a license;

(2) The suspension of a license or permit the duration of which shall be set by the board but may not exceed five (5) years;

(3) Place conditions on the licensee or permit holder for a specified amount of time, which may include, but are not limited to, activities directed toward improving a teacher's performance in the area of the violation;

(4) Censure or warn the licensee or permit holder if the board determines that a violation has occurred that does not necessitate a more severe action to be taken

(5) on a licensee or permit holder. A copy of the censure or warning will be placed in the board's file of the licensee or permit holder. A copy will be sent to the licensee or permit holder and he/she will have thirty (30) calendar days to file a written response. The response will be placed in the board's file of the licensee or permit holder; and

(6) Monetary penalties.

History

[Eff 10/30/14] (Auth: HRS § 302A-803, § 302A-807) (Imp: HRS §§ 302A-801 to -808)

Haw. Code R. § 8-54-9.16 Reporting of violations

(a) Reports of violations(s) to the Code of Ethics or for conduct listed in § 8-54-9.14 shall be filed in writing with the board on a signed form and in a manner provided by the board.

(b) The superintendent or charter school administrator or their designee in any Hawaii'i public school shall report violations. A private or independent school administrator is authorized to report violations. The report shall contain the name, address, and social security number of any licensed educator, permit holder or emergency hire who:

(1) Is terminated or not re-hired for cause;

(2) Resigns under threat of termination or non-employment for cause;

(3) Is convicted of a felony or misdemeanor as defined in this chapter.

(c) Licensed educators, permit holders and emergency hires who may have engaged in action that could result in denial, non-renewal, revocation or suspension of a license shall be required to report to the board, in a manner provided for by the board, within thirty (30) calendar days of the event, the following:

(1) Been terminated or not rehired for cause;

(2) Resigned under threat of termination or non-employment for cause; and

(3) Been convicted of a felony or misdemeanor as defined in this chapter.

(d) Signators of the National Association of State Directors of Teacher Education and Certification (NASDTEC) Interstate Contract shall report actions taken by them to deny a license to an individual or to revoke, suspend or refuse to renew licenses of licensees in their state within thirty (30) calendar days from when they are made aware that the individual is applying for a license, renewal of a license or permit.

(e) The board shall report actions taken to deny, suspend or revoke a license or permit to the superintendent, charter school administrator, headmaster or president of any Hawai'i school, district, or system and to the NASDTEC Clearinghouse.

History

[Eff 10/30/14] (Auth: HRS § 302A-803, § 302A-807) (Imp: HRS §§ 302A-801 to -808)

Haw. Code R. § 8-54-9.17 Board action on reports of violations

(a) The board may initiate action based on a written, signed report submitted by one or more of the following:

(1) Any school, district, or system administrator or educator;

(2) Self-report received from any licensed educator, permit holder or emergency hire;

(3) Report of license or permit revocation, suspension, refusal to renew or denial by another state;

(4) Report submitted by individuals who witness a violation.

(b) The board may initiate an investigation whereby minimally the following actions shall be taken:

(1) The executive director will verify the complaint;

(2) The applicant, permit holder or licensee will be notified in writing posted by restricted certified and regular mail of the complaint. A copy of the notification will be placed in the board's file of the applicant, permit holder or licensee;

(3) The applicant, permit holder or licensee will have thirty (30) calendar days to file

(4) a written response, which will be placed in the board's file of the applicant, permit holder or licensee;

(5) The board may contract with another state agency or private agency to investigate the complaint and determine if a hearing is warranted.

(c) Following an investigation the board may dismiss the complaint if the alleged violations are not substantiated and the complaint form will be removed from the applicant or licensee's file. If the complaint is substantiated the board may request the assistance and services of the Office of the Attorney General or contract with another state agency or a private agency for attorney (s) to prepare and represent the board at a hearing. If a hearing is not warranted, the applicant or licensee will be notified and a copy of the notification will be placed in the board's file of the applicant or licensee.

(d) The board may impose a fee against an applicant or licensee as reimbursement for all or part of the costs of investigations, hearings, or appeals that result in disciplinary action against the licensee.

History

[Eff 10/30/14] (Auth: HRS § 302A-803, § 302A-807) (Imp: HRS §§ 302A-801 to -808)

Subchapter 4 PRACTICE AND PROCEDURES

Haw. Code R. § 8-54-10 [Repealed]

History

R 10/30/14

Haw. Code R. § 8-54-10.1 Applicability

The general procedures specified in this subchapter shall, in part, effectuate and carry out the purposes of chapter 91, HRS and shall apply to all contested cases that may come before the board relating to the denial of an application for a license or permit or to discipline a licensee or permittee.

History

[Eff 10/30/14] (Auth: HRS § 302A-807) (Imp: HRS §§ 302A-801 to -808)

Haw. Code R. § 8-54-10.2 Notification of denial of application or proposed disciplinary action against a licensee or permittee

In the event an application for a license or permit is denied, or the board intends to discipline a licensee or permittee, written notification shall be provided to the denied applicant, or to the licensee of the intended action. The notification shall include a concise statement of the reasons therefore and a statement informing the applicant or licensee or permittee of the right to a hearing if the applicant or licensee or permittee so desires. The notification shall further provide the time frame that a demand for hearing shall be filed.

History

[Eff 10/30/14] (Auth: HRS § 302A-807) (Imp: HRS §§ 302A-801 to -808)

Haw. Code R. § 8-54-10.3 Demand for a hearing

Any person whose application is denied, or a licensee or permittee who is to be disciplined by the board, shall be entitled to a hearing if a demand for hearing is filed with the board's office within sixty(60)days of the date of the letter informing the applicant of the denial or the licensee or permittee of the intent to discipline, respectively. The demand for hearing shall contain concise statements of:

(1) the legal authority under which the hearing is to be held;

(2) the denial or matter that is being contested by the petitioner;

(3) the basic facts and issues raised; and

(4) the relief to which the petitioner deems itself entitled.

History

[Eff 10/30/14] (Auth: HRS § 302A-807) (Imp: HRS §§ 302A-801 to -808)

Haw. Code R. § 8-54-10.4 Action by the board; notification of hearing

If a demand for hearing is filed within sixty (60) days of the date of the letter of denial or intent to discipline, the board, or a panel of the board, or a hearing officer approved by the board shall be designated as the hearings officer to conduct the hearing, and make recommendations in writing to the board. The hearings officer shall commence the hearing process and proceed to schedule a hearing and provide all parties written notice of the hearing by registered or certified mail with return receipt requested at least fifteen (15) days before the hearing.

History

[Eff 10/30/14] (Auth: HRS § 302A-807) (Imp: HRS §§ 302A-801 to -808)

Haw. Code R. § 8-54-10.5 Notice of hearing

The hearing notice shall include:

(1) The date, time, place, and nature of the hearing;

(2) The legal authority under which the hearing is held;

(3) The particular sections of the statutes and rules involved; and

(4) A short and concise statement of the issues involved and the facts giving rise to the petition.

The notice shall further apprise each party of their right to retain legal counsel if so desired.

History

[Eff 10/30/14] (Auth: HRS § 302A-807) (Imp: HRS §§ 302A-801 to -808)

Haw. Code R. § 8-54-10.6 Hearing

(a) All hearings shall be conducted pursuant to chapter 91, HRS and this subchapter. All hearings shall be held before a hearings officer duly designated by the board. All parties shall be afforded full opportunity to present evidence and argument on all issues involved. The hearing shall be at the time and place set forth in the notice of hearing, but at that time and place may be continued from day to day or adjourned thereof at the hearing.

(b) The presiding hearings officer shall have the power to give notice of the hearing, arrange for the administration of oaths and affirmations, subpoena and examine witnesses, issue subpoenas, certify to official acts, rule on offers of proof, receive relevant evidence and exclude evidence which is irrelevant, immaterial, repetitious, cumulative, or merely scandalous and accordingly may restrict lines of questioning, regulate the course and conduct of the hearing, regulate the manner of any examination so as to prevent the needless and unreasonable harassment, intimidation, or embarrassment of any witness or party at the hearing, remove disruptive individuals including any party, legal counsel, witness, or observer, hold conferences including prehearing conferences, before or during the hearing, for the settlement or simplification of issues, rule on motions and to dispose of procedural matters, dispose of any other matters that normally and properly arise in the course of the proceedings, and take any action authorized by this subchapter or chapter 91, HRS, and perform such other duties necessary for the proper conduct of hearings.

(c) In a hearing where the issue for determination is whether the board properly denied an application for a license or permit, the record shall consist of only the information presented to the board's office for consideration in reviewing the application. No other information regarding qualification for approval of the license or permit shall be admitted unless agreed upon by all parties.

(d) The hearings officer shall submit in writing any report or recommended decision together with the findings of facts and conclusions of law and a recommended order to the board for its consideration and final disposition.

(e) The record of the hearing shall be in conformance with section 91-9, HRS.

(f) The hearings officer may engage the services of a stenographer, or someone similarly skilled, to take a verbatim record of the evidence presented at the hearing. If a verbatim record is taken, any party may request a certified transcript of the proceedings. The party making the request shall be responsible for the fees for the transcript.

History

[Eff 10/30/14] (Auth: HRS § 302A-807) (Imp: HRS §§ 302A-801 to -808)

Haw. Code R. § 8-54-10.7 Recommended decision

(a) As expeditiously as possible after the close of the hearing, the hearings officer shall file with the board a recommended decision together with separate findings of fact, conclusions of law, and a recommended order. The decision, findings of fact, conclusions of law, and any order recommended by the hearings officer shall be based upon the whole record and supported by the reliable probative and substantial evidence, including facts of which the hearings officer properly took judicial notice.

(b) The hearings officer shall cause a copy of the recommended decision, including therein findings of fact, conclusions of law, and any recommended order, to be served upon each party by registered or certified mail, return receipt requested. Service of the recommended decision shall be deemed complete upon its mailing to the party's last known address.

(c) Any party adversely affected by the hearings officer's recommended decision within fifteen (15) days after receipt of a copy of the decision, may file with the hearings officer written exceptions to the whole or any part of the recommended decision and request review by the board. Each written exception shall specify the portions of the record and authorities relied upon to sustain each point. A copy of the written exceptions shall be served by the party so excepting upon each party to the proceeding. Unless the time has been extended, no written exceptions shall be filed or accepted for filing after the time specified.

(d) Any party may file with the hearings officer and serve upon all other parties a statement in support of the recommended decision within fifteen (15) days after receipt of a copy of the written exceptions filed pursuant to subsection (c).

(e) The hearings officer shall transmit to the board the entire record together with the recommended decision, any timely filed exceptions, and any timely filed statement in support.

History

[Eff 10/30/14] (Auth: HRS § 302A-807) (Imp: HRS §§ 302A-801 to -808)

Haw. Code R. § 8-54-10.8 Argument of written exceptions; no written exceptions; issuance of final decision and order

(a) Whenever written exceptions have been timely filed and a party has requested the opportunity to present oral argument, all parties to the proceedings shall be afforded the opportunity to present oral argument to the board concerning the recommended decision. The board shall personally consider the whole record or portion of the record as may have been cited by the parties either in support of or in opposition to the recommended decision. All parties shall be served with notice of the time and place of argument at least five (5) days prior to the time for argument. Within a reasonable time after argument has been heard, the board shall issue a written final decision and order.

(b) When no written exceptions have been filed, the board, within a reasonable time after the hearings officer's recommended decision has been filed, shall issue a written final decision and order.

History

[Eff 10/30/14] (Auth: HRS § 302A-807) (Imp: HRS §§ 302A-801 to -808)

Haw. Code R. § 8-54-10.9 Final decision and order

(a) The board's final decision and order shall either adopt, modify, or reverse, in whole or in part, the hearings officer's recommended decision. The board shall state with specificity in the final decision the reasons for any modification or reversal, in whole or in part, of the hearings officer's recommended decision.

(b) The board shall cause a copy of the final decision and order to be served upon each party by personal service or by registered or certified mail, return receipt requested. Service of the final decision and order shall be deemed complete upon its mailing to the party's last known address.

History

[Eff 10/30/14] (Auth: HRS § 302A-807) (Imp: HRS §§ 302A-801 to -808)

Haw. Code R. § 8-54-10.10 Judicial review of contested cases

Any party aggrieved by a final decision of the board is entitled to judicial review in conformance with section 91-14, HRS. Any party requesting judicial review shall serve a copy of the request upon the board and all other parties to the proceeding in accordance with the Hawaii Rules of Civil Procedure.

History

[Eff 10/30/14] (Auth: HRS § 302A-807) (Imp: HRS §§ 302A-801 to -808)

Haw. Code R. § 8-54-11 [Repealed]

History

R 10/30/14

Haw. Code R. § 8-54-12 [Repealed]

History

R 10/30/14

Haw. Code R. § 8-54-13 [Repealed]

History

R 10/30/14

Haw. Code R. § 8-54-14 [Repealed]

History

R 10/30/14

Haw. Code R. § 8-54-15 [Repealed]

History

R 10/30/14

Subchapter 5 SUSPENSION OF THE BOARD RULES

Haw. Code R. § 8-54-16 Suspension of the rules

(a) If the board determines that extenuating circumstances exist to justify suspending its rules, the board may, at a scheduled board meeting, vote to temporarily suspend any of its administrative rules, or any portion thereof, by a majority vote. In doing so the board shall also determine the length of time for which the suspension shall remain in effect. The following are extenuating circumstances that may require the suspension of rules:

(1) An emergency condition, including natural disaster, exists that prevents compliance with the rules;

(2) Extenuating circumstances or compelling reasons exist that are caused by medical need, life-threatening condition, or personal tragedy;

(3) Active military duty impinges on compliance with the board's rules; or

(4) An unforeseen event beyond the control of the board or teacher prevents or delays the ability to comply with the rules.

(b) The following describes the procedure for suspending rules:

(1) Any person or agency directly impacted by the rules may submit a signed written request to the board, citing the rule or portion thereof to be suspended, with at least thirty (30) calendar days' notice prior to the next regularly scheduled board meeting unless extenuating circumstances prevent the individual or agency from meeting this timeframe. The request shall also contain the name of the individual(s) or agency impacted by the rule and the reason and rationale for the request;

(2) A majority vote of board members is required to suspend the rules or any portion thereof;

(3) Robert's Rules of Order pertaining to suspension of the rules will be followed;

(4) In considering the motion to suspend, the board may also determine if another resolution to the request exists and act accordingly;

(5) If a motion to suspend the rules or any portion thereof fails, a future request may be heard again if new, relevant information is obtained relating to the request.

History

[Eff OCT 27 2011; compiled OCT 27 2011] (Auth: HRS § 302A-803) (Imp HRS §§ 302A-801-808)

Haw. Code R. § 8-54-17 [Repealed]

History

R 10/30/14

Subchapter 6 EDUCATOR PREPARATION PROGRAMS

Haw. Code R. § 8-54-18 Purpose

Educator preparation programs represent public and private colleges and universities, agencies, associations, organizations, centers, and commercial companies dedicated to the preparation of teachers and other school personnel. Preparation programs are governed by the preparation standards and review procedures adopted by the board.

History

[Eff 10/30/14] (Auth: HRS § 302A-805.5) (Imp: HRS §§ 302A-801 to -808)

Haw. Code R. § 8-54-19 Approval of educator preparation programs

When applying for approval of an educator preparation program the following requirements shall be met:

(1) The unit must provide evidence that their candidates meet the performance standards as applicable, that are contained in Appendix A, B, C, and incorporated at the end of this chapter;

(2) The unit must provide evidence that their candidates exhibit professional and ethical dispositions necessary to help all students learn as outlined in the board's Code of Ethics;

(3) The unit must provide evidence that their candidates are prepared to incorporate the following areas into their practice:

(A) The integration of Hawaiian language, history and culture in order to promote and perpetuate traditional ways of knowing, learning and teaching;

(B) Student standards adopted by the department;

(D) Working effectively with students with disabilities, including training related to participation as a member of individualized education program teams;

(E) Working effectively with students who are limited English proficient;

(F) Working with gifted and talented students; and integrating technology effectively into curricula and instruction, including activities consistent with the principles of universal design for learning and the use of technology to effectively collect, manage and analyze data to improve teaching and learning for the purpose of increasing student academic achievement.

(4) Each program must provide evidence that their candidates meet the standards from a national organization approved by the board for the license fields offered in the program or, for license fields without national standards, the standards approved for the field.

(5) Clinical experience must meet one of the following requirements:

(A) A minimum of four hundred fifty (450) hours of supervised clinical experience in student teaching, internship or residency; or

(B) Demonstration of teaching proficiency through a combination of documented satisfactory work experience and observation by the EPP; or

(C) Passing a board approved performance assessment normal for Hawaii in combination with any other requirements determined by the EPP.

History

[Eff 9/5/2019 10/30/14] (Auth: HRS § 302A-805,5) (Imp: HRS §§ 302A-801 to -808)

Haw. Code R. § 8-54-20 Procedure for first-time provisional unit or program review

(a) When applying for approval of a first-time provisional unit or program review the following requirements shall be met:

(1) The letter of intent and preconditions must be submitted for consideration no less than one (1) year prior to the date of proposed program implementation; and

(2) Within two (2) years of acceptance of the letter of intent and preconditions, the unit must submit one (1) unit report and a program report for each program that will prepare educators for initial licensure.

(b) The board staff will convene a review team and conduct a virtual provisional review of the unit and programs within three (3) months of acceptance of the unit and program reports after staff review and board approval.

(c) The board will review the review team's recommendation and issue a decision upon recommendation of the board's Teacher Education Committee.

(d) A unit must receive board approval before advertising programs for initial licensure, implementing programs and accepting candidates into any educator preparation program.

History

[Eff 10/30/14; Am 9/5/2019] (Auth: HRS § 302A-805.5) (Imp: HRS §§ 302A-801 to -808)

Haw. Code R. § 8-54-21 Procedure for continuing unit review

When applying for continuing unit review one (1) of the following requirements shall be met:

(1) Obtain accreditation from a national accrediting body prior to the expiration of their provisional approval to be eligible for continued state approval. The accrediting body must be approved in advance by the HTSB for use in continuing state approval. The HTSB Executive Director or designee will serve as an observer during the accreditation visit. It is the unit's responsibility to apply for renewal of state approval and submit all documentation required for the board's review at least six (6) months in advance of the expiration of provisional approval; or Indigenous and culturally focused units may obtain accreditation from a national or international Indigenous focused accrediting body prior to the expiration of their provisional approval to be eligible for continued state approval. The accrediting body must be approved in advance by the HTSB for use in continuing state approval. The HTSB Executive Director or designee will serve as an observer during the accreditation visit. It is the unit's responsibility to apply for renewal of state approval and submit all documentation required for the board's review at least six (6) months in advance of the expiration of provisional approval; or

(2) All program completers recommended for licensure by the unit shall submit official scores from a nationally normal performance assessment adopted by the HTSB. The unit will be reviewed by a State Team composed of:

a. One out of state professional educator, selected based on compatible experience with the type and size unit; and

b. One out of state practitioner licensed in the field of the program, preferably a National Board for Professional Teaching Standards (NBPTS) certified teacher or one with the Teacher Leader designation on their license; and

c. HTSB Executive Director or designee; and

d. It is the unit's responsibility to submit a Continuing Unit Review Report one (1) year in advance of the expiration of their existing approval period; or

(3) All program completers recommended for licensure by the unit are evaluated using unit-wide assessments. The unit will be reviewed by a State review by a team composed of:

a. Two or more out of state professional educators, selected based on compatible experience with the type and size unit; and

b. One or more out of state practitioners licensed in the field of the program, preferably a National Board for Professional Teaching Standards (NBPTS) certified teacher or a teacher with the Teacher Leader designation on their license; and

c. The number of program completers and number of separate licensure programs within the unit will determine the number of State Team reviewers; and

d. HTSB Executive Director or designee; and

e. It is the unit's responsibility to submit a Continuing Unit Review Report one (1) year in advance of the expiration of their existing approval period.

History

[Eff 10/30/14; Am 9/5/2019] (Auth: HRS § 302A-805.5) (Imp: HRS §§ 302A-801 to -808)

Haw. Code R. § 8-54-22 Procedure for continuing program review

(a) Programs may elect national review by the appropriate SPA. The program must receive national recognition or national recognition with conditions.

(b) Programs not seeking national recognition shall:

(1) Be reviewed as part of the unit report; and

(2) Submit an audit to the board as an appendix to their annual report.

History

[Eff 10/30/14] (Auth: HRS § 302A-805.5) (Imp: HRS §§ 302A-801 to -808)

Haw. Code R. § 8-54-23 Recommendations for approval

(a) Provisional review teams may make the following recommendations to the board;

(1) Provisional approval;

(2) Provisional approval with unit conditions and/or program areas for improvement; or

(3) Deny approval.

(b) Unit and program reports from continuing reviews conducted by national accrediting bodies will be submitted by the unit and programs and considered by the board for continuing seven (7) year state approval or for continuing state approval for the full term of their accreditation by an external accrediting body recognized by the Hawaii teacher standards board.

History

[Eff 10/30/14; Am 9/5/2019] (Auth: HRS § 302A-805.5) (Imp: HRS §§ 302A-801 to -808)

Haw. Code R. § 8-54-24 Procedure for added field progreun

(a) A unit or other organization may be approved to prepare licensed educators to add a field to an existing license.

(b) The program will be initially reviewed under the provisional program review process.

(d) If the program is not part of an educator preparation unit but is an organization whose main purpose is to train educators in the specialty area, the program will be reviewed by a state review team. This program may not be used for initial licensure.

History

[Eff 10/30/14] (Auth: HRS § 302A-805.5) (Imp: HRS §§ 302A-801 to -808)

Haw. Code R. § 8-54-25 Board action following review

(a) The board may take the following actions for provisional unit and program review:

(1) Provisional approval for three (3) years or until the unit's next national or state review;

(2) Provisional approval with unit conditions and/or program areas for improvement for up to three (3) years; or

(3) Deny approval. The unit may appeal or reapply for approval under the process determined by the board.

(b) The board may take the following actions for continued review:

(1) Full approval for seven (7) years;

(2) Approval with unit conditions and/or program areas for improvement for up to seven (7) years;

(3) Probationary approval and designation as "at-risk" for up to two (2) years. The unit and programs must correct the conditions and areas for improvement within two (2) years. The unit may appeal under the process determined by the board;

(4) Denied and designation as "low performing". The unit may appeal under the process determined by the board; or

(5) Revoke approval. The unit may appeal under the process determined by the board.

History

[Eff 10/30/14; Am 9/5/2019] (Auth: HRS S302A-805.5) (Imp: HRS § 302A-801 to -808)

Haw. Code R. § 8-54-26 Annual reporting by educator preparation programs

(a) Educator preparation programs will submit an annual report on a specified form to include at a minimum the following:

(1) Current contact information for the unit;

(2) A list of all current traditional and alternative licensure programs offered by the unit;

(3) Substantive changes within the reporting year;

(4) Progress toward addressing any conditions or areas for improvement on their current approval; and

(5) Progress toward obtaining or continuing national accreditation.

(b) Hawaii educator preparation programs must submit a recommendation for licensure for program completers within six (6) weeks of program completion on a form specified by the board. Out of state preparation programs which work primarily with active military and military spouses may also report program completers on this form.

History

[Eff 10/30/14] (Auth: HRS § 302A-805.5) (Imp: HRS §§ 302A-801 to -808)

Haw. Code R. § 8-54-27 Modification of programs

(a) For minor modifications, the unit will describe the modifications in the annual report and include evidence that program quality is not affected.

(b) For major modifications, the unit will submit a request to the board for implementation, including a description of the changes and evidence that standards will continue to be met.

(c) For program elimination, the unit will submit information to the board in writing stating when the program will end, reasons for elimination, and assurances that current candidates will be able to complete the program.

History

[Eff 10/30/14] (Auth: HRS § 302A-805.5) (Imp: HRS §§ 302A-801 to -808)

Haw. Code R. § 8-54-28 At-risk educator preparation programs

(a) A unit will be designated "at-risk" under the following conditions:

(1) The unit receives continuing accreditation/approval for less than five (5) years based on their national/state review; or

(2) The unit's summary pass rate on content examinations falls below eighty per cent (80%).

(b) A program will be designated "at-risk" under the following conditions:

(1) The program fails to correct conditions of its SPA approval within the timeline specified by the SPA;

(2) The program receives an approval decision of "Recognition with Probation" on its SPA report;

(3) The program is given areas for improvement on its board approval and fails to correct the areas within the timeline specified by the board; or

(4) The program's summary pass rate on content examinations falls below eighty per cent (80%) for a three (3) year average, if applicable.

(c) Once a unit or program is designated as being "at-risk", the board will conduct periodic monitoring throughout the conditional period.

History

[Eff 10/30/14] (Auth: HRS § 302A-805.5) (Imp: HRS §§ 302A-801 to -808)

Haw. Code R. § 8-54-29 Low performing programs

(a) A unit is designated "low performing" under the following conditions:

(1) It receives continuing accreditation/approval for less than five (5) years based on their national/state review and fails to correct deficiencies and gain full approval within three (3) years;

(2) It receives a national accreditation/state approval decision of "Denied" or "Revoked"; or

(3) The unit's summary pass rate on content examinations falls below seventy per cent (70%).

(b) A program is designated "low performing" under the following conditions:

(1) It receives a continuing review decision of Not Nationally Recognized on its SPA review;

(2) The program receives a status of Denied Approval on its HTSB review; or

(3) The program's summary pass rate on content examinations falls below seventy per cent (70%) for a three (3) year average where applicable.

(1) Post its status on a website accessible to the public;

(2) Not accept candidates seeking licensure into the unit/program affected;

(3) Submit a list to the board of all candidates remaining in the affected unit/program and the expected dates of completion;

(4) Counsel all affected candidates about choices for program completion both in the unit and transferring to other preparation programs; and

(5) Submit evidence of progress toward meeting these conditions in their annual report to the board.

History

[Eff 10/30/14] (Auth: HRS §302A 805.5) (Imp: HRS §§ 302A-801 to -808)

Haw. Code R. § 8-54-30 Appeals

(a) Any Hawaii educator preparation program that receives an adverse decision may appeal that decision. An adverse decision includes:

(1) The denial of an application for state approval of a unit or program;

(2) The conditional approval of a unit or program;

(3) The designation of "at-risk" or "low performing" status; or

(4) The denial or revocation of approval of a unit or program.

(5)

(b) An appeal must be based on the following grounds:

(1) National or state standards were disregarded;

(2) Stated procedures were not followed;

(3) Evidence favorable to the unit or program provided to the review team was not considered; or

(4) Evidence favorable to the unit or program provided to the board was not considered.

(1) Uphold the approval decision;

(2) Conduct a second board review of the original team findings; or

(3) Assign a new review team to review the unit or program to make another recommendation to the board.

History

[Eff 10/30/14] (Auth: HRS § 302A-805.5) (Imp: HRS §§ 302A-801 to -808)

Haw. Code R. § 8-54-31 Reference materials for units and programs

The board shall maintain an electronic repository of guidance materials for prospective and approved units. Reports from unit and program reviews and board approval will be posted electronically on the board's website.

History

[Eff 10/30/14] (Auth: HRS § 302A-805.5) (Imp: HRS §§ 302A-801 to -808)

Chapter 57 RESTITUTION FOR DAMAGED AND LOST BOOKS, EQUIPMENT, SUPPLIES, AND OUTSTANDING FINANCIAL OBLIGATIONS

Haw. Code R. § 8-57-1 Purpose

The department is responsible for providing students with appropriate instructional materials. When students do not return textbooks at the end of a course, semester, or school year, other students are deprived of these materials and the department is expected to purchase replacement copies. It is the purpose of this chapter to hold students accountable for lost and damaged textbooks, library books, equipment and supplies, including financial obligations. This chapter defines consequences for students with outstanding financial obligations who do not make timely restitution, i.e., by the end of the current school year.

History

[Eff 10/5/2000] (Auth: §§ 302A-1112, 302A-1130) (Imp: § 302A-1130)

Haw. Code R. § 8-57-2 Definitions

As used in this chapter:

Athletics means a voluntary interscholastic program which provides athletically talented students with opportunities for organized competition with students of similar capabilities from other schools.

"Assigned textbook" means a book issued to a student by an authorized school official for classroom or course use, and signed for by the student on a sign out sheet or through use of the student's electronic identification number.

"Days" means school days.

"Student activities" means those activities or events which are authorized by the school administration. These activities include, but are not limited to, athletics, academic clubs, service clubs, hobby clubs, proms, class banquets, May Day and other organized festivals/celebrations for which no academic credit is received.

"Damaged books" means library or assigned textbooks that are no longer use able because of damage and must be replaced, as determined by the school.

"Library books" means books that are borrowed by students from the school library.

History

[Eff 10/5/2000] (Auth: §§ 302A-1112, 302A-1130) (Imp: § 302A-1130)

Haw. Code R. § 8-57-3 Fees and charges for lost books, equipment and supplies

A student found to be responsible for the loss, destruction, breakage, or damage of school books, equipment, and supplies, including library and assigned textbooks, shall make restitution to the school.

History

[Eff 10/5/2000] (Auth: §§ 302A-1112, 302A-1130) (Imp: § 302A-1130)

Haw. Code R. § 8-57-4 Collection of fees and charges

(a) Obligations for lost and damaged textbooks, library books, equipment and supplies shall be based on the replacement cost of the item, and shall be paid by the last day of the school year in which the financial obligation was incurred. If the student is financially unable to pay, the student may participate in a work program designed by the principal and agreed to by the student and parents or guardians.

(b) If a student who is transferring to another school has not cleared all outstanding obligations, a record of those obligations shall be forwarded to the receiving school. The receiving school shall follow all penalties and procedures regarding outstanding obligations outlined in this chapter. Reimbursements received shall remain with the collecting school.

History

[Eff 10/5/2000] (Auth: §§ 302A-1112, 302A-1130) (Imp: § 302A-1130)

Haw. Code R. § 8-57-5 Penalties for outstanding financial obligations

In addition to any other penalties that may be imposed, a student who fails to make restitution as required under section 8-57-4 shall be prohibited from participating in any student activity.

History

[Eff 10/5/2000] (Auth: §§ 302A-1112, 302A-1130) (Imp: § 302A-1130)

Haw. Code R. § 8-57-6 Restitution by work program

(a) If a student is making restitution through a work program, the program must be agreed to in writing by the principal, the student and parents or guardians. The student shall be prohibited from participating in any student activity until the work program is completed.

(b) If restitution is made in this fashion, then no information about the charges, the hearing, and the actions taken shall be communicated to any person not directly involved in the proceedings.

(c) If the pupil and parent or guardian do not agree with the determination made by the principal, the principal shall report to the district superintendent the determination and the findings made by the principal, including all the records and documents regarding the investigation, for any further action.

History

[Eff 10/5/2000] (Auth: §§ 302A-112, 302A-1130) (Imp: § 302A-1130)

Haw. Code R. § 8-57-7 Liability for negligence

(a) When a student is found to be responsible for the negligent loss, destruction, breakage, or damage of school books, equipment, or supplies, restitution shall be made by the student or parent. There shall be no restitution when negligence cannot be proved to have been committed by the student.

(b) If a student is to be disciplined for an act of negligence under chapter 8-19, restitution procedures shall be initiated only after the disciplinary procedures of chapter 8-19 have been completed and the student has been found guilty of the offense.

History

[Eff 10/5/2000] (Auth: §§ 302A-112, 302A-1130) (Imp: § 302A-1130)

Haw. Code R. § 8-57-8 Procedures applicable to negligence

(a) The principal or designee may conduct or order an investigation of the negligent loss, destruction, breakage or damage of school books, equipment, or supplies.

(b) If the negligence is an act which subjects the student to disciplinary action under chapter 8-19, the principal or designee shall include as part of the investigation required under sections 8-19-7, 8-19-8, and 8-19-9, a determination of the facts and circumstances that support restitution under this chapter. Further action related to restitution shall be held in abeyance until disciplinary action has been determined and appeal procedures exhausted.

(c) In the absence of force, duress, or coercion, when a student voluntarily admits liability and agrees to make restitution for equipment, supplies or school books, the principal or designee shall provide an explanation of due process procedures such as the right to a conference. The school shall inform the parent or guardian of the student's admission by telephone or in writing, personally delivered or mailed.

(d) If the principal or designee has reasonable cause to believe that a student is responsible for the negligent loss, destruction, breakage or damage of school books, equipment, or supplies, and the student does not voluntarily admit liability nor agree to make restitution, the principal or designee shall schedule a conference with the student and parent.

(e) Advance written notice of the conference shall be made on departmental forms which shall be delivered by mail to the student and parent. The notice shall inform them of the charges and the date, time, and location of the conference. The notice shall be mailed at least fifteen days before the conference. When necessary to achieve effective communication, the notice shall be provided in the native language of the parent. The principal or designee may use other means of communication, such as the telephone, to augment the written communication between the school and the student and parent.

(1) The parent shall respond to the notice within seven days from the date of the notice.

(2) The conference date provided for in the notice may be rescheduled if the parent contacts the principal or designee to arrange for a new conference date. The request to reschedule the conference shall be made within seven days of the date of notice.

(3) The conference may be waived by the parent and an informal settlement reached. In that event, a written agreement for restitution shall be executed between the parent and the principal or designee.

(4) If the conference is waived, the parent shall be informed that a notice and an opportunity to be heard at a conference with the principal or designee was given to the parent and that the opportunity to be heard was waived by the parent.

(f) If the parent fails to respond to the notice within the time limit, the principal or designee may:

(1) Reschedule the conference date if it determines that the failure to respond was for good cause or if it is in the best interest of the school or student; or

(2) Make a determination of the liability and the restitution required and inform the parent in writing that:

(A) A notice was given for an opportunity to be heard at a conference with the principal or designee;

(B) Due to the failure to respond to the notice, a determination was made of the liability and restitution required;

(D) The matter may be referred to the district superintendent for further action if restitution agreement is not executed within seven days of being informed of the restitution required.

(g) The conference shall be conducted in the following manner:

(1) The principal or designee shall present the findings of the investigation to the student and parent.

(2) If the student and parent agree with the determination of liability made by the principal or designee, a restitution proposal designed by the principal or designee shall be executed in the form of a written agreement on departmental forms by the principal or designee, the student and the parent. The agreement shall specify the manner in which restitution shall be completed.

(3) When restitution is completed in accordance with an executed agreement, all records and documents regarding the investigation and the conference shall be maintained at the school for three years. No information about the charges, conference and the actions taken shall be communicated to any person not directly involved in the proceeding.

(4) If a written agreement is executed and the parent or student fails to comply with the terms of the agreement, the principal or designee may forward the matter to the district superintendent. The district superintendent shall review the matter and take appropriate action, which may include referral to the attorney general for further action.

(5) If the student and parent do not agree with the findings made by the principal or designee, the principal or designee shall transmit all the records and documents regarding the investigation and conference to the district superintendent who shall review the matter and take appropriate action, which may include referral of the matter to the attorney general for further action.

History

[Eff 10/5/2000] (Auth: §§ 302A-112, 302A-1130) (Imp: § 302A-1130)

Haw. Code R. § 8-57-9 Moneys collected as restitution and as payment of outstanding financial obligations

(a) principal or designee shall be responsible for the collection of the amount stipulated in a restitution agreement.

(b) The principal or designee shall be responsible for accounting for the collections which shall be deposited into a special fund account in the State treasury.

History

[Eff 10/5/2000] (Auth: §§ 302A-1112, 302A-1130) (Imp: § 302A-1130)

Haw. Code R. § 8-57-10 Other provisions

Notwithstanding any other provision in this chapter to the contrary, the State may elect to bring any appropriate action for the recovery of all damages to school properties. Nothing in this section shall limit the right of the State to bring any action against any person to recover damages.

History

[Eff 10/5/2000] (Auth: §§ 302A-1112, 302A-1130) (Imp: § 302A-1130)

Haw. Code R. § 8-57-11 Refunds

Moneys paid for restitution of lost library and assigned textbooks, equipment, or supplies shall be refunded if the item is returned in the condition it was borrowed or assigned and if the item is still being used by the school.

History

[Eff 10/5/2000] (Auth: §§ 302A-1112, 302A-1130) (Imp: § 302A-1130)

Chapter 60 PROVISION OF A FREE APPROPRIATE PUBLIC EDUCATION FOR A STUDENT WITH A DISABILITY

Subchapter 1 GENERAL PROVISIONS

Haw. Code R. § 8-60-1 Purposes and scope

(a) The purposes of this chapter are:

(1) To ensure that all students 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;

(2) To ensure that the rights of students with disabilities and their parents are protected;

(3) To assist public schools in the provision of the education of all students with disabilities;

(4) To assess and ensure the effectiveness of efforts to educate students with disabilities;

(5) To strengthen the role of parents;

(6) To encourage whole-school approaches and pre-referral intervention to reduce the need to label students as disabled in order to address their learning needs;

(7) To encourage high expectations for students with a disability and to improve and increase educational achievement; and

(8) To encourage all students with a disability to develop skills needed to lead a self- determined life.

(b) This chapter shall be construed as supplemental to, and in the context of, the Individuals With Disabilities Education Act (20 U.S.C. section 1400 et seq.; 34 C.F.R. sections 300.1 et seq.) and other federal laws and regulations relating to the provision of a free appropriate public education to a student with a disability.

History

[Eff 11/23/09] (Auth: 20 U.S.C. 1412; HRS § 302A-1112) (Imp: HRS §§ 302A-1112, 302A-436; 34 C.F.R. §300.2)

Haw. Code R. § 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 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

(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;

(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

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;

(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.

History

[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

Haw. Code R. § 8-60-3 Free appropriate public education ("FAPE")

(a) General. A free appropriate public education shall be available to all students with disabilities residing in the State aged three to twenty, including students with disabilities who have been suspended or expelled from school, as provided for in section 8-60-75(d).

(b) FAPE for students beginning at age 3.

(1) The State shall ensure that:

(A) The obligation to make a FAPE available to each eligible student residing in the State begins no later than the student's third birthday; and

(B) An IEP is in effect for the student by that date, in accordance with section 8-60-47(b).

(2) If a student's third birthday occurs during the summer, the student's IEP team shall determine the date when services under the IEP will begin.

(1) The State shall ensure that a FAPE is available to any individual student with a disability who needs special education and related services, even though the student has not failed or been retained in a course or grade, and is advancing from grade to grade.

(2) The determination that a student described in subsection (a) is eligible, shall be made on an individual basis by the group responsible for making eligibility determinations.

History

[Eff 11/23/09] (Auth: 20 U.S.C. 1412(a)(1)(A); HRS § 302A-1112) (Imp: 34 C.F.R. §300.101)

Haw. Code R. § 8-60-4 Limitation: exception to FAPE for certain ages

General. The obligation to make a FAPE available to all students with disabilities does not apply with respect to the following:

(1) Students with disabilities who have graduated from high school with a regular high school diploma.

(A) The exception does not apply to students who have graduated from high school but have not been awarded a regular high school diploma.

(B) Graduation from high school with a regular high school diploma constitutes a change in placement, requiring written prior notice in accordance with section 8-60-58.

(C) As used in paragraph (1), the term "regular high school diploma" does not include an alternative degree that is not fully aligned with the State's academic standards, such as a certificate or a general educational development credential "GED";

(2) Students with disabilities who are eligible but who receive early intervention services under Part C of the Act.

(3)

(A) Students with disabilities aged eighteen to twenty, who, in the last educational placement prior to their incarceration in an adult correctional facility:

(i) Were not actually identified as being a student with a disability under sections 8-60-2 and 8-60-39; and

(ii) Did not have an IEP under this chapter.

(B) The exception in paragraph (3)(A) does not apply to students with disabilities, aged eighteen to twenty, who:

(i) Had been identified as a student with a disability under sections 8-60-2 and 8-60-39 and had received services in accordance with an IEP, but who left school prior to their incarceration; or

(ii) Did not have an IEP in their last educational setting, but who had actually been identified as a student with a disability under sections 8-60-2 and 8-60-39.

History

[Eff 11/23/09] (Auth: 20 U.S.C. 1412(a)(1)(B)(C); HRS § 302A-1112) (Imp: 34 C.F.R. §300.102; HRS 302A-101)

Haw. Code R. § 8-60-5 Residential placement

If placement in a public or private residential program is necessary to provide special education and related services to a student with a disability, the program, including non-medical care and room and board, shall be at no cost to the parents of the student.

History

[Eff 11/23/09] (Auth: 20 U.S.C. 1412(a)(1), 1412(a)(10)(B); HRS § 302A-1112) (Imp: 34 C.F.R. §300.104)

Haw. Code R. § 8-60-6 Assistive technology

(a) The department shall ensure that assistive technology devices or assistive technology services, or both, as those terms are defined in section 8-60-2, are made available to a student with a disability if required as a part of the student's special education, related services, or supplementary aids and services, under section 8-60-2.

(b) On a case-by-case basis, the use of school-purchased assistive technology devices in a student's home or in other settings is required if the student's IEP team determines that the student needs access to those devices in order to receive FAPE.

History

[Eff 11/23/09] (Auth: 20 U.S.C. 1412(a)(1), 1412(a)(12)(B)(i); HRS § 302A-1112) (Imp: 34 C.F.R. §300.105)

Haw. Code R. § 8-60-7 Extended school year services

(a) General.

(1) The department shall ensure that extended school year services are available as necessary to provide a FAPE, consistent with paragraph (2).

(2) Extended school year services shall be provided only if a student's IEP team determines, on an individual basis, in accordance with sections 8-60-44 through 8-60-48, that the services are necessary for the provision of a FAPE to the student;

(3) In implementing the requirements of this subchapter, the department may not:

(A) Limit extended school year services to particular categories of disability; or

(B) Unilaterally limit the type, amount, or duration of those services.

(b) Definition. The term "extended school year services" means special education and related services that:

(1) Are provided to a student with a disability:

(A) Beyond the normal school year of the department;

(B) In accordance with the student's IEP; and

(2) Meet the standards of the department.

History

[Eff 11/23/09] (Auth: 20 U.S.C. 1412(a)(1); HRS § 302A-1112) (Imp: 34 C.F.R. §300.106)

Haw. Code R. § 8-60-8 Nonacademic services

(a) The department shall take steps, including the provision of supplementary aids and services determined appropriate and necessary by the student's IEP team, to provide nonacademic and extracurricular services and activities in the manner necessary to afford students with disabilities an equal opportunity for participation in those services and activities.

(b) Nonacademic and extracurricular services and activities may include counseling services, athletics, transportation, health services, recreational activities, special interest groups or clubs sponsored by the department, referrals to agencies that provide assistance to individuals with disabilities, and employment of students, including both employment by the department and assistance in making outside employment available.

History

[Eff 11/23/09] (Auth: 20 U.S.C. 1412(a)(1), HRS § 302A-1112) (Imp: 34 C.F.R. §300.107)

Haw. Code R. § 8-60-9 Program options

The department shall take steps to ensure that its students with disabilities have available to them the variety of educational programs and services available to nondisabled students, including art, music, industrial arts, consumer and homemaking education, and vocational education.

History

[Eff 11/23/09] (Auth: 20 U.S.C. 1412(a)(2), 1413(a)(1), HRS § 302A-1112) (Imp: 34 C.F.R. §300.110)

Haw. Code R. § 8-60-10 Child find and referral

(a) General. The department shall annually identify, locate, and evaluate, all students with disabilities residing in the State, including students with disabilities who are homeless students or are wards of the State, and students with disabilities attending private schools, regardless of the severity of their disability, and who are in need of special education and related services.

(b) Other students in child find. Child find also shall include:

(1) Students who are suspected of being a student with a disability as defined in section 8-60-2 and in need of special education, even though they are advancing from grade to grade; and

(2) Highly mobile students, including migrant students.

(c) Construction. Nothing in the Act requires that students be classified by their disability so long as each student who has a disability that is listed in section 8-60-2 and who, by reason of that disability, needs special education and related services is regarded as a student with a disability under Part B of the Act.

(d) Referral.

(1) All referrals for the evaluation of a student to determine eligibility as a student with a disability under this chapter shall be documented and shall be in accordance with this section;

(2) Within fifteen days from the date of receipt of a request for an evaluation, the parent shall:

(A) Receive a written notice in accordance with section 8-60-58 of the department's proposal to assess the student under this chapter; request for consent to assess in accordance with section 8-60-31; and the procedural safeguards notice in accordance with section 8-60-59; or

(B) Receive a written notice in accordance with section 8-60-58 of the department's refusal to assess under this chapter and the procedural safeguards notice in accordance with section 8-60-59.

History

[Eff 11/23/09] (Auth: 20 U.S.C. 1401(3)), 1412(a)(3); HRS § 302A-1112) (Imp: 34 C.F.R. §§300.111, 300.131)

Haw. Code R. § 8-60-11 Routine checking of hearing aids and external components of surgically implanted medical devices

(a) Hearing aids. Each public school shall ensure that hearing aids worn in school by students who are hard of hearing, including deaf, are functioning properly.

(b) External components of surgically implanted medical devices.

(1) Subject to paragraph (2), the department shall ensure that the external components of surgically implanted medical devices are functioning properly.

(2) For a student with a surgically implanted medical device who is receiving special education and related services, the department is not responsible for the post-surgical maintenance, programming, or replacement of the medical device that has been surgically implanted (or of an external component of the surgically implanted medical device).

History

[Eff 11/23/09] (Auth: 20 U.S.C. 1401(1), 1401(26)(B), HRS § 302A-1112) (Imp: 34 C.F.R. §300.113)

Haw. Code R. § 8-60-12 Transition of students from the Part C program to preschool programs

The State shall ensure that:

(1) Students participating in early intervention programs assisted under Part C of the Act, and who will participate in preschool programs assisted under Part B of the Act, experience a smooth and effective transition to those preschool programs in a manner consistent with section 637(a)(9) of the Act;

(2) By the third birthday of a student described in paragraph (1), an IEP, or if consistent with section 8-60-47(b), an IFSP has been developed and is being implemented for the student; and

(3) Each affected district will participate in transition planning conferences arranged by the designated lead agency under section 635(a)(10) of the Act.

History

[Eff 11/23/09] (Auth: 20 U.S.C. 1412(a)(9), HRS § 302A-1112) (Imp: 34 C.F.R. §300.124)

Haw. Code R. § 8-60-13 Students with disabilities who are covered by public benefits or insurance

(a) Students with disabilities who are covered by public benefits or insurance.

(1) The department may use the medicaid or other public benefits or insurance programs in which a student participates to provide or pay for services required, as permitted under the public benefits or insurance program, except as provided in paragraph (2).

(2) With regard to services required to provide a FAPE to an eligible student, the department:

(A) May not require parents to sign up for or enroll in public benefits or insurance programs in order for their student to receive a FAPE under Part B of the Act;

(B) May not require parents to incur an out-of-pocket expense such as the payment of a deductible or co-pay amount incurred in filing a claim for services provided pursuant to this chapter, but the department may pay the cost that the parents otherwise would be required to pay;

(i) Decrease available lifetime coverage or any other insured benefit;

(ii) Result in the family paying for services that would otherwise be covered by the public benefits or insurance program and that are required for the student outside of the time the student is in school;

(iii) Increase premiums or lead to the discontinuation of benefits or insurance; or

(iv) Risk loss of eligibility for home and community-based waivers, based on aggregate health-related expenditures; and

(D)

(i) Shall obtain parental consent, consistent with section 8-60-2, each time that access to public benefits or insurance is sought; and

(ii) Notify parents that the parents' refusal to allow access to their public benefits or insurance does not relieve the department of its responsibility to ensure that all required services are provided at no cost to the parents.

(b) Students with disabilities who are covered by private insurance.

(1) With regard to services required to provide a FAPE to an eligible student, the department, may access the parents' private insurance proceeds only if the parents provide consent consistent with section 8-60-2.

(2) Each time the department proposes to access the parents' private insurance proceeds, the department shall:

(A) Obtain parental consent in accordance with paragraph (1); and

(B) Inform the parents that their refusal to permit the department to access their private insurance does not relieve the department of its responsibility to ensure that all required services are provided at no cost to the parents.

History

[Eff 11/23/09] (Auth: 20 U.S.C. 1412(a)(12) and (e); HRS § 302A-1112) (Imp: 34 C.F.R. §300.154)

Haw. Code R. § 8-60-14 Prohibition on mandatory medication

(a) General. The department prohibits state personnel from requiring parents to obtain a prescription for substances identified under schedules I, II, III, IV, or V in section 202(c) of the Controlled Substances Act (21 U.S.C. 812(c)) for a student as a condition of attending school, receiving an evaluation under sections 8-60-31 through 8-60-43, or receiving services.

(b) Rule of construction. Nothing in subsection (a) shall be construed to create a federal prohibition against teachers and other school personnel consulting or sharing classroom-based observations with parents or guardians regarding a student's academic and functional performance, or behavior in the classroom or school, or regarding the need for evaluation for special education or related services under section 8-60-10.

History

[Eff 11/23/09] (Auth: 20 U.S.C. 1412(a)(25); HRS § 302A-1112) (Imp: 34 C.F.R. §300.174)

Subchapter 3 LEAST RESTRICTIVE ENVIRONMENT

Haw. Code R. § 8-60-15 Least restrictive environment requirements

The department shall ensure that:

(1) To the maximum extent appropriate, students with disabilities, including students in public or private institutions or other care facilities, are educated with students who are nondisabled; and

(2) Special classes, separate schooling, or other removal of students with disabilities from the regular educational environment occurs 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.

History

[Eff 11/23/09] (Auth: 20 U.S.C. 1412(a)(5); HRS § 302A-1112) (Imp: 34 C.F.R. §300.114)

Haw. Code R. § 8-60-16 Continuum of alternative placements

(a) The department shall ensure that a continuum of alternative placements is available to meet the needs of students with disabilities for special education and related services.

(b) The continuum required in subsection (a) shall:

(1) Include the alternative placements listed in the definition of special education under section 8-60-2 (instruction in regular classes, special classes, special schools, home instruction, and instruction in hospitals and institutions); and

(2) Make provision for supplementary services (such as resource room or itinerant instruction) to be provided in conjunction with regular class placement.

History

[Eff 11/23/09] (Auth: 20 U.S.C. 1412(a)(5); HRS § 302A-1112) (Imp: 34 C.F.R. §300.115)

Haw. Code R. § 8-60-17 Placements

In determining the educational placement of a student with a disability, including a preschool student with a disability, the department shall ensure that:

(1) The placement decision:

(A) Is made by a group of persons, including the parents, and other persons knowledgeable about the student, the meaning of the evaluation data, and the placement options; and

(B) Is made in conformity with the LRE provisions of this subchapter, including sections 8-60-15 through 8-60-18;

(2) The student's placement:

(A) Is determined at least annually;

(B) Is based on the student's IEP; and

(3) Unless the IEP of a student with a disability requires some other arrangement, the student is educated in the school that the student would attend if nondisabled;

(4) In selecting the LRE, consideration is given to any potential harmful effect on the student or on the quality of services that the student needs; and

(5) A student with a disability is not removed from education in age-appropriate regular classrooms solely because of needed modifications in the general education curriculum.

History

[Eff 11/23/09] (Auth: 20 U.S.C. 1412(a)(5); HRS § 302A-1112) (Imp: 34 C.F.R. §300.116)

Haw. Code R. § 8-60-18 Nonacademic settings

In providing or arranging for the provision of nonacademic and extracurricular services and activities, including meals, recess periods, and the services and activities set forth in section 8-60-8, the department shall ensure that each student with a disability participates with nondisabled students in the extracurricular services and activities to the maximum extent appropriate to the needs of that student. The department shall ensure that each student with a disability has the supplementary aids and services determined by the student's IEP team to be appropriate and necessary for the student to participate in nonacademic settings.

History

[Eff 11/23/09] (Auth: 20 U.S.C. 1412(a)(5), HRS § 302A-1112) (Imp: 34 C.F.R. §300.117)

Subchapter 4 STUDENTS IN PRIVATE SCHOOLS

Haw. Code R. § 8-60-20 Definition of parentally-placed private school students with disabilities

Parentally-placed private school students with disabilities means students with disabilities enrolled by their parents in private, including religious, schools or facilities that meet the definition of elementary school or secondary school in section 8-60-2, other than students with disabilities covered under sections 8-60-28 through 8-60-30.

History

[Eff 11/23/09] (Auth: 20 U.S.C. 1412(a)(10)(A); HRS § 302A-1112) (Imp: 34 C.F.R. §300.130)

Haw. Code R. § 8-60-21 Child find for parentally-placed private school students with disabilities

(a) General. The department shall locate, identify, and evaluate all students with disabilities who are enrolled by their parents in private, including religious, elementary schools and secondary schools located in the state, in accordance with section 8-60-10.

(b) Completion period. The child find process shall be completed in a time period comparable to that for students attending public schools in the state consistent with section 8-60-33.

History

[Eff 11/23/09] (Auth: 20 U.S.C. 1412(a)(10)(A)(ii); HRS § 302A-1112) (Imp: 34 C.F.R. §300.131)

Haw. Code R. § 8-60-22 Provision of services for parentally-placed private school students with disabilities: basic requirement

(a) General. To the extent consistent with the number and location of students with disabilities who are enrolled by their parents in private, including religious, elementary schools and secondary schools located in the state, provision is made for the participation of those students in the program assisted or carried out under Part B of the Act by providing them with special education and related services, including direct services determined in accordance with section 8-60-23.

(b) Services plan for parentally-placed private school students with disabilities. In accordance with subsection (a) and sections 8-60-23 through 8-60-25, a services plan shall be developed and implemented for each private school student with a disability who has been designated by the department to receive special education and related services.

History

[Eff 11/23/09] (Auth: 20 U.S.C. 1412(a)(10)(A)(i); HRS § 302A-1112) (Imp: 34 C.F.R. §300.132)

Haw. Code R. § 8-60-23 Equitable services determined

(a) No individual right to special education and related services. No parentally-placed private school student with a disability has an individual right to receive some or all of the special education and related services that the student would receive if enrolled in a public school.

(b) Decisions.

(1) Decisions about the services that will be provided to parentally-placed private school students with disabilities under sections 8-60-20 through 8-60-26 shall be made in accordance with subsection (c).

(2) The department shall make the final decisions with respect to the services to be provided to eligible parentally-placed private school students with disabilities.

(c) Services plan for each student served under sections 8-60-20 through 8-60-26. If a student with a disability is enrolled in a religious or other private school by the student's parents and will receive special education or related services from the department, the department shall:

(1) Initiate and conduct meetings to develop, review, and revise a services plan for the student, in accordance with section 8-60-24(b); and

(2) Ensure that a representative of the religious or other private school attends each meeting. If the representative cannot attend, the department shall use other methods to ensure participation by the religious or other private school, including individual or conference telephone calls.

History

[Eff 11/23/09] (Auth: 20 U.S.C. 1412(a)(10)(A), HRS § 302A-1112) (Imp: 34 C.F.R. §300.137)

Haw. Code R. § 8-60-24 Equitable services provided

(a) General.

(1) The services provided to parentally-placed private school students with disabilities shall be provided by personnel meeting the same standards as personnel providing services in the public schools, except that private elementary school and secondary school teachers who are providing equitable services to parentally-placed private school students with disabilities do not have to meet the highly qualified special education teacher requirements of 34 C.F.R. 300.18.

(2) Parentally-placed private school students with disabilities may receive a different amount of services than students with disabilities in public schools.

(b) Services provided in accordance with a services plan.

(1) Each parentally-placed private school student with a disability who has been designated to receive services under section 8-60-22 shall have a services plan that describes the specific special education and related services that the department will provide to the student in light of the services that the department has determined, through the process described in section 8-60-23, it will make available to parentally-placed private school students with disabilities.

(2) The services plan shall, to the extent appropriate:

(A) Meet the requirements of section 8-60-44, or for a student ages three through five, meet the requirements of section 8-60-47(b) with respect to the services provided; and

(B) Be developed, reviewed, and revised consistent with sections 8-60-45 through 8-60-48.

(1) The provision of services pursuant to this section and sections 8-60-25 through 8-60-26 shall be provided:

(A) By employees of the department; or

(B) Through contract by the department with an individual, association, agency, organization, or other entity.

(2) Special education and related services provided to parentally-placed private school students with disabilities, including materials and equipment, shall be secular, neutral, and nonideological.

History

[Eff 11/23/09] (Auth: 20 U.S.C. 1412(a)(10)(A)(vi), HRS § 302A-1112) (Imp: 34 C.F.R. §300.138)

Haw. Code R. § 8-60-25 Location of services and transportation

(a) Services on private school premises. Services to parentally-placed private school students with disabilities may be provided on the premises of private, including religious, schools, to the extent consistent with law.

(b) Transportation: General.

(1) If necessary for the student to benefit from or participate in the services provided, a parentally-placed private school student with a disability shall be provided transportation:

(A) From the student's school or the student's home to a site other than the private school; and

(B) From the service site to the private school, or to the student's home, depending on the timing of the services.

(2) The department is not required to provide transportation from the student's home to the private school.

History

[Eff 11/23/09] (Auth: 20 U.S.C. 1412(a)(10)(A), HRS § 302A-1112) (Imp: 34 C.F.R. §300.139)

Haw. Code R. § 8-60-26 Due process complaints and state complaints

(a) Due process not applicable, except for child find. Except as provided in subsection (b), the procedures in sections 8-60-59 through 8-60-73 do not apply to complaints that the department has failed to meet the requirements of sections 8-60-22 through 8-60-25, including the provision of services indicated on the student's services plan.

(b) Child find complaints shall be filed with the department.

(1) The procedures in sections 8-60-59 through 8-60-73 apply to complaints that the department has failed to meet the child find requirements in section 8-60-21, including the requirements in sections 8-60-31 through 8-60-43.

(2) Any due process complaint regarding the child find requirements, as described in paragraph (1), shall be filed with the department.

(c) State complaints. Any complaint that the department has failed to meet the requirements in sections 8-60-22 through 8-60-26 shall be filed in accordance with the procedures described in sections 8-60-52 through 8-60-54.

History

[Eff 11/23/09] (Auth: 20 U.S.C. 1412(a)(10)(A), HRS § 302A-1112) (Imp: 34 C.F.R. §300.140)

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

(a) General. This chapter does not require the department to pay for the cost of education, including special education and related services, of a student with a disability at a private school or facility if the department made a FAPE available to the student and the parents elected to place the student in a private school or facility. However, the department shall include that student in the population whose needs are addressed consistent with sections 8-60-21 through 8-60-26.

(b) Disagreements about a FAPE. Disagreements between the parents and the department regarding the availability of a program appropriate for the student, and the question of financial reimbursement, are subject to the due process procedures in sections 8-60-59 through 8-60-74.

(c) Reimbursement for private school placement. If the parent of a student with a disability, who previously received special education and related services under the authority of the department, enrolls the student in a private preschool, elementary or secondary school without the consent of or referral by the department, a court or a hearing officer may require the department to reimburse the parent for the cost of that enrollment if the court or hearing officer finds that the department had not made a free appropriate public education available to the student in a timely manner prior to that enrollment and that the private placement is appropriate.

(1) A parental placement may be found to be appropriate by a hearing officer or a court even if it does not meet the state standards that apply to education provided by the department.

(2) The private school shall not be deemed appropriate for continued placement by the hearing officer, if the private school does not allow the department to exercise its responsibility to ensure the provision of a FAPE under section 8-60-29.

(3) The request for a due process hearing regarding reimbursement of all costs of the unilateral private placement including special education and related services shall be filed in accordance with state statute and section 8-60-61.

(d) Limitation on reimbursement. The cost of reimbursement described in subsection (c) may be reduced or denied:

(1) If:

(A) At the most recent IEP team meeting that the parents attended prior to removal of the student from the public school, the parents did not inform the IEP team that they were rejecting the placement proposed by the department to provide a FAPE to their student, including stating their concerns and their intent to enroll their student in a private school at public expense; or

(B) At least ten (10) business days (including any holidays that occur on a business day) prior to the removal of the student from the public school, the parents did not give written notice to the department of the information described in subparagraph (A);

(2) If, prior to the parents' removal of the student from the public school, the department informed the parents, through the notice requirements described in section 8-60-58(a)(1), of its intent to evaluate the student (including a statement of the purpose of the evaluation that was appropriate and reasonable), but the parents did not make the student available for the evaluation; or

(3) Upon a judicial finding of unreasonableness with respect to actions taken by the parents.

(e) Exception. Notwithstanding the notice requirement in subsection (d)(1), the cost of reimbursement:

(1) Shall not be reduced or denied for failure to provide the notice if:

(A) The school prevented the parents from providing the notice;

(B) The parents had not received notice, pursuant to section 8-60-59, of the notice requirement in subsection (d)(1); or

(2) May, in the discretion of the court or a hearing officer, not be reduced or denied for failure to provide this notice if:

(A) The parents are not literate or cannot write in English; or

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

History

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

Haw. Code R. § 8-60-28 Applicability of sections 8-60-29 through 8-60-30

Sections 8-60-29 through 8-60-30 apply only to students with disabilities who are or have been placed in or referred to a private school or facility by the department as a means of providing special education and related services.

History

[Eff 11/23/09] (Auth: 20 U.S.C. 1412(a)(10)(B), HRS § 302A-1112) (Imp: 34 C.F.R. §300.145)

Haw. Code R. § 8-60-29 Responsibility of the department

The department shall ensure that a student with a disability who is placed in or referred to a private school or facility by the department:

(1) Is provided special education and related services:

(A) In conformance with an IEP that meets the requirements of sections § 8-60-44 through 8-60-49; and

(B) At no cost to the parents;

(2) Is provided an education that meets the standards that apply to education provided by the department including the department's responsibility to ensure the provision of a FAPE and the requirements of the Act; and

(3) Has all of the rights of a student with a disability who is served by the department.

History

[Eff 11/23/09] (Auth: 20 U.S.C. 1412(a)(10)(B); HRS § 302A-1112) (Imp: 34 C.F.R. §300.146)

Haw. Code R. § 8-60-30 Implementation by the department

In implementing section 8-60-29, the department shall monitor compliance through procedures such as written reports, on-site visits, and parent questionnaires.

History

[Eff 11/23/09] (Auth: 20 U.S.C. 1412(a)(10)(B); HRS § 302A-1112, § 302A-443) (Imp: 34 C.F.R. §300.147)

Subchapter 5 EVALUATIONS AND ELIGIBILITY DETERMINATIONS

Haw. Code R. § 8-60-31 Parental consent

(a) Parental consent for initial evaluation.

(1)

(A) The department shall obtain consent, consistent with section 8-60-2, from the parent of the student before conducting an initial evaluation to determine if a student qualifies as a student with a disability under sections 8-60-2 and 8-60-39, after providing notice consistent with sections 8-60-58 and 8-60-59;

(B) Parental consent for initial evaluation shall not be construed as consent for initial provision of special education and related services;

(C) The department shall make reasonable efforts to obtain the consent from the parent for an initial evaluation to determine whether the student is a student with a disability;

(2) For initial evaluations only, if the student is a ward of the State and is not residing with the student's parent, the department is not required to obtain consent from the parent for an initial evaluation to determine whether the student is a student with a disability if:

(A) Despite reasonable efforts to do so, the department cannot discover the whereabouts of the parent of the student;

(B) The rights of the parents of the student have been terminated in accordance with state law; or

(C) The rights of the parent to make educational decisions have been subrogated by a judge in accordance with state law and consent for an initial evaluation has been given by an individual appointed by the judge to represent the student;

(3)

(A) If the parent of a student enrolled in public school or seeking to be enrolled in public school does not provide consent for initial evaluation under paragraph (1), or the parent fails to respond to a request to provide consent, the department may, but is not required to, pursue the initial evaluation of the student by utilizing the procedural safeguards in sections 8-60-56 through 8-60-82;

(B) The department does not violate its obligation under section 8-60-10 and sections 8-60-33 through 8-60-43 if it declines to pursue the evaluation.

(b) Parental consent for services.

(1) The department is responsible for making a FAPE available to a student with a disability and shall obtain consent from the parent of the student before the initial provision of special education and related services to the student;

(2) The department shall make reasonable efforts to obtain consent from the parent for the initial provision of special education and related services to the student;

(3) If the parent of a student fails to respond to a request for, or refuses to consent to, the initial provision of special education and related services, the department-

(A) May not use the procedures in subchapter 8 (including the mediation procedures under § 8-60-60 or the due process procedures under §§ 8-60-61 through 8-60-70) in order to obtain agreement or a ruling that the services may be provided to the student;

(B) Will not be considered to be in violation of the requirement to make FAPE available to the student because of the failure to provide the student with the special education and related services for which the parent refuses to or fails to provide consent; and

(4) If, at any time subsequent to the initial provision of special education and related services, the parent of a student revokes consent in writing for the continued provision of special education and related services, the department-

(A) May not continue to provide special education and related services to the student, but must provide prior written notice in accordance with § 8-60-58 before ceasing the provision of special education and related services;

(B) May not use the procedures in subchapter 8(including the mediation procedures under § 8-60-60 or the due process procedures under §§ 8-60-61 through 8-60-70) in order to obtain agreement or a ruling that the services may be provided to the student;

(C) Will not be considered to be in violation of the requirement to make FAPE available to the student because of the failure to provide the student with further special education and related services; and

(D) Is not required to convene an IEP team meeting or develop an IEP under §§ 8-60-44 and 8-60-48 for the student for further provision of special education and related services.

(1) Subject to paragraph (2):

(A) The department shall obtain parental consent, in accordance with section 8-60-31(a)(1), prior to conducting any reevaluation of a student with a disability;

(B) If the parent refuses to consent to the reevaluation, the department may, but is not required to, pursue the reevaluation by using the consent override procedures described in subsection (a)(3);

(C) The department does not violate its obligation under section 8-60-10 and sections 8-60-33 through 8-60-43 if it declines to pursue the evaluation or reevaluation.

(2) The parental consent described in paragraph (1) need not be obtained if the department can demonstrate that:

(A) It made reasonable efforts to obtain such consent; and

(B) The student's parent has failed to respond.

(d) Other consent requirements.

(1) Parental consent is not required before:

(A) Reviewing existing data as part of an evaluation or a reevaluation; or

(B) Administering a test or other evaluation that is administered to all students unless, before administration of that test or evaluation, consent is required of parents of all students.

(2) The department may not use a parent's refusal to consent to one service or activity under subsection (a) to deny the parent or student any other service, benefit, or activity of the department, except as required by this chapter.

(3)

(A) If a parent of a student who is home schooled or placed in a private school by the parents at their own expense does not provide consent for the initial evaluation or the reevaluation, or the parent fails to respond to a request to provide consent, the department may not use the consent override procedures (described in subsections (a)(3) and (c)(1); and

(B) The department is not required to consider the student as eligible for services under sections 8-60-22 through 8-60-26;

(4) To meet the reasonable efforts requirement in subsections (a)(1)(C), (a)(2)(A), (b)(2), and (c)(2)(A), the department shall document its attempts to obtain parental consent using the procedures in section 8-60-46(d).

History

[Eff 11/23/09] (Auth: 20 U.S.C. 1414(a)(1)(D) and 1414(c); HRS § 302A-1112) (Imp: 34 C.F.R. §300.300)

Haw. Code R. § 8-60-32 Evaluation

Students with disabilities shall be evaluated in accordance with sections 8-60-31 through 8-60-43 of this chapter.

History

[Eff 11/23/09] (Auth: 20 U.S.C. 1412(a)(7), HRS § 302A-1112) (Imp: 34 C.F.R. §300.122)

Haw. Code R. § 8-60-33 Initial evaluations

(a) General. The department shall conduct a full and individual initial evaluation, in accordance with sections 8-60-36 and 8-60-38, before the initial provision of special education and related services to a student with a disability.

(b) Request for initial evaluation. Consistent with the consent requirements in section 8-60-31, either a parent of a student or the department may initiate a request for an initial evaluation to determine if the student is a student with a disability.

(1) Shall be conducted within 60 days of receiving parental consent for the evaluation; and

(2) Shall determine:

(A) If the student is a student with a disability under sections 8-60-2 and 8-60-39; and

(B) The educational needs of the student.

(d) Exception. The time frame described in subsection (c)(1) does not apply to the department if the parent of a student repeatedly fails or refuses to produce the student for the evaluation.

History

[Eff 11/23/09] (Auth: 20 U.S.C. 1414(a), HRS § 302A-1112) (Imp: 34 C.F.R. §300.301)

Haw. Code R. § 8-60-34 Screening for instructional purposes is not evaluation

The screening of a student by a teacher or specialist to determine appropriate instructional strategies for curriculum implementation shall not be considered to be an evaluation for eligibility for special education and related services.

History

[Eff 11/23/09] (Auth: 20 U.S.C. 1414(a)(1)(E), HRS § 302A-1112) (Imp: 34 C.F.R. §300.302)

Haw. Code R. § 8-60-35 Reevaluations

(a) General. The department shall ensure that a reevaluation of each student with a disability is conducted in accordance with sections 8-60-36 through 8-60-43:

(1) If the department determines that the educational or related services needs, including improved academic achievement and functional performance, of the student warrant a reevaluation; or

(2) If the student's parent or teacher requests a reevaluation.

(b) Limitation. A reevaluation conducted under subsection (a):

(1) May occur not more than once a year, unless the parent and the department agree otherwise; and

(2) Shall occur at least once every 3 years, unless the parent and the department agree that a reevaluation is unnecessary.

History

[Eff 11/23/09] (Auth: 20 U.S.C. 1414(a)(2), HRS § 302A-1112) (Imp: 34 C.F.R. §300.303)

Haw. Code R. § 8-60-36 Evaluation procedures

(a) Notice. The department shall provide notice to the parents of a student with a disability, in accordance with section 8-60-58, that describes any evaluation procedures the department proposes to conduct.

(b) Conduct of evaluation. In conducting the evaluation, the department shall:

(1) Use a variety of assessment tools and strategies to gather relevant functional, developmental, and academic information about the student, including information provided by the parent, that may assist in determining:

(A) Whether the student is a student with a disability under sections 8-60-2 and 8-60-39; and

(B) The content of the student's IEP, including information related to enabling the student to be involved in and progress in the general education curriculum (or for a preschool student, to participate in appropriate activities);

(2) Not use any single measure or assessment as the sole criterion for determining whether a student is a student with a disability and for determining an appropriate educational program for the student; and

(3) Use technically sound instruments that may assess the relative contribution of cognitive and behavioral factors, in addition to physical or developmental factors.

(1) Assessments and other evaluation materials used to assess a student:

(A) Are selected and administered so as not to be discriminatory on a racial or cultural basis;

(B) Are provided and administered in the student's native language or other mode of communication and in the form most likely to yield accurate information on what the student knows and can do academically, developmentally, and functionally, unless it is clearly not feasible to so provide or administer;

(D) Are administered by trained and knowledgeable personnel; and

(E) Are administered in accordance with any instructions provided by the producer of the assessments.

(2) Assessments and other evaluation materials include those tailored to assess specific areas of educational need and not merely those that are designed to provide a single general intelligence quotient.

(3) Assessments are selected and administered so as best to ensure that if an assessment is administered to a student with impaired sensory, manual, or speaking skills, the assessment results accurately reflect the student's aptitude or achievement level or whatever other factors the test purports to measure, rather than reflecting the student's impaired sensory, manual, or speaking skills (unless those skills are the factors that the test purports to measure).

(4) The student is assessed in all areas related to the suspected disability, including, if appropriate, health, vision, hearing, social and emotional status, general intelligence, academic performance, communicative status, visual and auditory processing, and motor abilities;

(5) Assessments of students with disabilities who transfer from one public school to another public school in the same school year are coordinated with those students' prior and subsequent schools, as necessary and as expeditiously as possible to ensure prompt completion of full evaluations.

(6) In evaluating each student with a disability under sections 8-60-36 through 8-60-38, the evaluation is sufficiently comprehensive to identify all of the student's special education and related services needs, whether or not commonly linked to the disability category in which the student has been classified.

(7) Assessment tools and strategies that provide relevant information that directly assists persons in determining the educational needs of the student are provided.

History

[Eff 11/23/09] (Auth: 20 U.S.C. 1414(b)(1) -(3), 1412(a)(6)(B), HRS § 302A-1112) (Imp: 34 C.F.R. §300.304)

Haw. Code R. § 8-60-37 Additional requirements for evaluations and reevaluations

(a) Review of existing evaluation data. As part of an initial evaluation (if appropriate) and as part of any reevaluation, the IEP team and other qualified professionals, as appropriate, shall:

(1) Review existing evaluation data on the student, including:

(A) Evaluations and information provided by the parents of the student;

(B) Current classroom-based or State assessments, and classroom-based observations; and

(2) On the basis of that review, and input from the student's parents, identify what additional data, if any, are needed to determine:

(A)

(i) Whether the student is a student with a disability, as defined in sections 8-60-2 and 8-60-39 and the educational needs of the student; or

(ii) In case of a reevaluation of a student, whether the student continues to have such a disability, and the educational needs of the student;

(B) The present levels of academic achievement and related developmental needs of the student;

(C)

(i) Whether the student needs special education and related services; or

(ii) In the case of a reevaluation of a student, whether the student continues to need special education and related services; and

(D) Whether any additions or modifications to the special education and related services are needed to enable the student to meet the measurable annual goals set out in the IEP of the student and to participate, as appropriate, in the general education curriculum.

(b) Conduct of review. The group described in subsection (a) may conduct its review without a meeting.

(c) Source of data. The department shall administer such assessments and other evaluation measures as may be needed to produce the data identified under subsection (a).

(d) Requirements if additional data are not needed.

(1) If the IEP team and other qualified professionals, as appropriate, determine that no additional data are needed to determine whether the student continues to be a student with a disability, and to determine the student's educational needs, the department shall notify the student's parents of:

(A) That determination and the reasons for the determination; and

(B) The right of the parents to request an assessment to determine whether the student continues to be a student with a disability, and to determine the student's educational needs.

(2) The department is not required to conduct the assessment described in paragraph (1)(B) unless requested to do so by the student's parents.

(e) Evaluations before change in eligibility.

(1) Except as provided in paragraph (2), the department shall evaluate a student with a disability in accordance with sections 8-60-36 through 8-60-43 before determining that the student is no longer a student with a disability.

(2) The evaluation described in paragraph (1) is not required before the termination of a student's eligibility due to graduation from secondary school with a regular diploma, or due to exceeding the age eligibility for a FAPE under State law.

(3) For a student whose eligibility terminates under circumstances described in paragraph (2), the department shall provide the student with a summary of the student's academic achievement and functional performance, which shall include recommendations on how to assist the student in meeting the student's postsecondary goals.

History

[Eff 11/23/09] (Auth: 20 U.S.C. 1414(c), HRS § 302A-1112) (Imp: 34 C.F.R. §300.305)

Haw. Code R. § 8-60-38 Determination of eligibility

(a) General. Upon completion of the administration of assessments and other evaluation measures:

(1) A group of qualified professionals and the parent of the student determines whether the student is a student with a disability as defined in sections 8-60-2 and 8-60-39, in accordance with subsection (c) and the educational needs of the student; and

(2) The department provides a copy of the evaluation report and the documentation of determination of eligibility at no cost to the parent.

(b) Special rule for eligibility determination. A student shall not be determined to be a student with a disability:

(1) If the determinant factor for that determination is:

(A) Lack of appropriate instruction in reading, including the essential components of reading instruction (as defined in section 1208(3) of the ESEA);

(B) Lack of appropriate instruction in math; or

(2) If the student does not otherwise meet the eligibility criteria under sections 8-60-2 and 8-60-39.

(1) In interpreting evaluation data for the purpose of determining if a student is a student with a disability under sections 8-60-2 and 8-60-39, and the educational needs of the student, the department shall:

(A) Draw upon information from a variety of sources, including aptitude and achievement tests, parent input, and teacher recommendations, as well as information about the student's physical condition, social or cultural background, and adaptive behavior; and

(B) Ensure that information obtained from all of these sources is documented and carefully considered.

(2) If a determination is made that a student has a disability and needs special education and related services, an IEP shall be developed for the student in accordance with sections 8-60-44 through 8-60-48.

(d) The student resides in the State and comes within the following age range:

(1) Is three years of age; and

(2) Under twenty on the first instructional day of the official school year calendar set by the department. A student who is under twenty years of age on the first instructional day of the school year set by the department, but who reaches the age of twenty during the school year, shall be eligible for the full school year, including extended school year when the requirements of section 8-60-7 are met.

History

[Eff 11/23/09] (Auth: HRS § 302A-1112) (Imp: HRS §§ 302A-101; 34 C.F.R. §§300.7; 300.306)

Haw. Code R. § 8-60-39 Eligibility criteria

(a)

(1) Autism spectrum disorder. A student shall be eligible under the category of autism spectrum disorder if the student has a developmental disability significantly affecting verbal and nonverbal communication and social interaction, generally evident before age three, that adversely affects the student's educational performance. The student may have one or more of the following other characteristics often associated with autism spectrum disorder:

(A) Engagement in repetitive activities and stereotyped movements;

(B) Resistance to environmental change or change in daily routines;

(2) A student who manifests the characteristics of autism spectrum disorder after age three may be diagnosed as having autism spectrum disorder if the criteria in paragraph (1) are satisfied.

(3) A team of qualified professionals and the parent may not identify a student as having autism spectrum disorder if the student's educational performance is adversely affected primarily because the student has an emotional disability pursuant to subsection (e).

(b) Deaf. A student shall be eligible under the disability category of deaf if the student has a hearing loss averaging greater than 70 decibels in the speech frequencies (500Hz to 4,000Hz) and:

(1) The hearing loss impairs the student's auditory processing of linguistic information through hearing, with or without amplification; or

(2) The hearing loss adversely affects the student's educational performance.

(1) If the student meets the criteria under the category of deaf, or the category of hard of hearing, and the category of visual disability; and

(2) The concomitant hearing and visual disabilities cause severe communication and other developmental and educational needs.

(d) Developmental delay.

(1) A student, aged three through five, shall be eligible for any eligibility category in this subchapter if the applicable criteria are met, or for the category of developmental delay if, as measured by appropriate diagnostic instruments and procedures, one or more of the following is met:

(A) Cognitive development and adaptive behavior are delayed equivalent to one and one-half standard deviations below the mean when compared with the standard score expected for the chronological age.

(B) One of the following areas is delayed one and one-half standard deviations below a standard score for:

(i) Motor development, including fine motor, gross motor, sensory motor, and perceptual-motor development;

(ii) Communication, including speech and language development;

(iii) Academic development;

(iv) Adaptive behavior;

(2) A student, aged six through eight, shall be eligible for any eligibility category in this subchapter if the applicable criteria are met, or for the category of developmental delay if as measured by appropriate diagnostic instruments and procedures, three of the five areas are delayed one and one-half standard deviations below a standard score for:

(A) Motor development, including fine motor, gross motor, sensory motor, and perceptual-motor development;

(B) Communication, including speech and language development;

(D) Adaptive behavior;

(E) Cognition.

(3) If assessment materials would not conclusively demonstrate eligibility as required under paragraphs (1) or (2), the team of qualified professionals and the parent may find the student eligible under the category of developmental delay if the team determines the student's patterns of learning deviate from age expectations across settings. The documentation of eligibility required by section 8-60-38 shall include a statement of the patterns of learning that deviate from age expectations across settings and the basis and method used in determining eligibility.

(e) Emotional disability.

(1) A student shall be eligible under the disability category of emotional disability if the student exhibits one or more of the following characteristics over a long period of time and to a marked degree that adversely affect the student'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;

(D) A general pervasive mood of unhappiness or depression;

(E) A tendency to develop physical symptoms or fears associated with personal or school problems.

(2) A student shall not be determined to be a student with a disability under this category, if paragraph (1) is primarily the result of cultural, or language differences, or both.

(3) Emotional disability includes schizophrenia. Emotional disability does not apply to a student who is socially maladjusted, unless it is determined that the student has an emotional disability.

(f) Hard of hearing. A student shall be eligible under the disability category of hard of hearing if the student has a hearing loss, whether permanent or fluctuating, averaging 26 to 70 decibels in the speech frequencies (500 Hz to 4,000 Hz), and:

(1) The hearing loss impairs the student's auditory processing of linguistic information, with or without amplification; or

(2) The hearing impairment adversely affects the student's educational performance.

(g) Intellectual disability. A student shall be eligible under the disability category of intellectual disability when all of the following are met:

(1) The student has subaverage general intellectual functioning, as demonstrated by evidence of intellectual functioning two or more standard deviations below the mean;

(2) The subaverage intellectual functioning exists concurrently with deficits in at least two adaptive skill areas; and

(3) The subaverage intellectual functioning and deficits in adaptive skill areas were manifested during the developmental period and adversely affect the student's educational performance.

(h) Multiple disabilities.

(1) A student shall be eligible under the category of multiple disabilities if the student has concomitant impairments, the combination of which causes severe educational needs and all of the following criteria are met:

(A) The student has subaverage general intellectual functioning, as demonstrated by evidence of intellectual functioning three or more standard deviations below the mean;

(B) The subaverage intellectual functioning exists concurrently with deficits in at least two adaptive skill areas;

(C) The subaverage intellectual functioning and deficits in adaptive skill areas were manifested during the developmental period and adversely affect the student's educational performance; and

(D) The student is not eligible under the category of deaf-blindness, as set forth in subsection (c), and the student is eligible under one or more of the following disability categories:

(i) Autism spectrum disorder, as set forth in subsection (a);

(ii) Deaf, as set forth in subsection (b);

(iii) Hard of hearing, as set forth in subsection (f);

(iv) Orthopedic disability, as set forth in subsection (i);

(v) Other health disability, as set forth in subsection (j); or

(vi) Visual disability including blindness, as set forth in subsection (n);

(2) If assessment materials would not conclusively demonstrate eligibility as required under paragraph (1), the team of qualified professionals and the parent may find the student eligible under the category of multiple disabilities if the criteria in paragraph (1)(A) to (C) are met and the team documents the existence of a concomitant disability in the determination of eligibility. The documentation of eligibility shall include a statement of the concomitant disability and the basis and method used in determining eligibility.

(i) Orthopedic disability. A student shall be eligible under the disability category of orthopedic disability if there is medical evidence that a severe orthopedic disability exists that adversely affects the student's educational performance. The term includes disabilities caused by congenital anomaly, disabilities caused by disease (e.g., poliomyelitis, bone tuberculosis), and disabilities from other causes (e.g., cerebral palsy, amputations, and fractures or burns that cause contractures).

(j) Other health disability. A student shall be eligible under the category of other health disability if both of the following are met:

(1) The student has limited strength, vitality or alertness, including a heightened alertness to environmental stimuli, that results in limited alertness with respect to the educational environment, that is due to chronic or acute health problems or a medically fragile condition 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

(2) The health disability adversely affects the student's educational performance.

(k) Specific learning disability.

(1) 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;

(2) Disorders not included. Specific learning disability does not include learning problems that are primarily the result of visual, hearing, or motor disabilities; intellectual disability; emotional disability; or environmental, cultural, or economic disadvantage.

(l) Speech or language disability. A student shall be eligible under the category of speech or language disability when a significant problem in the comprehension or production, or both, of an oral communication system, which is not consistent with the student's other developmental or cognitive abilities, or both, adversely affects the student's educational performance and is evident in one or more of the following:

(1) Articulation or phonological condition, or both;

(2) Voice condition;

(3) Fluency condition;

(4) Language conditions, as documented by:

(A) Multiple sources of data; and

(B) A discrepancy of one and one-half standard deviations between the student's estimated cognitive level and performance on at least two standardized measures in the areas of semantics or grammar, or both.

(m) Traumatic brain injury.

(1) A student shall be eligible under the category of traumatic brain injury if both of the following are met:

(A) There is medical evidence that the student has 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 the student's educational performance; and

(B) The traumatic brain injury is either an open or closed head injury, resulting in impairments in one or more areas such as:

(i) Cognition;

(ii) Language;

(iii) Memory;

(iv) Attention;

(v) Reasoning;

(vi) Abstract thinking;

(vii) Judgment;

(viii) Problem-solving;

(ix) Sensory, perceptual and motor abilities;

(x) Psychosocial behavior;

(xi) Physical functions;

(xii) Information processing;

(xiii) Speech.

(2) The team of qualified professionals and the parent may not identify a student as having a traumatic brain injury if the brain injury is congenital or degenerative, or induced by birth trauma.

(n) Visual disability including blindness. A student shall be eligible for the disability category of visual disability, including both partial sight and blindness, if the impairment in vision, even with the best correction, adversely affects the student's educational performance and one or more of the following are met:

(1) Partially-sighted. The student's visual acuity is 20/70 to 20/200 in the better eye and with the best correction;

(2) Blind. The student's visual acuity is 20/200 in the better eye and with the best correction, or less, or the student has a subtended visual field of less than 20 degrees, regardless of central visual acuity;

(3) The student has a progressive visual impairment, such as retinitis pigmentosa, that will lead to eventual visual disability as set forth in paragraphs (1) and (2).

History

[Eff 11/23/09] (Auth: 20 U.S.C. 1414(b)(4) and (5), HRS § 302A-1112) (Imp: HRS §§ 302A-101; 302A-439; 34 C.F.R. §§300.8, 300.306, and 300.534)

Haw. Code R. § 8-60-40 Additional group members

The determination of whether a student suspected of having a specific learning disability is a student with a disability as defined in section 8-60-39(k), shall be made by the student's parents and a team of qualified professionals, which shall include:

(1)

(A) The student's regular teacher;

(B) If the student does not have a regular teacher, a regular classroom teacher qualified to teach a student of his or her age; or

(C) For a student of less than school age, an individual qualified by the department to teach a student of his or her age; and

(2) At least one person qualified to conduct individual diagnostic examinations of students, such as a school psychologist, speech-language pathologist, or remedial reading teacher.

History

[Eff 11/23/09] (Auth: 20 U.S.C. 1221e-3; 1401(30); 1414(b)(6); HRS § 302A-1112) (Imp: 34 C.F.R. §300.308)

Haw. Code R. § 8-60-41 Determining the existence of a specific learning disability

(a) The group described in section 8-60-38 may determine that a student has a specific learning disability, as defined in section 8-60-39(k), if:

(1)

(A) The student does not achieve adequately for the student's age or to meet State-approved grade-level standards in one or more of the following areas, when provided with learning experiences and instruction appropriate for the student's age or State-approved grade-level standards:

(i) Oral expression;

(ii) Listening comprehension;

(iii) Written expression;

(iv) Basic reading skill (including phonemic awareness, phonics, and/or vocabulary);

(v) Reading fluency skills;

(vi) Reading comprehension;

(vii) Mathematics calculation;

(viii) Mathematics problem solving; or

(B) The student demonstrates a severe discrepancy between actual achievement and intellectual ability by a difference of at least one and one-half standard deviations in one or more of the areas in subparagraph(A); and

(2)

(A) The student does not make sufficient progress to meet age or State-approved grade-level standards in one or more of the areas identified in paragraph (1)(A) when using a process based on the student's response to scientific, research-based intervention; or

(B) The student exhibits a pattern of strengths and weaknesses in performance, achievement, or both, relative to age, State-approved grade-level standards, or intellectual development, that is determined by the group to be relevant to the identification of a specific learning disability, using appropriate assessments, consistent with sections 8-60-36 and 8-60-37; and

(3) The group determines that its findings under paragraphs (1)(A) and (2)(A) are not primarily the result of:

(A) A visual, hearing, or motor disability;

(B) Intellectual disability;

(D) Cultural factors;

(E) Environmental or economic disadvantage; or

(F) Limited English proficiency.

(b) To ensure that underachievement in a student suspected of having a specific learning disability is not due to lack of appropriate instruction in reading or math, the group shall consider, as part of the evaluation described in sections 8-60-36 through 8-60-38:

(1) Data that demonstrate that prior to, or as a part of, the referral process, the student was provided appropriate instruction in regular education settings, delivered by qualified personnel; and

(2) Data-based documentation of repeated assessments of achievement at reasonable intervals, reflecting formal assessment of student progress during instruction, which was provided to the student's parents.

(c) The department shall promptly request parental consent to evaluate the student to determine if the student needs special education and related services, and shall adhere to the timeframes described in sections 8-60-33 and 8-60-35, unless extended by mutual written agreement of the student's parents and a group of qualified professionals, as described in section 8-60-38(a)(1):

(1) If, prior to a referral, a student has not made adequate progress after an appropriate period of time when provided instruction, as described in subsections (b)(1) and (b)(2); and

(2) Whenever a student is referred for an evaluation.

History

[Eff 11/23/09] (Auth: 20 U.S.C. 1221e-3; 1401(30); 1414(b)(6), HRS § 302A-1112) (Imp: 34 C.F.R. §300.309)

Haw. Code R. § 8-60-42 Observation

(a) The department shall ensure that the student is observed in the student's learning environment (including the regular classroom setting) to document the student's academic performance and behavior in the areas of difficulty.

(b) The group described in section 8-60-38(a)(1), in determining whether a student has a specific learning disability, shall decide to:

(1) Use information from an observation in routine classroom instruction and monitoring of the student's performance that was done before the student was referred for an evaluation; or

(2) Have at least one member of the group described in section 8-60-38(a)(1) conduct an observation of the student's academic performance in the regular classroom after the student has been referred for an evaluation and parental consent, consistent with section 8-60-31(a), is obtained.

(c) In the case of a student of less than school age or out of school, a group member shall observe the student in an environment appropriate for a student of that age.

History

[Eff 11/23/09] (Auth: 20 U.S.C. 1221e-3; 1401(30); 1414(b)(6), HRS § 302A-1112) (Imp: 34 C.F.R. §300.310)

Haw. Code R. § 8-60-43 Specific documentation for the eligibility determination

(a) For a student suspected of having a specific learning disability, the documentation of the determination of eligibility, as required in section 8-60-38(a)(2), shall contain a statement of:

(1) Whether the student has a specific learning disability;

(2) The basis for making the determination, including an assurance that the determination has been made in accordance with section 8-60-38(c)(1);

(3) The relevant behavior, if any, noted during the observation of the student and the relationship of that behavior to the student's academic functioning;

(4) The educationally relevant medical findings, if any;

(5) Whether:

(A) The student does not achieve adequately for the student's age or to meet State-approved grade-level standards consistent with section 8-60-41(a)(1)(A) or the student demonstrates a severe discrepancy between actual achievement and intellectual ability consistent with 8-60-41(a)(1)(B); and

(B)

(i) The student does not make sufficient progress to meet age or State-approved grade-level standards consistent with section 8-60-41(a)(2)(A); or

(ii) The student exhibits a pattern of strengths and weaknesses in performance, achievement, or both, relative to age, State-approved grade level standards or intellectual development consistent with section 8-60-41(a)(2)(B);

(6) The determination of the group concerning the effects of a visual, hearing, or motor disability; intellectual disability; emotional disability; cultural factors; environmental or economic disadvantage; or limited English proficiency on the student's achievement level; and

(7) If the student has participated in a process that assesses the student's response to scientific, research-based intervention:

(A) The instructional strategies used and the student-centered data collected; and

(B) The documentation that the student's parents were notified about:

(i) The State's policies regarding the amount and nature of student performance data that would be collected and the general education services that would be provided;

(ii) Strategies for increasing the student's rate of learning; and

(iii) The parents' right to request an evaluation.

(b) Each group member shall certify in writing whether the report reflects the member's conclusion. If it does not reflect the member's conclusion, the group member shall submit a separate statement presenting the member's conclusions.

History

[Eff 11/23/09] (Auth: 20 U.S.C. 1221e-3; 1401(30); 1414(b)(6), HRS § 302A-1112) (Imp: 34 C.F.R. §300.311)

Subchapter 6 INDIVIDUALIZED EDUCATION PROGRAMS AND EDUCATIONAL PLACEMENTS

Haw. Code R. § 8-60-44 Definition of individualized education program

(a) General. As used in this chapter, the term individualized education program or IEP means a written statement for each student with a disability that is developed, reviewed, and revised in a meeting in accordance with sections 8-60-44 through 8-60-48, and that shall include:

(1) A statement of the student's present levels of academic achievement and functional performance, including:

(A) How the student's disability affects the student's involvement and progress in the general education curriculum (i.e., the same curriculum as for nondisabled students); or

(B) For preschool students, as appropriate, how the disability affects the student's participation in appropriate activities;

(2) A statement of measurable annual goals, including academic and functional goals and a description of short-term objectives or benchmarks designed to:

(A) Meet the student's needs that result from the student's disability to enable the student to be involved in and make progress in the general education curriculum; and

(B) Meet each of the student's other educational needs that result from the student's disability;

(3) A description of:

(A) How the student's progress toward meeting the annual goals described in paragraph (2) will be measured; and

(B) When periodic reports on the progress the student is making toward meeting the annual goals (such as through the use of quarterly or other periodic reports, concurrent with the issuance of report cards) will be provided;

(4) A statement of the special education and related services and supplementary aids and services, based on peer-reviewed research to the extent practicable, to be provided to the student, or on behalf of the student, and a statement of the program modifications or supports for school personnel that will be provided to enable the student:

(A) To advance appropriately toward attaining the annual goals;

(B) To be involved in and make progress in the general education curriculum in accordance with paragraph (1), and to participate in extracurricular and other nonacademic activities; and

(C) To be educated and participate with other students with disabilities and nondisabled students in the activities described in this section;

(5) An explanation of the extent, if any, to which the student will not participate with nondisabled students in the regular class and in the activities described in paragraph (4);

(6)

(A) A statement of any individual appropriate accommodations that are necessary to measure the academic achievement and functional performance of the student on statewide assessments consistent with section 612(a)(16) of the Act; and

(B) If the IEP team determines that the student shall take an alternate assessment instead of a particular regular State assessment of student achievement, a statement of why:

(i) The student cannot participate in the regular assessment; and

(ii) The particular alternate assessment selected is appropriate for the student; and

(7) The projected date for the beginning of the services and modifications described in paragraph (4), and the anticipated frequency, location, and duration of those services and modifications.

(b) Transition services.

(1) For each student beginning at age 14 (or younger if determined appropriate by the IEP team), and updated annually, the IEP shall include a statement of the transition service needs of the student under the applicable components of the student's IEP that focuses on the student's courses of study (such as participation in advanced-placement courses or a vocational educational program).

(2) Beginning not later than the first IEP to be in effect when the student turns 16, or younger if determined appropriate by the IEP team, and updated annually, thereafter, the IEP shall include:

(A) Appropriate measurable postsecondary goals based upon age appropriate transition assessments related to training, education, employment, and, where appropriate, independent living skills; and

(B) The transition services needed to assist the student in reaching those goals, including, if appropriate, a statement of the interagency responsibilities or any needed linkages.

(c) Transfer of rights at age of majority. Beginning not later than one year before the student reaches the age of majority under State law, the IEP shall include a statement that the student has been informed of the student's rights under Part B of the Act, if any, that will transfer to the student on reaching the age of majority under section 8-60-74.

(d) Construction. Nothing in this section shall be construed to require:

(1) That additional information be included in a student's IEP beyond what is explicitly required in section 614 of the Act; or

(2) The IEP team to include information under one component of a student's IEP that is already contained under another component of the student's IEP.

History

[Eff 11/23/09] (Auth: 20 U.S.C. 1414(d)(1)(A) and (d)(6), HRS § 302A-1112) (Imp: 34 C.F.R. §300.320)

Haw. Code R. § 8-60-45 IEP team

(a) General. The department shall ensure that the IEP team for each student with a disability includes:

(1) The parents of the student;

(2) Not less than one regular education teacher of the student (if the student is, or may be, participating in the regular education environment);

(3) Not less than one special education teacher of the student, or where appropriate, not less than one special education provider of the student;

(4) A representative of the department who:

(A) Is qualified to provide, or supervise the provision of, specially designed instruction to meet the unique needs of students with disabilities;

(B) Is knowledgeable about the general education curriculum; and

(5) An individual who can interpret the instructional implications of evaluation results, who may be a member of the team described in paragraphs (2) through (6);

(6) At the discretion of the parent or the department, other individuals who have knowledge or special expertise regarding the student, including related services personnel as appropriate; and

(7) Whenever appropriate, the student with a disability.

(b) Transition services participants.

(1) In accordance with subsection (a)(7), the department shall invite a student with a disability to attend the student's IEP team meeting if a purpose of the meeting will be the consideration of the postsecondary goals for the student and the transition services needed to assist the student in reaching those goals under section § 8-60-44(b).

(2) If the student does not attend the IEP team meeting, the department shall take other steps to ensure that the student's preferences and interests are considered.

(3) To the extent appropriate, with the consent of the parents or a student who has reached the age of majority, in implementing the requirements of paragraph (1), the department shall invite a representative of any participating agency that is likely to be responsible for providing or paying for transition services.

(c) Determination of knowledge and special expertise. The determination of the knowledge or special expertise of any individual described in subsection (a)(6) shall be made by the party (parents or department) who invited the individual to be a member of the IEP team.

(d) Designating the department representative. The department may designate another department member of the IEP team to also serve as the department representative, if the criteria in subsection (a)(4) are satisfied.

(e) IEP team attendance.

(1) A member of the IEP team described in subsections (a)(2) through (a)(5) is not required to attend an IEP team meeting, in whole or in part, if the parent of a student with a disability and the department agree, in writing, that the attendance of the member is not necessary because the member's area of the curriculum or related services is not being modified or discussed in the meeting.

(2) A member of the IEP team described in paragraph (e)(1) may be excused from attending an IEP team meeting, in whole or in part, when the meeting involves a modification to or discussion of the member's area of the curriculum or related services, if:

(A) The parent, in writing, and the department consent to the excusal; and

(B) The member submits, in writing to the parent and the IEP team, input into the development of the IEP prior to the meeting.

(f) Initial IEP team meeting for student under Part C. In the case of a student who was previously served under Part C of the Act, an invitation to the initial IEP team meeting shall, at the request of the parent, be sent to the Part C service coordinator or other representatives of the Part C system to assist with the smooth transition of services.

History

[Eff 11/23/09] (Auth: 20 U.S.C. 1414(d)(1)(B) -(d)(1)(D), HRS § 302A-1112) (Imp: 34 C.F.R. §300.321)

Haw. Code R. § 8-60-46 Parent participation

(a) Department responsibility: general. The department shall take steps to ensure that one or both of the parents of a student with a disability are present at each IEP team meeting or are afforded the opportunity to participate, including:

(1) Notifying parents of the meeting early enough to ensure that they will have an opportunity to attend; and

(2) Scheduling the meeting at a mutually agreed on time and place.

(b) Information provided to parents.

(1) The notice required under subsection (a)(1) shall:

(A) Indicate the purpose, time, and location of the meeting and who will be in attendance; and

(B) Inform the parents of the provisions in sections 8-60-45(a)(6) and (c) (relating to the participation of other individuals on the IEP team who have knowledge or special expertise about the student), and section 8-60-45(f) (relating to the participation of the Part C service coordinator or other representatives of the Part C system at the initial IEP team meeting for a student previously served under Part C of the Act).

(2) For a student with a disability beginning at age 14, or younger if appropriate, the notice shall also;

(A) Indicate that a purpose of the meeting will be the development of a statement of the transition service needs of the student required in section 8-60-44(b)(1) and

(B) Indicate that the department will invite the student.

(3) For a student with a disability beginning not later than the first IEP to be in effect when the student turns 16, or younger if determined appropriate by the IEP team, the notice also shall:

(A) Indicate:

(i) That a purpose of the meeting will be the consideration of the postsecondary goals and transition services for the student, in accordance with section 8-60-44(b); and

(ii) That the department will invite the student; and

(B) Identify any other agency that will be invited to send a representative.

(c) Other methods to ensure parent participation. If neither parent can attend an IEP team meeting, the department shall use other methods to ensure parent participation, including individual or conference telephone calls, consistent with section 8-60-51 (related to alternative means of meeting participation).

(d) Conducting an IEP team meeting without a parent in attendance. A meeting may be conducted without a parent in attendance if the department is unable to convince the parents that they should attend. In this case, the department shall keep a record of its attempts to arrange a mutually agreed on time and place, such as:

(1) Detailed records of telephone calls made or attempted and the results of those calls;

(2) Copies of correspondence sent to the parents and any responses received; and

(3) Detailed records of visits made to the parent's home or place of employment and the results of those visits.

(e) Use of interpreters or other action, as appropriate. The department shall take whatever action is necessary to ensure that the parent understands the proceedings of the IEP team meeting, including arranging for an interpreter for parents who are deaf or whose native language is other than English.

(f) Parent copy of student's IEP. The department shall give the parent a copy of the student's IEP at no cost to the parent.

History

[Eff 11/23/09] (Auth: 20 U.S.C. 1414(d)(1)(B)(i), HRS § 302A-1112) (Imp: 34 C.F.R. §300.322)

Haw. Code R. § 8-60-47 When IEPs shall be in effect

(a) General. At the beginning of each school year, the department shall have in effect, for each student with a disability within its jurisdiction, an IEP, as defined in section 8-60-44.

(b) IEP for students aged three through five. In the case of a student with a disability aged three through five, in the development of an IEP, the IEP team shall consider the IFSP content (including the natural environments statement) described in section 636(d) of the Act and its implementing regulations (including an educational component that promotes school readiness and incorporates pre-literacy, language, and numeracy skills for students with IFSPs under this section who are at least three years of age).

(1) A meeting to develop an IEP for a student is conducted within 15 days after the receipt of parental consent for the initial provision of special education and related services by the department; and

(2) As soon as possible following development of the IEP, special education and related services are made available to the student in accordance with the student's IEP.

(d) Accessibility of student's IEP to teachers and others. The department shall ensure that:

(1) The student's IEP is accessible to each regular education teacher, special education teacher, related services provider, and any other service provider who is responsible for its implementation; and

(2) Each teacher and provider described in paragraph (1) is informed of:

(A) His or her specific responsibilities related to implementing the student's IEP; and

(B) The specific accommodations, modifications, and supports that shall be provided for the student in accordance with the IEP.

(e) IEPs for students who transfer from another state. If a student with a disability (who had an IEP that was in effect in a previous public school in another state) transfers and enrolls in a Hawaii public school, within the same school year, the new public school (in consultation with the parents) shall provide the student with a FAPE (including services comparable to those described in the student's IEP from the previous public school), until the new public school:

(1) Conducts an evaluation pursuant to sections 8-60-36 through 8-60-38 (if determined to be necessary); and

(2) Develops, adopts, and implements a new IEP, if appropriate, that meets the applicable requirements in sections 8-60-44 through 8-60-48.

(f) Transmittal of records. To facilitate the transition for a student described in subsection (e), the new public school in which the student enrolls shall take reasonable steps to promptly obtain the student's records, including the IEP and supporting documents and any other records relating to the provision of special education or related services to the student, from the previous public school in which the student was enrolled, pursuant to 34 CFR 99.31(a)(2).

History

[Eff 11/23/09] (Auth: 20 U.S.C. 1414(d)(2)(A) -(C), HRS § 302A-1112) (Imp: 34 C.F.R. §300.323)

Haw. Code R. § 8-60-48 Development, review, and revision of IEP

(a) Development of IEP:

(1) General. In developing each student's IEP, the IEP team shall consider:

(A) The strengths of the student;

(B) The concerns of the parents for enhancing the education of their student;

(D) The academic, developmental, and functional needs of the student.

(2) Consideration of special factors. The IEP team shall:

(A) In the case of a student whose behavior impedes the student's learning or that of others, consider the use of positive behavioral interventions and supports, and other strategies, to address that behavior;

(B) In the case of a student with limited English proficiency, consider the language needs of the student as those needs relate to the student's IEP;

(C) In the case of a student who is blind or visually impaired, provide for instruction in Braille and the use of Braille unless the IEP team determines, after an evaluation of the student's reading and writing skills, needs, and appropriate reading and writing media (including an evaluation of the student's future needs for instruction in Braille or the use of Braille), that instruction in Braille or the use of Braille is not appropriate for the student;

(D) Consider the communication needs of the student including students who are deaf or hearing impaired. This consideration includes a review of the student's language and communication needs, opportunities for direct communications with peers and professional personnel in the student's language and communication mode, academic level, and full range of needs, including opportunities for direct instruction in the student's language and communication mode; and

(E) Consider whether the student needs assistive technology devices and services.

(3) Requirement with respect to regular education teacher. A regular education teacher of a student with a disability, as a member of the IEP team, shall, to the extent appropriate, participate in the development of the IEP of the student, including the determination of:

(A) Appropriate positive behavioral interventions and supports and other strategies for the student; and

(B) Supplementary aids and services, program modifications, and support for school personnel consistent with section 8-60-44(a)(4).

(4) Agreement.

(A) In making changes to a student's IEP after the annual IEP team meeting for a school year, the parent of a student with a disability and the department may agree not to convene an IEP team meeting for the purposes of making those changes, and instead may develop a written document to amend or modify the student's current IEP.

(B) If changes are made to the student's IEP in accordance with subparagraph (A), the department shall ensure that the student's IEP team is informed of those changes.

(5) Consolidation of IEP team meetings. To the extent possible, the department shall encourage the consolidation of reevaluation meetings for the student and other IEP team meetings for the student.

(6) Amendments. Changes to the IEP may be made either by the entire IEP team at an IEP team meeting, or as provided in paragraph (4), by amending the IEP rather than by redrafting the entire IEP. A parent shall be provided with a revised copy of the IEP with the amendments incorporated.

(b) Review and revision of IEPs:

(1) General. The department shall ensure that, subject to paragraphs (2) and (3), the IEP team:

(A) Reviews the student's IEP periodically, but not less than annually, to determine whether the annual goals for the student are being achieved; and

(B) Revises the IEP, as appropriate, to address:

(i) Any lack of expected progress toward the annual goals described in section 8-60-44(a)(2), and in the general education curriculum, if appropriate;

(ii) The results of any reevaluation conducted under section 8-60-35;

(iii) Information about the student provided to, or by, the parents, as described under section 8-60-37(a)(2);

(iv) The student's anticipated needs; or

(v) Other matters.

(2) Consideration of special factors. In conducting a review of the student's IEP, the IEP team shall consider the special factors described in subsection (a)(2).

(3) Requirement with respect to regular education teacher. A regular education teacher of the student, as a member of the IEP team, shall, consistent with subsection (a)(3), participate in the review and revision of the IEP of the student.

(1) Participating agency failure. If a participating agency, other than the department, fails to provide the transition services described in the IEP in accordance with section 8-60-44(b), the department shall reconvene the IEP team to identify alternative strategies to meet the transition objectives for the student set out in the IEP.

(2) Construction. Nothing in this chapter relieves any participating agency, including a State vocational rehabilitation agency, of the responsibility to provide or pay for any transition service that the agency would otherwise provide to students with disabilities who meet the eligibility criteria of that agency.

(d) Students with disabilities in adult prisons:

(1) Requirements that do not apply. The following requirements do not apply to students with disabilities who are convicted as adults under State law and incarcerated in adult prisons:

(A) The requirements contained in section 612(a)(16) of the Act and section 8-60-44(a)(6) (relating to participation of students with disabilities in general assessments).

(B) The requirements in section 8-60-44(b) (relating to transition planning and transition services) do not apply with respect to the students whose eligibility under this chapter will end, because of their age, before they will be eligible to be released from prison based on consideration of their sentence and eligibility for early release.

(2) Modifications of IEP or placement.

(A) Subject to subsection (d)(2)(B), the IEP team of a student with a disability who is convicted as an adult under State law and incarcerated in an adult prison may modify the student's IEP or placement if the State has demonstrated a bona fide security or compelling penological interest that cannot otherwise be accommodated.

(B) The requirements of sections 8-60-44 (relating to IEPs), and 8-60-15, do not apply with respect to the modifications described in subsection (d)(2)(A).

History

[Eff 11/23/09] (Auth: 20 U.S.C. 1412(a)(1), 1412(a)(12)(A)(i), 1414(d)(3), (4)(B), and (7); and 1414(e), HRS § 302A-1112) (Imp: 34 C.F.R. §300.324)

Haw. Code R. § 8-60-49 Private school placements by the department

(a) Developing IEPs.

(1) Before the department places a student with a disability in, or refers a student to, a private school or facility, the department shall initiate and conduct a meeting to develop an IEP for the student in accordance with sections 8-60-44 and 8-60-48.

(2) The department shall ensure that a representative of the private school or facility attends the meeting. If the representative cannot attend, the department shall use other methods to ensure participation by the private school or facility, including individual or conference telephone calls.

(b) Reviewing and revising IEPs.

(1) After a student with a disability enters a private school or facility, any meetings to review and revise the student's IEP may be initiated and conducted by the private school or facility at the discretion of the department.

(2) If the private school or facility initiates and conducts these meetings, the department shall ensure that the parents and a department representative:

(A) Are involved in any decision about the student's IEP; and

(B) Agree to any proposed changes in the IEP before those changes are implemented.

(c) Responsibility. Even if a private school or facility implements a student's IEP, responsibility for compliance with Part B of the Act remains with the department.

History

[Eff 11/23/09] (Auth: 20 U.S.C. 1412(a)(10)(B), HRS § 302A-1112) (Imp: 34 C.F.R. §300.325)

Haw. Code R. § 8-60-50 Educational placements

Consistent with section 8-60-56(c), the department shall ensure that the parents of each student with a disability are members of any group that makes decisions on the educational placement of their student.

History

[Eff 11/23/09] (Auth: 20 U.S.C. 1414(e), HRS § 302A-1112) (Imp: 34 C.F.R. §300.327)

Haw. Code R. § 8-60-51 Alternative means of meeting participation

When conducting IEP team meetings and placement meetings pursuant to this chapter, and carrying out administrative matters under section 615 of the Act (such as scheduling, exchange of witness lists, and status conferences), the parent of a student with a disability and the department may agree to use alternative means of meeting participation, such as video conferences and conference calls.

History

[Eff 11/23/09] (Auth: 20 U.S.C. 1414(f), HRS § 302A-1112) (Imp: 34 C.F.R. §300.328)

Subchapter 7 STATE COMPLAINT PROCEDURES

Haw. Code R. § 8-60-52 State complaint procedures

(a) Applicability. This subchapter applies to the filing, investigation, and resolution of a complaint, including a complaint filed by an organization or individual from another state regarding an alleged violation by the department of one or more requirements of any of the following:

(1) Provisions of the Hawaii Revised Statutes relating to the education of students with a disability or this chapter; or

(2) Part B of the Act or the implementing regulations ( 34 C.F.R. Part 300 ).

(b) The department shall widely disseminate to parents and other interested individuals, including parent training and information centers, protection and advocacy agencies, independent living centers, and other appropriate entities, the State procedures under sections 8-60-52 through 8-60-54.

(c) Remedies for denial of appropriate services. In resolving a complaint in which the department has found a failure to provide appropriate services, the department, pursuant to its general supervisory authority under Part B of the Act, shall address:

(1) The failure to provide appropriate services, including corrective action appropriate to address the needs of the student (such as compensatory services or monetary reimbursement); and

(2) Appropriate future provision of services for all students with disabilities.

History

[Eff 11/23/09] (Auth: 20 U.S.C. 1221e-3, HRS § 302A-1112) (Imp: 34 C.F.R. §300.151)

Haw. Code R. § 8-60-53 Minimum State complaint procedures

(a) Time limit; minimum procedures. Within 60 days after a complaint is filed under section 8-60-54. The department shall:

(1) Carry out an independent on-site investigation, if the department determines that an investigation is necessary;

(2) Give the complainant the opportunity to submit additional information, either orally or in writing, about the allegations in the complaint;

(3) Provide the public school with the opportunity to respond to the complaint, including, at a minimum:

(A) At the discretion of the public school, a proposal to resolve the complaint and

(B) An opportunity for a parent who has filed a complaint and the public school, to voluntarily engage in mediation consistent with section 8-60-60;

(4) Review all relevant information and make an independent determination as to whether the public school, is violating a requirement of Part B of the Act or of this chapter; and

(5) Issue a written decision to the complainant that addresses each allegation in the complaint and contains:

(A) Findings of fact and conclusions; and

(B) The reasons for the department's final decision.

(b) Time extension; final decision; implementation. The department's procedures described in subsection (a) also shall:

(1) Permit an extension of the time limit under subsection (a) only if:

(A) Exceptional circumstances exist with respect to a particular complaint; or

(B) The parent and the public school, agree to extend the time to engage in mediation pursuant to subsection (a)(3)(B), or to engage in other alternative means of dispute resolution; and

(2) Include procedures for effective implementation of the department's final decision, if needed, including:

(A) Technical assistance activities;

(B) Negotiations; and

(c) Complaints filed under this section and due process hearings under section 8-60-61 and sections 8-60-75 through 8-60-77.

(1) If a written complaint is received that is also the subject of a due process hearing under section 8-60-61 or sections 8-60-75 through 8-60-77, or contains multiple issues of which one or more are part of that hearing, the department shall set aside any part of the complaint that is being addressed in the due process hearing until the conclusion of the hearing. However, any issue in the complaint that is not a part of the due process action shall be resolved using the time limit and procedures described in subsections (a) and (b).

(2) If an issue raised in a complaint filed under this section has previously been decided in a due process hearing involving the same parties:

(A) The due process hearing decision is binding on that issue; and

(B) The department shall inform the complainant to that effect.

(3) A complaint alleging a school's failure to implement a due process hearing decision shall be resolved by the department.

History

[Eff 11 /23/09] (Auth: 20 U.S.C. 1221e-3, HRS § 302A-1112) (Imp: 34 C.F.R. §300.152)

Haw. Code R. § 8-60-54 Filing a complaint

(a) An organization or individual may file a signed written complaint under the procedures described in sections 8-60-52 through 8-60-53.

(b) The complaint shall include:

(1) A statement that the department has violated a requirement of Part B of the Act or of this chapter;

(2) The facts on which the statement is based;

(3) The signature and contact information for the complainant; and

(4) If alleging violations with respect to a specific student:

(A) The name and address of the residence of the student;

(B) The name of the school the student is attending;

(C) In the case of a homeless student or youth (within the meaning of section 725(2) of the McKinney-Vento Homeless Assistance Act (42 U.S.C. 11434a(2)), available contact information for the student, and the name of the school the student is attending;

(D) A description of the nature of the problem of the student, including facts relating to the problem; and

(E) A proposed resolution of the problem to the extent known and available to the party at the time the complaint is filed.

(c) The complaint shall allege a violation that occurred not more than one year prior to the date that the complaint is received in accordance with section 8-60-52.

(d) The party filing the complaint shall submit the complaint to the department.

History

[Eff 11/23/09] (Auth: 20 U.S.C. 1221e-3, HRS § 302A-1112) (Imp: 34 C.F.R. §300.153)

Subchapter 8 PROCEDURAL SAFEGUARDS

Haw. Code R. § 8-60-55 procedural safeguards

General. Procedural safeguards identified. Students with disabilities and their parents shall be afforded the procedural safeguards, that meet the requirements of sections 8-60-56 through 8-60-81.

History

[Eff 11/23/09] (Auth: 20 U.S.C. 1412(a)(6)(A), HRS § 302A-1112) (Imp: 34 C.F.R. §300.121)

Haw. Code R. § 8-60-56 Opportunity to examine records; parent participation in meetings

(a) Opportunity to examine records. The parents of a student with a disability shall be afforded an opportunity to inspect and review all education records with respect to:

(1) The identification, evaluation, and educational placement of the student; and

(2) The provision of a FAPE to the student.

(b) Parent participation in meetings.

(1) The parents of a student with a disability shall be afforded an opportunity to participate in meetings with respect to:

(A) The identification, evaluation, and educational placement of the student; and

(B) The provision of a FAPE to the student.

(2) The department shall provide notice consistent with sections 8-60-46(a)(1) and (b)(1) to ensure that parents of students with disabilities have the opportunity to participate in meetings described in paragraph (1).

(3) A meeting does not include informal or unscheduled conversations involving department personnel and conversations on issues such as teaching methodology, lesson plans, or coordination of service provision. A meeting also does not include preparatory activities that department personnel engage in to develop a proposal or response to a parent proposal that will be discussed at a later meeting.

(1) The department shall ensure that a parent of each student with a disability is a member of any group that makes decisions on the educational placement of the parent's student.

(2) In implementing the requirements of paragraph (1), the department shall use procedures consistent with the procedures described in section 8-60-46(a) through (b)(1).

(3) If neither parent can participate in a meeting in which a decision is to be made relating to the educational placement of their student, the department shall use other methods to ensure their participation, including individual or conference telephone calls, or video conferencing.

(4) A placement decision may be made by a group without the involvement of a parent, if the department is unable to obtain the parent's participation in the decision. In this case, the department shall have a record of its attempt to ensure their involvement.

History

[Eff 11/23/09] (Auth: 20 U.S.C. 1414(e), 1415(b)(1), HRS § 302A-1112) (Imp: 34 C.F.R. §300.501)

Haw. Code R. § 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.

History

[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)

Haw. Code R. § 8-60-58 Prior notice by the department; content of notice

(a) Notice. Written notice that meets the requirements of subsection (b) shall be given to the 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.

(b) Content of notice. The notice required under subsection (a) shall include:

(1) A description of the action proposed or refused by the department;

(2) An explanation of why the department proposes or refuses to take the action;

(3) A description of each evaluation procedure, assessment, record, or report the department used as a basis for the proposed or refused action;

(4) A statement that the parents of a student with a disability have protection under the procedural safeguards of this chapter and, if this notice is not an initial referral for evaluation, the means by which a copy of a description of the procedural safeguards can be obtained;

(5) Sources for parents to contact to obtain assistance in understanding the provisions of this chapter;

(6) A description of other options that the IEP team considered and the reasons why those options were rejected; and

(7) A description of other factors that are relevant to the department's proposal or refusal.

(1) The notice required under subsection (a) shall be:

(A) Written in language understandable to the general public; and

(B) Provided in the native language of the parent or other mode of communication used by the parent, unless it is clearly not feasible to do so.

(2) If the native language or other mode of communication of the parent is not a written language, the department shall take steps to ensure:

(A) That the notice is translated orally or by other means to the parent in his or her native language or other mode of communication;

(B) That the parent understands the content of the notice; and

History

[Eff 11/23/09] (Auth: 20 U.S.C. 1415(b)(3) and (4), 1415(c)(1), 1414(b)(1), HRS § 302A-1112) (Imp: 34 C.F.R. §300.503)

Haw. Code R. § 8-60-59 Procedural safeguards notice

(a) General. A copy of the procedural safeguards available to the parents of a student with a disability shall be given to the parents only one time a school year, except that a copy also shall be given to the parents:

(1) Upon initial referral or parent request for evaluation;

(2) Upon receipt of the first State complaint under sections 8-60-52 through 8-60-54 and upon receipt of the first due process complaint under section 8-60-61 in a school year;

(3) In accordance with the discipline procedures in section 8-60-75(h); and

(4) Upon request by a parent.

(b) Contents. The procedural safeguards notice shall include a full explanation of all of the procedural safeguards available under section 8-60-27, sections 8-60-52 through 8-60-54, section 8-60-31, sections 8-60-57 through 8-60-58, sections 8-60-60 through 8-60-72, sections 8-60-75 through 8-60-81, and section 8-60-84 relating to:

(1) Independent educational evaluations;

(2) Prior written notice;

(3) Parental consent;

(4) Access to education records;

(5) Opportunity to present and resolve complaints through the due process complaint and State complaint procedures, including:

(A) The time period in which to file a complaint;

(B) The opportunity for the department to resolve the complaint; and

(C) The difference between the due process complaint and the State complaint procedures, including the jurisdiction of each procedure, what issues may be raised, filing and decisional timelines, and relevant procedures;

(6) The availability of mediation;

(7) The student's placement during the pendency of any due process complaint;

(8) Procedures for students who are subject to placement in an interim alternative educational setting;

(9) Requirements for unilateral placement by parents of students in private schools at public expense;

(10) Hearings on due process complaints, including requirements for disclosure of evaluation results and recommendations;

(11) Civil actions, including the time period in which to file those actions; and

(12) Attorneys' fees.

(c) Notice in understandable language. The notice required under subsection (a) shall meet the requirements of section 8-60-58(c).

History

[Eff 11/23/09] (Auth: 20 U.S.C. 1415(d), HRS § 302A-1112) (Imp: 34 C.F.R. §300.504)

Haw. Code R. § 8-60-60 Mediation

(a) General. The department shall offer mediation to allow parties to disputes involving any matter, including matters arising prior to the filing of a due process complaint, to resolve disputes through a mediation process.

(b) Requirements. The department shall ensure the mediation process:

(1) Is voluntary on the part of the parties;

(2) Is not used to deny or delay a parent's right to a hearing on the parent's due process complaint, or to deny any other rights afforded under Part B of the Act; and

(3) Is conducted by a qualified and impartial mediator who is trained in effective mediation techniques, and

(4) The State shall bear the cost of the mediation process, including the costs of meetings

(5) Each session in the mediation process shall be scheduled in a timely manner and shall be held in a location that is convenient to the parties to the dispute.

(6) If the parties resolve a dispute through the mediation process, the parties shall execute a legally binding agreement that sets forth that resolution and that:

(A) States that all discussions that occurred during the mediation process will remain confidential and may not be used as evidence in any subsequent due process hearing or civil proceeding; and

(B) Is signed by both the parent and a representative of the department who has the authority to bind the department.

(7) A written, signed mediation agreement under this paragraph is enforceable in any State court of competent jurisdiction or in a district court of the United States.

(8) Discussions that occur during the mediation process shall be confidential and may not be used as evidence in any subsequent due process hearing or civil proceeding of any Federal court or State court of a State receiving assistance.

(1) An individual who serves as a mediator under this chapter:

(A) May not be an employee of the department that is involved in the education or care of the student; and

(B) Shall not have a personal or professional interest that conflicts with the person's objectivity.

(2) A person who otherwise qualifies as a mediator is not an employee of the department solely because he or she is paid by the department to serve as a mediator.

History

[Eff 11/23/09] (Auth: 20 U.S.C. 1415(e), HRS § 302A-1112) (Imp: 34 C.F.R. §300.506)

Haw. Code R. § 8-60-61 Filing a due process complaint

(a) General.

(1) A parent or the department may file a due process complaint on any of the matters described in sections 8-60-58(a)(1) and (2) (relating to the identification, evaluation or educational placement of a student with a disability, or the provision of a FAPE to the student).

(2) The due process complaint shall allege a violation that occurred not more than two years before the date the parent or department knew or should have known about the alleged action that forms the basis of the due process complaint, or, within the timeframe specified in state statute for a unilateral special education placement, where the request is for reimbursement of the costs of the placement, including special education and related services. The unilateral special education placement timeframe begins on the student's first day of attendance.

(b) Information for parents. The department shall inform the parent of any free or low-cost legal and other relevant services available in the area if:

(1) The parent requests the information; or

(2) The parent or the department files a due process complaint under this section.

History

[Eff 11/23/09] (Auth: 20 U.S.C. 1415(b)(6), HRS § 302A-1112) (Imp: 34 C.F.R. §300.507,HRS § 302A-443)

Haw. Code R. § 8-60-62 Due process complaint

(a) General.

(1) The department shall have procedures that require either party, or the attorney representing a party, to provide to the other party a due process complaint (which shall remain confidential).

(2) The party filing a due process complaint shall submit a copy of the due process complaint to the department.

(b) Content of complaint. The due process complaint required in paragraph (1) shall include:

(1) The name of the student;

(2) The address of the residence of the student;

(3) The name of the school the student is attending;

(4) In the case of a homeless student or youth (within the meaning of section 725(2) of the McKinney-Vento Homeless Assistance Act (42 U.S.C. 11434a(2)), available contact information for the student, and the name of the school the student is attending;

(5) A description of the nature of the problem of the student relating to the proposed or refused initiation or change, including facts relating to the problem; and

(6) A proposed resolution of the problem to the extent known and available to the party at the time.

(c) Notice required before a hearing on a due process complaint. A party may not have a hearing on a due process complaint until the party, or the attorney representing the party, files a due process complaint that meets the requirements of subsection (b).

(d) Sufficiency of complaint.

(1) The due process complaint required by this section shall be deemed sufficient unless the party receiving the due process complaint notifies the hearing officer and the other party in writing, within 15 days of receipt of the due process complaint, that the receiving party believes the due process complaint does not meet the requirements in subsection (b).

(2) Within five days of receipt of notification under paragraph (1), the hearing officer shall make a determination on the face of the due process complaint of whether the due process complaint meets the requirements of subsection (b), and shall immediately notify the parties in writing of that determination.

(3) A party may amend its due process complaint only if:

(A) The other party consents in writing to the amendment and is given the opportunity to resolve the due process complaint through a meeting held pursuant to section 8-60-64; or

(B) The hearing officer grants permission, except that the hearing officer may only grant permission to amend at any time not later than five days before the due process hearing begins.

(4) If a party files an amended due process complaint, the timelines for the resolution meeting in section 8-60-64(a) and the time period to resolve in section 8-60-64(b) begin again with the filing of the amended due process complaint.

(e) Department response to a due process complaint.

(1) If the department has not sent a prior written notice under section 8-60-58 to the parent regarding the subject matter contained in the parent's due process complaint, the department shall, within 10 days of receiving the due process complaint, send to the parent a response that includes:

(A) An explanation of why the department proposed or refused to take the action raised in the due process complaint;

(B) A description of other options that the IEP team considered and the reasons why those options were rejected;

(C) A description of each evaluation procedure, assessment, record, or report the department used as the basis for the proposed or refused action; and

(D) A description of the other factors that are relevant to the department's proposed or refused action.

(2) A response by the department under paragraph (1) shall not be construed to preclude the department from asserting that the parent's due process complaint was insufficient, where appropriate.

(f) Other party response to a due process complaint. Except as provided in subsection (e), the party receiving a due process complaint shall, within 10 days of receiving the due process complaint, send to the other party a response that specifically addresses the issues raised in the due process complaint.

History

[Eff 11/23/09] (Auth: 20 U.S.C. 1415(b)(7), 1415(c)(2), HRS § 302A-1112) (Imp: 34 C.F.R. §300.508)

Haw. Code R. § 8-60-63 Model forms

(a) The department shall provide a model form to assist parents and public schools in filing a due process complaint in accordance with sections 8-60-61(a) and 8-60-62(a) through (c) and to assist parents and other parties in filing a State complaint under sections 8-60-52 through 8-60-54. However, the department may not require the use of the model forms.

(b) Parents, public schools, and other parties may use the appropriate model form described in subsection (a), or another form or other document, so long as the form or document that is used meets, as appropriate, the content requirements in section 8-60-62(b) for filing a due process complaint, or the requirements in section 8-60-54(b) for filing a State complaint.

History

[Eff 11/23/09] (Auth: 20 U.S.C. 1415(b)(8), HRS § 302A-1112) (Imp: 34 C.F.R. §300.509)

Haw. Code R. § 8-60-64 Resolution process

(a) Resolution meeting.

(1) Within 15 days of receiving notice of the parent's due process complaint, and prior to the initiation of a due process hearing under section 8-60-65, the department shall convene a meeting with the parent and the relevant member or members of the IEP team who have specific knowledge of the facts identified in the due process complaint that:

(A) Includes a representative of the department who has decision-making authority on behalf of the department; and

(B) May not include an attorney of the department unless the parent is accompanied by an attorney.

(2) The purpose of the meeting is for the parent of the student to discuss the due process complaint, and the facts that form the basis of the due process complaint, so that the department has the opportunity to resolve the dispute that is the basis for the due process complaint.

(3) The meeting described in paragraph (1) and (2) need not be held if:

(A) The parent and the department agree in writing to waive the meeting; or

(B) The parent and the department agree to use the mediation process described in section 8-60-60.

(4) The parent and the department determine the relevant members of the IEP team to attend the meeting.

(b) Resolution period.

(1) If the department has not resolved the due process complaint to the satisfaction of the parent within 30 days of the receipt of the due process complaint, the due process hearing may occur.

(2) Except as provided in subsection (c), the timeline for issuing a final decision under section 8-60-69 begins at the expiration of this 30-day period.

(3) Except where the parties have jointly agreed to waive the resolution process or to use mediation, notwithstanding paragraphs (1) and (2), the failure of the parent filing a due process complaint to participate in the resolution meeting will delay the timelines for the resolution process and due process hearing until the meeting is held.

(4) If the department is unable to obtain the participation of the parent in the resolution meeting after reasonable efforts have been made (and documented using the procedures in section 8-60-46(d)), the department may, at the conclusion of the 30-day period, request that a hearing officer dismiss the parent's due process complaint.

(5) If the department fails to hold the resolution meeting specified in subsection (a) within 15 days of receiving notice of a parent's due process complaint or fails to participate in the resolution meeting, the parent may seek the intervention of a hearing officer to begin the due process hearing timeline.

(c) Adjustments to 30-day resolution period. The 45-day timeline for the due process hearing in section 8-60-69(a) starts the day after one of the following events:

(1) Both parties agree in writing to waive the resolution meeting;

(2) After either the mediation or resolution meeting starts but before the end of the 30-day period, the parties agree in writing that no agreement is possible;

(3) If both parties agree in writing to continue the mediation at the end of the 30-day resolution period, but later, the parent or department withdraws from the mediation process.

(d) Written settlement agreement. If a resolution to the dispute is reached at the meeting described in subsections (a)(1) and (2), the parties shall execute a legally binding agreement that is:

(1) Signed by both the parent and a representative of the department who has the authority to bind the department; and

(2) Enforceable in any State court of competent jurisdiction or in a district court of the United States.

(e) Agreement review period. If the parties execute an agreement pursuant to subsection (d), a party may void the agreement within 3 business days of the agreement's execution.

History

[Eff 11/23/09] (Auth: 20 U.S.C. 1415(f)(1)(B), HRS § 302A-1112) (Imp: 34 C.F.R. §300.510)

Haw. Code R. § 8-60-65 Impartial due process hearing

(a) General. Whenever a due process complaint is received under section 8-60-61 or section 8-60-77, the parents or the department involved in the dispute shall have an opportunity for an impartial due process hearing, consistent with the procedures in sections 8-60-61, 8-60-62, and 8-60-64.

(b) The hearing described in subsection (a) shall be conducted by the department.

(1) At a minimum, a hearing officer:

(A) Shall not be:

(i) An employee of the department that is involved in the education or care of the student; or

(ii) A person having a personal or professional interest that conflicts with the person's objectivity in the hearing;

(B) Shall possess knowledge of, and the ability to understand, the provisions of the Act, Federal and State regulations pertaining to the Act, and legal interpretations of the Act by Federal and State courts;

(C) Shall possess the knowledge and ability to conduct hearings in accordance with appropriate, standard legal practice; and

(D) Shall possess the knowledge and ability to render and write decisions in accordance with appropriate, standard legal practice.

(2) A person who otherwise qualifies to conduct a hearing under paragraph (1) is not an employee of the department solely because he or she is paid by the department to serve as a hearing officer.

(3) The department shall keep a list of the persons who serve as hearing officers. The list shall include a statement of the qualifications of each of those persons.

(d) Subject matter of due process hearings. The party requesting the due process hearing may not raise issues at the due process hearing that were not raised in the due process complaint filed under section 8-60-62(b), unless the other party agrees otherwise.

(e) The hearing officer shall conduct a pre-hearing conference. The hearing officer may conduct all or part of the pre-hearing conference by telephone if both parties or party representatives have an opportunity to participate in and hear the entire proceeding while it is taking place. The pre-hearing conference shall include the identification of the precise issues to be heard under section 8-60-61(a).

(f) Timeline for requesting a hearing. A parent or the department shall request an impartial hearing on their due process complaint within two years of the date the parent or the department knew or should have known about the alleged action that forms the basis of the due process complaint. The request for a due process hearing regarding reimbursement of all costs of the private placement including special education and related services shall be filed within the timeframe specified by state statute.

(g) Exceptions to the timeline. The timeline described in subsection (f) does not apply to a parent if the parent was prevented from filing a due process complaint due to:

(1) Specific misrepresentations by the department that it had resolved the problem forming the basis of the due process complaint; or

(2) The department's withholding of information from the parent that was required to be provided to the parent.

History

[Eff 11/23/09] (Auth: 20 U.S.C. 1415(f)(1)(A), 1415(f)(3)(A) -(D), HRS § 302A-1112) (Imp: 34 C.F.R. §300.511)

Haw. Code R. § 8-60-66 Hearing rights

(a) General. Any party to a hearing conducted pursuant to sections 8-60-61 through 8-60-67 or sections 8-60-75 through 8-60-79, or an appeal conducted pursuant to section 8-60-68, has the right to:

(1) Be accompanied and advised by counsel and by individuals with special knowledge or training with respect to the problems of students with disabilities;

(2) Present evidence and confront, cross-examine, and compel the attendance of witnesses;

(A) The party initiating the due process complaint has the burden of proof.

(B) The burden of proof is the responsibility of the party initiating and seeking relief in an administrative hearing under the IDEA or this chapter is to prove, by a preponderance of the evidence, the allegations of the complaint.

(3) Prohibit the introduction of any evidence at the hearing that has not been disclosed to that party at least five business days before the hearing;

(4) Obtain a written, or, at the option of the parents, electronic, verbatim record of the hearing; and

(5) Obtain written, or, at the option of the parents, electronic findings of fact and decisions.

(b) Additional disclosure of information.

(1) At least five business days prior to a hearing conducted pursuant to section 8-60-65(a), each party shall disclose to all other parties all evaluations completed by that date and recommendations based on the offering party's evaluations that the party intends to use at the hearing.

(2) A hearing officer may bar any party that fails to comply with paragraph (1) from introducing the relevant evaluation or recommendation at the hearing without the consent of the other party.

(1) Have the student who is the subject of the hearing present;

(2) Open the hearing to the public; and

(3) Have the record of the hearing and the findings of fact and decisions described in subsections (a)(4) and (5) provided at no cost to parents.

History

[Eff 11/23/09] (Auth: 20 U.S.C. 1415(f)(2), 1415(h), HRS § 302A-1112) (Imp: 34 C.F.R. §300.512)

Haw. Code R. § 8-60-67 Hearing decisions

(a) Decision of hearing officer on the provision of a FAPE.

(1) Subject to paragraph (2), a hearing officer's determination of whether a student received a FAPE shall be based on substantive grounds.

(2) In matters alleging a procedural violation, a hearing officer may find that a student did not receive a FAPE only if the procedural inadequacies:

(A) Impeded the student's right to a FAPE;

(B) Significantly impeded the parent's opportunity to participate in the decision-making process regarding the provision of a FAPE to the parent's student; or

(3) Nothing in subsection (a) shall be construed to preclude a hearing officer from ordering the department to comply with procedural requirements under sections 8-60-56 through 8-60-81.

(4) Following the placement of a student in a private school, for continued placement, the private school cannot be deemed an appropriate placement by the hearing officer unless the private school allows the department to exercise its responsibility to ensure the provision of a FAPE under sections 8-60-29 and 30.

(b) Separate request for a due process hearing. Nothing in sections 8-60-56 through 8-60-81 shall be construed to preclude a parent from filing a separate due process complaint on an issue separate from a due process complaint already filed.

(c) Findings and decision to advisory panel and general public. The department, after deleting any personally identifiable information, shall:

(1) Transmit the findings and decisions referred to in section 8-60-66(a)(5) to the State advisory panel; and

(2) Make those findings and decisions available to the public.

History

[Eff 11/23/09] (Auth: 20 U.S.C. 1415(f)(3)(E) and (F), 1415(h)(4), 1415(o), HRS § 302A-1112) (Imp: 34 C.F.R. §300.513)

Haw. Code R. § 8-60-68 Finality of decision; appeal

A decision made in a hearing conducted pursuant to sections 8-60-61 through 8-60-67 or sections 8-60-75 through 8-60-79 is final, except that any party involved in the hearing may appeal the decision under the provisions of section 8-60-70.

History

[Eff 11/23/09] (Auth: 20 U.S.C. 1415(g) and (h)(4), 1415(i)(1)(A), 1415(i)(2), HRS § 302A-1112) (Imp: 34 C.F.R. §300.514)

Haw. Code R. § 8-60-69 Timelines and convenience of hearings and reviews

(a) The department shall ensure that not later than 45 days after the expiration of the 30 day period under section 8-60-64(b), or the adjusted time periods described in section 8-60-64(c):

(1) A final decision is reached in the hearing; and

(2) A copy of the decision is mailed to each of the parties.

(b) A hearing officer may, for good cause, grant specific extensions of time beyond the period set out in subsection (a) at the request of either party. Each extension shall be no more than 45 days.

(1) The hearing officer shall consider the following factors before an extension is granted:

(A) The negative effects of extending the time in which a student's education is in abeyance;

(B) The requesting party's ability to have avoided the necessity for an extension;

(C) If the requesting party is the petitioner, whether the requesting party had an opportunity to adequately prepare before filing a hearing request;

(D) The negative effects denying the request for an extension;

(E) The intent of this chapter and federal laws to expedite an informal administrative proceeding; and

(F) Whether granting the extension will override the intent of the law in favor of the convenience of the parties.

(2) Absent a compelling reason or a specific showing of substantial hardship, a request for an extension shall not be granted. Agreement of the parties is not a sufficient basis for granting an extension.

(3) The impartial hearing officer shall respond in writing to each request for an extension. The response shall include findings of fact and conclusions as to why good cause exists. The response shall become part of the record. The impartial hearing officer shall set a new date for rendering his or her decision, and notify the parties in writing of such date.

(c) Each hearing and each review involving oral arguments shall be conducted at a time and place that is reasonably convenient to the parents and student involved.

History

[Eff 11/23/09] (Auth: 20 U.S.C. 1415(f)(1)(B)(ii), 1415(g), 1415(i)(1), HRS § 302A-1112) (Imp: 34 C.F.R. §300.515)

Haw. Code R. § 8-60-70 Civil action

(a) General. Any party aggrieved by the findings and decision made under sections 8-60-61 through 8-60-67 or sections 8-60-75 through 8-60-79 has the right to bring a civil action with respect to the due process complaint notice requesting a due process hearing under section 8-60-61 or sections 8-60-75 through 8-60-77. The action may be brought in any State court of competent jurisdiction or in a district court of the United States without regard to the amount in controversy.

(b) Time limitation. The party bringing the action shall have 30 days from the date of the decision of the hearing officer to file a civil action, or, in the time allowed by State law.

(1) Receives the records of the administrative proceedings;

(2) Hears additional evidence at the request of a party; and

(3) Basing its decision on the preponderance of the evidence, grants the relief that the court determines to be appropriate.

(d) Jurisdiction of district courts. The district courts of the United States have jurisdiction of actions brought under section 615 of the Act without regard to the amount in controversy.

(e) Rule of construction. Nothing in this chapter restricts or limits the rights, procedures, and remedies available under the Constitution, the Americans with Disabilities Act of 1990, title V of the Rehabilitation Act of 1973, or other Federal laws protecting the rights of students with disabilities, except that before the filing of a civil action under these laws seeking relief that is also available under section 615 of the Act, the procedures under sections 8-60-61 and 8-60-68 shall be exhausted to the same extent as would be required had the action been brought under section 615 of the Act.

History

[Eff 11/23/09] (Auth: 20 U.S.C. 1415(i)(2) and (3)(A), 1415(l), HRS § 302A-1112) (Imp: 34 C.F.R. §300.516)

Haw. Code R. § 8-60-71 Attorneys' fees

(a) In general. In any action or proceeding brought under section 615 of the Act, the court, in its discretion, may award reasonable attorneys' fees as part of the costs to:

(1) The prevailing party who is the parent of a student with a disability;

(2) To a prevailing party who is the department against the attorney of a parent who files a complaint or subsequent cause of action that is frivolous, unreasonable, or without foundation, or against the attorney of a parent who continued to litigate after the litigation clearly became frivolous, unreasonable, or without foundation; or

(3) To the department prevailing against the attorney of a parent, or against the parent, if the parent's request for a due process hearing or subsequent cause of action was presented for any improper purpose, such as to harass, to cause unnecessary delay, or to needlessly increase the cost of litigation.

(b) Prohibition on use of funds.

(1) Funds under Part B of the Act may not be used to pay attorneys' fees or costs of a party related to any action or proceeding under section 615 of the Act and sections 8-60-56 through 8-60-81.

(2) Paragraph (1) does not preclude the department from using funds under Part B of the Act for conducting an action or proceeding under section 615 of the Act.

(c) Award of fees. A court awards reasonable attorneys' fees under section 615(i)(3) of the Act consistent with the following:

(1) Fees awarded under section 615(i)(3) of the Act shall be based on rates prevailing in the community in which the action or proceeding arose for the kind and quality of services furnished. No bonus or multiplier may be used in calculating the fees awarded under this paragraph.

(2)

(A) Attorneys' fees may not be awarded and related costs may not be reimbursed in any action or proceeding under section 615 of the Act for services performed subsequent to the time of a written offer of settlement to a parent if:

(i) The offer is made within the time prescribed by Rule 68 of the Federal Rules of Civil Procedure or, in the case of an administrative proceeding, at any time more than 10 days before the proceeding begins;

(ii) The offer is not accepted within 10 days; and

(iii) The court or administrative hearing officer finds that the relief finally obtained by the parents is not more favorable to the parents than the offer of settlement.

(B) Attorneys' fees may not be awarded relating to any meeting of the IEP team unless the meeting is convened as a result of an administrative proceeding or judicial action, or at the discretion of the State, for a mediation described in section 8-60-60.

(i) A meeting convened as a result of an administrative hearing or judicial action; or

(ii) An administrative hearing or judicial action for purposes of this subchapter.

(3) Notwithstanding paragraph (2), an award of attorneys' fees and related costs may be made to a parent who is the prevailing party and who was substantially justified in rejecting the settlement offer.

(4) Except as provided in paragraph (5), the court reduces, accordingly, the amount of the attorneys' fees awarded under section 615 of the Act, if the court finds that:

(A) The parent, or the parent's attorney, during the course of the action or proceeding, unreasonably protracted the final resolution of the controversy;

(B) The amount of the attorneys' fees otherwise authorized to be awarded unreasonably exceeds the hourly rate prevailing in the community for similar services by attorneys of reasonably comparable skill, reputation, and experience;

(D) The attorney representing the parent did not provide to the department the appropriate information in the due process request notice in accordance with section 8-60-62.

(5) The provisions of paragraph (4) do not apply in any action or proceeding if the court finds that the department unreasonably protracted the final resolution of the action or proceeding or there was a violation of section 615 of the Act.

History

[Eff 11/23/09] (Auth: 20 U.S.C. 1415(i)(3)(B) -(G), HRS § 302A-1112) (Imp: 34 C.F.R. §300.517)

Haw. Code R. § 8-60-72 Student's status during proceedings

(a) Except as provided in section 8-60-78, during the pendency of any administrative or judicial proceeding regarding a due process complaint notice requesting a due process hearing under section 8-60-61, unless the department and the parents of the student agree otherwise, the student involved in the complaint shall remain in his or her current educational placement.

(b) If the complaint involves an application for initial admission to public school, the student, with the consent of the parents, shall be placed in the public school until the completion of all the proceedings.

(c) If the complaint involves an application for initial services from a student who is transitioning from Part C of the Act to Part B and is no longer eligible for Part C services because the student has turned three, the department is not required to provide the Part C services that the student had been receiving. If the student is found eligible for special education and related services under Part B and the parent consents to the initial provision of special education and related services under section 8-60-31(b), then the department shall provide those special education and related services that are not in dispute between the parent and the department.

(d) If the hearing officer in a due process hearing conducted by the department agrees with the student's parents that a change of placement is appropriate, that placement shall be treated as an agreement between the State and the parents for purposes of subsection (a).

History

[Eff 11/23/09] (Auth: 20 U.S.C. 1415(j), HRS § 302A-1112) (Imp: 34 C.F.R. §300.518)

Haw. Code R. § 8-60-73 Surrogate parents

(a) General. The department shall ensure that the rights of a student are protected when:

(1) No parent (as defined in section 8-60-2 can be identified;

(2) The department, after reasonable efforts, cannot locate a parent;

(3) The student is a ward of the State under the laws of that State; or

(4) The student is an unaccompanied homeless youth as defined in section 725(6) of the McKinney-Vento Homeless Assistance Act (42 U.S.C. 11434a(6)).

(b) Duties of the department. The duties of the department under subsection (a) include the assignment of an individual to act as a surrogate for the parents. This shall include a method:

(1) For determining whether a student needs a surrogate parent; and

(2) For assigning a surrogate parent to the student.

(c) Wards of the State. In the case of a student who is a ward of the State, the surrogate parent alternatively may be appointed by the judge overseeing the student's case, provided that the surrogate meets the requirements in subsections (d)(2)(A) and (e).

(d) Criteria for selection of surrogate parents.

(1) The department may select a surrogate parent in any way permitted under State law.

(2) The department shall ensure that a person selected as a surrogate parent:

(A) Is not an employee of the department or any other agency that is involved in the education or care of the student;

(B) Has no personal or professional interest that conflicts with the interest of the student the surrogate parent represents; and

(e) Non-employee requirement; compensation. A person otherwise qualified to be a surrogate parent under subsection (d) is not an employee of the department solely because he or she is paid by the department to serve as a surrogate parent.

(f) Unaccompanied homeless youth. In the case of a student who is an unaccompanied homeless youth, appropriate staff of emergency shelters, transitional shelters, independent living programs, and street outreach programs may be appointed as temporary surrogate parents without regard to subsection (d)(2)(A), until a surrogate parent can be appointed that meets all of the requirements of subsection (d).

(g) Surrogate parent responsibilities. The surrogate parent may represent the student in all matters relating to:

(1) The identification, evaluation, and educational placement of the student; and

(2) The provision of a FAPE to the student.

(h) Department responsibility. The department shall make reasonable efforts to ensure the assignment of a surrogate parent not more than 30 days after the department determines that the student needs a surrogate parent.

History

[Eff 11/23/09] (Auth: 20 U.S.C. 1415(b)(2), HRS § 302A-1112) (Imp: 34 C.F.R. §300.519)

Haw. Code R. § 8-60-74 Transfer of parental rights at age of majority

General. A State may provide that, when a student with a disability reaches the age of majority under State law that applies to all students (except for a student with a disability who has been determined to be incompetent under State law):

(a)

(1) The department shall provide any notice required by this chapter to both the student and the parents; and

(2) All rights accorded to parents under Part B of the Act transfer to the student;

(b) All rights accorded to parents under Part B of the Act transfer to students who are incarcerated in an adult or juvenile, State or local correctional institution; and

(c) Whenever the State provides for the transfer of rights pursuant to subsection (a), the department shall notify the student and the parents of the transfer of rights.

History

[Eff 11/23/09] (Auth: 20 U.S.C. 1415(m), HRS § 302A-1112) (Imp: 34 C.F.R. §300.520)

Subchapter 9 DISCIPLINE PROCEDURES

Haw. Code R. § 8-60-75 Authority of school personnel

(a) Case-by-case determination. School personnel may consider any unique circumstances on a case-by-case basis when determining whether a change in placement, consistent with the other requirements of this subchapter, is appropriate for a student with a disability who violates chapter 8-19.

(b) General.

(1) School personnel under this subchapter may remove a student with a disability who violates school rules from the student's current placement to an appropriate interim alternative educational setting, another setting, or suspension for not more than 10 cumulative school days (to the extent those alternatives are applied to students without disabilities) in that same school year for one or separate incidents of misconduct;

(2) After a student with a disability has been removed from the student's current placement for ten school days in the same school year, during any subsequent days of removal the department shall provide services to the extent required under subsection (d);

(3) "Current educational placement" means the type of educational placement of the student as described in the student's annual IEP. 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; regular classroom with resource room support; special class; special school; home, etc.).

(c) Additional authority. For disciplinary changes in placement that would exceed ten consecutive or cumulative school days, if the behavior that gave rise to the violation of chapter 8-19 is determined not to be a manifestation of the student's disability pursuant to subsection (e), school personnel may apply the relevant disciplinary procedures to students with disabilities in the same manner and for the same duration as the procedures would be applied to students without disabilities, except as provided in subsection (d).

(d) Services.

(1) A student with a disability who is removed from the student's current placement pursuant to subsection (c) or (g), shall:

(A) Continue to receive educational services, as provided in section 8-60-3(a), so as to enable the student to continue to participate in the general education curriculum, although in another setting, and to progress toward meeting the goals set out in the student's IEP; and

(B) Receive, as appropriate, a functional behavioral assessment, and behavioral intervention services and modifications, that are designed to address the behavior violation so that it does not recur;

(2) The services required by paragraphs (1), (3), and (4) may be provided in an interim alternative educational setting.

(3) When a student with a disability has been removed from his or her current placement for 10 school days or less in the same school year, that student may be provided with an alternate educational option (such as homework, projects, class assignments) in the same manner as a student without a disability who is similarly removed, in accordance with chapter 8-19.

(4) If the removal is a change of placement under section 8-60-81, the student's IEP team determines appropriate services under paragraph (1), except as stated in paragraph (5).

(5) For crisis removals that exceed the ten cumulative school days in a school year, school personnel, in consultation with at least one of the student's teachers, determine the extent to which services are needed so as to enable the student to continue to participate in the general education curriculum although in another setting, and to progress in meeting the goals set out in the student's IEP.

(e) Manifestation determination.

(1) Excluding subparagraph (g)(2)(A), within ten school days of any decision to change the placement of a student with a disability because of a violation of Chapter 19, the department, the parent, and relevant members of the student's IEP team (as determined by the parent and the department) shall review all relevant information in the student's file, including the student's IEP, any teacher observations, and any relevant information provided by the parents to determine:

(A) If the conduct in question was caused by, or had a direct and substantial relationship to, the student's disability; or

(B) If the conduct in question was the direct result of the department's failure to implement the IEP;

(2) The conduct shall be determined to be a manifestation of the student's disability if the department, the parent, and relevant members of the student's IEP team determine that a condition in either paragraph (1)(A) or (B) was met;

(3) If the department, the parent, and relevant members of the student's IEP team determine the condition described in paragraph (1)(B) was met, the department shall take immediate steps to remedy those deficiencies.

(f) Determination that behavior was a manifestation. If the department, the parent, and relevant members of the IEP team make the determination that the conduct was a manifestation of the student's disability, the IEP team shall:

(1) Either:

(A) Conduct a functional behavioral assessment, unless the department had conducted a functional behavioral assessment before the behavior that resulted in the change of placement occurred, and implement a behavioral intervention plan for the student; or

(B) If a behavioral intervention plan already has been developed, review the behavioral intervention plan, and modify it, as necessary, to address the behavior; and

(2) Except as provided in subsection (g), return the student to the placement from which the student was removed, unless the parent and the department agree to a change of placement as part of the modification of the behavioral intervention plan.

(g) Special circumstances.

(1) School personnel may remove a student to an interim alternative educational setting for not more than forty-five school days without regard to whether the behavior is determined to be a manifestation of the student's disability, if the student:

(A) Carries or possesses a weapon to or at school, on school premises, or to or at a school function under the jurisdiction of the department;

(B) Knowingly possesses or uses illegal drugs, or sells or solicits the sale of a controlled substance, while at school, on school premises, or at a school function under the jurisdiction of the department; or

(C) Has inflicted serious bodily injury upon another person while at school, on school premises, or at a school function under the jurisdiction of the department.

(2)

(A) If the basis for a crisis removal exists pursuant to chapter 8-19-7, school personnel may order the removal of a student with a disability from the student's current educational placement, for up to ten consecutive school days. If the crisis removal, together with any previous days of disciplinary suspensions or removals, exceeds ten school days, the crisis removal would constitute a change of placement only if the removals constitute a pattern:

(i) because the student's behavior is substantially similar to the student's behavior in previous incidents that resulted in the series of removals.

(ii) because of such additional factors such as the length of each removal, the total amount of time the student is removed, and the proximity of the removals one to another.

(B) If school personnel determine the authority for a crisis removal exists pursuant to paragraph [(1)](2)(A):

(i) The crisis removal shall be in accordance with chapter 8-19-7, including the student's right to resume attendance at school as soon as the exclusion pursuant to chapter 8-19-7(a) is no longer necessary;

(ii) The student with a disability shall be provided a free appropriate public education in accordance with subsection (d) during the period of the crisis removal;

(iii) The IEP team shall conduct the functional behavioral assessment in accordance with subparagraph (d)(1)(b);

(iv) If the student's parent disagrees with the determination under paragraph (2), the parent may request a hearing pursuant to section 8-60-77. For purposes of section 8-60-72 on the student's status during the proceedings, the current placement is the free appropriate public education provided in accordance with subsection (d) until the end of the crisis removal, at which time the student shall resume attendance at school; and

(v) For purposes of subsequent disciplinary action, the school days of crisis removal shall be included as days of removal in this section. Nothing in this paragraph prohibits a student from being the subject of a subsequent crisis removal in a given school year if the requirements of chapter 8-19-7, and this subparagraph are met.

(h) Notification. On the date on which the decision is made to make a removal that constitutes a change of placement of a student with a disability because of a violation of a code of student conduct, the department shall notify the parents of that decision, and provide the parents the procedural safeguards notice described in section 8-60-59.

(i) Definitions. For purposes of this subchapter, the following definitions apply:

(1) "Controlled substance" means a drug or other substance identified under schedules I, II, III, IV, or V in section 202(c) of the Controlled Substances Act (21 U.S.C. 812(c));

(2) "Illegal drug" means a controlled substance; but does not include a controlled substance that is legally possessed or used under the supervision of a licensed health-care professional or that is legally possessed or used under any other authority under that Act or under any other provision of Federal law;

(3) "Serious bodily injury" has the meaning given the term "serious bodily injury" under section 1365(h)(3) of title 18, United States Code.

(4) "Weapon" has the meaning given the term "dangerous weapon" under 18 U.S.C. section 930(g)(2).

History

[Eff 11/23/09] (Auth: 20 U.S.C. 1415(k)(1) and (7); HRS § 302A-1112) (Imp: 34 C.F.R. §300.530)

Haw. Code R. § 8-60-76 Determination of setting

The student's IEP team determines the interim alternative educational setting for services under section 8-60-75(c), (d)(4), and (g).

History

[Eff 11/23/09] (Auth: 20 U.S.C. 1415(k)(2); HRS § 302A-1112) (Imp: 34 C.F.R. §300.531)

Haw. Code R. § 8-60-77 Appeal

(a) General. The parent of a student with a disability who disagrees with any decision regarding placement under sections 8-60-75 and 8-60-76, or the manifestation determination under section 8-60-75(e), or the department believes that maintaining the current placement of the student is substantially likely to result in injury to the student or others, may appeal the decision by requesting a hearing. The hearing is requested by filing a complaint pursuant to sections 8-60-61 and 8-60-62(a) and (b).

(b) Authority of hearing officer.

(1) A hearing officer under section 8-60-65 hears, and makes a determination regarding an appeal under subsection (a).

(2) In making the determination under paragraph (1), the hearing officer may:

(A) Return the student with a disability to the placement from which the student was removed if the hearing officer determines that the removal was a violation of section 8-60-75 or that the student's behavior was a manifestation of the student's disability; or

(B) Order a change of placement of the student with a disability to an appropriate interim alternative educational setting for not more than forty-five school days if the hearing officer determines that maintaining the current placement of the student is substantially likely to result in injury to the student or to others.

(3) The procedures under subsection (a) and paragraphs (1) and (2) may be repeated, if the department believes that returning the student to the original placement is substantially likely to result in injury to the student or to others.

(1) Whenever a hearing is requested under subsection (a), the parents involved in the dispute or the department shall have an opportunity for an impartial due process hearing consistent with the requirements of sections 8-60-61 and 8-60-62(a) through (c) and sections 8-60-64 through 8-60-68, except as provided in paragraphs (2) through (4).

(2) The department is responsible for arranging the expedited due process hearing, which shall occur within twenty school days of the date the complaint requesting the hearing is filed. The hearing officer shall make a determination within ten school days after the hearing;

(3) Unless the parents and department agree in writing to waive the resolution meeting described in subparagraph (A), or agree to use the mediation process described in section 8-60-60:

(A) A resolution meeting shall occur within seven days of receiving notice of the due process complaint; and

(B) The due process hearing may proceed unless the matter has been resolved to the satisfaction of both parties within fifteen days of the receipt of the due process complaint;

(4) The State shall ensure that the requirements in sections 8-60-64 through 8-60-68 are met;

(5) The decisions on expedited due process hearings are appealable consistent with section 8-60-68.

History

[Eff 11/23/09] (Auth: 20 U.S.C. 1415(k)(3) and (4)(B), 1415(f)(1)(A); HRS § 302A-1112) (Imp: 34 C.F.R. §300.532)

Haw. Code R. § 8-60-78 Placement during appeals

When an appeal under section 8-60-77 has been made by either the parent or the department, the student shall remain in the interim alternative educational setting pending the decision of the hearing officer or until the expiration of the time period specified in section 8-60-75(c) or (g), whichever occurs first, unless the parent and the department agree otherwise.

History

[Eff 11/23/09] (Auth: 20 U.S.C. 1415(k)(4)(A), HRS § 302A-1112) (Imp: 34 C.F.R. §300.533)

Haw. Code R. § 8-60-79 Protections for students not determined eligible for special education and related services

(a) General. A student who has not been determined to be eligible for special education and related services and who has engaged in behavior that violated chapter 8-19, may assert any of the protections provided for in this chapter if the department had knowledge (as determined in accordance with subsection (b)) that the student was a student with a disability before the behavior that precipitated the disciplinary action occurred.

(b) Basis of knowledge. The department shall be deemed to have knowledge that a student is a student with a disability if before the behavior that precipitated the disciplinary action occurred:

(1) The parent of the student expressed concern in writing to supervisory or administrative personnel of the department, or a teacher of the student, that the student is in need of special education and related services;

(2) The parent of the student requested an evaluation of the student pursuant to sections 8-60-31 through 8-60-43; or

(3) The teacher of the student, or other personnel of the department, expressed specific concerns about a pattern of behavior demonstrated by the student directly to the director of special education or to other supervisory personnel of the department.

(1) The parent of the student:

(A) Has not allowed an evaluation of the student pursuant to sections 8-60-31 through 8-60-43; or

(B) Has refused services; or

(2) The student has been evaluated in accordance with sections 8-60-31 through 8-60-43 and determined to not be a student with a disability.

(d) Conditions that apply if no basis of knowledge.

(1) If the department does not have knowledge that a student is a student with a disability (in accordance with subsections (b) and (c)) prior to taking disciplinary measures against the student, the student may be subjected to the disciplinary measures applied to students without disabilities who engage in comparable behaviors consistent with paragraph (2).

(2)

(A) If a request is made for an evaluation of a student during the time period in which the student is subjected to disciplinary measures under section 8-60-75, the evaluation shall be conducted in an expedited manner;

(B) Until the evaluation is completed, the student remains in the educational placement determined by school authorities, which can include suspension or expulsion without educational services;

(C) If the student is determined to be a student with a disability, taking into consideration information from the evaluation conducted by the department and information provided by the parents, the department shall provide special education and related services in accordance with this chapter, including the requirements of sections 8-60-75 through 8-60-81 and section 612(a)(1)(A) of the Act.

History

[Eff 11/23/09] (Auth: 20 U.S.C. 1415(k)(5), HRS § 302A-1112) (Imp: 34 C.F.R. §300.534)

Haw. Code R. § 8-60-80 Referral to and action by law enforcement and judicial authorities

(a) Rule of construction. Nothing in this chapter prohibits the department from reporting a crime committed by a student with a disability to appropriate authorities or prevents state law enforcement and judicial authorities from exercising their responsibilities with regard to the application of federal and state law to crimes committed by a student with a disability.

(b) Transmittal of records.

(1) When reporting a crime committed by a student with a disability, the department shall ensure that copies of the special education and disciplinary records of the student are transmitted for consideration by the appropriate authorities to whom the department reports the crime.

(2) The department may transmit copies of the student's special education and disciplinary records only to the extent that the transmission is permitted by the Family Educational Rights and Privacy Act (20 U.S.C. 1232g).

History

[Eff 11/23/09] (Auth: 20 U.S.C. 1415(k)(6); HRS § 302A-1112) (Imp: 34 C.F.R. §300.535)

Haw. Code R. § 8-60-81 Change of placement because of disciplinary removals

For purposes of removals of a student with a disability from the student's current educational placement under sections 8-60-75 through 8-60-80, a change of placement occurs if the removal is for more than ten cumulative school days in the same school year, unless the basis for a crisis removal exists in accordance with sections 8-60-75(d)(5) and 8-60-75(g)(2).

History

[Eff 11/23/09] (Auth: 20 U.S.C. 1415(k), HRS § 302A-1112) (Imp: 34 C.F.R. §300.536)

Subchapter 10 CONFIDENTIALITY OF INFORMATION

Haw. Code R. § 8-60-84 Applicability

All of the provisions of the Hawaii administrative rule relating to the Protection of Educational Rights and Privacy of Students and Parents, the Individuals with Disabilities Education Act, and the Family Educational Rights and Privacy Act (20 U.S.C. section 1400 et seq.; 34 C.F.R. sections 300.610 - 627, 20 U.S.C. 1232g)) shall also apply.

History

[Eff 11/23/09] (Auth: 20 U.S.C. 1212e-3, 1412(a)(8), 1417(c); HRS § 302A-1112) (Imp: 34 C.F.R. §§300.610 to 627 )

Chapter 61 NONDISCRIMINATION ON THE BASIS OF DISABILITY IN PROGRAMS OR ACTIVITIES RECEIVING FEDERAL FINANCIAL ASSISTANCE

Subchapter 1 GENERAL PROVISIONS

Haw. Code R. § 8-61-1 Purpose

(a) As a matter of commitment, policy, and compliance with federal and state laws, the department assures that it will provide an equal educational opportunity to all students with a disability in its jurisdiction, regardless of the nature and severity of the disabilities.

(b) Provisions of this chapter shall be construed as supplemental to, and in the context of, Section 504 of the Rehabilitation Act of 1973, as amended (29 U.S.C. §§705, 794; 34 C.F.R. Part 104) and the Americans with Disabilities Act (42 U.S.C. sections 12101 et seq.; 28 C.F.R. Part 35) and longstanding interpretations of Section 504 issued by the United States Department of Education.

History

[Eff 8/20/09] (Auth: HRS § 302A-1112) (Imp: HRS §§ 302A-1101, 302A-1112; 29 U.S.C. §794; 42 U.S.C. §12132; 34 C.F.R. §104.4)

Haw. Code R. § 8-61-2 Definitions

As used in this chapter:

"Department" means the state department of education.

"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:

(1) if the conduct in question was caused by, or had a direct and substantial relationship to the student's disability, or

(2) if the conduct in question was the direct result of a failure to implement the 504 Plan.

"Parent" means:

(1) A natural or adoptive parent of a student with a disability;

(2) A guardian appointed by the court but not the State if the student is a ward of the State; or

(3) A surrogate parent who has been appointed in accordance with section 8-61-12.

"Section 504" is in reference to Section 504 of the Rehabilitation Act of 1973, as amended (29 U.S.C. §§705, 794; 34 C.F.R. Part 104).

History

[Eff 08/20/09] (Auth: HRS § 302A-1112) (Imp: HRS § 302A-1112; 29 U.S.C. §705; 34 C.F.R. §104.3)

Subchapter 2 EVALUATION AND REEVALUATION

Haw. Code R. § 8-61-3 General evaluation requirement

(a) The department shall conduct an evaluation of any student who, because of disability, needs or is believed to need services under this chapter before taking any action with respect to the initial placement of the student.

(b) The department shall establish implementation guidelines for the evaluation of students who may qualify for services under this chapter. An evaluation may consist of the review of existing evaluation data, when no additional data are necessary.

History

[Eff 8/20/09] (Auth: HRS § 302A-1112) (Imp: HRS § 302A-1112; 29 U.S.C. §794; 34 C.F.R. §104.35)

Haw. Code R. § 8-61-4 Reevaluation

A student with a disability shall be reevaluated periodically in accordance with the implementation guidelines, section 8-61-5 and 34 C.F.R. section 104.35, including before a significant change in placement.

History

[Eff 8/20/09] (Auth: HRS § 302A-1112) (Imp: HRS § 302A-1112; 29 U.S.C. §794; 34 C.F.R. §104.35)

Subchapter 3 PROCEDURAL SAFEGUARDS

Haw. Code R. § 8-61-5 General responsibility

The department shall provide each student with a disability and the student's parent with procedural safeguards.

History

[Eff 8/20/09] (Auth: 8-61-23 HRS § 302A-1112) (Imp: HRS § 302A-1112; 29 U.S.C. §794; 34 C.F.R. §104.36)

Haw. Code R. § 8-61-6 Procedural safeguards

(a) The department shall establish and implement a system of procedural safeguards that includes:

(1) Notice of the department's duty under section 504 of the Rehabilitation Act of 1973, as amended;

(2) An opportunity for the parents to examine relevant records;

(3) An impartial hearing in accordance with chapter 91-9, Hawaii Revised Statutes; and

(4) A review procedure.

(b) The department shall establish implementation guidelines for the system of procedural safeguards.

History

[Eff 8/20/09] (Auth: HRS § 302A-1112) (Imp: HRS § 302A-1112; 29 U.S.C. §794; 34 C.F.R. §104.36)

Haw. Code R. § 8-61-7 Parental consent

(a) Parental consent shall be obtained before:

(1) Conducting an initial evaluation involving individually administered assessments pursuant to section 8-61-5; and

(2) The initial provision of special education, within the meaning of Section 504, or related services to a student with a disability.

(b) Parental consent is not required before reviewing existing data as part of an evaluation or reevaluation.

History

[Eff 8/20/09] (Auth: HRS § 302A-1112) (Imp: HRS § 302A-1112; 29 U.S.C. §794; 34 C.F.R. §104.36)

Haw. Code R. § 8-61-8 Alternative dispute resolution

The department and students with a disability and their parents are encouraged to seek resolution of disputes under this chapter through alternative dispute resolution, including mediation. Alternative dispute resolution is intended to be an informal process conducted in a non-adversarial atmosphere to resolve issues relating to the identification, evaluation, or educational placement of a student with a disability or the provision of a free appropriate public education to the student.

History

[Eff 8/20/09] (Auth: HRS § 302A-1112) (Imp: HRS § 302A-1112; 29 U.S.C. §794; 34 C.F.R. §104.36)

Haw. Code R. § 8-61-9 Impartial due process hearing

(a) Within the time specified in state law, a parent may initiate an impartial hearing regarding the department's proposal or refusal to initiate or change the identification, evaluation, or educational placement of a student with a disability, or the provision of a free appropriate public education to the student.

(b) All requests for an impartial due process hearing shall be filed in writing with the complex area superintendent of the student's complex of enrollment.

(1) Notify the parties of the receipt of the contact information for the impartial hearing officer;

(2) Inform the parent of the availability of alternative dispute resolution, including mediation; and

(3) Inform the parent of the availability of an interpreter, if requested.

(d) The department shall be responsible for the conduct of the hearing described in subsection (a).

History

[Eff 8/20/09] (Auth: HRS § 302A-1112) (Imp: HRS § 302A-1112; 29 U.S.C. §794; 34 C.F.R. §104.36)

Haw. Code R. § 8-61-10 Pre-hearing and hearing

(a) The hearing officer shall conduct a pre-hearing conference. The pre-hearing conference shall include the identification of the precise issues to be heard under section 8-61-9, the time and location of the hearing, and the date by which the decision will be rendered and mailed.

(b) Hearings will be conducted in accordance with chapter 91, Hawaii Revised Statutes.

History

[Eff 8/20/09] (Auth: HRS § 302A-1112) (Imp: HRS § 302A-1112; 29 U.S.C. §794; 34 C.F.R. §104.36)

Haw. Code R. § 8-61-11 Civil action

A decision made in a hearing conducted pursuant to section 8-61-9 or 8-61-16 is final, except that any party aggrieved by the decision has the right to bring a civil action in a court of competent jurisdiction within thirty days of the receipt of the decision.

History

[Eff 8/20/09] (Auth: HRS § 302A-1112) (Imp: HRS § 302A-1112; 29 U.S.C. §794; 34 C.F.R. §104.36)

Haw. Code R. § 8-61-12 Surrogate parent

(a) The department shall ensure the assignment of an individual to act as a surrogate parent for a student with a disability, when necessary.

(b) The individual assigned to act as a surrogate parent shall not be an employee of the department.

History

[Eff 8/20/09] (Auth: HRS § 302A-1112) (Imp: HRS § 302A-1112; 29 U.S.C. §794; 34 C.F.R. §104.36)

Subchapter 4 DISCIPLINE

Haw. Code R. § 8-61-13 General requirements

(a) No student with a disability shall be discriminated against on the basis of disability in the determination of prohibited conduct and disciplinary action, including all standards and procedures under the Hawaii administrative rules governing student discipline.

(b) Disciplinary action that results in the suspension, including crisis removal, or other removal of a student with a disability from the student's current educational placement for ten consecutive or cumulative school days or fewer shall not be considered a change in placement and shall be in accordance with the Hawaii administrative rules governing student discipline.

(c) Disciplinary action that results in the suspension, including crisis removal, or other removal of a student with a disability from the student's current educational placement for more than ten consecutive or cumulative school days in a given school year shall be considered a change in placement and shall be in accordance with the provisions of this subchapter. (29 U.S.C. §§705, 794; 34 C.F.R. Part 104).

History

[Eff 8/20/09] (Auth: HRS § 302A-1112) (Imp: Hawaii Const. Art. X, § 3;HRS § 302A-1101; 29 U.S.C. §794; 34 C.F.R. §§104.35, 104.36)

Haw. Code R. § 8-61-14 Preliminary disciplinary procedures

(a) When a disciplinary removal of a student with a disability results in a significant change of placement, the department shall:

(1) Conduct a reevaluation in accordance with section 8-61-4;

(2) Convene the relevant members of the Section 504 team, including the parent, to review all relevant information in the student's file and any relevant information provided by the parent to determine:

(A) If the conduct in question was caused by, or had a direct and substantial relationship to, the student's disability; or

(B) If the conduct in question was the direct result of the department's failure to implement the Section 504 plan; and

(3) Provide the parent of the student with a disability a notice of the department's manifestation determination and the right to request a due process hearing in accordance with section 8-61-16.

(b) If the determination under subsection (a)(2) is that the misconduct is not a manifestation of the student's disability, the student may be suspended or dismissed in accordance with the Hawaii administrative rules governing student discipline, except as provided in section 8-61-16.

(c) Should the Individuals with Disabilities Education Improvement Act ("IDEIA"), commonly known as the Individuals with Disabilities Education Act ("IDEA"), manifestation determination change in the future, the standard in this section shall also change to the most current manifestation standard.

History

[Eff 8/20/09] (Auth: HRS § 302A-1112) (Imp: Hawaii Const. Art. X, § 3; HRS § 302A-1101; 29 U.S.C. §794; 34 C.F.R. §§104.35, 104.36)

Haw. Code R. § 8-61-15 Special circumstances

Notwithstanding section 8-61-14, if the disciplinary action pertains to the use or possession of illegal drugs or alcohol, and the student with a disability is currently engaging in the illegal use of drugs or alcohol, the disciplinary action may be taken to the same extent that disciplinary action is taken against students without a disability pursuant to the Hawaii administrative rules governing student discipline. The procedural safeguards set forth in subchapter 3 and section 8-61-14 shall not apply to the disciplinary action; except that students with a disability who are also eligible as students with a disability in accordance with Hawaii administrative rules for students with disabilities shall be afforded all of the procedural safeguards under those rules.

History

[Eff 8/20/09] (Auth: HRS § 302A-1112) (Imp: Hawaii Const. Art. X, § 3; HRS § 302A-1101; 29 U.S.C. §794; 34 C.F.R. §§104.35, 104.36)

Haw. Code R. § 8-61-16 Impartial due process hearing

The parent of a student with a disability who disagrees with the manifestation determination under section 8-61-14 may request a hearing in accordance with section 8-61-8.

History

[Eff 8/20/09] (Auth: HRS § 302A-1112) (Imp: Hawaii Const. Art. X, § 3; HRS § 302A-1101; 29 U.S.C. §794; 34 C.F.R. §§104.35, 104.36)

Haw. Code R. § 8-61-17 Alternate educational activities

During periods of suspension exceeding ten school days or dismissal in a school year, a student with a disability shall be provided alternate educational activities in accordance with the Hawaii administrative rules governing student discipline.

History

[Eff 8/20/09] (Auth: HRS § 302A-1112) (Imp: Hawaii Const. Art. X, § 3; HRS § 302A-1101; 29 U.S.C. §794; 34 C.F.R. §§104.35, 104.36)

Chapter 62 MERIT APPEALS BOARD

Subchapter 1 GENERAL APPLICABILITY

Haw. Code R. § 8-62-1 Purpose

The rules in this chapter govern practice and procedure before the department of education merit appeals board under the civil service and compensation laws, chapter 76, Hawaii Revised Statutes, as provided for under chapters 91 and 92, Hawaii Revised Statutes.

History

[Eff 6/11/2010] (Auth: HRS §§ 302A-1112, 76-14, 76-47) (Imp: HRS § 76-14)

Haw. Code R. § 8-62-2 Definitions

As used in this chapter:

"Adverse action" means an involuntary separation from service, an involuntary demotion, involuntary transfer, a suspension without pay, a reduction in pay, or denial or delay of a standard pay adjustment. Adverse action does not include a notice to improve performance, a performance improvement period, or a return to the employee's former position or comparable position as required by law because of a failure to successfully complete a new probationary period.

"Aggrieved" means an individual who has suffered a loss such as the denial of some personal or property right. As used in section 8-62-33(b)(1), concerning examination appeals, it includes, in addition to other examination issues, a person whose application has been rejected for failure to meet the qualification requirements for a class, a person who has been terminated during an initial probationary period for failure to successfully complete an initial probationary period, and a person whose non-selection involved improprieties.

"Appointing authority" means the superintendent or designee having power to make appointments or changes in status of employees in the department of education.

"Assistant superintendent" means the assistant superintendent for human resources.

"Board" means the department of education merit appeals board.

"Chairperson" means the chairperson of the board.

"Civil service employee" means an employee who meets all requirements for membership in the civil service.

"Classification" means the assignment of a civil service position to a class of work.

"Day" means a calendar day unless otherwise specified.

"Employee" means a person holding a position in the service of the department of education, irrespective of status or type of appointment; provided that, if the context clearly applies only to an employee who is a member of the civil service, "employee" means a civil service employee.

"Employer" means the department of education, and any individual who represents or acts in the interest of the department in dealing with public employees in the department of education.

"Examination" means any test or accepted personnel assessment technique used to measure the fitness and ability of applicants for employment which may include, but is not limited to: written tests, oral tests, interviews, essays, tests of physical fitness or ability, medical examinations, performance tests, training and experience evaluations, background and suitability determinations, probation periods, in-basket assessments, biodata assessments, personality measures, and assessment center evaluations.

"Ex parte communications" means private communications or arguments with members of the board or the presiding officer as to the merits of a proceeding that could be construed as influencing the outcome of the case.

"Hearing" means any proceeding governed by sections 76-14 and 76-47, Hawaii Revised Statutes.

"Hearings officer" means a competent and qualified disinterested person appointed by the board to hear an appeal.

"Initial pricing" means the determination of the appropriate pay range and pay relationships for a new class based on appropriate factors.

"Mediation" means the process whereby a neutral third party or "mediator" is authorized in order to make a decision or to deliberate toward a decision upon a matter over which the board has supervision, control, jurisdiction, or advisory power.

"Meeting" means the convening of the board for which a quorum is required in order to make a decision or to deliberate toward a decision upon a matter over which the board has supervision, control, jurisdiction, or advisory power.

"Merit appeals board" means the department of education's appellate body consisting of three members appointed by the superintendent for purposes of section 76-14, Hawaii Revised Statutes. The term of appointment of members and the appointment of a chairperson of the department of education merit appeals board are to be established by the superintendent.

"Party" means each person or agency named or admitted as a party or properly seeking and entitled as of right to be admitted as a party in a proceeding.

"Person" includes individuals, partnerships, corporations, associations, or public or private organizations of any character other than governmental agencies.

"Presiding officer" with respect to proceeding means the chairperson and includes any member of the board designated as such, or other persons authorized by law, to conduct hearings.

"Proceedings" means the board's consideration of the relevant facts and applicable law and action thereupon with respect to a particular subject within the board's jurisdiction, initiated by filing a submission or request or a board's notice or order. It shall include proceedings involving adopting, amending or repealing any rule of the board, whether initiated by the board order or notice or petition of any interested person.

History

[Eff 6/11/2010] (Auth: HRS §§ 302A-1112, 76-14, 76-47) (Imp: HRS §§ 76-14, 76-47)

Haw. Code R. § 8-62-3 Construction of rules

The rules shall be liberally construed to secure the just and speedy determination of every proceeding.

History

[Eff 6/11/2010] (Auth: HRS §§ 302A-1112, 76-14, 76-47) (Imp: HRS § 302A-1112) (Imp: HRS §§ 76-14, 76-47)

Haw. Code R. § 8-62-4 Limitation of jurisdiction

(a) Where the terms of collective bargaining agreements pursuant to chapter 89, Hawaii Revised Statutes, conflict with these rules, the terms of the agreements shall prevail; provided that the terms are not inconsistent with section 89-9(d), Hawaii Revised Statutes.

(b) The board shall defer action on an appeal if there is controversy on whether the matter is within its jurisdiction or that of the Hawaii labor relations board. The Hawaii labor relations board shall determine which of these boards has jurisdiction in the appeal.

(c) The board shall not act on an appeal if the action complained of constitutes a prohibited act that is subject to the jurisdiction of another appellate body or administrative agency or the grievance procedure under a collective bargaining agreement.

(d) All internal complaint procedures, including administrative reviews and complaint procedures, must be exhausted before an appeal may be accepted by the board.

History

[Eff 6/11/2010] (Auth: HRS §§ 302A-1112, 76-14, 76-47) (Imp: HRS § 76-14)

Haw. Code R. § 8-62-5 Procedure and terms

(a) The terms used in rules adopted by the board pursuant to powers granted by statute shall have the meaning defined by statute, unless the context specifically requires otherwise.

(b) A rule that defines a term without express reference to the statute or to these rules or to a portion thereof, defines the term for all purposes as used both in the statute and in these rules, unless the context otherwise specifically requires.

(c) Words importing the singular number may be extended and applied to several persons or things; words importing the plural may include the singular; and words importing the masculine gender may be applied to females.

History

[Eff 6/11/2010] (Auth: HRS §§ 302A-1112, 76-14, 76-47) (Imp: HRS §§ 1-14, 1-15, 1-16, 1-17)

Haw. Code R. § 8-62-6 Composition of the board

(a) The superintendent of the department of education shall appoint three persons to the board.

(b) The board members shall be appointed for three year terms and may be reappointed without limitation, or may be removed by the superintendent before the ending of the term. At the initial establishment of the board, the members shall be appointed to staggered terms of one, two, or three years. Subsequent appointments or reappointments shall be for three years.

History

[Eff 6/11/2010] (Auth: HRS §§ 302A-1112, 76-14, 76-47) (Imp: HRS §§ 76-14, 76-47)

Haw. Code R. § 8-62-7 Department of education merit appeals board office

(a) The office of the board is in Honolulu, Hawaii. All communication to the board shall be addressed to department of education merit appeals board, c/o Assistant Superintendent, Office of Human Resources, Queen Liliuokalani Building, 1390 Miller Street, Honolulu, Hawaii, 96813, telephone (808) 586-3400, unless otherwise specifically directed.

(b) The office of the board shall be open from 7:45 a.m. to 4:30 p.m. of each workday, excluding state holidays, or unless otherwise provided by statute or executive order.

History

[Eff 6/11/2010] (Auth: HRS §§ 302A-1112, 76-14, 76-47) (Imp: HRS §§ 76-14, 76-47)

Haw. Code R. § 8-62-8 Meetings

The board may meet and exercise its powers in any part of the State of Hawaii.

(a) For the purpose of minimizing travel and per diem expenses, the board may utilize, whenever practicable, other means such as teleconferencing which does not require all parties to convene at a single site to conduct its proceedings.

(b) Special meetings of the board for the transaction of its business may be held at any time and place as scheduled by the board.

History

[Eff 6/11/2010] (Auth: HRS §§ 302A-1112, 76-14, 76-47) (Imp: HRS §§ 76-14, 76-47)

Haw. Code R. § 8-62-9 Minutes

The board shall keep written minutes or recordings of all meetings. Unless otherwise required by law, a full transcript of the meeting is not required, but the written minutes or recording shall reflect matters discussed and the views of the participants. The minutes or recording shall include but need not be limited to:

(1) The date, time and place of the meeting;

(2) The members of the board recorded as either present or absent;

(3) The substance of all matters proposed, discussed, or decided, and a record, by individual member, of any votes taken; and

(4) Any other information that any member of the board requests be included or reflected in the minutes and or recording.

The minutes or transcript of the recording shall be a public record and shall be available within thirty days after request, except where such disclosure would be inconsistent with chapter 92F, Hawaii Revised Statutes.

History

[Eff 6/11/2010] (Auth: HRS §§ 302A-1112, 76-14, 76-47) (Imp: HRS §§ 76-14, 76-47)

Haw. Code R. § 8-62-10 Hearings

All parties shall be afforded an opportunity for a hearing after reasonable notice. The notice shall include a statement of:

(1) The date, time, place, and nature of the hearing;

(2) The legal authority under which the hearing is to be held;

(3) The particular sections of the statutes and rules involved;

(4) An explicit statement, in plain language, of the issue(s) involved and the facts alleged by the party in support thereof; provided that, if the party is unable to state such issues and facts in detail at the time the notice is served, the initial notice may be limited to a statement of the issue(s) involved; and

(5) The fact that any party may retain counsel or any other person to whom written or verbal authority has been given if the party so desires.

History

[Eff 6/11/2010] (Auth: HRS §§ 302A-1112, 76-14, 76-47) (Imp: HRS §§ 76-14, 76-47)

Haw. Code R. § 8-62-11 Quorum and number of votes necessary to validate acts

A majority of all members to which the board is entitled, two out of three members, shall constitute a quorum to transact business, and the concurrence of a majority of all members to which the board is entitled shall be necessary to validate any action of the board.

History

[Eff 6/11/2010] (Auth: HRS §§ 302A-1112, 76-14, 76-47) (Imp: HRS §§ 76-14, 76-47)

Haw. Code R. § 8-62-12 Administration

(a) The chairperson of the board shall be responsible for the administrative functions of the board.

(b) All decisions, orders, and other actions of the board shall be authenticated or signed by the board members acting in the proceeding or by the chairperson upon delegation by the board members acting in the proceeding. Official copies of decisions, orders, and other board actions may be certified under the signature of the chairperson or the chairperson's designate.

(c) All documents required to be filed with the board shall be filed in the office of the board in Honolulu, Hawaii, within the time limits as prescribed by the rules of the board, or by the order of the board. Requests for public information or the opportunity to inspect public records may be made to the board's office.

(d) The board may delegate to any competent and qualified individuals, the power or authority vested in the board as it deems reasonable and proper to carry out its functions as prescribed by chapter 76, Hawaii Revised Statutes, except the power to make, amend, or repeal rules.

(e) The board may, by written resolution adopted by a majority of the members to which it is entitled, appoint a hearings officer. The hearings officer shall hear the matter in the same manner as if it were before the board. Upon the conclusion of the hearing, the hearings officer shall transmit to the board a record of the hearing, including a recording or transcript and a summary of evidence taken at the hearing. After a review of the testimony and evidence, a majority of the members, two out of three members, to which the board is entitled shall render a decision.

(f) The board may develop and promulgate procedures needed to carry out its functions.

(g) No board member shall be held liable in any civil action for damage, injury, or loss caused by or resulting from the member's performance or failure to perform any duty required or authorized to be performed by a person who holds the position to which the member was appointed, unless the member acted with a malicious or improper purpose, except when the plaintiff in a civil action is the department of education.

History

[Eff 6/11/2010] (Auth: HRS §§ 302A-1112, 76-14, 76-47) (Imp: HRS §§ 76-14, 76-47, 26-35.5)

Haw. Code R. § 8-62-13 Government records

(a) The term "government records" as used in this chapter is defined as in chapter 92F, Hawaii Revised Statutes, and shall include all rules, written statements of policy or interpretations formulated, adopted or used by the board, all complaints, opinions and orders, written testimony, minutes of meetings of the board and any other material on file in the office of the board unless accorded confidential treatment pursuant to law or the rules of the board.

(b) Government records printed or reproduced by the board shall be provided to any person requesting the same and who shall pay the fees established by the department of education fee schedule or by section 92-21, Hawaii Revised Statutes.

(c) Requests for public information, for permission to inspect government records, or for copies of government records shall be handled expeditiously. Records involving the board shall not be released without written approval of the chairperson or the chairperson's designee.

History

[Eff 6/11/2010] (Auth: HRS §§ 302A-1112, 76-14, 76-47) (Imp: HRS §91.2)

Subchapter 2 PROCEEDINGS BEFORE THE BOARD

Haw. Code R. § 8-62-14 General provisions

(a) The board may hold proceedings as it may deem necessary in the performance of its duties or the formation of its rules.

(b) Procedures to be followed by the board shall be that which will best serve the purpose of the proceeding, as determined by the board.

History

[Eff 6/11/2010] (Auth: HRS §§ 302A-1112, 76-14, 76-47) (Imp: HRS §§ 76-14, 76-47)

Haw. Code R. § 8-62-15 Appearances and practices before the board

(a) Appearances before the board may be made as follows:

(1) A person may appear on the person's own behalf.

(2) An employee may be represented by an employee organization.

(3) An employee organization may be represented by a person or persons duly designated and authorized by the employee organization.

(4) A public employer may appear on its own behalf or through a person or persons duly designated and authorized by the employer.

(b) In any proceeding under these rules, a person, employee organization, or public employer may be represented by counsel or any other person to whom written or verbal authority has been given.

(c) When an individual acting in a representative capacity appears in person or signs a waiver of appearance before the board, the personal appearance or signature shall constitute a representation to the board that, under the provisions of these rules and the law, that person is authorized and qualified to represent the particular person. The board may at any time require any person transacting business with the board in a representative capacity to provide proof of that person's authority and qualification to act as a representative.

(d) Limitations to appearances before the board are as follows:

(1) No individual who has been associated with the board as a member, officer, employee, or counsel shall be permitted to appear before the board as a representative of any party in any proceeding or matter that the individual has handled or passed upon while associated with the board.

(2) No person or agency appearing before the board in any proceeding or matter shall, in relation thereto, knowingly accept assistance from or compensate any individual who would be barred by this subsection.

(3) No person who has been associated with the board as a member, officer, employee, or counsel shall be permitted to appear before the board as a representative of, any party in any proceeding or matter that was pending before the board at the time of that person's association with the board, unless that person first obtains written consent from the board.

This subsection shall not apply to any individual or agency who has terminated association with the board for a period of one year.

History

[Eff 6/11/2010] (Auth: HRS §§ 302A-1112, 76-14, 76-47) (Imp: §§ 76-14, 76-47)

Haw. Code R. § 8-62-16 Disqualification of board member, legal counsel, or hearings officer

Any party to a hearing may file an affidavit or declaration that one or more of the board members, legal counsel, or a hearings officer has a personal bias or prejudice. The affidavit or declaration shall state the facts and reasons for the belief that bias or prejudice exists and shall be filed at least five days before the hearing, or good cause shall be shown for the failure to file it within that time. The person against whom the affidavit or declaration is so filed may answer the affidavit or declaration or may file a disqualifying certificate with the board. If the person chooses to answer the affidavit or declaration, the remaining board members where a board member is involved, shall decide by a majority of all the members to which the board is entitled whether that person shall be disqualified from proceeding therein. Any person may file with the chairperson a certificate providing that the person is unable, for any reason, to participate with impartiality in the pending hearing. Upon completion of disqualification proceedings, a hearing shall continue in accordance with section 8-62-36.

History

[Eff 6/11/2010] (Auth: HRS §§ 302A-1112, 76-14, 76-47) (Imp: HRS §§ 76-14, 76-47)

Haw. Code R. § 8-62-17 Consolidation

The board, upon its own initiative or upon motion, may consolidate two or more appeals that involve substantially the same parties or issues.

History

[Eff 6/11/2010] (Auth: HRS §§ 302A-1112, 76-14, 76-47) (Imp: HRS §§ 76-14, 76-47)

Haw. Code R. § 8-62-18 Filing of documents

(a) All documents required to be filed with the board in any proceeding shall be filed at the office of the board in Honolulu, Hawaii within the time limits prescribed by the rules of the board or by order of the board. The date on which the papers are received constitute the date of filing.

(b) Appeals shall identify the issue on appeal, including a concise statement of the relevant facts, and the remedy sought, including the rationale and legal basis, as appropriate, for the remedy.

(c) All requests and appeals filed with the board shall be handwritten in black ink, typewritten, photo-copied, or printed; shall be plainly legible; and shall be on strong, durable paper no larger than 8 1/2"x 11" in size, except that maps, charts, tables, and other like documents may be larger, folded to the size of the papers to which they are attached.

(d) All documents shall be signed in ink by the party or the party's duly authorized agent. The signature of the person signing the document constitutes a certification that the person has read the document; that to the best of that person's knowledge, information and belief, all statements contained therein are true and not misleading; and are not interposed for delay.

(e) Unless otherwise specifically provided by a particular rule, or order of the board, an original and four copies of all papers shall be filed. Facsimile copies will not be accepted.

(f) All documents filed by any person or agency in any proceeding shall state on the first page thereof the name, mailing address, and telephone number, if any, of the individual or individuals who may be served with any documents filed in the proceeding.

History

[Eff 6/11/2010] (Auth: HRS §§ 302A-1112, 76-14, 76-47) (Imp: HRS §§ 76-14, 76-47)

Haw. Code R. § 8-62-19 Amendment of documents and dismissal

If a document filed in a proceeding is not in conformity with the applicable rules of the board as to contents thereof, or is otherwise insufficient, the board may, on its own motion or on motion of any party, strike the document or require its amendment. If amended, the document shall be effective as of the date of receipt of the amendment.

History

[Eff 6/11/2010] (Auth: HRS §§ 302A-1112, 76-14, 76-47) (Imp: HRS §§ 76-14, 76-47)

Haw. Code R. § 8-62-20 Retention of documents

All documents filed with or presented to the board shall be retained by the board. The board may permit the withdrawal of original documents upon submission of properly authenticated copies such as photocopies, microphotographs, reproduction on film, or electronic forms, as defined in section 92-31, Hawaii Revised Statutes, to replace the documents.

History

[Eff 6/11/2010] (Auth: HRS §§ 302A-1112, 76-14, 76-47) (Imp: HRS §§ 76-14, 76-47, 92-31)

Haw. Code R. § 8-62-21 Computation of time

In computing any period of time prescribed or allowed by these rules, the day of the act, event, or default, after which the designated period of time is to run, is not to be included. The last day of the period so computed is to be included unless it is a Saturday, Sunday, or state holiday, in which event the period runs until the next day which is not a Saturday, Sunday, or a holiday. Intermediate Saturdays, Sundays and holidays shall not be included in a computation when the period of time prescribed or allowed is ten calendar days or less. Unless otherwise indicated, computation of time shall be based on calendar days.

History

[Eff 6/11/2010] (Auth: HRS §§ 302A-1112, 76-14, 76-47) (Imp: HRS §§ 76-14, 76-47)

Haw. Code R. § 8-62-22 Continuances or extensions of time

Where these rules specify a deadline upon which action must be taken, the board may, upon motion and the concurrence of a majority of all the members to which the board is entitled, extend the time specified if the delinquency is shown to have been unavoidable and excusable.

History

[Eff 6/11/2010] (Auth: HRS §§ 302A-1112, 76-14, 76-47) (Imp: HRS §§ 76-14, 76-47)

Haw. Code R. § 8-62-23 Service of process

(a) The board shall serve all orders, notices, and other papers it issues, together with any other papers that it is required by law to serve. Such service shall be upon the party, the party's representative, or counsel. All other papers shall be served by the parties filing them. Any other papers filed with the board shall be served upon the board.

(b) Any counsel entering an appearance subsequent to the proceeding shall notify all other counsel presently of record and all parties not represented by counsel of that fact.

(c) Service of papers shall be made upon the party, the party's representative, or counsel personally or by registered or certified mail return receipt requested to the last known address.

(d) Service upon parties, other than the board, shall be regarded as complete by mail upon deposit in the United States mail, properly stamped and properly addressed to the parties involved.

History

[Eff 6/11/2010] (Auth: HRS §§ 302A-1112, 76-14, 76-47) (Imp: HRS §§ 76-14, 76-47)

Haw. Code R. § 8-62-24 Intervention in proceeding

(a) In any proceeding other than representation proceedings, a petition to intervene and become a party thereto shall be submitted in writing to the board.

(b) The petition shall contain the following:

(1) Nature of petitioner's statutory or other right;

(2) Nature and extent of petitioner's interest;

(3) Effect of any decision in the proceeding on petitioner's interest;

(4) Other means available whereby petitioner's interest may be protected;

(5) Extent petitioner's interest may be represented by existing parties;

(6) Extent petitioner's participation can assist in development of a sound record;

(7) Extent petitioner's participation will broaden the issue or delay the proceeding;

(8) Extent petitioner's interest in the proceeding differs from that of the general public; and

(9) How the petitioner's intervention would serve the public interest.

(c) The original and five copies of the petition with certificate of service on all parties, shall be filed with the board.

(d) Intervention shall not be granted except on averments which are reasonably pertinent to the issues already presented but do not unduly broaden them. If intervention is granted, the petitioner thereby becomes an intervenor and a party to the proceeding to the degree indicated by the order allowing intervention.

History

[Eff 6/11/2010] (Auth: HRS §§ 302A-1112, 76-14, 76-47) (Imp: HRS §§ 76-14, 76-47)

Subchapter 3 RULES APPLICABLE TO RULE MAKING PROCEDURES

Haw. Code R. § 8-62-25 Initiation of rule making proceedings

The board may, at any time on its own motion, initiate proceedings adopting, amending, or repealing any rule of the board.

History

[Eff 6/11/2010] (Auth: HRS §§ 302A-1112, 76-14, 76-47) (Imp: HRS §§ 76-14, 76-47)

Haw. Code R. § 8-62-26 Filing of rules

The board, upon adopting, amending, or repealing a rule approved by the superintendent, shall maintain a copy of the approved rule(s) with the assistant superintendent.

History

[Eff 6/11/2010] (Auth: HRS §§ 302A-1112, 76-14, 76-47) (Imp: HRS §§ 76-14, 76-47)

Haw. Code R. § 8-62-27 Effective date of rules

Each rule adopted, amended or repealed shall become effective ten days after approval by the board. If a later effective date is required by statute or specified in the rule, the later date shall be the effective date; provided that no rule shall specify an effective date in excess of thirty days after the approval by the board.

History

[Eff 6/11/2010] (Auth: HRS §§ 302A-1112, 76-14, 76-47) (Imp: HRS §§ 76-14, 76-47)

Haw. Code R. § 8-62-28 Availability of rules

The board shall, as soon as practicable, compile, index, print, or otherwise make available all rules adopted by the board and remaining in effect.

History

[Eff 6/11/2010] (Auth: HRS §§ 302A-1112, 76-14, 76-47) (Imp: HRS §§ 76-14, 76-47)

Subchapter 4 RULES APPLICABLE TO DECLARATORY RULINGS

Haw. Code R. § 8-62-29 Petitions for declaratory rulings

(a) On petition of an interested person or agency, the board may issue a declaratory order as to the applicability of any rule or order of the board. Questions concerning the interpretation of any of chapter 76, Hawaii Revised Statutes, may be submitted to the attorney general for review.

(b) The petition shall be prepared in a manner prescribed by the board. The original and five copies thereof shall be filed with the board. The petition shall conform to the requirements prescribed by board rules and shall contain the name, address, and telephone number of each petitioner; the signature of each petitioner; a designation of the specific rule or order in question, together with a statement of the controversy or uncertainty involved; a statement of the petitioner's interest in the subject matter, including the reasons for submitting a petition; a statement of the petitioner's position or contention; and a memorandum of authorities, containing a full discussion of reasons and legal authorities, in support of the position or contention.

(c) Within sixty days after the submission of a petition for declaratory ruling, the board shall either deny the petition in writing, stating the reasons for the denial, or issue a declaratory order concerning the matters contained in the petition, or set the matter for hearing; provided that if the matter is set for hearing, the board shall render its findings and decision within sixty days after the close of the hearing.

(d) The board may, without notice or hearing, dismiss a petition for declaratory ruling that fails in material respect to comply with the requirements of this section or for other reasons as determined by the board.

(e) Any party may intervene subject to the provisions of section 8-62-24 insofar as they are applicable.

History

[Eff 6/11/2010] (Auth: HRS §§ 302A-1112, 76-14, 76-47) (Imp: HRS §§ 76-14, 76-47)

Haw. Code R. § 8-62-30 Request for hearing

In the usual course of the disposition of a petition for a declaratory ruling, no formal hearing will be granted to the petitioner or to a party. The board may, however, in its discretion, order a proceeding set for hearing. Any petitioner or party in interest requesting a hearing on a petition for a declaratory ruling shall set forth in detail the reasons why the matters alleged in the petition, together with supporting affidavits or other written evidence and briefs or memorandum of legal authorities, will not permit the fair and expeditious disposition of the petition and, to the extent that the request for a hearing is dependent upon factual assertion, shall accompany the request by affidavit or declaration establishing facts in accordance with these rules.

History

[Eff 6/11/2010] (Auth: HRS §§ 302A-1112, 76-14, 76-47) (Imp: HRS §§ 76-14, 76-47)

Haw. Code R. § 8-62-31 Applicability of order

An order disposing of a petition shall apply only to the factual situation described in the petition of set forth in the order.

History

[Eff 6/11/2010] (Auth: HRS §§ 302A-1112, 76-14, 76-47) (Imp: HRS §§ 76-14, 76-47)

Haw. Code R. § 8-62-32 Refusal to issue declaratory order

The board, for good cause, may deny a request for a declaratory order with specific reasons for its decision. The board may refuse for reasons including but not limited to the following:

(1) The question is speculative or purely hypothetical and does not involve existing facts or facts that can be expected to exist in the near future;

(2) The petitioner's interest is not of the type that would give the petitioner standing to maintain an action if the petitioner were to seek judicial relief;

(3) The issuance of the declaratory order may affect the interests of the board in litigation that is pending or may reasonably be expected to arise; or

(4) The matter is not within the jurisdiction of the board.

History

[Eff 6/11/2010] (Auth: HRS §§ 302A-1112, 76-14, 76-47) (Imp: HRS §§ 76-14, 76-47)

Subchapter 5 RULES APPLICABLE TO APPEALS

Haw. Code R. § 8-62-33 Standing to appeal

(a) Only persons who have exhausted the internal complaint procedures and whose appeal is not barred by other provisions of these rules shall have standing to file an appeal with the board.

(b) The board shall decide appeals from any action taken by the superintendent, the assistant superintendent, an appointing authority, or a designee acting on behalf of one of these individuals, relating to:

(1) Recruitment and examination for civil service positions, including non-selection or failure to complete the initial probationary period;

(2) Classification and reclassification of a civil service position, including denial or loss of promotional opportunity or demotion due to reclassification of positions in a reorganization;

(3) Initial pricing of a new class. A civil service incumbent of a position in a new class as of the effective date of the initial pricing action may file an appeal if the employee has suffered a legal wrong by that action; and

(4) Other employment actions, including disciplinary actions and adverse employment actions for failure to meet performance requirements, taken against civil service employees who are excluded from collective bargaining coverage under section 89-6, Hawaii Revised Statutes.

(c) Any person alleging adverse action related to employment under subsection (b)(1) or aggrieved by such action shall be entitled to appeal to the board.

(d) Any employee covered by chapter 76, Hawaii Revised Statutes, alleging adverse action related to employment under subsection (b)(2) or (3) shall be entitled to appeal to the board.

(e) Employees covered by chapter 76, Hawaii Revised Statutes, who are excluded from collective bargaining, alleging adverse action related to employment under subsection (b)(4) shall be entitled to appeal to the board. Appeals under this section shall be filed within time limits and in the manner provided by the rules of the board.

History

[Eff 6/11/2010] (Auth: HRS §§ 302A-1112, 76-14, 76-47) (Imp: HRS §§ 76-14, 76-47)

Haw. Code R. § 8-62-34 Filing of appeal

(a) Time. Any person who has standing to appeal shall file a petition of appeal to the board within twenty working days from the date of the written notice of the assistant superintendent, appointing authority, or designee. If a person files the petition by postal service, it must be postmarked by midnight on the twentieth working day of the filing period. The petition of appeal shall be filed with the merit appeals board at 1390 Miller Street, c/o Assistant Superintendent, Office of Human Resources, Queen Liliuokalani Building, Honolulu, Hawaii 96813, between the hours of 7:45 a.m. to 4:30 p.m. of each workday, excluding state holidays. The date notice of the action is sent shall be construed as:

(1) The date the assistant superintendent or appointing authority mails the notice to the person's last known address; or

(2) The date the notice is hand delivered or sent by facsimile to the person.

All petitions submitted to the board beyond the twenty working day period shall be deemed untimely and shall not be considered unless an extension is granted by the board on or before the twentieth working day.

(b) Form. The form of the petition of appeal shall conform to the requirements of the board for the filing of documents.

(1) The name and signature of each petitioner;

(2) The address and telephone number of each petitioner or the designated representative for a petition having four or more petitioners;

(3) A concise statement of relevant facts for each issue and a description of how these facts support the appeal specifying how and in what manner the particular rule, regulation, statute, or policy is claimed to have been violated by the superintendent, assistant superintendent, or appointing authority;

(4) A statement of the issues involved in the appeal and the remedy sought, including the rationale and the legal basis, as appropriate, for the remedy;

(5) Initial pricing appeals shall contain information provided in paragraphs (1), (2), (3), and (4), and be subject to the additional requirements:

(A) Initial pricing appeals shall be limited to a single class and be based on conditions existing at the time of the dated position description on which the new class and the initial pricing action was taken.

(B) All other materials intended to support the pricing appeal issues shall be submitted with the proper number of copies and within fourteen days after submission of the pricing appeal.

(C) Amended pricing appeals which are submitted within the period prescribed herein shall be effective as of the date of the original filing.

History

[Eff 6/11/2010] (Auth: HRS §§ 302A-1112, 76-14, 76-47) (Imp: HRS §§ 76-14, 76-47)

Haw. Code R. § 8-62-35 Notice

All parties shall be given written notice of the hearing by registered or certified mail with return receipt requested at least fifteen days before the hearing. If service by registered or certified mail is not made because of the refusal to accept service or the board or its agents have been unable to ascertain the address of the party after reasonable and diligent inquiry, the notice of hearing may be given to the party by publication at least once in each of two successive weeks in a newspaper of general circulation. The last published notice shall appear at least fifteen days prior to the date of the hearing.

History

[Eff 6/11/2010] (Auth: HRS §§ 302A-1112, 76-14, 76-47) (Imp: HRS §§ 76-14, 76-47)

Haw. Code R. § 8-62-36 Appeal hearing

(a) The board shall, upon receipt of an appeal, order the matter set for hearing. In any appeal, all parties shall be afforded an opportunity for a hearing after reasonable notice. Opportunities shall be afforded all parties to present evidence and support their position on all issues involved. Any procedure may be modified or waived by stipulation of the parties and informal disposition may be made of any appeal by stipulation of the parties and informal disposition may be made of any appeal by stipulation, agreement, consent order, or default.

(b) The hearing shall be held at the time and place set forth in the notice of hearing, but may, at the time and place, be continued from day to day, to a later day, or to a different place without notice other than the announcement thereof by the presiding officer at the hearing.

(d) When a proceeding is conducted before the board itself, the proceeding shall be presided over the chairperson of the board, or, in the chairperson's absence, by another member designated by the board.

(e) The presiding officer at a proceeding shall have authority to control the course of the hearing; to hold conferences on which the parties have had notice, for settling or simplifying issues; to administer oaths and affirmations; to grant application for and issue subpoenas; to take or cause depositions to be taken; to rule upon offers of proof and receive relevant evidence; to limit lines of questioning or testimony that are irrelevant, immaterial or repetitious; to rule upon all objections, procedural requests and motions that do not involve the final determination of proceedings; to dispose of any other matter that normally and properly arises in the course of the proceeding; and to take all other actions authorized by chapter 76, Hawaii Revised Statutes, rules of the board, or by any other statute, that are deemed necessary to the orderly and just conduct of the hearing.

(f) No member of the board, or its appointee who has any pecuniary interest in any matter or business involved in the proceeding; who is related within the second degree by blood or marriage to any party to the proceeding; who has participated in an investigation preceding the institution of the proceeding or in a determination that it should be instituted or in the development of the evidence to be introduced therein; or where the circumstances fairly give rise to an appearance of impropriety and reasonably cast suspicion on the person's impartiality shall be assigned to serve in any proceeding.

(g) The record of the hearing shall be compiled. The board shall make provisions for recording testimony, but need not transcribe the record unless requested for purposes of rehearing or court review. A copy of the record of a hearing or any part thereof may be obtained as provided under board rules.

(h) Subpoenas requiring the attendance of witnesses or the production of documentary evidence from within the State may be compelled at any designated place of a hearing as may be issued by the presiding officer, any designated member of the board, or its appointee. Application for subpoenas shall be made in writing to the board. The application shall specify the particular documents or data desired and shall show their relevancy to the issues involved. Applications shall be made at least ten days prior to the hearing. If the application is made at a later time, the board or its appointees may, in its discretion, issue subpoenas or continue the hearing or any part thereof or both. Enforcement of obedience to subpoenas issued and served pursuant to these rules shall be effected by written application of any member of the board to any circuit court judge.

(i) Witnesses summoned shall be paid the same fees and mileage as are paid witnesses in circuit courts of the State and the fees and mileage shall be paid by the party at whose instance the witnesses appear. Fees for the depositions shall be paid by the party at whose instance the depositions are taken. Witnesses shall be placed under oath or affirmation prior to testifying.

(j) At the commencement of the hearing, the presiding officer shall read the notice of hearing and shall then outline briefly the procedure to be followed.

(k) All parties shall be given reasonable opportunity to offer testimony with respect to the matters relevant to the proceeding. All witnesses, before proceeding to testify, shall state their name, address, and whom they represent at the hearing and shall give such information respecting their appearance relevant to the proceedings as the presiding officer may request. The presiding officer shall confine the testimony to the matters for which the hearing has been called, but need not apply the technical rules of evidence except as required by statute. Each witness shall be subject to questioning by members of the board and its appointees. Each witness shall also be subject to cross-examination by the adverse party. Each party shall have the right to submit rebuttal evidence and rebuttal arguments.

(l) The presiding officer shall take notice of judicially recognizable facts and may take notice of generally recognizable technical or scientific facts within the board's or its appointee's specialized knowledge when parties are given notice either before or during the hearing of the material so noticed and are afforded the opportunity to contest those facts.

(m) At the hearing, the presiding officer may require the production of further evidence upon any issue.

(n) After all the evidence has been presented, the presiding officer shall give the parties an opportunity to summarize their respective positions. Within a reasonable time after such final arguments have been completed and all requested memoranda submitted, the presiding officer shall bring the matter to a close.

(o) The board or its appointee shall permit parties to file proposed findings and conclusions of law, together with the reasons thereof at the close of the hearing or within the time specified by the board or its appointee. The proposal shall be in writing and shall contain reference to the record and to the authorities relied upon. Copies thereof shall be furnished to all parties.

(p) Board action on appeals shall be as follows:

(1) For actions taken by the superintendent, assistant superintendent, or appointing authority based on failure to meet performance requirements, the board shall determine whether the conditions listed in section 76-41(b), Hawaii Revised Statutes, were met when determining whether or not the action is with or without merit.

(2) If reasons for the action by the superintendent, assistant superintendent or appointing authority are not substantiated in any material respect, the board shall order that the employee be reinstated in the employee's position, without loss in pay.

(3) If the reasons are substantiated or are only partially substantiated, the board shall sustain the action of the superintendent, assistant superintendent, or appointing authority; provided that the board may modify the action of the superintendent, assistant superintendent, or appointing authority if it finds the circumstances of the case so require and may order the disposition of the case it deems just provided that the disposition is consistent with laws, rules, and policies.

(q) In conducting its business and rendering its decision, the board shall serve as an appellate body and shall not impinge on the authority of the superintendent in matters of policy, methodology, and administration. All decisions and orders of the board shall be made in accordance with personnel rules, policies, and practices.

Every decision and order adverse to a party to the proceeding, rendered by the board, shall be in writing or stated in the record and shall be accompanied by separate findings of fact and conclusions of law. If any party to the proceeding has filed proposed findings of fact, the board shall incorporate in its decision a ruling upon each proposed finding presented. The findings and decisions of the board shall be final on all appeals, unless an appeal is taken to the circuit court pursuant to section 76-47, Hawaii Revised Statutes.

(r) In its actions on classification related appeals, the board shall not consider in its deliberation the classes in other jurisdictions or the classification of positions in other jurisdictions.

(s) The board shall, as soon as practicable and unless otherwise stipulated by the parties, not later than sixty days after the close of the hearing, notify the parties to the proceeding of the decision and order. Parties to the proceeding shall be notified in accordance with board rules.

(t) The charging party, in asserting an improper action or violation of the statute(s) or rule(s), shall have the burden of proving the allegations by a preponderance of the evidence.

(u) Unauthorized ex parte communications are defined as private communications or arguments with members of the board or the presiding officer as to the merits of a proceeding with a view towards influencing the outcome of the case, except that the following ex parte communications shall not be prohibited:

(1) Those which relate solely to matters which a board member or the hearings officer is authorized by the board to dispose of on an ex parte basis;

(2) Requests for information with respect to the status of a proceeding;

(3) Those which all parties to the proceeding agree or which the board has formally ruled may be made on an ex parte basis;

(4) Those with representatives of any news media on matters of public information.

(v) If the appellant or the appellant's representative fails to appear before the board as scheduled and notified, the appeal shall be dismissed with prejudice, and the appellant shall not be permitted to request another hearing.

(w) The following additional requirements shall apply to the board and its functions relating to the receiving and processing of initial pricing appeals:

(1) After the hearing, the board shall review the facts presented, deliberate and render a decision which shall conform with the policies, standards, and guidelines governing initial pricing promulgated by the superintendent. The board shall not consider in its deliberations, the pricing of classes in other bargaining units.

(2) Decisions on initial pricing appeals shall be limited to the appropriate pay grade of the class and may not require a change in bargaining unit for full implementation.

(3) All decisions of the board resulting in a higher pay grade assignment shall be retroactive to the date of the initial pricing action of the superintendent.

(4) If the evidence submitted indicates significant changes have occurred in the work of the position, the board shall remand the case to the superintendent for a classification review.

(5) The person filing the appeal has the burden of proof.

(6) Substantial weight shall be given to the technical determination of the superintendent in pricing the new class.

(x) In its action on appeals filed under section 8-62-33(b)(1),(2), and (3), the board shall generally confine itself to the issue of whether legal requirements were met, rules were properly applied, and appropriate procedures were followed. In the event the board finds that these requirements were not met or appropriate procedures were not followed, the board shall remand the case to the superintendent and require that the process and action be redone in accordance with applicable requirements and procedures.

History

[Eff 6/11/2010] (Auth: HRS §§ 302A-1112, 76-14, 76-47) (Imp: HRS § 76-47)

Haw. Code R. § 8-62-37 Enforcement of order

If any party fails or neglects to obey an order of the board while the same is in effect the board may petition the circuit judge of the judicial circuit wherein such party resides or usually transacts business for the enforcement of the order and for appropriate temporary relief or restraining order, and shall certify the file in the court the record in the proceedings, including all documents and papers on file in the matter, the pleadings and testimony upon which the order was entered, and the decision and order of the board. Upon such filing the board shall cause notice thereof to be served upon the party by mailing a copy to the party's last known post office address, and thereupon the judge shall have jurisdiction in the premises.

History

[Eff 6/11/2010] (Auth: HRS §§ 76-47) (Imp: HRS §§ 76-47, 92-12)

Haw. Code R. § 8-62-38 Judicial review of contested cases

Any person aggrieved by a final decision and order in a contested case before the merit appeals board is entitled to judicial review. Proceedings for review shall be instituted in the circuit court within thirty days after service of the certificated copy of the final decision is made upon the parties.

History

[Eff 6/11/2010] (Auth: HRS §§ 76-47, 91-14) (Imp: HRS §§ 76-47, 91-14)

Chapter 63 CIVIL SERVICE RULES

Subchapter 1 GENERAL PROVISIONS

Haw. Code R. § 8-63-1 Purpose; statement of policy

The purpose of this chapter is to set forth the fundamental character of the system of personnel administration governed by these rules consistent with merit principles and the principles of equal employment opportunity within the department. Provisions of this chapter shall be construed as supplemental to, and in the context of, chapter 76, Hawaii Revised Statutes.

History

[Eff JUN 29 2012 ] (Auth: HRS §§ 302A-1112, 76-17) (Imp: HRS §§ 76-17, 76-1)

Haw. Code R. § 8-63-2 Applicability

(a) The rules in this chapter shall apply to all positions and employees in the civil service of the department. Unless a rule specifies otherwise, it shall not apply to positions and employees exempt from civil service.

(b) The department's civil service system includes all positions in the department except those positions that are exempted pursuant to section 76-16, Hawaii Revised Statutes, or specifically exempted therefrom by the assistant superintendent in accordance with statutory requirements.

History

[Eff JUN 29 2012] (Auth: HRS §§ 302A-1112, 76-17) (Imp: HRS §§ 76-12, 76-13)

Haw. Code R. § 8-63-3 Definitions

As used in this chapter, unless the context indicates otherwise:

"Administrative review" means a reevaluation of a recruitment, examination, classification, reclassification, or initial pricing action in accordance with the provisions set forth in these rules, and in such policies, standards, guidelines, or procedures established by the assistant superintendent.

"Appointing authority" means the superintendent or designees having the power to make appointments, make changes in the status of employees, and take other actions as provided in these rules.

"Assistant superintendent" means the head of the department's office of human resources who assumes the duties of the director as provided in chapter 76, Hawaii Revised Statutes.

"Board" means the board of education.

"Calendar day" or "day" means a period that begins at midnight, Hawaii Standard Time, and ends twenty-four hours later at midnight, Hawaii Standard Time.

"Certificate of eligibles" means the official document through which eligibles are referred for employment consideration.

"Certification" means the process whereby the names of qualified persons on the eligible lists are referred to the appointing authority.

"Civil service appointment" means an appointment to a civil service position from an appropriate eligible list.

"Civil service employee" means an employee who has met all requirements for membership in the civil service under section 76-27, Hawaii Revised Statutes.

"Civil service law" means chapter 76, Hawaii Revised Statutes, as amended. Unless the context of a specific rule or these definitions clearly indicate otherwise, all terms used in this chapter shall have the same meaning as in the civil service law, and references to the "law" shall be taken to mean the civil service law.

"Civil service position" means a position within the department that is not exempt from civil service law and must be filled through civil service recruitment procedures based on merit.

"Civil service recruitment procedure" means the procedure for the competitive process by which an applicant is deemed qualified for civil service appointment.

"Civil service system" means the personnel system based on merit principles as specified in section 76-1, Hawaii Revised Statutes.

"Class or class of work" means a group of positions that reflect sufficiently similar duties and responsibilities such that the same title and pay range may apply to each position allocated to the class.

"Class specification" means the official document, approved by the assistant superintendent, providing a formalized summary of the nature and scope of duties and responsibilities, level of difficulty and authority, and minimum qualification requirements of a class.

"Classification" means the process of establishing an occupational framework and grouping positions on the basis of the kind and level of work and knowledge, skills, abilities, and qualifications required for performance of the work.

"Compensation plan" means the pay plan consisting of the assignment of classes in the classification systems to ranges in the appropriate salary schedules.

"Compensatory time-off" means the number of hours that an employee is scheduled to be absent from work as mutually agreed to with the employee's appointing authority when such absence is credited as compensatory time-off and charged against the employee's compensatory time credit.

"Compensatory time credit" means the number of hours of credit which an employee earns for overtime work, determined on the basis of one and one-half hours for each hour of overtime work.

"Competitive examination" means an examination from which an eligible list is established. The competitive examination may be open to the public who qualify for admission.

"Critical-to-fill" means:

(1) Positions so vital to the organization's mission such that the work cannot be assigned or assumed by other positions, and the inability to fill would significantly and adversely affect the organization's ability to accomplish its goals and objectives; or

(2) Positions providing direct services that must be performed because the health, safety, and welfare of the general public are involved.

"Department" means the department of education.

"Discharge" means an action taken by the assistant superintendent or appointing authority dismissing an employee for just cause.

"Earned rating" means the rating attained as a result of a competitor's qualification or performance or both in examination without credit for the points added through veteran's preference.

"Eligible" means a person whose name is on an eligible list.

"Eligible list" means a list of persons who have qualified for appointment to positions in a particular class.

"Examination" means an assessment method used to evaluate the knowledge, skills, and abilities of applicants for employment.

"Exempt employee" means a person who is appointed to and occupies a position exempted pursuant to section 76-16, Hawaii Revised Statutes or other law.

"Exemptions from civil service" means those positions, persons in those positions, and personal services exempted from civil service pursuant to section 76-16, Hawaii Revised Statutes or other law.

"Initial allocation" means the action taken on a new position to place it in a specific class on the basis of its duties, responsibilities, and minimum qualification requirements.

"Initial pricing" means the determination of the appropriate pay range and pay relationships for a new class based on appropriate factors.

"Initial probationary period" means the probation period required of a person entering the department's civil service system. It is also the final test of the person's fitness and ability for the position before acquiring civil service membership.

"Internal departmental competitive examination" means a competitive examination restricted to departmental civil service members.

"Layoff" means the release of an employee due to lack of work, lack of funds, or other legitimate reasons.

"Minimum qualification" or "minimum qualification requirements" means the minimum education, experience, knowledge, skills, abilities, licensing, and other special requirements essential for performance in a class of work or position.

"New probationary period" means a probationary period served by a civil service member as part of the examination process to determine the employee's fitness and ability for the new position.

"Non-civil service appointment" means an appointment to a civil service position made without the use of an eligible list.

"Open competitive examination" means a competitive examination conducted by the department or designated appointing authority that is open to all qualified employees who are civil service members and qualified applicants from the general public.

"Open-competitive list" means a list of persons who have been found to be qualified by an open-competitive examination for appointment in a particular class or series.

"Pay differential" means any additional compensation, in addition to the basic rate of pay, including but not limited to overtime, stand-by duty, compression differentials, lump sum pay, bonuses, recruitment and other financial incentives, awards, and other temporary differentials.

"Pay range" means the group of salary rates from minimum to maximum to which a class may be assigned as set forth in the salary schedules. Pay ranges among the different salary schedules are considered to be higher or lower than, or the same as the others on the basis of the maximum salary rate. In a salary schedule with single rate pay ranges, the single rate is considered the maximum rate of the range.

"Permanent appointment" means an appointment without a limitation date to a permanent position that allows the employee to become a civil service member.

"Permanent position" means a position without time limitation.

"Position description" means an official written description, approved by the appointing authority, of the duties and responsibilities assigned to and required of a specific position.

"Pricing" means the process of assigning classes to pay ranges based on appropriate factors.

"Probationary period" means a specified period which serves as the final test of an employee's qualifications for the position.

"Rating" means the score or measure of performance of an applicant in an examination.

"Reallocation" means the movement of a position from one class to another class.

"Reallocation downward" means the reallocation of a position to a class assigned to a lower pay range in the same salary schedule.

"Reallocation upward" means the reallocation of a position to a class assigned to a higher pay range in the same salary schedule.

"Reclassification" means a change in the class to which a position is allocated based on a change in the classification system.

"Recruitment" means the process of locating applicants for employment.

"Related class" means a class which requires substantially similar knowledge, skills, and abilities as another class.

"Repricing" means the reassignment of classes from one pay range to another in the same salary schedule based on appropriate factors.

"Resignation" means an action by an employee severing the employee's employment relationship.

"Salary schedule" means a table of pay rates and ranges as established through collective bargaining, by executive order, or as otherwise authorized by law.

"Select priority list" means a list composed of a former employee of the department who was released under the conditions covered by section 386-142, Hawaii Revised Statutes.

"Selective certification" means the process of certification that is limited to those persons possessing distinctive or unique knowledge, skills, abilities, and other characteristics deemed critical to the successful performance of the work of a specific position.

"Series of classes" means classes similar as to subject matter of work, but differing in level of difficulty, responsibility, and qualifications required.

"Sick leave" means a leave of absence with pay as authorized by law, because of illness or injury.

"Suitability" means fitness for employment after consideration of such factors as physical and mental ability, character, criminal history record, and employment record.

"Superintendent" means the superintendent of the department who assumes the duties of chief executive as provided in chapter 76, Hawaii Revised Statutes.

"Temporary assignment" means the assignment by the assistant superintendent or an appointing authority and the assumption, without a formal change in position, of all or a major portion of the significant duties and responsibilities of another position.

"Temporary reallocation" means the reallocation of a position because of emergency, unusual, or unique work situations for a period not to exceed six months, provided that the period may be extended for good reason for additional six-month periods with the prior approval of the assistant superintendent.

"Vacation" means a leave of absence with pay as authorized by law, granted at the request of an employee for the purpose of rest and relaxation or for the personal convenience of the employee and calculated as required by law and this chapter.

"Voluntary demotion" means a demotion requested by an employee and approved by the assistant superintendent and the appointing authorities concerned.

"Week" means a period of seven consecutive calendar days, beginning on Sunday and ending seven days later on Saturday.

History

[Eff JUN 29 2012 ] (Auth: HRS §§ 302A-1112, 76-17) (Imp: HRS §§ 76-11, 76-17, 386-142)

Haw. Code R. § 8-63-4 General responsibilities of the assistant superintendent

The assistant superintendent shall direct and supervise all administrative and technical activities of the department. In addition to other duties imposed by the civil service law, the assistant superintendent shall assume the duties specified in section 76-13, Hawaii Revised Statutes, and is authorized to make the final determination whether or not a position is in the civil service system. The assistant superintendent shall develop and promulgate such policies, rules, standards, guidelines, and procedures as the assistant superintendent deems necessary including, but not limited to, those addressing the following areas:

(1) Classification and related systems to support sound utilization of human resources, recruitment of qualified personnel, and appropriate pay and pay relationships;

(2) A civil service merit-based recruitment and examination program;

(3) A performance appraisal system for the purpose of evaluating the performance of employees in civil service and improving employee performance, consistent with section 76-41, Hawaii Revised Statutes;

(4) An incentive and awards program for the purpose of recognizing employees who contribute to the efficiency, economy, or other improvement of exceptionally meritorious special acts or services in the public interest in connection with or related to their official employment consistent with the policies of the board;

(5) A compensation administration system that provides for the proper compensation of employees and adjustments as necessitated by personnel movements and employment actions;

(6) Personnel file management for the purpose of ensuring the proper retention, organization, and release of personnel records and materials; and

(7) Circumstances under which civil service positions may be excepted from the civil service classification system, or civil service recruitment system, or both.

History

[Eff JUN 29 2012 ] (Auth: HRS §§ 302A-1112, 76-17) (Imp: HRS §§ 76-13.5, 76-17)

Haw. Code R. § 8-63-5 General responsibilities of offices and complex area offices

The assistant superintendents of each office and the complex area superintendents of each complex area shall be responsible for personnel management within their respective office or complex area, and shall cooperate with the office of human resources in the administration of human resources matters.

History

[Eff JUN 29 2012 ] (Auth: HRS §§ 302A-1112, 76-17) (Imp: HRS § 76-5)

Haw. Code R. § 8-63-6 Delegation and decentralization of human resource services, and agreements on furnishing services and facilities

The assistant superintendent, whenever consistent with economic and efficient administration, may delegate the performance of human resource services to those in the department responsible for the planning, directing, and supervising the work of others. The delegation may be withdrawn at any time as determined by the assistant superintendent.

History

[Eff JUN 29 2012] (Auth: HRS §§ 302A-1112, 76-17) (Imp: HRS § 76-5)

Haw. Code R. § 8-63-7 Authority to investigate

The assistant superintendent shall conduct investigations to secure the enforcement of chapter 76, Hawaii Revised Statutes, and pertinent portions of law and the rules, regulations, guidelines, procedures, standards, and policies governing civil service system employment. This may include investigations into the qualifications and suitability of applicants for positions in the civil service system.

History

[Eff JUN 29 2012] (Auth: HRS §§ 302A-1112, 76-17) (Imp: HRS §§ 76-12, 76-13)

Haw. Code R. § 8-63-8 Enforcement authority of the assistant superintendent

Whenever the assistant superintendent finds:

(1) That any person has been appointed to, or is holding or performing the duties of a position in violation of any of the laws, rules, regulations, guidelines, procedures, standards, and policies administered by the assistant superintendent, the assistant superintendent is authorized, after giving due notice and opportunity for explanation, to certify the facts to the department with specific instructions for corrective action. Whenever the assistant superintendent issues specific instructions for corrective actions, the appointing authority concerned shall comply with the assistant superintendent's orders and make a report thereon to the assistant superintendent;

(2) That any employee has violated the laws, rules, regulations, guidelines, procedures, standards, and policies administered by the assistant superintendent, the assistant superintendent shall take action in accordance with law as may be appropriate to secure compliance.

History

[Eff JUN 29 2012 ] (Auth: HRS §§ 302A-1112, 76-17) (Imp: HRS §§ 76-12, 76-13)

Haw. Code R. § 8-63-9 Appointment through the civil service system

(a) The assistant superintendent shall be responsible for recruiting applicants for open-competitive and promotional examinations and for determining the relative knowledge, skills, abilities, and fitness of applicants.

(b) The assistant superintendent may establish standards in determining relative knowledge, skills, abilities, fitness, and other requirements that applicants must meet to be rated in examinations.

(d) A person selected through a civil service recruitment procedure for a permanent or temporary position shall be required to serve an initial probationary period, provided that when a temporary appointment is made, the duration of service for the temporary position exceeds the initial probationary period.

(e) Civil service membership will be acquired upon satisfactory completion of an initial probationary period.

(f) The assistant superintendent may determine the conditions for other types of appointments and may prescribe the methods for replacing persons holding these appointments.

(g) No person shall be appointed, promoted, transferred, or demoted in the civil service system until the person passes the examination prescribed by the assistant superintendent or unless specifically exempted.

History

[Eff JUN 29 2012 ] (Auth: HRS §§ 302A-1112, 76-17) (Imp: HRS § 76-13)

Haw. Code R. § 8-63-10 Discretion of appointing authority in filling civil service vacancies

An appointing authority may fill any vacancy in the civil service by appointment from a civil service eligible list, or any other means as provided for by this chapter or law.

History

[Eff JUN 29 2012 ] (Auth: HRS §§ 302A-1112, 76-17) (Imp: HRS § 76-13)

Subchapter 2 RECRUITMENT

Haw. Code R. § 8-63-14 Citizenship and residence

Applicants shall be citizens, nationals, permanent resident aliens of the United States, or eligible under federal law for unrestricted employment in the United States, and shall become residents of the State within thirty days after beginning their employment and as a condition of eligibility for continued employment.

History

[Eff JUN 29 2012] (Auth: HRS §§ 302A-1112, 76-17, 76-22.5) (Imp: HRS §§ 76-22.5, 78-1)

Haw. Code R. § 8-63-15 Announcement of recruitment and examination

As the needs of the department may require, the assistant superintendent may conduct a recruitment and examination announcement in the manner and for the period deemed reasonable and appropriate.

History

[Eff JUN 29 2012 ] (Auth: HRS §§ 302A-1112, 76-17, 76-22.5) (Imp: HRS §§ 76-13, 76-22.5)

Haw. Code R. § 8-63-16 Acceptance of applications

(a) Application for examination and employment shall be made on the application form and with such supplemental information as prescribed by the assistant superintendent.

(b) The assistant superintendent or authorized designee may determine the number of applications to accept and evaluate based on need.

(c) Applications shall be accepted only during the period specified in the examination announcement. Late applications for competitive examinations may be accepted for good reason as determined by the assistant superintendent or designated appointing authority.

(d) Applications submitted to the department shall constitute official examination records. Applications and accompanying supporting documents shall become the property of the department.

History

[Eff JUN 29 2012 ] (Auth: HRS §§ 302A-1112, 76-17, 76-22.5) (Imp: HRS §§ 76-12, 76-13, 76-22.5)

Haw. Code R. § 8-63-17 Cancellation of recruitment and examination announcements

(a) If there is no need for eligibles after a recruitment and examination announcement has been published or if other circumstances warrant it, the announcement may be canceled.

(b) All applicants shall be notified of the cancellation.

History

[Eff JUN 29 2012 ] (Auth: HRS §§ 302A-1112, 76-17, 76-22.5) (Imp: HRS §§ 76-12, 76-13, 76-22.5)

Haw. Code R. § 8-63-18 Recruitment incentives

(a) To enhance the recruitment of persons employed or appointed to critical-to-fill or labor shortage positions, appointing authorities, with the prior approval of the assistant superintendent, may do both or one of the following:

(1) Compensate applicants for all or a portion of travel and transportation expenses; or

(2) Provide a monetary incentive in the form of a pay differential, as pre-determined and approved by the assistant superintendent.

(b) Recruitment incentives must be consistent with the merit principle and organizational and operational goals and objectives.

(d) The assistant superintendent may, for good reason, terminate incentives at any time.

History

[Eff JUN 28 2012 ] (Auth: HRS §§ 302A-1112, 76-17, 76-23.5) (Imp: HRS §§ 76-13, 76-23.5)

Subchapter 3 EXAMINATION

Haw. Code R. § 8-63-21 Scope and character of examinations

(a) The assistant superintendent may consult with qualified persons in regard to the content of tests, rating of applicants, or related test matters.

(b) Each examination shall relate to those matters which will evaluate the applicants' knowledge, skills, and abilities required to perform the duties of the class or position for which the examination is conducted.

(c) Any accepted personnel examining technique may be used, including a verification and evaluation of education, training, and experience; tests of knowledge, skill, ability, or aptitude; medical examinations, including pre-employment drug testing; appraisals of personal suitability including factors such as employment history and references; employee background checks; and any other matter that the assistant superintendent determines appropriate.

History

[Eff JUN 29 2012 ] (Auth: HRS §§ 302A-1112, 76-17, 76-18) (Imp: HRS §§ 76-12, 76-13, 76-15, 76-18, 78-2.6)

Haw. Code R. § 8-63-22 Disqualification of applicants

(a) The assistant superintendent may, for good reason, reject any application, disqualify an applicant for any period of time, or deny or rescind the certification of eligibility. This includes, but is not limited to, denying an applicant authorization to take an examination or denying or rescinding the certification of eligibility for any of the following reasons:

(1) Failure to meet the minimum qualification requirements or other public employment requirements for admission to the examination by the closing date for receipt of applications;

(2) Submission of a defective or an incomplete application;

(3) Refusal or failure to furnish documents required to verify any statements made in the application;

(4) Deception, fraud, or false statements in the application, examination, or appointment process;

(5) Failure to meet medical requirements to perform the essential job functions of the class or position;

(6) Illegal use of drugs;

(7) Conviction of any controlled substance-related offense during the three-year period immediately preceding the date of the application for employment;

(8) Conviction of a criminal offense which affects the applicant's suitability to properly perform the duties and responsibilities of the class or position;

(9) A record of misconduct which is detrimental to the proper performance of the duties and responsibilities of the class or position; or

(10) Conviction of any act, attempt, or conspiracy to overthrow the State or the federal government by force or violence.

(b) The assistant superintendent may conduct investigations to determine an applicant's qualifications and suitability for civil service employment. If the investigation discloses that the person is ineligible for the position, the assistant superintendent shall take appropriate corrective action, which may include denying authorization to take the examination, removing the person's name from the list of eligibles, rescinding the certification of eligibility, barring an applicant from civil service employment for a specific period of time, or any combination thereof.

(c) The assistant superintendent shall notify any applicant whose application is rejected, specifying the reasons for the rejection.

(d) An applicant may request an administrative review of an examination rating in accordance with section 8-63-75. A request for administrative review shall not delay, prevent, or invalidate the certification of names from the eligible list nor the appointment of a person from the list.

History

[Eff JUN 29 2012 ] (Auth: HRS §§ 302A-1112, 76-17, 76-18, 76-29, 78-2.6) (Imp: HRS §§ 76-12, 76-13, 76-18, 78-2.6, 831-3.1)

Haw. Code R. § 8-63-23 Conduct of examinations

(a) Examinations shall be held at the times, places and in the manner that, in the judgment of the assistant superintendent, are most practical and meet the needs of the department.

(b) Qualified applicants shall be notified of the date, time, and place of the examination. The department shall not be responsible if a notice is lost in the mail or sent to an applicant's former address through failure of the applicant to inform the department of a change of address.

(c) No applicant shall be entitled to take an examination at a date, time, or place other than stated in the notification except as the assistant superintendent may authorize.

(d) All reasonable precautions shall be taken to protect the confidentiality of information about applicants.

(e) All applicants for examinations involving physical ability or performance tests may be required to sign a waiver of liability.

History

[Eff JUN 29 2012 ] (Auth: HRS §§ 302A-1112, 76-17, 76-18) (Imp: HRS §§ 76-12, 76-13, 76-18)

Haw. Code R. § 8-63-24 Rating of examinations

(a) Appropriate testing techniques and procedures shall be used in rating examinations and determining the relative ranking of applicants. The final earned rating required to pass an examination shall be set by the assistant superintendent. The assistant superintendent may set minimum ratings for each part of an examination. Applicants may be required to obtain at least the minimum rating in each part of the examination to be rated on the remaining parts. The final earned rating of each applicant shall be determined by combining the earned ratings of each part of the examination in accordance with the weights established.

(b) Eligibles shall be placed on open-competitive lists in order of their final earned ratings, which includes any creditable veteran's preference points, and on promotional lists in the order of final earned ratings. Veteran's preference points shall be awarded for the periods and conditions authorized by law to applicants who qualify with at least the minimum passing rating for each part of the examination.

(c) Based on factors determined by the assistant superintendent, applicants may be notified only as to whether or not they qualified to be on the eligible list.

History

[Eff JUN 29 2012 ] (Auth: HRS §§ 302A-1112, 76-17, 76-18, 76-103) (Imp: HRS §§ 76-12, 76-13, 76-18, 76-103)

Haw. Code R. § 8-63-25 Notification of results of examination

(a) Applicants who participate in an examination shall be given written notice of their test results.

(b) The filing of an appeal by an applicant on any part of an examination shall not delay, prevent or invalidate the certification of names from the eligible list nor the appointment of a person from the list.

History

[Eff JUN 29 2012 ] (Auth: HRS §§ 302A-1112, 76-17, 76-18) (Imp: HRS §§ 76-12, 76-13, 76-18)

Haw. Code R. § 8-63-26 Changes in rating

(a) Changes in rating may be made as a result of the discovery of errors in the rating, or as a result of an administrative review.

(b) Rating errors and changes as a result of administrative review may be corrected throughout the life of the eligible list.

(d) Changes in rating shall not affect a certification already issued or invalidate an appointment already made from the eligible list, except that the appointment shall be voided when a person is found within the probationary period to have failed the examination.

History

[Eff JUN 29 2012 ] (Auth: HRS §§ 302A-1112, 76-17, 76-18) (Imp: HRS §§ 76-12, 76-13, 76-18)

Haw. Code R. § 8-63-27 Custody and protection of materials

(a) To protect the confidentiality of examination questions, review of test materials prepared by the department or obtained from other governmental jurisdictions or private firms shall not be permitted.

(b) Technical and examination materials used in preparation and ratings of examinations and supporting documents shall remain the property of the department.

(c) All examination material relating to a particular applicant or applicants including but not limited to reports of character and material regarding personal suitability of the applicant shall be considered confidential information.

(d) Appointing authorities or their authorized representatives may inspect the examination papers of eligibles whose names have been certified to them for appointment. To preserve the confidential character and sources of information and to protect against dissemination of unfounded or unproved allegations, reports of character, personal suitability and other confidential information shall be secured and held in strict confidence and will not be made available for review by the appointing authorities unless specifically authorized by the assistant superintendent. Appointing authorities and their representatives shall not disclose the examination materials or their contents to any person.

History

[Eff JUN 29 2012 1 (Auth: HRS §§ 302A-1112, 76-17, 76-18) (Imp: HRS §§ 76-12, 76-13, 76-18)

Haw. Code R. § 8-63-28 Records and reports of examinations

An examination record shall be maintained in accordance with the department of accounting and general services guidelines. The assistant superintendent shall determine the contents of the examination record.

History

[Eff JUN 29 2012] (Auth: HRS §§ 302A-1112, 76-17, 76-18) (Imp: HRS §§ 76-12, 76-13, 76-18)

Subchapter 4 CERTIFICATION

Haw. Code R. § 8-63-31 Duration of eligibility

(a) An eligible on an open or promotional competitive eligible list shall have eligibility for employment consideration for no less than six months from the date the list is established or until the list is canceled or terminated. The eligibility period may be extended at the discretion of the assistant superintendent.

(b) A person on a select priority list shall be eligible for employment consideration until the person secures new employment. An employee who had a temporary appointment without return rights to a permanent position shall be eligible for select priority employment only to the end date of the temporary appointment.

History

[Eff JUN 29 2012] (Auth: HRS §§ 302A-1112, 76-17) (Imp: HRS §§ 76-12, 76-13, 76-17, 386-142)

Haw. Code R. § 8-63-32 Certification of eligibles

(a) Upon receipt of a request for a list of eligibles, the assistant superintendent shall certify names from available lists of eligibles for each vacancy. The order of eligible lists to be used for certification shall be as follows:

(1) Select priority list;

(2) Intra-departmental promotional list;

(3) Recall list; and

(4) Open-competitive list. An eligible on an open-competitive list shall be certified on the basis of the eligible's examination ratings and availability for work location and duration of employment.

(b) Unless the select priority list is used, a certification of eligibles for each vacancy in a department shall consist of a number of eligibles as requested by the appointing authority who are available for the same or related class in the order in accordance with the procedures established by the assistant superintendent. The assistant superintendent may also authorize certification under the following conditions:

(1) An eligible whose name is restored to a list after termination of initial probation, may be excepted from certification to the office from which the person was terminated;

(2) A certification of eligibles shall be effective for thirty calendar days after the date of certification, and may be extended by the assistant superintendent.

(c) Veterans whose examination scores, after addition of applicable preference points, equal or exceed the examination score of the last eligible to be referred based on examination score, shall also be certified. In addition, when the last eligible to be referred based on examination score is one of two or more eligibles who have identical examination scores, the two or more eligibles shall also be certified.

History

[Eff JUN 29 2012 ] (Auth: HRS §§ 302A-1112, 76-17) (Imp: HRS §§ 76-12, 76-13, 78-1, 386-142)

Haw. Code R. § 8-63-33 Selective certification

When there is no list of eligibles appropriate for certification for filling a particular position requiring distinctive or unique qualifications, the assistant superintendent may certify selectively the names of eligibles who are qualified for the particular position. The certification may be in the order of the eligible's current ranking, or of a new ranking as determined by the assistant superintendent, based upon the particular requirements of the position.

History

[Eff JUN 29 2012 ] (Auth: HRS §§ 302A-1112, 76-17) (Imp: HRS §§ 76-12, 76-13)

Haw. Code R. § 8-63-34 Selection by the appointing authority

(a) The appointing authority may interview as many eligibles certified from an open-competitive eligible list as deemed necessary to fill the vacant position based on job related requirements and program needs. All eligibles who possess the job related requirements must be given the opportunity for an interview.

(b) The appointing authority shall interview all interested and available eligibles certified from the intra-departmental promotional list. The requirement to interview an eligible may be waived whenever the appointing authority has interviewed and fully assessed the eligible's qualifications for a similar position from another interview conducted during the previous six months.

History

[Eff JUN 29 2012 ] (Auth: HRS §§ 302A-1112, 76-17, 76-18) (Imp: HRS §§ 76-12, 76-13, 76-18)

Haw. Code R. § 8-63-35 Suspension, restoration, and removal of names from eligible list

(a) The assistant superintendent may suspend an eligible from certification for any of the following reasons:

(1) Applicant fails to demonstrate interest or availability for employment;

(2) Failure to reply to a written inquiry relating to availability;

(3) Failure to meet physical or medical requirements for the position;

(4) Further investigation of the eligible's suitability needs to be conducted;

(5) Eligible is unavailable for employment;

(6) The eligible is appointed to a temporary position from an eligible list. The suspension shall apply to other temporary vacancies only; or

(7) There is other good reason as determined by the assistant superintendent.

(b) The following eligibles may, upon request, have their names restored to the list of certifiable eligibles if the eligible list is still active:

(1) A probationary employee who was terminated without delinquency or misconduct;

(2) An eligible who is currently available for employment; or

(3) An eligible who has been suspended because of correctable physical reasons and who currently meets'physical standards.

(c) The assistant superintendent may remove an eligible from the eligible list for good reason, including but not limited to:

(1) The eligible was selected from the eligible list, or a related list at the same pay range, and is serving on initial or new probationary appointment;

(2) The person is found to be ineligible for appointment;

(3) Withdrawal by the eligible;

(4) The eligible or applicant fails to demonstrate interest or availability for employment;

(5) Failure to report for duty within the time prescribed by the appointing authority and good reason is not shown;

(6) Failure to report for or complete medical examination process and good reason is not shown;

(7) Failure to appear for or complete a required drug screening test and good reason is not shown; or

(8) Eligible is determined to be an illegal user of drugs.

History

[Eff JUN 29 2012 ] (Auth: HRS §§ 302A-1112, 76-17) (Imp: HRS §§ 76-12, 76-13)

Haw. Code R. § 8-63-36 Cancellation of eligible lists

(a) The assistant superintendent may cancel an eligible list for good reason including but not limited to the following reasons:

(1) Changes in the minimum qualification or classification standards of a class of positions;

(2) Abolishment of the class for which the list of eligibles was established; or

(3) All eligibles are unavailable for employment.

(b) Applicants affected by the cancellation of the eligible list shall be notified.

History

[Eff JUN 29 2012] (Auth: HRS §§ 302A-1112, 76-17) (Imp: HRS §§ 76-12, 76-13)

Subchapter 5 TYPES OF APPOINTMENT

Haw. Code R. § 8-63-39 Civil service appointment

(a) An employee is granted a civil service appointment when the appointment is as a result of civil service recruitment procedures.

(b) A civil service appointment may be made to a temporary or permanent position in the civil service or permanent civil service position being filled on a temporary basis.

(c) The appointing authority shall inform all applicants referred under civil service recruitment procedures if the appointment has a limitation date.

(d) An applicant who receives a civil service appointment does not become a member of the civil service until completing a probationary period and otherwise meeting the requirements of this chapter, section 76-27, Hawaii Revised Statutes, and guidelines and procedures issued by the assistant superintendent.

History

[Eff JUN 29 2012] (Auth: HRS §§ 302A-1112, 76-17) (Imp: HRS §§ 76-12, 76- 13, 76-27)

Haw. Code R. § 8-63-40 Probationary appointment

(a) All vacancies and new positions in the civil service shall be filled by probationary appointments, except as provided by these rules. The probationary period shall be utilized as part of the examination process to determine the fitness and ability of the employee for employment in the position and civil service. An employee must meet the performance requirements of the position in order to successfully complete the probationary period.

(b) An initial probationary period shall be required when a person who does not have regular status or membership in civil service is appointed to a permanent civil service position, except as provided by these rules.

(1) Is promoted to a permanent position;

(2) Is transferred to a permanent position in another class;

(3) Receives a voluntary demotion to a permanent position which is not in the same series; or

(4) Is in a position which is reallocated to a class in a higher pay range.

(d) The appointing authority has the discretion to require a new probationary period where not required under subsection (c) above.

(e) Initial and new probationary periods shall be for a period of six months. However, this provision may be modified and the assistant superintendent may establish a longer initial probationary period for a class of work when a longer period is needed to adequately train and evaluate the employee. The assistant superintendent shall identify these classes and the duration of the probationary period in guidelines.

(f) The appointing authority may extend the probationary period upon written notification to the employee and the assistant superintendent prior to the expiration of the probationary period. Failure to inform the employee in writing of the extension shall result in the employee being granted a permanent appointment by default. The appointing authority may extend the probationary period for any of the following reasons:

(1) Further evaluation of the employee's ability to successfully perform the duties of the position is required. The extension shall not exceed six months or as deemed appropriate by the assistant superintendent;

(2) The employee's absence affects the appointing authority's ability to evaluate the employee's performance. The duration of the adjustment shall .not exceed the period of absence or combined periods of absences;

(3) A final determination of the employee's suitability for employment has not been made provided the extension shall not exceed six months; or

(4) The appointment may be affected due to a pending appeal against the selection. Upon resolution of such appeal, the appointing authority shall notify the assistant superintendent who will take appropriate action.

(g) Crediting of service as part of the employee's probationary period may be allowed under the circumstances below:

(1) Service in a temporary position or a permanent position temporarily vacant or any part of service in a temporarily reallocated position may be credited as part of the employee's probationary period should changes subsequent to the initial date of the temporary reallocation warrant the granting of a probationary appointment in the same class;

(2) Any part of an initial probationary period served in a position, prior to being transferred to a different position in the same class, may be credited as part of the employee's initial probationary period; or

(3) A probationary period is not required when an employee filling a permanent position temporarily vacant will be given a permanent appointment to the position if it later develops that the vacancy will be permanent and the employee was appointed through a civil service recruitment procedure to this vacancy. The employee must have been performing the duties of the position in a satisfactory manner for at least six months and the appointing authority certifies that the period of temporary service immediately preceded the new appointment and that the employee's duties are essentially similar to the duties to be performed for the initial probationary period for the same or related position.

(h) A member's new probationary period may be terminated and the employee shall be permitted to return to the former position or another position in the former class in the department where the employee last held a permanent appointment and shall be restored as though the employee had remained in the position continuously. For compensation purposes such a release shall be considered a termination of the promotion.

History

[Eff JUN 29 2012] (Auth: HRS §§ 302A-1112, 76-17) (Imp: HRS §§ 76-12, 76-13)

Haw. Code R. § 8-63-41 Non-civil service appointments

(a) The appointing authority may make an appointment of not more than eighty-nine consecutive calendar days or of less than twenty hours a week for thirty-seven consecutive weeks without regard to the minimum qualification requirements of the position or a non-civil service temporary appointment outside the list in order to meet immediate operational needs provided that:

(1) The employee chosen for such an appointment must meet the public employment requirements under section 78-1, Hawaii Revised Statutes, and possess the necessary occupational license, certification, or registration required by statute or regulation. Service acquired in a non-civil service appointment shall not be credited towards meeting the requirements of an initial probationary period;

(2) The following conditions shall apply for such appointments:

(A) The appointing authority ensures the employee will perform duties characteristic of the class;

(B) The employee has not received a non-civil service appointment in the same class of work within the last three months, unless this restriction is waived by the assistant superintendent; and

(C) There are no interested and available applicants on an appropriate eligible list to fill the vacancy, or the appointing authority is unable to make a selection from an appropriate eligible list.

(b) The appointing authority may make a non-civil service temporary appointment outside the list when there are no interested and available applicants on an appropriate eligible list to fill the vacancy, or the appointing authority determines that the period of the temporary appointments makes it impracticable to fill the position by recruitment procedures. The following conditions shall apply:

(1) For permanent vacancies, the appointment shall not exceed six months;

(2) For temporary vacancies, the appointment shall not exceed one year;

(3) An appointing authority may request and be granted an extension to continue an employee in a non-civil service temporary appointment outside the list at the discretion of the assistant superintendent or authorized designee.

History

[Eff JUN 29 2012] (Auth: HRS §§ 302A-1112, 76-17) (Imp: HRS § 76-17)

Haw. Code R. § 8-63-42 Exempt appointment

The assistant superintendent shall create positions exempted from civil service as permitted by section 76-16, Hawaii Revised Statutes, or as may otherwise be permitted by law. The assistant superintendent may also exempt a position temporarily when a position is pending establishment of a new class, or may exempt a position permanently when the establishment of a class is impracticable. Exempt appointments also include positions that have a narrow limitation period that precludes completion of probation. The assistant superintendent shall review on a periodic basis the exempt positions to determine whether such positions should continue to be exempt and may revoke a previously authorized exemption when the particular position or services no longer meets the criteria or conditions for exemption.

History

[Eff JUN 29 2012 ] (Auth: HRS §§ 302A-1112, 76-17) (Imp: HRS §§ 76-1376-16)

Subchapter 6 CLASSIFICATION SYSTEMS

Haw. Code R. § 8-63-45 Purpose

The purpose of this subchapter is to develop and maintain systems within the department for the objective, consistent, and timely classification of all civil service positions and for the reasonable and consistent assignment of classes of positions to pay ranges. The systems so established shall be based on merit, and contribute to the selection and retention of public employees by compensating them in accordance with law. The systems or any portions thereof may be extended to non-civil service positions as required by law or for the good of the service.

History

[Eff JUN 29 2012] (Auth: HRS §§ 302A-1112, 76-17) (Imp: HRS §§ 76-1, 76-12, 76-13, 76-13.5)

Haw. Code R. § 8-63-46 Development and maintenance of classification systems

The assistant superintendent shall establish, implement, and maintain one or more classification systems covering all civil service positions, not otherwise exempted by rules. The classification systems shall be constructed with the objective of achieving equal pay for equal work as provided in section 76-1, Hawaii Revised Statutes. The duties and responsibilities assigned to positions and other factors necessary to a proper understanding of their work are to be documented in official position descriptions prepared by the affected state office or complex area. In establishing, implementing, and maintaining the classification systems, the assistant superintendent may inquire at any time into the work of positions, their minimum qualification requirements and other relevant factors.

History

[Eff JUN 29 2012] (Auth: HRS §§ 302A-1112, 76-17) (Imp: HRS §§ 76-12, 76-13, 76-13.5)

Haw. Code R. § 8-63-47 Establishment of classification standards

(a) The assistant superintendent shall establish standards for the development and maintenance of classification systems relative to position descriptions, class specifications, and other matters.

(b) The assistant superintendent is authorized to establish, revise, or abolish classes in order to maintain the classification systems.

History

[Eff JUN 29 2012] (Auth: HRS §§ 302A-1112, 76-17) (Imp: HRS §§ 76-12, 76-13, 76-13.5)

Haw. Code R. § 8-63-48 Procedures for classification

Authority to develop procedures for the establishment, implementation, and maintenance of the classification systems is vested with the assistant superintendent. Governing procedures shall apply to all relevant aspects including position descriptions, authorizations, supporting documents, standards of adequacy, and submittal of classification requests.

History

[Eff JUN 29 2012 ] (Auth: HRS §§ 302A-1112, 76-17) (Imp: HRS §§ 76-12, 76-13, 76-13.5)

Haw. Code R. § 8-63-49 Classification of positions

(a) The assistant superintendent shall:

(1) Place any position subject to this chapter into an appropriate class; and

(2) Reallocate any position from one class to another class, whenever warranted, by material changes in position duties and Responsibilities, class allocation standards, or to correct an error.

(b) Each position shall be placed in a class consistent with the nature and level of its duties, responsibilities, and minimum qualification requirements.

(c) The assistant superintendent may establish standards and procedures and delegate to offices the authority to place their own positions into existing classes. Post audits shall be made of an office's exercise of classification authority. The assistant superintendent may rescind or otherwise correct any action taken, as appropriate, and may withdraw the authority when it is determined that continued delegation is not in the best interest of the system.

(d) The assistant superintendent may approve the temporary reallocation of a position because of emergency, unusual, unique, or other special conditions. When the conditions no longer apply, the appointing authority shall promptly discontinue the temporary reallocation and notify the assistant superintendent of the discontinuance. Upon discontinuance, and in any event no later than the ending date that was authorized by the assistant superintendent for such reallocation, the position shall revert to its former classification status.

(e) The incumbent of a position that is reallocated shall be required to meet the minimum qualification requirements established for the class to which the position is reallocated, including for temporary reallocations.

(f) The reallocation downward of a filled position for disciplinary, involuntary, or voluntary reasons, or to avoid a layoff, or because of a reorganization or injury or illness, shall be so specified by the appointing authority and treated as if a demotion for the specified purpose took place. Whatever procedures and requirements apply to the respective demotion process shall also apply to the corresponding reallocation downward action.

History

[Eff JUN 29 2012] (Auth: HRS §§ 76-5, 76-17) (Imp: HRS §§ 76-5, 76-12, 76-13, 76-13.5, 76-16)

Haw. Code R. § 8-63-50 Effective dates of classification actions

The assistant superintendent shall put forth guidelines on establishing effective dates for classification of new positions and existing positions.

History

[Eff JUN 29 2012] (Auth: HRS § 76-17) (Imp: HRS §§ 76-12, 76-13, 76-13.5)

Haw. Code R. § 8-63-51 Position descriptions

The duties and responsibilities assigned to a position shall be accurately reflected in an official position description and aligned to the organization's functional statement. Revised position descriptions shall be submitted on a timely basis if significant changes in the duties and responsibilities of the position are made.

History

[Eff JUN 29 2012] (Auth: HRS §§ 302A-1112, 76-17) (Imp: HRS §§ 76-12, 76-13)

Haw. Code R. § 8-63-52 Classification actions and merit principles

Classification actions effected shall be consistent with the principles of the merit system. In the event other more appropriate personnel processes are not available, the appointing authority may request the reallocation of a position in lieu of promoting or demoting the affected incumbent, provided the basic principles and requirements governing promotions and demotions, as applicable, are followed.

History

[Eff JUN 29 2012 ] (Auth: HRS §§ 302A-1112, 76-17) (Imp: HRS §§ 76-1, 76-12, 76-13)

Subchapter 7 COMPENSATION SYSTEMS

Haw. Code R. § 8-63-55 Assignment of new classes to pay ranges

The assistant superintendent shall assign new classes to appropriate pay ranges in the compensation plans, consistent with policies and standards established in accordance with statute and the following principles:

(1) Equal pay for equal work shall apply between classes in the same bargaining unit among jurisdictions for those classes determined to be equal through systematic classification of positions based on objective criteria and adequate job evaluation, unless it has been agreed in accordance with chapter 89, Hawaii Revised Statutes, to negotiate the repricing of classes;

(2) Permanent and continual exposure to unusually hazardous working conditions may be recognized as a factor in the assignment of classes to pay ranges.

History

[Eff JUN 29 2012] (Auth: HRS §§ 302A-1112, 76-17) (Imp: HRS §§ 76-1, 76-12, 76-13)

Subchapter 8 EXEMPTIONS FROM CIVIL SERVICE

Haw. Code R. § 8-63-58 General provisions

(a) This subchapter applies to positions, and persons in those positions, and persons providing personal services which are by law excepted from all or part of the provisions of the civil service law.

(b) All positions and persons in the exempt service are excluded from the requirements of selection by merit competition and from civil service status but should be fully qualified by experience and ability to perform the duties of the position or personal services.

(d) At the time of their hire as a condition of eligibility for continued employment, persons shall be citizens, nationals, permanent resident aliens of the United States, or deemed eligible for employment under federal law, and residents or former residents of the State with the exceptions as provided by section 78-1, Hawaii Revised Statutes.

History

[Eff JUN 29 2012] (Auth: HRS §§ 302A-1112, 76-17, 78-1) (Imp: HRS §§ 76-13, 76-16, 78-1)

Haw. Code R. § 8-63-59 Authority to exempt

(a) The assistant superintendent shall exempt positions, persons, or personal services in accordance with law upon finding that the conditions and requirements of law are met.

(b) The assistant superintendent may establish standards and procedures for the exemption of positions.

(c) The assistant superintendent may revoke a previously authorized exemption when the particular position or services no longer meet the criteria or conditions for exemption.

History

[Eff JUN 29 2012] (Auth: HRS §§ 302A-1112, 76-17) (Imp: HRS §§ 76-13, 76-16)

Subchapter 9 LEAVES

Haw. Code R. § 8-63-62 Leave of absences

Employees shall be eligible for vacation leave, sick leave, and other leaves of absences with or without pay, as negotiated under applicable collective bargaining agreements. Employees excluded from collective bargaining shall secure similar leaves as provided under section 89C-3 and 89C-4, Hawaii Revised Statutes, as applicable.

History

[Eff JUN 29 2012] (Auth: HRS §§ 302A-1112, 76-17) (Imp: HRS §§ 76-12, 76-13, 78-23)

Haw. Code R. § 8-63-63 Leave sharing

(a) The assistant superintendent may establish a leave sharing program that allows employees within the department to ease the burdens of fellow employees who otherwise need to take time off from work without pay to recover from a serious personal illness or injury or to care for a family member who has a serious illness or injury and is incapable of self care.

(b) As used in this section:

(1) "Family member" means an employee's:

(A) Spouse; or

(B) Parent or unmarried child in a blood or legal relationship, or a "hanai" relationship through the Hawaiian custom, provided the employee is the primary caregiver.

(2) "Serious personal illness or injury" means an illness, injury, or impairment that meets the conditions below:

(A) Is life threatening or critical, severe, and debilitating which does not include minor surgeries, routine pregnancies, illnesses due to colds or flus, broken limbs, and other non-critical conditions; and

(B) Is certified by a physician, as defined under section 386-1, Hawaii Revised Statutes, as being totally incapacitating, and:

(i) Where the condition involves the employee, is also certified as being the cause of the employee's inability to work; or

(ii) Where the condition involves the employee's family member, is also certified as serious and requiring the employee's full-time assistance to provide primary care to the family member.

(c) An employee who wishes to donate accumulated leave credits must not have solicited nor accepted anything of value in exchange for the donation.

History

[Eff JUN 29 2012 ] (Auth: HRS §§ 302A-1112, 76-17, 78-26) (Imp: HRS §§ 76-13, 78-26)

Subchapter 10 MEDICAL EXAMINATIONS

Haw. Code R. § 8-63-66 Medical guidelines

The assistant superintendent is authorized to establish medical guidelines related to performing the essential job functions for the department's classes of work. In establishing these guidelines, the assistant superintendent may consult with medical professionals, the applicable department or appointing authority, or other appropriate specialists. These guidelines will:

(1) Ensure that persons seeking employment in the department civil service system meet the medical and physical requirements necessary for the safe and efficient performance of the essential functions of the position for which they are being medically evaluated; and

(2) Ensure that employees are able to perform the essential functions of their positions.

History

[Eff JUN 29 2012] (Auth: HRS §§ 302A-1112, 76-17, 76-18) (Imp: HRS §§ 76-12, 76-13)

Haw. Code R. § 8-63-67 Kinds of medical examinations

The assistant superintendent may require the following kinds of medical examinations:

(1) Pre-employment medical examination. A pre-employment medical examination is a medical examination to evaluate the person's ability to satisfactorily perform the essential job functions of the position for which the individual is being hired;

(2) Medical evaluation. A medical evaluation is a medical examination to evaluate the employee's ability to satisfactorily perform the essential functions of the employee's current position.

(A) Periodic medical evaluation shall be required of all employees holding positions in classes for which such examinations are required by law or which the assistant superintendent finds, based on the nature of the work performed or other interests of the department, an evaluation is necessary.

(B) The appointing authority may require a medical evaluation whenever it is necessary to determine the employee's ability to safely perform the essential functions of the employee's present position.

(C) If an employee is selected for a promotion, transfer, or other change to a position in a class for which the medical and physical requirements to perform the essential functions exceed those required for the employee's present position, and the assistant superintendent has determined that a medical evaluation is required for the position, the employee shall be medically evaluated prior to appointment.

History

[Eff JUN 29 2012 ] (Auth: HRS §§ 302A-1112, 76-17, 76-18) (Imp: §§ 76-12, 76-13)

Haw. Code R. § 8-63-68 Failure to meet employment requirements

(a) In determining whether a person is ' qualified for initial appointment or continued employment, the assistant superintendent or appointing authority shall review medical as well as other pertinent information from the individual, or any other appropriate source regarding the person's ability to currently perform the essential functions of the position.

(b) If it is determined that an applicant does not meet the employment requirements for initial appointment, the applicant shall be disqualified for appointment. The assistant superintendent shall notify the applicant in writing of the reason(s) they are denied from further employment consideration for the position for which they applied.

(c) If it is determined that an employee does not meet the medical requirements for continued employment, the appointing authority shall notify the assistant superintendent in writing prior to taking any action. Upon concurrence by the assistant superintendent, the appointing authority shall notify the employee in writing of the reason(s) for disqualification and action to be taken.

(d) The assistant superintendent shall prescribe the procedures for the placement of employees on a department-wide basis whenever, upon medical evaluation, employees do not meet the medical requirements to perform the essential functions of their positions. If there is no suitable position for which an employee meets the minimum qualification and medical requirements, the appointing authority may terminate the employee's employment. Upon termination, the former employee shall be eligible to be placed on the priority placement list, if the employee meets the requirements to be placed on this list, or on the appropriate re-employment list for which the former employee meets the minimum qualifications and medical requirements.

History

[Eff JUN 29 2012] (Auth: HRS §§ 302A-1112, 76-17, 76-18) (Imp: HRS §§ 76-12, 76-13)

Subchapter 11 INTERNAL COMPLAINT PROCEDURE

Haw. Code R. § 8-63-71 Purpose

The purpose of this subchapter is to establish a procedure for handling complaints related to human resources actions described in this chapter.

History

[Eff JUN 29 2012] (Auth: HRS §§ 302A-1112, 76-17) (Imp: § 76-42)

Haw. Code R. § 8-63-72 Applicability

(a) The internal complaint procedure shall apply to matters within the jurisdiction of the merit appeals board in accordance with section 76-14, Hawaii Revised Statutes:

(1) Recruitment: Actions taken in processing applicants for civil service employment;

(2) Examination: Actions taken in evaluating an applicant for civil service employment, to include the initial probationary period;

(3) Classification and reclassification: Actions taken in assigning a civil service position to a class of work;

(4) Initial pricing of classes: Actions taken affecting a civil service employee in a new class when initially priced; and

(5) Adverse employment actions under chapter 76, Hawaii Revised Statutes, taken against civil service employees who are excluded from collective bargaining coverage under section 89-6, Hawaii Revised Statutes.

(b) The internal complaint procedure may also be used for handling other complaints related to human resources actions as determined by the assistant superintendent.

(c) Matters subject to collective bargaining grievance procedures shall not be processed under the internal complaint procedure.

History

[Eff JUN 29 2012] (Auth: HRS §§ 302A-1112, 76-17) (Imp: HRS §§ 76-14, 76-42)

Haw. Code R. § 8-63-73 Internal complaint procedure

This procedure consists of an informal review and a formal complaint process. An administrative review constitutes the informal review process. If the complaint cannot be resolved at this level, a formal complaint may then be filed through the formal complaint process.

History

[Eff JUN 29 2012 ] (Auth: HRS §§ 302A-1112, 76-17) (Imp: HRS §§ 76-14, 76-42)

Haw. Code R. § 8-63-74 Administrative review

(a) For complaints within the jurisdiction of the merit appeals board, the following persons shall be entitled to file a request for administrative review:

(1) Recruitment: Any person who has filed an application for a vacant civil service position or a recruitment program and who alleges an improper recruitment.

(2) Examination:

(A) Any applicant who:

(i) Receives notification of failure to meet minimum qualifications for the class, position, or public employment requirements for which a formal application was filed;

(ii) Receives notification of an unsatisfactory examination score;

(iii) Receives notification of non-selection for a civil service position; or

(iv) Receives notification of unsuitability for public employment or a specific class of work applied for;

(B) Any employee serving an initial probationary appointment in a civil service position who is disciplined or terminated for failure to successfully complete the initial probationary period.

(3) Classification or Reclassification: The civil service employee occupying the position as of the effective date of the classification action and any subsequent civil service employee in the position up to the date of the notice of final action who believes the classification action was improper.

(4) Initial pricing of classes: The civil service incumbent of a position in a new class as of the effective date of the initial pricing action who alleges an improper pricing action.

(5) Other employment actions taken against a civil service employee who is excluded from collective bargaining: Any civil service employee who is excluded from collective bargaining coverage under section 89-6, Hawaii Revised Statutes, who alleges an adverse employment action under Chapter 76, Hawaii Revised Statutes.

The request for administrative review must be filed within ten calendar days after the date of the notice of the recruitment, examination, classification, reclassification, pricing, or final adverse action.

(b) For complaints not within the jurisdiction of the merit appeals board, the complainant shall be entitled to file a request for administrative review. The request for administrative review must be filed within ten calendar days after the date of the notice of the final adverse action.

(c) Upon receipt of the request for administrative review, the assistant superintendent or designee shall take appropriate action, including:

(1) If the complaint is not within the jurisdiction of the department, refer and forward the complaint to the appropriate agency, if known, and notify the complainant accordingly;

(2) If the complaint is covered by another department complaint process, refer and forward the complaint and notify the complainant accordingly;

(3) If the matters are clearly subject to the collective bargaining procedure, return the complaint to the complainant; or

(4) Accept the complaint for appropriate action and notify the complainant accordingly.

(d) If the complaint falls within the authority of the department and the scope of this internal complaint procedure, the assistant superintendent or designee shall review the complaint and issue a written decision within ten calendar days after the completion of the administrative review. If the complaint is denied, information on filing a formal complaint through the formal complaint process, set forth in section 8-63-75, shall accompany the written decision.

History

[Eff JUN 29 2012 ] (Auth: HRS §§ 302A-1112, 76-17) (Imp: HRS §§ 76-14, 76-42)

Haw. Code R. § 8-63-75 Formal complaint process

(a) If the complaint is denied through the administrative review process, the complainant shall be entitled to file a formal complaint within ten calendar days after the notice of administrative review decision.

(b) Upon receipt of the formal complaint, the assistant superintendent or designee shall review the complaint and issue a written decision within ten calendar days after completion of the formal review. If the complaint is:

(1) Denied and the matter is within the jurisdiction of the merit appeals board, information on filing a formal appeal with the merit appeals board shall accompany the written decision; or

(2) Denied and the matter is not within the jurisdiction of the merit appeals board, the decision on the complaint shall be final and binding, unless the matter is within the proper jurisdiction of another body or agency.

History

[Eff JUN 29 2012 ] (Auth: HRS §§ 302A-1112, 76-17) (Imp: HRS §§ 76-14, 76-42)

Haw. Code R. § 8-63-76 Appeals to the merit appeals board

The internal complaint procedures shall be exhausted before an appeal is filed with the merit appeals board. Appeals to the merit appeals board shall be in accordance with section 76-14, Hawaii Revised Statutes, chapter 8-62, Hawaii Administrative Rules, and in accordance with the rules of practice and procedures as may be adopted by the merit appeals board.

History

[Eff JUN 29 2012 ] (Auth: HRS §§ 302A-1112, 76-17) (Imp: HRS §§ 76-14, 76-42)

Haw. Code R. § 8-63-77 Other appeals processes

When an appeal is not under the jurisdiction of the merit appeals board but some other administrative agency or appellate body, the complainant is responsible for the timely filing of an appeal with the appropriate agency regardless of whether the internal complaint procedure under this subchapter was used.

History

[Eff JUN 29 2012] (Auth: HRS §§ 302A-1112, 76-17) (Imp: HRS § 76-42)

Subchapter 12 RESIGNATION

Haw. Code R. § 8-63-80 Purpose

The purpose of this subchapter is to provide for orderly and uniform procedures for the resignation of employees from department service.

History

[Eff JUN 29 2012] (Auth: HRS §§ 302A-1112, 76-17) (Imp: HRS § 76-30)

Haw. Code R. § 8-63-81 Applicability

This subchapter shall apply to civil service and exempt employees unless otherwise specified.

History

[Eff JUN 29 2012] (Auth: HRS §§ 302A-1112, 76-17) (Imp: HRS § 76-30)

Haw. Code R. § 8-63-82 Notice of resignation

When an employee elects to separate from the service, the employee shall notify the appointing authority in writing at least fifteen calendar days before the date of the separation, unless the appointing authority waives this requirement, or due to circumstances specified under section 8-63-83.

History

[Eff JUN 29 2012] (Auth: HRS §§ 302A-1112, 76-17) (Imp: HRS § 76-30)

Haw. Code R. § 8-63-83 Failure to report to duty; resignation

(a) An employee who fails to report to duty for a period of fifteen calendar days without providing the employer with reasons for the absence during the period shall have been deemed to have resigned. The effective date of the resignation shall be the day immediately following the fifteenth day of absence.

(b) If the employee expresses a desire to continue employment within fifteen days from the last day the employee reported for work, the employee shall not be deemed to have resigned. The appointing authority may consider appropriate disciplinary action, including discharge, where the employee fails to provide satisfactory reasons for failure to report for duty as expected.

History

[Eff JUN 29 2012] (Auth: HRS §§ 302A-1112, 76-17) (Imp: HRS § 76-30)

Haw. Code R. § 8-63-84 Withdrawal of resignation

A resignation shall be binding on the employee upon the submission of the resignation notice. It may be withdrawn only with the appointing authority's consent.

History

[Eff JUN 29 2012] (Auth: HRS §§ 302A-1112, 76-17) (Imp: HRS § 76-30)

Haw. Code R. § 8-63-85 Resignation submitted during an investigation

When an employee submits a written resignation while being the subject of an investigation pertaining to an alleged impropriety on the employee's part, the appointing authority shall determine whether to:

(1) Discontinue the investigation and accept the resignation, provided that the requirements of section 8-63-82 have been met; or

(2) Continue the investigation and accept the resignation on the condition that it may be changed to a discharge, depending upon the outcome of the investigation.

History

[Eff JUN 29 2012 ] (Auth: HRS §§ 302A-1112, 76-17) (Imp: HRS § 76-30)

Haw. Code R. § 8-63-86 Resignation submitted following notice of discharge

If an employee submits a written resignation after receiving notice of discharge, the appointing authority shall determine whether to:

(1) Accept the resignation, provided that, notwithstanding section 8-63-82, the effective date is on or before the date the discharge would have taken place; or

(2) Reject the resignation and effect the discharge.

History

[Eff JUN 29 2012] (Auth: HRS §§ 302A-1112, 76-17) (Imp: HRS § 76-30)

Haw. Code R. § 8-63-87 Collective bargaining provisions

Whenever there are provisions in a collective bargaining agreement that conflict with this subchapter, the terms of the agreement shall prevail. Actions taken by the appointing authority shall, if grieved, be filed pursuant to the contractual grievance procedure.

History

[Eff JUN 29 2012] (Auth: HRS §§ 302A-1112, 76-17) (Imp: HRS § 76-30)

Chapter 65 ALTERNATIVE ROUTES TO CERTIFICATION

Subchapter 1 GENERAL PROVISIONS

Haw. Code R. § 8-65-1 Purpose

The purpose of this chapter is to set forth standards that an alternative certification program shall meet for the establishment of alternative routes to certification for vice-principal school administrators. Through the standards set forth herein and an alternative certification program meeting these standards, the department will be able to:

(1) Expand its administrator preparation program and attract aspiring school level administrators who have high leadership potential;

(2) Ensure the program prepares its candidates to meet the expectations of the department in fulfilling their roles and responsibilities in improving student learning in the public school system;

(3) Address shortages in high-need schools or areas; and

(4) Increase the applicant pool eligible for service in any public school.

History

[Eff JUN 14 2012] (Auth: HRS §§ 302A-605, 302A-1112) (Imp: HRS § 302A-605)

Haw. Code R. § 8-65-2 Definitions

As used in this chapter, unless the context specifically requires otherwise:

"Administrator certification office" means the department's office of human resources, Professional Development & Educational Research Institute (PDERI), its successor, or assign.

"Alternative routes to certification" shall have the same meaning as determined by United States Department of Education regulations for state applications for Race to the Top fund allocations under section 14001 of the federal American Recovery and Reinvestment Act of 2009, as amended, referring to pathways to certification that allow the establishment and operation of administrator preparation programs.

"Board" means the board of education.

"Candidate" means a person enrolled in an alternative certification program.

"Department" means the Hawaii department of education.

"Hawaii public schools" shall have the same meaning as "public schools" as defined in section 302A-101, HRS.

"High-need school or area" means a school or area, or both, designated by the superintendent of education as a high-need school or area.

"ISAC-P" means Initial School Administrator Certificate - Provisional as a Vice-Principal.

"PSAC" means Professional School Administrator Certificate as a Principal.

"Qualitative leadership experience" means experience where effective interpersonal and communication skills, the ability to lead and develop teams, strong analytical, problem-solving and/or project management skills, and ethical and data driven decision-making have been demonstrated and documented as described in section 8-65-8(b) (4).

"Residency" means school-based on-the-job training as a school level administrator with school level administrator mentor or mentors.

"School level administrator" means a vice-principal or principal.

"School level administrator experience" means, for purposes of entrance requirements into an alternative certification program, knowledge and performance of duties and responsibilities that are comparable to or higher than the duties and responsibilities of a department of education vice-principal or principal.

"Superintendent" means the Hawaii superintendent of education.

"TSAC" means Temporary School Administrator Certificate that is awarded prior to residency.

History

[Eff JUN 14 2012 ] (Auth: HRS §§ 302A-605, 302A- 1112) (Imp: HRS §§ 302A-101, 302A-605)

Subchapter 2 ALTERNATIVE CERTIFICATION

Haw. Code R. § 8-65-7 Alternative certification program

(a) The minimum standards that an alternative certification program shall meet include, but are not limited to:

(1) Is an institution of higher education, an alternative certification program operating independently from an institution of higher education, or a combination thereof;

(2) Is able to select, train, and graduate the number of school level administrator candidates determined by the department to be necessary to address shortages in high-need schools or areas and increase the applicant pool eligible for service in any public school;

(3) Is selective in accepting candidates;

(4) Demonstrates subject matter mastery, and high-quality instruction in pedagogy and in addressing the needs of all students in the classroom including English language learners and students with disabilities;

(5) Provides supervised, school-based experiences and ongoing support such as effective mentoring and coaching;

(6) Significantly limits the amount of coursework required or has options to test out of courses; and

(7) Upon completion, will allow candidates completing the program to qualify for and be awarded the same level of certification that the department's administrator preparation program awards upon completion.

(b) The alternative certification program shall also meet all other requirements of this chapter.

(c) The alternative certification program provider shall enter into a contract or agreement with the department to provide services as an alternative certification program under this subchapter. Said contract or agreement shall set forth the understanding of the duties and responsibilities of the alternative certification program provider and the consequences for failing to comply with this subchapter and all other requirements of the contract or agreement.

(d) Costs for the operation of the alternative certification program may be covered by tuition charged by the provider and approved by the department or by other means as determined by the department.

History

[Eff JUN 14 2012] (Auth: HRS §§ 302A-605, 302A-1112) (Imp: HRS §§ 302A-605, 91-13.5)

Haw. Code R. § 8-65-8 Candidate requirements for enrollment in an alternative certification program

(a) To be enrolled in an alternative certification program, the provider of the alternative certification program shall ensure the candidate has met one of the following:

(1) The individual has qualitative leadership experience and holds at least a master's degree;

(2) The individual is a licensed school level administrator, holds at least a master's degree and has qualitative leadership experience; or

(3) The individual is a licensed teacher, holds at least a master's degree, and has qualitative leadership experience.

(b) The provider shall obtain evidence that the candidate minimally possesses:

(1) At least a master's degree from an accredited institution of higher learning;

(2) If the candidate is being admitted pursuant to subparagraph (a)(2) or subparagraph (a)(3), applicable licensure credentials that are current and active and not encumbered;

(3) Qualitative leadership experience of three or more years within ten years of application in a leadership, supervisory, or managerial position; and

(4) Qualitative leadership experience documented through a resume or portfolio by the candidate and verified by the alternative certification program provider through interviews and/or written recommendations from the applicant's supervisors.

(c) The provider shall recruit and enroll candidates that are willing to commit to three years of continued employment as a school level administrator with the department after graduation from the alternative certification program and award of their ISAC-P as vice-principal.

(d) The provider shall also ensure candidates have satisfied other requirements of the department including, but not limited to, criminal history record checks in accordance with sections 302A-601.5 and 846-2.7, HRS and chapter 7, title 8, HAR.

(e) Costs related to enrollment in an alternative certification program may be borne by the candidate or by other means as determined by the department.

History

[Eff JUN 14 2012] (Auth: HRS §§ 302A-605, 302A-1112) (Imp: HRS § 302A-605)

Haw. Code R. § 8-65-9 Alternative certification program minimum requirements; generally

(a) The alternative certification program shall consist of a clearly articulated curriculum, a rigorous screening process, a pre-residency component, a residency component, and a post-residency component that minimally meets the requirements of sections 8-65-10 through 8-65-13. The department may consider an alternative certification program that offers the pre-residency and residency components concurrently.

(b) The provider of an alternative certification program shall ensure that all its employees or agents that will be fulfilling duties and responsibilities pursuant to section 8-65-12(a) on any school campus under the department's jurisdiction and working in close proximity to children have passed a criminal history record check in accordance with the provisions of sections 302A-601.5 and 846-2.7, HRS and chapter 7, title 8, HAR.

(c) The provider of an alternative certification program shall be responsible and accountable for ensuring the employment of qualified staff or agents and shall ensure staff and agents are held to the highest professional standard in deliverance of its alternative certification program.

History

[Eff JUN 14 2012] (Auth: HRS §§ 302A-601.5, 302A-605, 302A-1112, 846-2.7,) (Imp: HRS § 302A-605)

Haw. Code R. § 8-65-10 Rigorous screening process

The alternative certification program shall incorporate a rigorous screening process that will result in selectivity in accepting candidates into their program after the applicant has met the requirements of section 8-65-8. The screening process shall minimally include, but not be limited to, interviews, evaluation assessments or other processes that will result in selecting candidates who show the most promise to complete the alternative certification program and immediately address the needs of the department to fill school level administrator positions.

History

[Eff JUN 14 2012] (Auth: HRS §§ 302A-605, 302A-1112) (Imp: HRS § 302A-605)

Haw. Code R. § 8-65-11 Pre-residency

(a) The alternative certification program shall incorporate a pre-residency component to include, but not be limited to, orientation, coursework, effective mentoring and coaching, workshops, ongoing support, and assessments throughout the component and particularly one at the conclusion of the component. Before commencement of the pre-residency component, the program shall evaluate the individual candidates' education and experience to determine the portions of study the candidate will be required to complete.

(b) The pre-residency component shall consist of technical knowledge of content including, but not limited to:

(1) Educational and instructional leadership including the ability of leaders to be instructionally centered and change oriented;

(2) Personnel management including supervision and evaluation;

(3) Curriculum, instruction, and assessment, including but not limited to high-quality instruction that addresses pedagogy and the needs of all students, including English language learners and students with disabilities;

(4) Governance and organization relating to schools;

(5) School improvement planning;

(6) Community and its culture, including public relations; and

(7) Applicable federal and state laws relating to civil rights, including but not limited to the Individuals with Disabilities Education Improvement Act of 2004 or the currently existing version and section 504 of the Rehabilitation Act of 1973 and its amendments, and federal and state laws relating to employee and student safety.

(c) The pre-residency component shall significantly limit the amount of coursework required or have options for qualified candidates to test out of courses.

(d) The pre-residency component shall also ensure candidates' proficiency in oral and written communication skills, interpersonal relationships and team building skills, and analyses, decision making, and problem solving skills.

(e) The alternative certification program shall have clearly articulated methodologies and criterion by which it will assess the candidate's required proficiency in the subject matter listed in subsections (b) and (d), at the conclusion of the pre-residency component.

History

[Eff JUN 14 2012] (Auth: HRS §§ 302A-605, 302A-1112) (Imp: HRS § 302A-605)

Haw. Code R. § 8-65-12 Residency

(a) The alternative certification program shall incorporate a residency component to include, but not be limited to, effective mentoring and coaching, ongoing support, residency as a vice-principal in a school, and assessments.

(b) The residency component shall provide candidates the opportunity to apply the technical knowledge and skills acquired through the pre-residency component and shall minimally involve:

(1) Sustained experience at the elementary and secondary school levels, with a minimum aggregate time of one thousand five hundred twenty hours which constitutes one school year, spent in residency;

(2) Mentoring by a practicing principal;

(3) Active leadership roles;

(4) Active participation in activities that promote school improvement and instructional leadership, including but not limited to improving student achievement and teacher development;

(5) Regular assessments of the candidate's competencies; and

(6) Appropriate levels of support by the program provider, as determined by the provider.

(c) The alternative certification program shall have clearly articulated methodologies and criterion by which it will assess the candidate's proficiency during and at the conclusion of residency. The school principal mentoring the candidate shall be involved in the assessments.

(d) The provider of an alternative certification program shall be required to execute an agreement, provided by the administrator certification office, and abide by all terms in the agreement and any amendments thereto, for a candidate's residency in a school under the department's jurisdiction.

History

[Eff JUN 14 2012] (Auth: HRS §§ 302A-605, 302A-1112) (Imp: HRS § 302A-605)

Haw. Code R. § 8-65-13 Post-residency

(a) Cumulatively, the alternative certification program's pre-residency and residency components are intended to produce vice-principal candidates achieving acceptable levels of competencies. The required competencies include, but are not limited to, the ability to:

(1) Develop and implement an educational vision, or build and sustain an existing one, for assisting all students to meet State learning standards;

(2) Build a culture of learning and supporting systemic performance;

(3) Communicate and work effectively with parents, staff, students, community leaders, and other community members from diverse backgrounds, and build support for improving student achievement;

(4) Create the conditions necessary to provide a safe, healthy, and supportive learning environment for all students and staff;

(5) Lead comprehensive long-range planning, informed by multiple data sources, to determine the present state of the school, identify root causes of problems, propose solutions, and validate improvements with regard to all aspects of the school, including but not limited to curriculum development, instructional strategies and the integration of technology, student support services including the provision of services to students with disabilities and English language learners, and professional support and development;

(6) Develop staff capability for addressing student learning needs by effective supervision and evaluation of teachers, by effective staff assignments, support, and mentoring, and by providing staff with opportunities for continuous professional development;

(7) Set a standard for ethical behavior by example, encouraging initiative, innovation, collaboration, mutual respect, and a strong work ethic;

(8) Apply statutes and rules and regulations as required by law, and implement school policies in accordance with law; and

(9) Establish a school budget and manage school finances, resources, and facilities to support achievement of educational goals and objectives.

(b) The alternative certification program shall have clearly articulated methodologies and criterion by which it will assess the candidate to determine that the competencies described in subsection (a) and the knowledge described in section 8-65-11(b) have been met.

(c) The alternative certification program shall only recommend a candidate who has completed all components and passed the post-residency assessment, to the administrator certification office, for consideration of issuance of an ISAC-P.

(d) The candidate employed by the department and issued an ISAC-P shall satisfactorily complete a probationary period as vice-principal pursuant to the applicable collective bargaining agreement and upon successful completion of probation as determined by the department, be awarded a PSAC.

History

[Eff JUN 14 2012] (Auth: HRS §§ 302A-605, 302A-1112) (Imp: HRS § 302A-605)

Haw. Code R. § 8-65-14 Periodic program audits

(a) An alternative certification program shall be subject to periodic program audits by the administrator certification office. The program audits will evaluate the alternative certification program's compliance with all requirements of this subchapter. As part of the audit process, the provider of the alternative certification program may also be required to furnish data and other information deemed necessary by the administrator certification office.

(b) Costs associated with the periodic program audit shall be borne by the alternative certification program.

(c) In the event deficiencies are found with the alternative certification program, the program shall file a corrective action plan with the administrator certification office by the deadline specified by the office. The alternative certification program's corrective action plan shall ensure candidates are not adversely affected.

(d) The administrator certification office may approve the corrective action plan, require modifications to the plan, or reject the plan and require a new corrective action plan. Submission of modifications or a new corrective action plan shall be in accordance with the deadline specified by the administrator certification office.

(e) Failure by the alternative certification program to cooperate and comply with the periodic program audit or to address deficiencies as required by the administrator certification office may be grounds for the department to take appropriate action affecting the continuance of the alternative certification program.

History

[Eff JUN 14 2012 ] (Auth: HRS §§ 302A-605, 302A-1112) (Imp: HRS § 302A-605)

Haw. Code R. § 8-65-15 Prohibited conduct

The department may take appropriate action, including but not limited to termination of any contract or agreement for the alternative certification program to continue providing services under this subchapter, against an alternative certification program provider of the alternative certification program for any one or more of the following acts or conditions including, but not limited to:

(1) Failure to comply with the provisions of section 8-65-15;

(2) Failure to meet or maintain the conditions and requirements as an alternative certification program;

(3) Engaging in false, fraudulent, or deceptive practices, or making untruthful or improbable statements;

(4) Professional misconduct, incompetence, or gross negligence by any employee or agent of the alternative certification program in the administration and implementation of the program;

(5) Failure to comply, observe, or adhere to any law in a manner such that the department deems the provider of an alternative certification program to be unfit to operate the program;

(6) Criminal conviction, whether by nolo contendere or otherwise, of any employee or agent of the alternative certification program for a crime directly related to the qualifications, functions, or duties to be performed as an alternative certification program provider on behalf of the department; and

(7) Violating this chapter, other applicable laws, or any rule or order of the department.

History

[Eff JUN 14 2012 ] (Auth: HRS §§ 302A-605, 302A-1112) (Imp: HRS § 302A-605)

Chapter 66 PART-TIME TEMPORARY EMPLOYEES (REPEALED)

Subchapter 1 GENERAL PROVISIONS (REPEALED)

Haw. Code R. § 8-66-1 [Repealed]

History

[Eff JUN 14 2012] (Auth: HRS § 302A-1112) (Imp: HRS S302A-1112)

Haw. Code R. § 8-66-2 [Repealed]

History

[Eff JUN 14 2012] (Auth: HRS § 302A-1112) (Imp: HRS § 302A-1112)

Haw. Code R. § 8-66-3 [Repealed]

History

[Eff (JUN 14 2012] (Auth: HRS § 302A-1112) (Imp: HRS §§ 302A-101, 302A-1112)

Haw. Code R. §§ 8-66-4 to 8-66-6 [Repealed]

History

R 5/31/2022

Subchapter 2 PART-TIME TEMPORARY TEACHERS (REPEALED)

Haw. Code R. § 8-66-7 [Repealed]

History

[Eff JUN 14 2012] (Auth: HRS S302A-1112) (Imp: HRS § 302A-1112)

Haw. Code R. § 8-66-8 [Repealed]

History

[Eff JUN 14 2012 ] (Auth: HRS § 302A-1112) (Imp: HRS § 302A-1112)

Subchapter 3 CERTAIN OTHER PART-TIME TEMPORARY EMPLOYEES (REPEALED)

Haw. Code R. § 8-66-9 [Repealed]

History

[Eff JUN 14 2012] (Auth: HRS § 302A-1112) (Imp: HRS S302A-1112)

Haw. Code R. § 8-66-10 [Repealed]

History

[Eff JUN 14 2012 ] (Auth: HRS S302A-1112) (Imp: HRS § 302A-1112)

Haw. Code R. § 8-66-11 [Repealed]

History

[Eff JUN 1 4 2012] (Auth: HRS S302A-1112) (Imp: HRS S302A-1112)

Haw. Code R. § 8-66-12 [Repealed]

History

[Eff JUN 14 2012 ] (Auth: HRS § 302A-1112) (Imp: HRS S302A-1112)

Haw. Code R. § 8-66-13 [Repealed]

History

[Eff JUN 14 2012 ] (Auth: HRS S302A-1112) (Imp: HRS § 302A-1112)

Haw. Code R. § 8-66-14 [Repealed]

History

[Eff JUN 14 2012 ] (Auth: HRS S302A-1112) (Imp: HRS § 302A-1112)

Chapter 101 LICENSING OF PRIVATE TRADE, VOCATIONAL OR TECHNICAL SCHOOLS

Haw. Code R. § 8-101-1 Definition of terms

As used in this chapter:

"Advertising" means informing the public through person-to-person contact, radio, television, telephone directory listings, telephone calls, newspapers, magazines, brochures, placards and other communications media.

"Applicant" means any owner desiring a license under this chapter.

"Board" means the board of education of the State of Hawaii.

"Department" means the department of education of the State of Hawaii.

"Department representative" means the official designated by the department of education to administer and enforce this chapter.

"Instructor" means a person qualified in accordance with standards set by the department and licensed by the department to teach a specified subject, trade, or occupation.

"License" means a formal document issued by the department to grant permission to operate a private school or teach a subject under specific conditions.

"License fee" means a charge made to a school for an initial license, an annual renewal license, or a license revision.

"Night" means the hours between 6:00 p.m. and 7:00 a.m.

"Owner" means the person designated by license to operate a school.

"Person" means an individual, association, partnership, or corporation, including their agent, servant, or employee.

"Principal" means the chief administrator of a school who is responsible for implementing the school's policies and programs and for complying with this chapter.

"School" means a private trade, vocational, or technical school, as defined by State law, which provides only post-secondary courses below the college or university degree-granting level.

"Twenty or less class sessions" means an instructional program consisting of twenty or less instructional days. The term "instructional program" means a set of study or training activities which, when satisfactorily completed by a student, is intended to lead to expected levels of proficiency or skill in a trade, vocational, or technical field.

History

[Eff 12/7/87; comp 3/5/01] (Auth: HRS §§ 302A-1112, 302A-427) (Imp: HRS §§ 302A-101, 302A-1112, 302A-501, 302A-602, 302A-424)

Haw. Code R. § 8-101-2 General rule

All private trade, vocational, or technical schools shall be licensed as provided by law and shall adhere to the provisions of this chapter, except as follows:

(1) Schools maintained or classes conducted by employers for their own employees where no fee or tuition is charged;

(2) Courses of instruction given by a fraternal society, benevolent order, or professional organization to its members and which are not operated for profit;

(3) Flying schools qualified under the Federal Aviation Administration;

(4) Classes conducted for less than five students at one and the same time;

(5) Classes or courses of instruction which are conducted for twenty or less class sessions during any twelve month period;

(6) Avocational, hobby, recreation, or health classes or courses;

(7) Courses of instruction on religious subjects given under the auspices of a religious organization; or

(8) Schools registered by the State department of commerce and consumer affairs.

History

[Eff 12/7/87; comp 3/5/01] (Auth: HRS §§ 302A-1112, 302A-427) (Imp: HRS §§ 302A-1112, 302A-101, 302A-424, 302A-425)

Haw. Code R. § 8-101-3 General requirements

(a) Application for the initial license to operate a school shall be made to the department upon forms provided for this purpose. An application form shall be completed and filed not less than ninety days before the opening date of a new school. The ninety-day requirement shall not apply to an application for a change in ownership of an existing school licensed by the department. The following shall accompany the application:

(1) A complete statement of the training and experience of the principal which statement shall establish the principal's fitness to operate the school as proposed, using forms provided by the department;

(2) Letters from at least three persons testifying to the character, ability, and competency of the principal to operate the school as proposed;

(3) A bank reference of the applicant, a statement of the initial working capital of the school, a projected financial statement for its first six months of operation, and additional references as may be required by the department;

(4) Certificate of clearance from the county building department, the State health department, and the county fire department;

(5) Floor plan showing the location of offices, libraries, classrooms, laboratories, shops, restrooms, and other facilities, and the location of all major pieces of furniture, training equipment, windows, and doors;

(6) A list of the equipment to be provided for each course;

(7) An outline of the courses to be offered, including course title, objectives, curriculum content, and evaluation procedures;

(8) A statement describing the standards and methods of instruction to be used;

(9) A copy of student contract and enrollment forms;

(10) A statement of the method and content of advertising and the media to be used;

(11) A copy of the school catalogue or brochure;

(12) A copy of the diploma or certificate to be awarded;

(13) A schedule of all fees, tuition, and charges to be made;

(14) A qualifications record for each member of the professional staff of the school using the forms provided by the department;

(15) A surety bond in the sum of $50,000, payable in a form satisfactory to the department, to provide indemnification to any student who suffers loss as a result of the school not fulfilling its obligations under the terms of its license; provided that the bonding requirement may be reduced at the discretion of the department upon a showing by the school that the requirement is excessive and at no time do advance collections from students amount to $50,000; and provided further, that when a satisfactory showing is made, the bond requirement shall be reduced according to the following schedule:

| Advance Collections | Minimum Bond | | --- | --- | | $0 - 1,999 | $1,000 | | 2,000 - 5,999 | 5,000 | | 6,000 - 11,999 | 10,000 | | 12,000 - 17,999 | 15,000 | | 18,000 - 23,999 | 20,000 | | 24,000 - 29,999 | 25,000 | | 30,000 - 34,999 | 30,000 | | 35,000 - 39,999 | 35,000 | | 40,000 - 44,999 | 40,000 | | 45,000 - 49,999 | 45,000 |

(16) A license fee payable to the department;

(17) A copy of the articles of incorporation or partnership and by laws filed with the State department of commerce and consumer affairs if applicable; and

(18) Other additional information as may be required by the department.

(b) A school shall not begin operation until a license has been granted and a copy of the State gross income license has been filed with the department representative.

(c) A school shall not solicit students until it has been issued a license, except that a school in the process of obtaining a license may advertise; provided that the statement, "subject to completion of all licensing requirements," shall be a part of all advertising representations.

(d) Initial licenses shall be granted from September 1 to August 31 for two years. Upon the submittal of a complete application, the department shall grant or deny an initial license within ninety days. If the department fails to grant or deny the initial license within ninety days, the application shall be deemed automatically approved for licensure. The license fee for an initial license shall be $100.

(e) Renewal applications for licenses shall be submitted on the first of July immediately preceding the expiration of the license for which renewal is sought. Renewed licenses shall be effective for a term of two years, from the first of September of the year in which the renewal application was granted, through and including the thirty-first of August two years thereafter. Upon submittal of a complete renewal application, the department shall grant or deny alicense within sixty days, unless substantial changes to the school's facilities and/or operations have been made. In such cases, the department shall give the renewal applicant notice that in light of the substantial changes made to the school's facilities, or operations, or both, the renewal application will betreated as an initial application under subsection (a). If the department fails to grant or deny the renewed license within sixty days, the application shall be deemed automatically approved for the renewal of licensure. The license fee for renewals shall be $50 which shall be submitted with the renewal application. Licenses shall be renewed if a school has met all applicable requirements of the department. If a renewal application and license fee are not submitted by July 1, a late fee of $10 shall be charged.

(f) Licenses shall be issued to the owner of a specific school and shall specify and be limited as follows:

(1) Registered under a particular name;

(2) At a designated location;

(3) Under a certain management;

(4) To teach specific trades or vocations; and

(5) Not exceeding a specified maximum number of students occupying the facility at any one time.

Any change in the conditions of paragraphs (1) through (5) shall be reported to and approved by the department prior to implementation. Upon submittal of a completed request for a change in the license, the department shall grant or deny the change within sixty days. If the department fails to grant or deny the requested change within sixty days, the change shall be automatically deemed approved. A $10 fee shall be submitted with an application for a license change.

(g) A change in the ownership status of a school shall void its current license and the new owner shall apply for a new license. If the owner is a partnership, a change in the partners shall be deemed a change in ownership. If the owner is a corporation, it shall be deemed a change in ownership if one of the following changes occur in the outstanding shares of capital stock in the corporation:

(1) Fifty per cent or more of the outstanding shares change ownership; or

(2) The change in ownership of any number of outstanding shares results in a transferee accumulating fifty per cent or more of the total outstanding shares.

(h) If a school wishes to expand its educational offerings to include additional trades or vocations, or to increase its enrollment exceeding the limits of its current license, the school shall submit a written request for a revised license. The request shall be supported by all applicable information required by this section. A school shall not implement the proposed changes prior to receiving a revised license. Upon submittal of a completed request for a change in the license, the department shall grant or deny the change within ninety days. If the department fails to grant or deny the requested change within ninety days, the change shall be automatically deemed approved.

(i) A licensed school shall limit its course offerings and activities to those approved by the department. A school shall not engage in any commercial business activity for financial gain that does not directly relate to and enhance the licensed program of instruction.

(j) A school that ceases operations shall inform the department and surrender its license within thirty days after cessation of operations. The license shall be canceled automatically thirty days after cessation of operations unless a longer period of inactivity has been applied for in writing and approved by the department. Upon submittal of a request to extend its license, the department shall grant or deny the extension within thirty days. If the department fails to grant or deny the extension within thirty days, the extension shall be automatically deemed approved.

(k) The department may require a new applicant for a license to provide acceptable evidence that there is a need for the training proposed and the training is not being adequately provided to meet the need. Failure of an applicant to provide acceptable evidence shall be grounds for denial of a license.

(l) A school granted a license by the department shall keep on each student adequate records of personal data, student's previous training and experience, progress in the training program, grades, and other information as required by the department. The record shall be in a form as prescribed or accepted by the department. Records of courses taken by students shall be kept on file by the school for at least seven years and a permanent record of all graduates of courses of one year or more in length shall be maintained. A school ceasing to operate shall transfer its student records to the department.

(m) A licensed school shall submit an annual report and other reports as requested by the department.

(n) The school shall prepare and make available for distribution to prospective students and other interested persons, a brochure or catalogue setting forth essential information about the school and the courses of instruction it offers. The publication shall be updated periodically so that the information contained is current and accurate. Each brochure or catalogue shall include but not be limited to, the following information:

(1) Name, address and telephone number of the school;

(2) Date of issue;

(3) School's ownership and administrative officer;

(4) School's calendar including starting and ending dates and school holidays;

(5) Description of facilities and equipment;

(6) Entrance requirements;

(7) Schedule of all charges;

(8) Course titles and objectives;

(9) Course outlines or description;

(10) Length of each course;

(11) School's policy on granting credit for previous training or experience;

(12) School's policy on attendance, absences and make-up;

(13) School's policy on grading, reports of grades and standards required;

(14) School's policy on student conduct;

(15) School's policy on refund of tuition and other fees collected;

(16) Student loans or financing plans; and

(17) Placement services.

(o) Upon completion of a course, a student shall be issued a certificate or diploma by the school, giving the name of the course and containing a statement that the student has satisfactorily completed the required work.

(p) A school shall not operate at night unless an authorization is specifically provided in a license issued by the department.

(q) A school shall prominently display its license on the school premises at all times and in plain view of students.

(r) A licensed school shall make available a copy of this chapter to members of the staff, students, and to interested citizens upon request.

History

[Eff 12/7/87; am and comp 3/5/01] (Auth: HRS §§ 302A-1112, 302A-427) (Imp: HRS §§ 91-13.5, 132-6, 237-9, 302A-425 thru 427)

Haw. Code R. § 8-101-4 Facilities and equipment

(a) A license shall not be granted to operate a private trade, vocational or technical school until the physical plant of the proposed school has been inspected and approved by:

(1) The respective county building department for safety and building code compliance;

(2) The State department of health for sanitation and compliance with health department rules and regulations;

(3) The department of education for adequacy of the proposed training in the trades or vocations; and

(4) The respective county fire department for fire safety requirements.

A license of a school shall be suspended for failure to maintain facilities in a condition satisfactory for effective training.

(b) The department may at any time inspect a school's training equipment for adequacy and require, as a licensing condition, the addition or deletion of equipment for carrying out the course objectives.

History

[Eff 12/7/87, comp 3/5/01] (Auth: HRS §§ 302A-1112, 302A-427) (Imp: HRS §§ 132-6, 302A-1112, 302A-425 thru 427)

Haw. Code R. § 8-101-5 Curriculum

(a) The curriculum of a private trade, vocational or technical school shall be approved by the department as to its adequacy for training in the trades or vocations to be taught, and shall be specifically set forth in the application. A school's failure to provide and maintain the courses set forth in the application shall be deemed just cause to suspend or revoke a license. The department shall approve or disapprove proposed additions or deletions of courses. The department shall approve or disapprove the curriculum and/or proposed additions or deletions of courses within sixty days. If the department fails to approve or disapprove the curriculum, approve or disapprove the addition or deletion of courses within sixty days, it shall be automatically deemed approved.The department may review a school's curriculum through a board or commission established for a trade or occupation, or by an ad hoc curriculum review committee established by the department.

(b) A description of the course of study for each trade or vocation shall be posted or displayed in a prominent place in the school and made available to students.

(1) The school shall submit to the department for approval a justification of the need for using commercial work in the training program, a description of how it will be integrated into the curriculum, and what limitations will be placed on its use;

(2) The amount of commercial work accepted by a school shall be limited to what is necessary for student training, and commercial work shall be confined to school hours;

(3) Students shall not receive compensation for commercial work which is part of the training program; and

(4) The department may suspend or terminate at any time all or any portion of commercial work of a school upon receiving an objection from a person to persons in the industry, for the welfare of students, or for other just causes.

History

[Eff 12/7/87, am and comp 3/5/01] (Auth: HRS §§ 302A-1112, 302A-427) (Imp: HRS §§ 302A-1112, 302A-425 thru 427)

Haw. Code R. § 8-101-6 School staff

(a) A private trade, vocational or technical school shall designate a person as principal and furnish to the department satisfactory evidence of the designee's qualifications to act in that capacity.

(b) The principal shall:

(1) Comply with this chapter;

(2) Submit reports and information as required by the department;

(3) Inform the department of changes in school policies, programs, personnel, facilities, tuition, calendar and all other matters affecting the status of the school as previously licensed;

(4) Authorize all advertising, recruitment procedures employed by representatives of the school, published materials and public relations activities; and

(5) Exercise professional direction and supervision of the school staff and program.

(c) All instructors shall possess an instructor's license issued by the department. Upon submittal of a completed request for instructor licensure, the department shall grant or deny the instructor's license within thirty days. If the department fails to grant or deny the request for instructor's licensure within thirty days, the request shall be automatically deemed approved. Application for license shall be made on forms provided by the department. Instructors shall meet the following qualifications:

(1) Have a minimum of three years of successful practical experience beyond the standard learning period recognized for the trade, occupation or sub-divisions thereof that they are to teach; provided that an instructor applicant shall give the department evidence of personal trade or occupational competency; provided, the department may require written evidence, under oath and examination, to determine whether an instructor applicant possesses the skills or fitness to teach a trade or occupation; and provided that the qualification requirement may be waived by the department if the applicant presents evidence that practical experience in the trade or occupation is not essential to competently teach the courses or subjects.

(2) Possess a license or certificate for the trade or occupation to be taught if required of instructors by law or ordinance. Applicants who do not meet the requirements for an instructor's license may be issued a temporary instructor's license to teach at a particular school for a period of six months. A temporary instructor's license may be renewed for no more than an additional six months.

(d) In case of emergency, the department may grant temporary approval for the employment of substitute instructors who do not possess all of the requirements of this section. A temporary approval shall not exceed thirty school days.

(e) Changes in the professional staff of a school shall be reported to the department within five school days from the date of the change. This requirement applies to the hiring or termination of the principal, assistants, and classroom instructors. The complete qualifications of new instructors shall be submitted to the department for approval within five days from the date of the agreement to hire. The department may revoke or suspend a school's license if the changes are disapproved and satisfactory instructors are not provided within a reasonable time, as determined by the department.

(f) The classroom instructional hours of teachers shall not exceed eight hours in any one day or forty hours in any one week.

(g) Teachers or other persons having contact with students, either acting as a volunteer or employed in or by a school, shall present to the principal a currently valid tuberculosis clearance certificate issued by the State department of health in accordance with health regulations.

History

[Eff 12/7/87, am and comp 3/5/01] (Auth: HRS §§ 302A-1112, 302A-427) (Imp: HRS §§ 302A-1112, 302A-602, 302A-426, 302A-427)

Haw. Code R. § 8-101-7 Advertising and student solicitation

(a) It is not the purpose of this section to prevent or to limit the right of private trade, vocational or technical schools to use advertising media in publicizing courses of instruction that are offered. It is intended to prevent misrepresentations and unethical practices.

(b) A school's license shall be revoked if it engages in unfair or deceptive acts or practices as defined by law.

(c) Any reference to the department in a school's advertisement shall be limited to a statement that the school is licensed by the department or a license application is pending approval by the department.

(d) A school may not advertise that it is endorsed by business establishments, organizations or individuals engaged in the kind of work for which training is given unless substantiating evidence is filed with the department.

(e) A school shall not solicit students in help wanted or other employment columns in newspapers or other publications or in any other form of advertising other than that which shows itself clearly to be that of a school seeking to enroll students.

(f) A school shall not advertise or claim that it will completely train students in any given length of time.

(g) A school, or its representatives, shall not advertise that it guarantees or implies to guarantee, employment to its students or graduates; nor shall a school advertise that students or graduates will receive a definite wage per hour, per day, per week or per month.

(h) A school shall not advertise a course of instruction that has not been duly approved by the department for purposes of testing public response unless the advertising clearly states that it is a proposed or tentative offering subject to the approval of the department. Money may not be collected from prospective students for enrollment in a course until it has been approved by the department.

(i) A school shall not advertise a course approved by the department without giving a firm starting date and specifying the length of the course.

(j) The department may require a school to submit copies of current and proposed catalogs, sales presentations, brochures, circulars relating to course offerings, student application forms, contracts, letterheads, form letters and other advertising material to determine compliance with this chapter and the conditions under which a license was issued.

History

[Eff12/7/87, comp 3/5/01] (Auth: HRS §§ 302A-1112, 302A-427) (Imp: HRS §§ 302A-1112, 302A-426, 302A-427)

Haw. Code R. § 8-101-8 Tuition, fees and other charges

(a) A school shall publish the standard tuition rate in its school literature and shall not deviate from the published rate or any discount other than for cash payments. Discounts shall be clearly indicated in the school literature. A school shall give notice to the department of any change in the published tuition rates at least thirty days in advance of the change.

(b) Quotations to students on the cost of supplies, books, materials, rentals, deposits, registration, library, student activity, or other fees shall be stated separately from the cost of tuition for instruction. Quotations shall reflect complete information on all charges. All quotations to students on tuition, fees, and other charges shall state:

(1) Whether the sums must be paid in advance, when payment is due, and in what installments;

(2) Whether or not financing charges are to be assessed against unpaid advances of tuition or other charges; provided that the rate and total amount of the finance charge shall be clearly indicated; and

(3) What refund will be made in the event a student does not complete the course or discontinues attendance at no fault of the school, and the method of computing the refund.

(c) If a student purchases books, supplies, or equipment from a bookstore or other source, and the cost of the items is separate and independent from the charge made by the school for tuition and fees, the student may retain or dispose of the items. If a school furnishes books, supplies, or equipment, and the cost is included in the total charge payable to the school for the course, and if the student withdraws or is discontinued prior to the completion of the course, refund shall be made for the amount of unissued books, supplies, or equipment. Issued items may be disposed of by the student.

(d) Private trade, vocational, or technical schools shall have a written refund policy for students who withdraw before attending classes or who discontinue attendance at the school. The policy shall provide for a partial refund of the unused portion of tuition, fees, and other charges except for a registration fee not to exceed $100. If the school's policy for the refund of the unused portion of tuition, fees, and other charges is more favorable to the student than the minimum schedule provided in this section, the school's policy shall be applicable. The minimum refund of tuition, fees, and other charges paid in advance that a school pays to registrants or students who withdraw shall be a sum which does not vary more than ten per cent from the exact prorata portion of tuition, fees, and other charges that the length of the completed portion of the course bears to its total length. The exact proration shall be determined by the ratio of the number of days of instruction completed by the student to the total number of instructional days in the course.

(e) A school shall not contract with a student for a period in excess of one year even though the complete training program pursued by a student may be of longer duration.

(f) Authorized courses for which a student is registered shall be started on the date advertised; otherwise, enrollees shall be entitled to a refund of all tuition and fees collected.

(g) Collections of advance payments of tuition, fees, or other charges shall not cover a period of more than one year even though the complete training program pursued by the student may be of longer duration.

History

[Eff 12/7/87, am and comp 3/5/01] (Auth: HRS §§ 302A-1112, 302A-427) (Imp: HRS § 302A-1112)

Haw. Code R. § 8-101-9 Inspection

Schools shall be inspected by a representative of the department prior to the issuance of a license and may be inspected at any time thereafter by the department.

History

[Eff 12/7/87, comp 3/5/01] (Auth: HRS §§ 302A-1112, 302A-427) (Imp: HRS § 302A-1112)

Haw. Code R. § 8-101-10 Complaints

(a) A complainant shall discuss a complaint with the school principal prior to filing a formal complaint.

(b) A formal complaint of a violation of this chapter shall be submitted and processed in the following manner:

(1) A complainant shall state the complaint in writing, sign the complaint, and submit supportive evidence;

(2) The complaint shall be filed with the director of the department's school improvement and community leadership branch, division of learner, teacher, and school support; and

(3) After investigating the complaint, a written decision and reasons shall be provided to the complainant by the director of the school improvement and community leadership branch.

History

[Eff 12/7/87, am and comp 3/5/01] (Auth: HRS §§ 302A-1112, 302A-427) (Imp: HRS § 302A-1112)

Haw. Code R. § 8-101-11 License revocation, suspension or non-renewal

(a) The department may revoke, suspend, or not renew a school's license because of the school's failure to comply with this chapter. At least fifteen working days prior to the effective date of a license revocation, suspension, or non-renewal, the superintendent shall notify the owner by certified mail, return receipt requested, of:

(1) The department's intent and reasons therefor;

(2) The date the action will become effective; and

(3) The right to request a hearing with the superintendent prior to the effective date of the action.

(b) If the owner fails to request a hearing, the license shall be revoked, suspended or not renewed. If a license is revoked, the owner shall return the license immediately to the department and cease all operations. If a license is suspended, the school shall cease all operations during the period of suspension. If a license is not renewed, the school shall cease all operations beginning the effective date of the department's action.

(c) The effective date of a license revocation, suspension, or non-renewal may be modified by the department if a hearing is requested by the owner.

(d) If a school bond is canceled, the license shall be automatically revoked, effective the date of the bond cancellation.

History

[Eff 12/7/87, comp 3/5/01] (Auth: HRS §§ 302A-1112, 302A-427) (Imp: HRS §§ 302A-1112, 302A-426)

Haw. Code R. § 8-101-12 Hearing

(a) Upon receipt of a request for a hearing on license revocation, suspension, or non-renewal, the superintendent or designee shall schedule a hearing within ten working days and notify the owner, by registered or certified mail at least fifteen days before the hearing, of the date, time, and place of the hearing. The hearing shall be held under the following conditions:

(1) The owner and the department or their representatives shall have the right to present evidence, cross-examine witnesses, or submit rebuttal testimony;

(2) The superintendent or designee shall weigh the evidence impartially and may request additional information relevant to the complaint; and

(3) The department shall make a transcript of the hearing; provided, the owner may obtain a copy of the proceedings at the owner's expense; and, provided further, tape recordings are permissible.

(b) Not later than five working days after the hearing, the superintendent or designee shall issue a written decision which shall be sent to the owner by certified mail, return receipt requested. The decision shall be based on the hearing record and supportive evidence, and shall set forth the actions to be taken and the reasons. The owner shall be notified of the right to appeal the superintendent's decision in accordance with section 8-101-13.

(c) The decision of the superintendent or designee shall be final unless the decision is appealed in accordance with section 8-101-13. If the decision is to uphold the license revocation, suspension, or non-renewal, the action shall be effective ten working days after the date the decision is issued. A revocation, suspension, or non-renewal decision shall not take effect if an appeal is filed in accordance with section 8-101-13.

History

[Eff 12/7/87, comp 3/5/01] (Auth: HRS §§ 302A-1112, 302A-427) (Imp: HRS §§ 91-1, 91-10, 91-12, 302A-1112, 302A-426)

Haw. Code R. § 8-101-13 Appeal

The owner may appeal the decision of the superintendent to the board not later than ten working days from the date of the written decision of the superintendent. Upon receiving an appeal, the board shall examine the evidence and issue a final decision in accordance with administrative procedures as set forth by State statutes. A final decision shall not be made until a proposal for decision containing a statement of reasons and including determination of each issue of fact or law necessary to the proposed decision has been served upon the owner, and an opportunity has been given to each party adversely affected by the proposed decision to file exceptions and present argument to the board, which shall consider the whole record or portions of there cord as may be cited by the parties. The final decision of the board shall be sent to the owner by certified mail, return receipt requested. A revocation, suspension, or non-renewal of license shall take effect five working days after the final decision of the board is issued or on the date specified in the final decision.

History

[Eff 12/7/87, comp 3/5/01] (Auth: HRS §§ 91-11, 302A-1112, 302A-427) (Imp: HRS §§ 91-11, 302A-1112)

Haw. Code R. § 8-101-14 Penalty

Any person, firm or corporation in violation of this chapter may be subject to penalties as provided by State law."

History

[Eff 12/7/87, comp 3/5/01] (Auth: HRS §§ 302A-1112, 302A-427) (Imp: HRS §§ 302A-1112, 302A-428)

Subtitle 3 PUBLIC LIBRARIES

Chapter 200.4 DEFINITIONS

Haw. Code R. § 8-200.4-1 Applicability

This chapter is applicable to all library services and the use or loan of library material, as set forth in chapters 8-200 through 8-210.2, unless otherwise specifically provided within those chapters.

History

[Eff 05/24/2010] (Auth: HRS § 312-1) (Imp: HRS § 312-1)

Haw. Code R. § 8-200.4-2 Definitions

Unless the context specifically indicates otherwise:

"Abandoned vehicle" means a vehicle which is left unattended on public library grounds for a period longer than one day or overnight.

"Adult" means a person eighteen years of age or older.

"Audio material" means sound media, including, but not limited to, audiocassettes and compact discs.

"Audiovisual equipment" means any device that facilitates the use of media other than standard print including, but not limited to, audiocassette players, overhead projectors, DVD and compact disc players, and digital projectors.

"Audiovisual material" or "AV" means media including, but not limited to, DVDs or videos.

"Authorized individual or representative" means a person eighteen years of age or older who is a member of a group or organization using a library meeting room or other portion of the library facility and designated as responsible for the use of the library facility.

"AV unit" means the audiovisual unit located in a designated public library or the Hawaii state library.

"Barcode" is a label with vertical lines representing numbers which can be optically read. It is used for inventory control and the circulation of library materials.

"Bestseller" means a book that is among those having the largest sales during a given period.

"Board of education" means the policy setting and governing authority for the Hawaii state public library system and the state librarian as defined in article X, section 2 of the Hawaii state constitution.

"Book" means a set of written or printed sheets bound in a volume.

"Card-required service" means any service provided to library customers, at the discretion of the state librarian and board of education, for which a valid library card is required. Card-required services include, but are not limited to, loan and reservation of circulating material, in-house use of desk reference material, public internet access, public printing services, and remote access to the system's commercial online resources.

"Cash gift authorization" means the form prepared upon receipt of a cash donation and is used to allocate a donation between restricted and non-restricted funds.

"CD" or "compact disc" means an optical disc containing a sound recording, moving or still images, or computer data.

"Charge" means a monetary amount that may be assessed against a library customer's account for failure to follow established procedures.

"Children" mean persons from birth through age twelve.

"Circulating material" means library material available for loan with a valid library card.

"Complainant" means a library customer or employee of the system, who submits a complaint alleging a violation of a right to nondiscrimination in the system.

"Complaint" means a charge filed that alleges a violation of a right to nondiscrimination in the system as provided by federal and state laws.

"Counsel" means any person or persons who, upon a request from the complainant or respondent, shall agree to assist with the preparation, filing, or presentation of any matter arising out of a filed complaint.

"Day" means an official work day within the official hours of operation established by the Hawaii state public library system.

"Department" means the department of education and any division or branch thereof, including the Hawaii state public library system.

"Desk reference library material" means any reference library material that may be frequently used, in high demand, rare, expensive, non-replaceable, fragile, or otherwise determined by the library manager to be an item that should be kept at the reference desk and readily available for use by library customers or staff.

"Donation" means cash or non-cash gifts given to the system.

"Due date" means the calendar day by which the library material must be returned to any public library.

"DVD" or "digital video disc" is a type of optical disk technology [File Link Not Available] combining sound and graphics commonly used as a medium for storing movies and other multimedia [File Link Not Available]presentations [File Link Not Available].

"Emergency library closure" means conditions beyond the public libraries' control which threaten the well-being of library customers and library staff, including, but not limited to, power failure, bomb threat, tsunami or tidal wave, flood, hurricane or tropical storm, tornado, volcanic eruption, terroristic threatening, or hostage taking.

"Employee" means a person employed by the system.

"Enhanced service" means any additional service provided to library customers, at the discretion of the state librarian and board of education, and for which a fee may be assessed and deposited in the enhanced service special fund.

"Fee" means a monetary amount assessed to a library customer for an enhanced service and for the loan of videocassettes and DVDs.

"Fine" means a monetary amount that may be assessed against a library customer's account for failure to return library material by its due date.

"Hawaii-based organization" is an organization that is incorporated in Hawaii, or an organization that is licensed to conduct business in Hawaii.

"Hearing relief" means the determination by the state librarian of a petitioner's request for an agency hearing.

"Hold" means a circulating library material awaiting pick up by a library customer.

"Homebound" means an individual who is confined to the individual's home.

"Hot pick" means new library material in high demand and which may have a shortened loan period.

"HSPLS" means the Hawaii state public library system.

"Internet" means a worldwide communications network of interconnected computers linking schools and universities, businesses, government agencies, libraries, organizations, and individuals.

"Language learning material" means audiovisual material designated by the HSPLS language selector for learning a language. These materials may be borrowed for three weeks with no loan fee.

"LPBH" means the library for the blind and physically handicapped.

"Library account" means a record in the library system database, which contains information about a customer's transactions.

"Library administrator" means a person who oversees the management, operation, facilities, collections, staffing, and budgets of multiple HSPLS libraries and who is responsible for fair, consistent, effective, and convenient services and programs.

"Library card" means a card with a barcode issued by HSPLS to a library customer for the purpose of authorizing the customer to borrow or use library material or services. A library card may contain a photograph of the customer.

"Library card application" means the form which a library customer is required to complete in order to obtain an HSPLS library card.

"Library customer" means any person or organization using the HSPLS' services and collections.

"Library facility" means a library building and surrounding area, including a courtyard, meeting room, lawn or parking lot, for which the library manager is responsible.

"Library for the blind and physically handicapped" means the HSPLS branch which serves as the Hawaii regional library for the National Library Service for the Blind and Physically Handicapped.

"Library manager" means the person responsible for the overall administration of a public library or a subject section of the Hawaii state library.

"Library material" means any material or item that is available for loan or use by a library customer.

"Library property" means the public library building, contents, parking lot, and grounds.

"Meeting room" means a room designated for group programs or other activities by the library manager.

"Minor" means a person less than eighteen years of age.

"Non-print material" means an art object, information kit, toy, resource, or material that may be offered for loan or use by a library.

"Non-resident" means a person who has not established legal permanent residence within the State.

"OPAC" means the online public access catalog, a public inventory of books and other materials available for use or loan.

"Organization" means a licensed school, partnership, joint venture, corporation, association, business, trust, government agency, or any organized group of persons in Hawaii.

"Parent" means the lawful or natural father or mother of a person

"PC" or "personal computer" means a library customer's own computer.

"Petition" means an application to the state librarian by a party who seeks relief.

"Petitioner" means a party who submits a petition to the state librarian for review.

"Preschooler" means a child between the ages of three and six.

"Print material" means a book, magazine, newspaper, pamphlet, printed matter on microform, or other printed matter, resource, or material that may be offered for loan or use by a library.

"Problem resolution officer" means any person duly appointed and authorized by the state librarian to oversee the problem resolution process.

"Problem resolution process" means the program in which a petitioner requests review of a decision made under the jurisdiction of the HSPLS.

"Public and school library" means a public library facility located on public school grounds which serves both public and school customers.

"Public education video (PEV) or DVD" means a video or DVD designated by the audiovisual selector as containing information on public or personal health, safety, or security.

"Public library" means a state-funded library available for use by the general public and operated by the system.

"Public service library staff" means employees who are responsible for delivering services and collections to the public in their respective facilities in conformance with HSPLS' goals, policies, and procedures.

"Renewal of library card" means the extension of an expired library card for another period.

"Renewal of library material" means an extension for another loan period.

"Resident" means a person who has established legal permanent residence within the State.

"Resource" means library material.

"Respondent" means any system personnel specifically named in a complaint as having allegedly taken an action which violates the nondiscrimination rights of a complainant; or the system when a complaint alleges systemic discrimination.

"Rule relief" means the adoption, modification, or repeal of any rule by the state librarian which is initiated by petition.

"Security personnel" means designated HSPLS staff or employees of a security company under contract with the system, who are responsible for the protection of state property and the personal safety of library customers and staff during the hours of operation of the library.

"Signature" means a library customer's handwritten name.

"State librarian" means the head of the HSPLS who is appointed and delegated responsibility by the board of education pursuant to section 312-2.1, HRS.

"System" means the Hawaii state public library system.

"System downtime" means period(s) during which the library automation system is unavailable.

"Systemic discrimination" means discrimination that results when an established policy, rule, or procedure of the system has the continuing effect of violating a person's nondiscrimination rights.

"Toddler" means a child less than three years of age.

"Valid library card" means an active HSPLS library card below established thresholds for claims and fines, fees, and charges.

"Video" or "videocassette" means an enclosed tape commonly used as a medium for storing movies and other multimedia [File Link Not Available]presentations [File Link Not Available].

"Young adult" means a person thirteen through seventeen years of age.

"Youth Services librarian" means a young adult or children's librarian.

History

[Eff 05/24/2010] (Auth: HRS §§ 296-19, 312-1) (Imp: 29 U.S.C. §§794, 706; 20 U.S.C. §1405; 34 C.F.R. §104; Hawaii Const., Art. I, §§ 1, 2; HRS §§ 296-19, 296-61, 368-1, 378-2; HRS Chapter 489)

Chapter 200.5 GENERAL POLICIES GOVERNING LIBRARY SERVICES

Haw. Code R. § 8-200.5-1 Applicability

This chapter is applicable to all library services and the use or loan of library material, unless otherwise specifically provided in other chapters.

History

[Eff 05/24/2010] (Auth: HRS §§ 302A-1120, 312-1) (Imp: HRS § 312-1)

Haw. Code R. § 8-200.5-2 Nondiscrimination

No library customer shall be denied the use or loan of library material on the basis of race, religion, color, national origin, sex, including gender identity or expression, sexual orientation, age, disability, ancestry, or marital status.

History

[Eff 05/24/2010] (Auth: HRS §§ 302A-1120, 312-1) (Imp: 29 U.S.C. §§794, 706; 20 U.S.C. §1405; 34 C.F.R. §104; Hawaii Const., Art. I, §§ 1, 2; HRS §§ 302A-1120, 302A-1001, 368-1, 378-2; HRS Chapter 489)

Haw. Code R. § 8-200.5-3 Confidentiality

The Hawaii state public library system shall ensure the privacy of library customers' reading interests and research needs. Personal information that would identify a library customer is to remain confidential and is not to be released except as follows:

(1) By court order or subpoena;

(2) Upon the request or with the consent of the individual who is the subject of the record or information;

(3) Upon the request of a parent or guardian of a minor who is under eighteen years of age and is the subject of the record;

(4) Upon the request of the guardian of a legally incapacitated individual who is the subject of the record; or

(5) For administrative and operational library purposes, including:

(A) The installation, maintenance, and operation of a library circulation or reservation system or the transfer of library records from one records management system to another;

(B) Compilation of statistical data on library use;

(D) The collection of fines or penalties.

Acts by library officers, employees, or police or security agents acting within the scope of their duties to determine the parties responsible for damage to library facilities or property or injury to library users or employees are not violations of this section.

History

[Eff 05/24/2010] (Auth: HRS §§ 302A-1120, 312-1) (Imp: HRS § 312-1)

Haw. Code R. § 8-200.5-4 Copyright

The public library and library customers shall strictly comply with all applicable copyright laws and guidelines.

History

[Eff 05/24/2010] (Auth: HRS §§ 302A-1120, 312-1) (Imp: HRS § 312-1)

Haw. Code R. § 8-200.5-5 Complaint

Any person aggrieved by a decision in this chapter may file a complaint in accordance with chapter 8-210.2.

History

[Eff 05/24/2010] (Auth: HRS §§ 302A-1120, 312-1) (Imp: HRS § 312-1)

Chapter 200.6 LIBRARY CARD

Haw. Code R. § 8-200.6-1 Applicability

This chapter is applicable to all library services and the use or loan of library material. Unless otherwise specifically provided in other chapters, this chapter shall apply to all services provided by public libraries. This chapter does not apply to the loan of materials from the library for the blind and physically handicapped and the federal documents unit of the Hawaii state library and to school library cards issued at public and school libraries.

History

[Eff 05/24/2010] (Auth: HRS §§ 302A-1120, 312-1) (Imp: HRS § 312-1)

Haw. Code R. § 8-200.6-2 Library card

(a) Unless otherwise provided by these rules, a library card is required for a library customer to use card-required services or to request enhanced services.

(b) A library customer who wishes to apply for a library card shall provide satisfactory proof of identification and current address and complete an application form substantially similar to the form located at the end of this chapter as Exhibit 1, entitled "Hawaii State Public Library System Library Card Application/Renewal", dated June 26, 2008.

(c) Applicants for library cards may verify their identification using one or more of the following picture indentifications to satisfy the required proof:

(1) Current driver's license;

(2) Current State of Hawaii identification certificate with expiration date;

(3) Current passport;

(4) Current military identification;

(5) Current school identification;

(6) Current alien registration card;

(7) Any current identification issued by any government agency;

(8) Current company-issued identification.

(d) Applicants may verify their current address using documents such as:

(1) Valid State of Hawaii driver's license;

(2) Valid State of Hawaii identification card with expiration date;

(3) Checkbook with name and address imprinted;

(4) Current rental agreement;

(5) Current utility bill;

(6) Proof of any insurance coverage issued to the person;

(7) Postmarked envelope mailed to customer within the last fourteen days.

(e) The library customer shall complete the application form by providing the customer's first name, middle name, last name, and permanent mailing address.

(f) A non-resident library customer shall provide a current Hawaii address in addition to a permanent mailing address.

(g) A library card application and library card must be signed with the customer's name. The library card must be signed in the presence of a library staff member.

(h) When a library customer is unable to sign the application or card because of a physical or mental disability, the customer's mark shall be witnessed by a library staff member, who shall place a note documenting this in the customer's library account. These provisions are not applicable for infants or non-school-aged children who have not yet learned to sign or print their name.

(i) Children must be able to handwrite their name on the application and card in order to obtain a library card.

(j) When a library customer is unable to sign the application or card because they are homebound as documented by a doctor's note, the customer's signature shall be witnessed by another person, who shall then provide their own valid identification in addition to the customer's identification as stated in subsection (c) to library staff. The witness' name shall be noted in the customer's library account.

(k) A minor applying for a library card shall be accompanied by a parent or guardian, except as provided in section 8-206.1-21. The parent or guardian must provide their own signature on the minor's library card application, and show satisfactory proof of current address and identification. By signing the minor's library card application, the parent or guardian agrees to be responsible for any fines, fees, or charges incurred by the minor and attached to the minor's account.

(l) An application shall be denied if it is incomplete, or if any information provided is false or fraudulent. Photocopies or other reproductions of any document shall not be accepted unless accompanied by the original.

(m) Library customers shall promptly notify HSPLS of any changes to their library account information, Including, but not limited to address or name changes. Library customers shall be responsible for all fines, fees, or charges that result from the failure to do so.

(n) Library customers shall be responsible for all library materials and library services charged to their library cards, including, but not limited to loss of or damage to library materials. Library customers shall promptly notify HSPLS of the loss or theft of their library card. The failure of a library customer to promptly inform the public library that the customer's card has been lost or stolen may cause the customer to be responsible for library material borrowed with a card that was lost or stolen.

(o) A library card may be revoked immediately if any information given on the application, or provided as proof of identification or address, is proved false.

(p) The first library card is free for residents, current military personnel with Hawaii orders, and the military personnel's dependents. The card will remain valid for five years after date of issue.

(q) The first library card is free for a Hawaii-based organization. An organization may be issued a library card if the executives of the organization provide adequate proof of identification and complete an organizational agreement, substantially similar to the form located at the end of this chapter as Exhibit 2, entitled "Hawaii State Public Library System Organizational Agreement For Library Use", dated June 15, 2007. The agreement shall require the notarized signature of the organization's head, who will be responsible for any financial obligations on the organization's account. The card will remain valid for five years from date of issue.

(r) Non-residents may be issued library cards that are valid for a three-month period or valid for a five-year period. The payment for a three-month card is $10. The payment for a five-year card is $25.

(s) There is no charge for renewal of library cards for residents and Hawaii-based organizations. Non-residents shall be charged $10 for the renewal of a three-month card or $25 for renewal of the five-year card.

(t) In order for a customer to renew a library card, the customer must present the library card, complete a new library card application form, and show acceptable proof of identification and current address. All library card renewal transactions require the presence of the library customer, except as set forth in subsection (j).

(u) A library customer whose resident card has expired may borrow one time only without providing identification documentation required for renewal.

(v) A fee of $5 shall be charged each time any library card is replaced. HSPLS provides for free replacement of library cards for customers who provide satisfactory proof and have a library account that is currently considered valid with regard to thresholds for fines, fees, and charges if:

(1) The card was stolen;

(2) The customer's legal name was changed;

(3) The card was damaged through normal wear and tear or an act of nature, such as but not limited to fire, flood, earthquake or other natural disaster that is not under the customer's control or for which the customer cannot reasonably be held accountable;

(4) The customer's status has changed from Juvenile to Young Adult or from Young Adult to Adult.

(w) With the exception of stolen cards or cards no longer available due to an act of nature, such as but not limited to fire, flood, earthquake, or other natural disaster that is not under the customer's control or for which the customer cannot reasonably be held accountable, a customer must present the current library card in order to obtain a replacement card. The customer shall also complete a new library card application form and show acceptable proof of identification and current address. All library card replacement transactions require the presence of the library customer, except as set forth in subsection (j).

Replacement cards for non-residents will have the same expiration date as the original cards.

(x) A library customer or organization shall not receive a refund for returned cards.

(y) A library card shall be used only by the customer to whom it was issued. It is not transferable, except as provided in section 8-200.7-7(c).

History

[Eff 05/24/2010] (Auth: HRS §§ 302A-1120, 312-1) (Imp: HRS § 312-1)

Haw. Code R. § 8-200.6-3 System downtime

During system downtimes, a non-library card holder may be issued an identification number and allowed borrowing privileges after properly completing a library card application form and showing proper identification.

History

[Eff 05/24/2010] (Auth: HRS §§ 302A-1120, 312-1) (Imp: HRS § 312-1)

Chapter 200.7 LOAN OF CIRCULATING LIBRARY MATERIAL

Subchapter 1 GENERAL APPLICABILITY

Haw. Code R. § 8-200.7-1 Applicability

This chapter is applicable to the loan of circulating material from public libraries, except as otherwise provided.This chapter does not apply to the loan of materials from the library for the blind and physically handicapped, and the federal documents unit of the Hawaii state library, and to school library cards issued at public and school libraries.

History

[Eff 05/24/2010] (Auth: HRS §§ 302A-1120, 312-1) (Imp: HRS § 312-1)

Subchapter 2 GENERAL PROVISIONS

Haw. Code R. § 8-200.7-2 Availability of library materials

(a) The system may maintain a collection of circulatingmaterials for public use at designated public libraries.

(b) Available circulating materials may be listed in the OPAC.

History

[Eff 05/24/2010] (Auth: HRS §§ 302A-1120, 312-1) (Imp: HRS § 312-1)

Haw. Code R. § 8-200.7-3 Valid library card

A valid library card is required for a library customer to borrow or place reserves for circulating library material.

History

[Eff 05/24/2010] (Auth: HRS §§ 302A-1120, 312-1) (Imp: HRS § 312-1)

Haw. Code R. § 8-200.7-4 Notice of due date

Notice of the due date for library material shall be provided to the library customer at the time of check out or renewal. Any library material returned after the due date is considered overdue.

History

[Eff 05/24/2010] (Auth: HRS §§ 302A-1120, 312-1) (Imp: HRS § 312-1)

Haw. Code R. § 8-200.7-5 Renewal

(a) A library customer may renew borrowed library material for one additional loan period, provided that the library material does not have a request placed against it for another library customer.

(b) Renewals may be made in person at the library or by telephone. A library customer shall have available, at the time of renewal, the item and the library card which was originally used to borrow the item.

(c) The system may provide a self-renewal option, which will allow the library customer to renew library materials via the online public access catalog for only one additional loan period, provided that the library material does not have a request placed against it for another library customer.

History

[Eff 05/24/2010] (Auth: HRS §§ 302A-1120, 312-1) (Imp: HRS § 312-1)

Haw. Code R. § 8-200.7-6 Return of library material

Borrowed circulating material shall be returned at any public library and in the condition borrowed.

History

[Eff 05/24/2010] (Auth: HRS §§ 302A-1120, 312-1) (Imp: HRS § 312-1)

Haw. Code R. § 8-200.7-7 Holds

(a) A library customer may place a request with a valid library card on any circulating library material which is not immediately available. When a copy becomes available, a hold notice will be transmitted by regular mail or email informing the customer that the material is being held and that the material will be held for no more than sixteen days from the date the material is checked in at the designated pick up library.

(b) The library card used to place the request is required for a library customer to borrow the requested library material.

(c) A customer may authorize a family member to borrow a reserved item with the library card which was originally used to place the hold.

(d) The failure of the customer to cancel a request by the pickup date on the hold notice may result in a charge of $1 per library material. The charge shall be applied against the library customer's library card account.

History

[Eff 05/24/2010] (Auth: HRS §§ 302A-1120, 312-1) (Imp: HRS § 312-1)

Haw. Code R. § 8-200.7-8 System downtime

(a) Any library customer with a valid library card may be permitted to borrow any circulating library material during system downtimes.

(b) During system downtimes, a non-library card holder may be issued an identification number and allowed borrowing privileges after properly completing a library card application form and showing proper identification.

History

[Eff 05/24/2010] (Auth: HRS §§ 302A-1120, 312-1) (Imp: HRS § 312-1)

Subchapter 3 LOAN OF PRINT AND NON-PRINT MATERIAL

Haw. Code R. § 8-200.7-9 Loan period for print and non-print material

Unless otherwise specified, the loan period for circulating print and non-print material shall be twenty-one days.

History

[Eff 05/24/2010] (Auth: HRS §§ 302A-1120, 312-1) (Imp: HRS § 312-1)

Haw. Code R. § 8-200.7-10 Loan period for print hot picks material

The loan period for a print hot pick shall be seven days.

History

[Eff 05/24/2010] (Auth: HRS §§ 302A-1120, 312-1) (Imp: HRS § 312-1)

Subchapter 4 LOAN OF AUDIO MATERIAL

Haw. Code R. § 8-200.7-11 Loan period for audio material

The loan period for circulating audio materials shall be twenty-one days.

History

[Eff 05/24/2010] (Auth: HRS §§ 302A-1120, 312-1) (Imp: HRS § 312-1)

Haw. Code R. § 8-200.7-12 Loan limits for audio material

No more than ten compact discs may be on loan to a library customer at one time.

History

[Eff 05/24/2010] (Auth: HRS §§ 302A-1120, 312-1) (Imp: HRS § 312-1)

Chapter 201.1 MANAGEMENT AND USE OF PUBLIC LIBRARY FACILITIES

Haw. Code R. § 8-201.1-1 Applicabi1ity

This chapter governs the management, use, maintenance, and security of public library facilities. Except as otherwise provided in this chapter, the provisions of chapter 8-200.5 shall also apply. This chapter does not apply to the management and use of the facilities for the library for the blind and physically handicapped.

History

[Eff 1/2/96; comp 1/7/99; am and comp 05/24/2010] (Auth: HRS §§ 302A-1120, 312-1) (Imp: HRS § 312-1)

Haw. Code R. § 8-201.1-2 Purpose

The purpose of this chapter is to provide for the safe and secure use of public library facilities by the general public and to ensure that all library customers can use the public libraries in a clean and healthy environment free from excessive noise

and other interferences.

History

[Eff 1/2/96; comp 1/7/99; am and comp 05/24/2010] (Auth: HRS §§ 302A-1120, 312-1) (Imp: HRS § 312-1)

Haw. Code R. § 8-201.1-3 [Repealed]

History

REPEALED. R 05/24/2010

Haw. Code R. § 8-201.1-4 Library material security

Any library customer leaving a public library with library material shall be required to charge the library material out using a valid HSPLS library card.

History

[Eff 1/2/96; comp 1/7/99; am and comp 05/24/2010] (Auth: HRS §§ 302A-1120, 312-1) (Imp: HRS § 312-1)

Haw. Code R. § 8-201.1-5 Smoking

Smoking is prohibited within a public library and within twenty feet from any entrance, exit, windows that open and ventilation intakes that serve an enclosed or partially enclosed area, in accordance with section 328-J, HRS.

History

[Eff 1/2/96; comp 1/7/99; am and comp 05/24/2010] (Auth: HRS §§ 302A-1120, 312-1) (Imp: HRS § 312-1)

Haw. Code R. § 8-201.1-6 Alcoholic beverages

. Consumption and use of alcoholic beverages is prohibited on public library property.

History

[Eff 1/2/96; comp 1/7/99; am and comp 05/24/2010] (Auth: HRS §§ 302A-1120, 312-1) (Imp: HRS § 312-1)

Haw. Code R. § 8-201.1-7 Food consumption

Eating and drinking are prohibited in a public library except that refreshments may be served in a meeting room, or as otherwise authorized by the state librarian or library manager.

History

[Eff 1/2/96; comp 1/7/99; am and comp 05/24/2010] (Auth: HRS §§ 302A-1120, 312-1) (Imp: HRS § 312-1)

Haw. Code R. § 8-201.1-8 Animals

. Animals, other than service

animals, are prohibited from a public library, unless otherwise authorized by the library manager or designee. A service animal means any animal that is trained to provide those life activities limited by the disability of the person, as defined in HRS 515-3.

History

[Eff 1/2/96; comp 1/7/99; am and comp 05/24/2010] (Auth: HRS §§ 302A-1120, 312-1) (Imp: HRS § 312-1)

Haw. Code R. § 8-201.1-9 Skates

(a) . (a) Skates shall not be worn or used in or on public library property, unless otherwise authorized by the library manager.

(b) As used in this section, "skates" includes roller skates, inline skates, skateboards, and any other instrument containing wheels which is subject to being ridden.

History

[Eff 1/2/96; comp 1/7/99; am and comp 05/24/2010] (Auth: HRS §§ 302A-1120, 312-1) (Imp: HRS § 312-1)

Haw. Code R. § 8-201.1-10 Unattended child,

(a) As used in this section, "child" means an individual aged five and below.

(b) A child shall be accompanied by a parent, guardian, adult, or responsible person at all times while in a public library. A child left unattended by a parent, guardian, adult, or other responsible person may be reported to the police or other appropriate public agency.

(c) The public library shall not be responsible for the care of any child left unattended in a public library. The parent or guardian shall be responsible at all times for a child on public library property.

(Auth: HRS §§ 302A-1120, 312-1) (Imp: HRS § 312-1)

History

[Eff 1/2/96; am and comp 1/7/99; am and comp 05/24/2010]

Haw. Code R. § 8-201.1-11 Use of electrical outlet

Use of electrical outlets on public library property is prohibited unless otherwise authorized by a library manager. The use of an electrical outlet by a library customer for purposes

of personal consumption of food or drink, or for personal hygiene is prohibited.

History

[Eff 1/2/96; comp 1/7/99; am and comp 05/24/2010] (Auth: HRS §§ 302A-1120, 312-1) (Imp: HRS § 312-1)

Haw. Code R. § 8-201.1-12 Personal property,

(a) Neither the public library nor the public library staff is responsible for personal items left, stolen, or damaged on public library property.

(b) All items left on public library property shall be reported and turned in to the library manager and held in custody for forty-five days or until claimed by the owner. After forty-five days, any items left unclaimed shall be disposed of by the public library. Property with estimated value in excess of $100 will be immediately turned over to the custody of police for disposition.

History

[Eff 1/2/96; comp 1/7/99; am and comp 05/24/2010] (Auth: HRS §§ 302A-1120, 312-1) (Imp: HRS § 312-1)

Haw. Code R. § 8-201.1-13 Disruptive behavior,

(a) Behavior deemed disruptive by the library staff shall be prohibited. If the library customer continues to display disruptive behavior after being warned by the library manager, the customer shall be requested to leave the library until the disruptive behavior has ceased. Prohibited disruptive behavior is that which would unduly interfere with a reasonable library customer's quiet enjoyment and use of the public library.

(b) Bathing or washing that results in extensive puddling on the floor, disrobing in the common area, shaving of any part of the body, or other conduct that unduly interferes with other library customers' use of the restroom is prohibited.

(c) A library customer who displays a lack of bodily hygiene which could or may impose a health or safety risk or which unduly interferes with another customer's quiet use and enjoyment of the public library, including, but not limited to the following, may be

prohibited from using library facilities and services:

(1) Unduly offensive body odor;

(2) Open runny sores;

(3) Deliberate bodily discharges in the common area;

(4) Lice or other insect infestation; or

(5) Unclean clothing, hands or feet which may soil, stain, deface, or damage library property.

History

[Eff 1/2/96; am and comp 1/7/99; am and comp 05/24/2010] (Auth: HRS §§ 302A-1120, 312-1) (Imp: HRS § 312-1)

Haw. Code R. § 8-201.1-14 Unlawful or malicious damage,

(a) Any

person who unlawfully or maliciously cuts, tears, defaces, disfigures, soils, obliterates, breaks, or otherwise damages any library material shall be referred to the library manager, and if necessary, shall be reported to the police.

(b) Any person who unlawfully or maliciously damages any library facility, material, or equipment shall be responsible for the damage or loss.

(c) The library manager may bill the responsible person for any damage or loss. The responsible person shall pay for the damage or loss within thirty days of the date billed. Failure to pay for the damage or loss may result in the system taking appropriate legal action to recover the cost of the damage or loss and denial of use of the library facility, material, or equipment.

(d) Any person aggrieved by a decision under this section may file a complaint in accordance with chapter 8-210.2.

History

[Eff 1/2/96; comp 1/7/99; am and comp 05/24/2010] (Auth: HRS §§ 302A-1120, 312-1) (Imp: HRS § 312-1)

Haw. Code R. § 8-201.1-15 Enforcement

. The library manager, security

personnel, or designated library staff shall:

(1) Enforce discipline and maintain order within the public library, grounds, and parking lot; and

(2) Enforce rules and regulations to maintain a clean, healthy, and safe environment for library customers and staff.

History

[Eff 1/2/96; comp 1/7/99; am and comp 05/24/2010] (Auth: HRS §§ 302A-1120, 312-1) (Imp: HRS § 312-1)

Haw. Code R. § 8-201.1-16 Denial of use,

(a) Any person violating any decision or order of the state librarian, library manager, or any administrative rule governing HSPLS, may be denied use of a public library for a period of time to be determined by the library manager or state librarian.

(b) The person may be notified of the denial of use of any library facility, material, equipment, or service upon the issuance of a notice of denial of use or trespass form, substantially similar to the form located at the end of this chapter as Exhibit 1, entitled "Notice of Denial of Use or Trespass Warning", dated June 16, 2008.

History

[Eff 1/2/96; am and comp 1/7/99; am and comp 05/24/2010] (Auth: HRS §§ 302A-1120, 312-1) (Imp: HRS § 312-1)

Haw. Code R. § 8-201.1-17 Maintenance of library facilities

All public libraries shall be maintained in a manner that provides clean, healthy, safe and comfortable facilities for library customers and employees.

History

[Eff 1/2/96; comp 1/7/99; am and comp 05/24/2010] (Auth: HRS §§ 302A-1120, 312-1) (Imp: HRS § 312-1)

Haw. Code R. § 8-201.1-18 Notification of emergency library closures

Public libraries shall notify the general public of emergency library closures through the library manager or the office of the state librarian. All contact with the news media shall be made by the office of the state librarian or a designated representative.

History

[Eff 1/2/96; comp 1/7/99; am and comp 05/24/2010] (Auth: HRS §§ 302A-1120, 312-1) (Imp: HRS § 312-1)

Haw. Code R. § 8-201.1-19 Emergency closing of libraries

Public library facilities may be closed at the discretion of the library manager or state librarian whenever the health or safety of library customers or staff is at risk.

History

[Eff 1/2/96; comp 1/7/99; am and comp 05/24/2010] (Auth: HRS §§ 302A-1120, 312-1) (Imp: HRS § 312-1)

Haw. Code R. § 8-201.1-20 Security personnel on premises

Public libraries may employ security personnel or designate staff in each public library to enforce the system's rules, provide for the protection and security of property, and to maintain a clean, healthy, and safe environment for library customers and staff.

History

[Eff 1/2/96; comp 1/7/99; am and comp 05/24/2010] (Auth: HRS §§ 302A-1120, 312-1) (Imp: HRS § 312-1)

Haw. Code R. § 8-201.1-21 Location of public parking

A public library may provide public parking for library customers using public library facilities. Whenever possible, public parking may be located in areas easily accessible to the public library.

History

[Eff 1/2/96; comp 1/7/99; comp 05/24/2010] (Auth: HRS §§ 302A-1120, 312-1) (Imp: HRS § 312-1)

Haw. Code R. § 8-201.1-22 Signage for public parking

A public library shall clearly mark the location of parking stalls and towaway areas.

History

[Eff 1/2/96; comp 1/7/99; comp 05/24/2010] (Auth: HRS §§ 302A-1120, 312-1) (Imp: HRS § 312-1)

Haw. Code R. § 8-201.1-23 Ticketing of unauthorized or improperly parked vehicles

Security personnel or library managers shall ticket or cite any vehicle parked in unauthorized areas or improperly parked. The citation shall be substantially similar to the form which is located at the end of this chapter as Exhibit 2, entitled "Traffic Violation", dated September 2000, and made a part of this section.

History

[Eff 1/2/96; comp 1/7/99; am and comp 05/24/2010] (Auth: HRS §§ 302A-1120, 312-1) (Imp: HRS § 312-1)

Haw. Code R. § 8-201.1-24 Abandoned vehicles

(a) Security personnel or the library manager may post a traffic violation notice on any vehicle parked beyond the operating hours of the library.

(b) If the vehicle is not claimed within twenty-four hours of the posting of the notice, the vehicle shall be considered abandoned and may be towed in accordance with section 8-201.1-25.

History

[Eff 1/2/96; am and comp 1/7/99; am and comp 05/24/2010] (Auth: HRS §§ 302A-1120, 312-1) (Imp: HRS § 312-1)

Haw. Code R. § 8-201.1-25 Towing of abandoned or unauthorized vehicles

(a) Vehicles may be towed if:

(1) More than one traffic violation notice has been issued to the same vehicle within the past three months;

(2) The driver refuses to move the vehicle from an unauthorized area; or

(3) The vehicle is abandoned.

(b) Vehicles may be towed under the direction of the library manager by an authorized towing company.

(c) The cost for towing and storage of the vehicle shall be paid by the owner of the vehicle or the person responsible for the vehicle.

History

[Eff 1/2/96; comp 1/7/99; am and comp 05/24/2010] (Auth: HRS §§ 302A-1120, 312-1) (Imp: HRS § 312-1)

Chapter 201.2 SELECTION AND ACQUISITION OF LIBRARY MATERIAL

Haw. Code R. § 8-201.2-1 Applicability

This chapter is applicable to the selection and acquisition of library resources, as defined in section 8-200.4-2. This chapter shall not apply to the selection and acquisition of any other goods and services.

History

[Eff 1/7/99; am and comp 05/24/2010] (Auth: HRS §§ 302A-1120, 312-1) (Imp: HRS § 312-1)

Haw. Code R. § 8-201.2-2 REPEALED

History

R 05/24/2010

Haw. Code R. § 8-201.2-3 Selection of library material

Public service library staff shall have the sole authority to select books and other resources to be purchased for the library to which they are assigned. The library manager shall have final overall authority to approve all selections of books and other resources made for the library. Selection decisions shall be made by public service library staff at such times and in such manner as the state librarian may determine and shall be in conformance with HSPLS' collection development goals and policies.

History

[Eff 1/7/99; am and comp 05/24/2010] (Auth: HRS §§ 302A-1120, 312-1) (Imp: HRS § 312-1)

Haw. Code R. § 8-201.2-4 Purchase and acquisition

The state librarian shall have the sole authority to initiate procurement actions and to enter into contracts for books and other resources to be purchased on behalf of the state public library system.

History

[Eff 1/7/99; comp 05/24/2010] (Auth: HRS §§ 302A-1120, 312-1) (Imp: HRS § 312-1)

Chapter 205 CIVIL RIGHTS COMPLAINT PROCESS

Haw. Code R. § 8-205-1 Statement of purpose

Nondiscrimination on the basis of race, religion, color, national origin, sex, including gender identity or expression, sexual orientation, age, disability, ancestry, or marital status is a basic right guaranteed by federal and state laws. The purpose of this chapter is to establish policies for filing and resolving complaints regarding alleged violations of the right to nondiscrimination as protected by federal and state laws. Unless otherwise stated in this chapter, the relief and review process is set forth in chapter 8-210.2.

The policies contained in this chapter are not exclusive. Any remedy available at law is available in addition to these policies. The policies in this chapter are intended to effectuate an informal and expeditious resolution of a complaint alleging violation of the right to nondiscrimination.

History

[Eff 8/7/93; am 1/2/96; am and comp 05/24/2010] (Auth: HRS §§ 296-19, 312-1) (Imp: 29 U.S.C. §§794, 706; 20 U.S.C. §1405; 34 C.F.R. §104; Hawaii Const., Art. I, §§ 1, 2; HRS §§ 296-19, 296-61, 368-1, 378-2; HRS Chapter 489)

Haw. Code R. § 8-205-2 REPEALED

History

R 05/24/2010

Haw. Code R. § 8-205-3 Applicability

This chapter shall apply to all library customers and employees of the system.

Any individual who believes that he or she has been discriminated against by HSPLS or an HSPLS employee shall have the right to file a complaint. The complaint must be delivered to the office of the state librarian within thirty days of the date of the alleged violation. The complaint shall identify the specific location or library that gave rise to the facts of the complaint, the names of the HSPLS personnel involved to the extent known and available to the party at the time, a specific description of the nature of the problem, including facts relating to the problem, and a proposed resolution of the problem to the extent known and available to the party at the time.

History

[Eff 8/7/93; am and comp 05/24/2010] (Auth: HRS §§ 296-19, 312-1) (Imp: 29 U.S.C. §§794, 706; 20 U.S.C. §1405; 34 C.F.R. §104; Hawaii Const., Art. I, §§ 1, 2; HRS §§ 296-19, 296-61, 368-1, 378-2; HRS Chapter 489)

Haw. Code R. § 8-205-4 Complaint board

(a) There shall be a complaint board established for the purpose of receiving and hearing a complaint filed by a complainant. Each member of the board shall not have any conflicting interest in the complaint by being directly involved or participating in any action or conduct alleged in the complaint or in the investigation of the complaint, or have a direct interest in the outcome of the decision.

(b) Each complaint board shall consist of:

(1) Any person duly appointed and authorized by the state librarian who shall serve as chairperson of the board;

(2) The library manager or the manager's designee of a public library not involved in the complaint; and

(3) The system's personnel officer or the officer's designee.

(c) If a member of the complaint board is disqualified, the chairperson shall appoint an alternate from the same role group to hear the complaint; provided that, if the chairperson has reason to be disqualified from hearing a complaint, the state librarian shall appoint an alternate to the board to serve as chairperson of the complaint board to hear the complaint.

(d) A complaint board shall be established within fifteen days after receipt of a complaint properly filed by a complainant at the office of the state librarian.

(e) A quorum of the complaint board shall be two board members or designees.

(f) Each board member or designee shall have one vote.

(g) A decision of the complaint board shall require the concurring vote of at least two board members or designees and shall be made no later than thirty days after the date the hearing is concluded.

History

[Eff 8/7/93; am 1/2/96; am and comp 05/24/2010] (Auth: HRS § 312-1) (Imp: 29 U.S.C. §§794, 706; 20 U.S.C. §1405; 34 C.F.R. §104; Hawaii Const., Art. I, §§ 1, 2; HRS §§ 296-19, 296-61, 368-1, 378-2; HRS Chapter 489)

Haw. Code R. § 8-205-5 Right to seek other relief

Nothing in this chapter shall be construed to limit or waive the right of a complainant to seek other relief as provided under federal and state laws, provided the complainant has exhausted all administrative processes and remedies as set forth in chapter 8-205.

History

[Eff 8/7/93; am and comp 05/24/2010] (Auth: HRS §§ 296-19, 312-1) (Imp: 29 U.S.C. §§794, 706; 20 U.S.C. §1405; 34 C.F.R. §104; Hawaii Const., Art. I, §§ 1, 2; HRS §§ 296-19, 296-61, 368-1, 378-2; HRS Chapter 489)

Haw. Code R. § 8-205-6 Right to counsel

Complainants and respondents shall, at their own expense, have the right to seek counsel in preparing, filing, and presenting any matter arising out of a complaint.

History

[Eff 8/7/93; comp 05/24/2010] (Auth: HRS §§ 296-19, 312-1) (Imp: 29 U.S.C. §§794, 706; 20 U.S.C. §1405; 34 C.F.R. §104; Hawaii Const., Art. I, §§ 1, 2; HRS §§ 296-19, 296-61, 368-1, 378-2; HRS Chapter 489)

Haw. Code R. § 8-205-7 Right to information

A complainant and respondent shall have access to information and records in the possession of the system, except any information and records that must remain confidential in accordance with federal and state laws.

History

[Eff 8/7/93; comp 05/24/2010] (Auth: HRS § 296-19) (Imp: 29 U.S.C. §§794, 706; 20 U.S.C. §1405; 34 C.F.R. §104; Hawaii Const., Art. I, §§ 1, 2; HRS §§ 296-19, 296-61, 368-1, 378-2; HRS Chapter 489)

Haw. Code R. § 8-205-8 Confidentiality

Complaint records shall remain confidential in accordance with federal and state laws. They shall be maintained separate and apart from the library customer and personnel files.

History

[Eff 8/7/93; am and comp 05/24/2010] (Auth: HRS § 296-19) (Imp: 29 U.S.C. §§794, 706; 20 U.S.C. §1405; 34 C.F.R. §104; Hawaii Const., Art. I, §§ 1, 2; HRS §§ 296-19, 296-61, 368-1, 378-2; HRS Chapter 489)

Haw. Code R. § 8-205-9 Right to discuss with library personnel

Nothing in this chapter shall be construed to prevent or discourage a complainant from discussing discrimination concerns with any public library personnel prior to filing a complaint.

History

[Eff 8/7/93; comp 05/24/2010] (Auth: HRS § 296-19) (Imp: 29 U.S.C. §§794, 706; 20 U.S.C. §1405; 34 C.F.R. §104; Hawaii Const., Art. I, §§ 1, 2; HRS §§ 296-19, 296-61, 368-1, 378-2; HRS Chapter 489)

Haw. Code R. § 8-205-10 REPEALED

History

R 05/24/2010

Haw. Code R. § 8-205-11 Waiver of time limits

The time limits established under this chapter may be waived for good and just cause by the chairperson of the presiding complaint board. However, under no circumstances shall a written decision be issued later than thirty days after the date the hearing is concluded.

History

[Eff 8/7/93; am 1/2/96; am and comp 05/24/2010] (Auth: HRS § 296-19) (Imp: 29 U.S.C. §§794, 706; 20 U.S.C. §1405; 34 C.F.R. §104; Hawaii Const., Art. I, §§ 1, 2; HRS §§ 296-19, 296-61, 368-1, 378-2; HRS Chapter 489)

Haw. Code R. § 8-205-12 Remedy

If a decision of the complaint board requires remedial action by the system, the state librarian shall promptly and equitably determine an appropriate remedy and implement it.

History

[Eff 8/7/93; am 1/2/96; am and comp 05/24/2010] (Auth: HRS § 296-19) (Imp: 29 U.S.C. §§794, 706; 20 U.S.C. §1405; 34 C.F.R. §104; Hawaii Const., Art. I, §§ 1, 2; HRS §§ 296-19, 296-61, 368-1, 378-2; HRS Chapter 489)

Haw. Code R. § 8-205-13 Withdrawal of complaint

A complainant may withdraw the complaint at any time prior to the conclusion of the hearing by the complaint board.

History

[Eff 8/7/93; am 1/2/96; comp 05/24/2010] (Auth: HRS § 296-19) (Imp: 29 U.S.C. §§794, 706; 20 U.S.C. §1405; 34 C.F.R. §104; Hawaii Const., Art. I, §§ 1, 2; HRS §§ 296-19, 296-61, 368-1, 378-2; HRS Chapter 489)

Haw. Code R. § 8-205-14 Reprisal prohibited; sanctions

Reprisal is prohibited against any person who has made a complaint, testified, assisted, or participated in any manner in a proceeding as provided herein. Any employee of the system who violates this chapter shall be subject to disciplinary action.

History

[Eff 8/7/93; comp 05/24/2010] (Auth: HRS § 296-19) (Imp: 29 U.S.C. §§794, 706; 20 U.S.C. §1405; 34 C.F.R. §104; Hawaii Const., Art. I, §§ 1, 2; HRS §§ 296-19, 296-61, 368-1, 378-2; HRS Chapter 489)

Chapter 206.1 LIBRARY SERVICES

Subchapter 1 GENERAL PROVISIONS

Haw. Code R. § 8-206.1-1 Applicability

This chapter applies to various library services provided by public libraries. Except as otherwise provided in this chapter, the provisions of chapters 8-200.5 and 8-200.6 shall also apply.

History

[Eff 1/2/96; comp 1/7/99; am and comp 05/24/2010] (Auth: HRS §§ 302A-1120, 312-1) (Imp: HRS § 312-1)

Haw. Code R. § 8-206.1-2 REPEALED

History

R 05/24/2010

Haw. Code R. § 8-206.1-3 Public service hours

Public service hours shall be posted at each public library.

History

[Eff 1/2/96; comp 1/7/99; am and comp 05/24/2010] (Auth: HRS §§ 302A-1120, 312-1) (Imp: HRS § 312-1)

Haw. Code R. § 8-206.1-4 Holidays

(a) Public libraries may be closed on designated state holidays pursuant to chapter 8, Hawaii Revised Statutes. Holiday schedules shall be posted in each public library.

(b) Public libraries may be closed for three day weekends when national holidays are officially observed on a Friday, Saturday, Sunday, or Monday.

History

[Eff 1/2/96; comp 1/7/99; comp 05/24/2010] (Auth: HRS §§ 302A-1120, 312-1) (Imp: HRS § 312-1)

Haw. Code R. § 8-206.1-5 Book drop hours

(a) Public library book drops shall be open during the hours libraries are closed.

(b) Should any situations arise preventing the book drop from being open, a sign shall be posted on the book drop to inform the public not to use the book drop.

History

[Eff 1/2/96; comp 1/7/99; am and comp 05/24/2010] (Auth: HRS §§ 302A-1120, 312-1) (Imp: HRS § 312-1)

Subchapter 2 LIBRARY FOR THE BLIND AND PHYSICALLY HANDICAPPED

Haw. Code R. § 8-206.1-6 Library for the blind and physically handicapped services

The library for the blind and physically handicapped provides the following services:

(1) Specialized library collections for those who are unable to read or handle regular print material due to a visual or physical disability. The large type collection is available to all library customers who have a valid Hawaii state public library system library card;

(2) Transcribing services available to people with visual or physical disabilities. Print material not readily available in required format elsewhere may be transcribed into braille, electronic, or recorded formats;

(3) Radio reading service Hawaii, a radio program established by the system for the special benefit of registered library customers of the library for the blind and physically handicapped;

(4) Repair and maintenance of the National Library Service or library for the blind and physically handicapped issued equipment used by National Library Service for the Blind and Physically Handicapped customers and staff;

(5) Technical assistance to the total program as well as orientation of library for the blind and physically handicapped services for library staff statewide;

(6) Services to teachers or others who require information on services to eligible or potential library for the blind and physically handicapped customers;

(7) Consultation and coordination of services to institutions serving individuals who are blind or physically handicapped; and

(8) Informational tours of the library for the blind and physically handicapped.

History

[Eff 1/2/96; am and comp 1/7/99; am and comp 05/24/2010] (Auth: HRS §§ 302A-1120, 312-1) (Imp: 2 U.S.C. §§135a, 135b; HRS § 312-1)

Haw. Code R. § 8-206.1-7 Eligibility for use of library for the blind and physically handicapped services

The following people are eligible to use the services of the library for the blind and physically handicapped:

(1) Persons whose visual acuity is 20/200 or less in the better eye with correcting glasses, or whose widest diameter of visual field subtends an angular distance no greater than 20 degrees as determined by competent authority, as defined by Public Law 89-522 or other applicable federal law;

(2) Persons whose visual disability, with correction and regardless of optical measurement, is certified by competent authority as preventing the reading of standard printed material;

(3) Persons certified by competent authority as unable to read or unable to use standard printed material as a result of physical limitations; and

(4) Persons certified by a medical doctor as having a reading disability resulting from organic dysfunction and of sufficient severity to prevent their reading printed material in a normal manner.

History

[Eff 1/2/96; am and comp 1/7/99; am and comp 05/24/2010] (Auth: §§ 302A-1120, 312-1) (Imp: 2 U.S.C. §§135a, 135b; HRS § 312-1)

Haw. Code R. § 8-206.1-8 Eligibility for use of library for the blind and physically handicapped services

The following people are eligible to use the services of the library for the blind and physically handicapped:

(2) Persons whose visual disability, with correction and regardless of optical measurement, is certified by competent authority as preventing the reading of standard printed material;

(3) Persons certified by competent authority as unable to read or unable to use standard printed material as a result of physical limitations; and

(4) Persons certified by a medical doctor as having a reading disability resulting from organic dysfunction and of sufficient severity to prevent their reading printed material in a normal manner.

History

[Eff 1/2/96; am and comp 1/7/99; am and comp 05/24/2010] (Auth: §§ 302A-1120, 312-1) (Imp: 2 U.S.C. §§135a, 135b; HRS § 312-1)

Subchapter 3 BOOKMOBILE SERVICES

Haw. Code R. § 8-206.1-9 Bookmobile services

(a) Bookmobile services may be provided to those who live in areas where a public library is not located within close proximity, or to areas where library customers are not able to visit a public library due to a physical disability.

(b) The areas that may be visited by the bookmobiles shall be based upon various factors including cost of service, geographical location, demographics, time of day, physical characteristics of the area for target library customers, number of library customers served, distance between established stops, and traffic patterns.

History

[Eff 1/2/96; comp 1/7/99; comp 05/24/2010] (Auth: HRS §§ 302A-1120, 312-1) (Imp: HRS § 312-1)

Haw. Code R. § 8-206.1-10 Bookmobile schedules

Bookmobile schedules may be printed and made available to library customers before the schedules' effective dates. Holidays and maintenance periods when no bookmobile service will be offered may be included in these schedules.

History

[Eff 1/2/96; comp 1/7/99; comp 05/24/2010] (Auth: HRS §§ 302A-1120, 312-1) (Imp: HRS § 312-1)

Haw. Code R. § 8-206.1-11 Notification of cancellation of bookmobile services

(a) If a bookmobile stop must be canceled, public libraries shall attempt to notify library customers of the cancellation and the length of time service will be canceled.

(b) If cancellation of the bookmobile stop causes a library item to become overdue, no fines shall be assessed during that period.

History

[Eff 1/2/96; comp 1/7/99; comp 05/24/2010] (Auth: HRS §§ 302A-1120, 312-1) (Imp: HRS § 312-1)

Haw. Code R. § 8-206.1-12 Bookmobile guests

All requests to allow guests (visiting librarians or student observers) to ride in the bookmobile shall be submitted to the library staff of the public library to which the bookmobile is affiliated. Guests shall be permitted, provided that:

(1) Each rider has a safe seat and a seat belt;

(2) A signed waiver from each guest stating that the staff and State of Hawaii are not liable for any conduct resulting in the injury or death of a guest is obtained from each guest; and

(3) The request is approved by the state librarian.

History

[Eff 1/2/96; comp 1/7/99; am and comp 05/24/2010] (Auth: HRS §§ 302A-1120, 312-1) (Imp: HRS § 312-1)

Subchapter 4 BULLETIN BOARDS AND DISPLAY AREAS

Haw. Code R. § 8-206.1-13 Location

Each public library may have a bulletin board or display area.

History

[Eff 1/2/96; comp 1/7/99; comp 05/24/2010] (Auth: HRS §§ 302A-1120, 312-1) (Imp: HRS § 312-1)

Haw. Code R. § 8-206.1-14 Use of bulletin boards

(a) Bulletin boards may be used to post notices and announcements of public library and community activities.

(b) All items posted on the bulletin board in a public library shall be approved by the library manager prior to posting. Items posted without prior approval shall be removed.

History

[Eff 1/2/96; comp 1/7/99; am and comp 05/24/2010] (Auth: HRS §§ 302A-1120, 312-1) (Imp: HRS § 312-1)

Haw. Code R. § 8-206.1-15 Use of display area

(a) A public library with a display area may permit an individual or organization to display an item upon prior approval of the library manager. The display area shall not be used for a commercial purpose.

(b) An individual or organization intending to display an item shall complete a form, substantially similar to the form which is located at the end of this chapter as Exhibit 2, entitled "Consignment Agreement", dated November 1992, and made a part of this section.

(c) The library manager shall determine the length of time the display may be exhibited, generally not to exceed one month.

(d) Public libraries are not responsible for lost, stolen, or damaged items.

History

[Eff 1/2/96; comp 1/7/99; am and comp 05/24/2010] (Auth: HRS §§ 302A-1120, 312-1) (Imp: HRS § 312-1)

Subchapter 5 OTHER SERVICES

Haw. Code R. § 8-206.1-16 Services to non-English language readers

(a) Public libraries may make available for use or loan library material for library customers who are non-English language readers, as well as those who wish to read or use material in another language.

(b) Material for non-English reading library customers that may be provided by each public library shall depend upon which non-English languages are predominantly spoken in the community served. Public libraries may subscribe to one or more non-English language periodicals or newspapers, depending upon the community served.

History

[Eff 1/2/96; comp 1/7/99; am and comp 05/24/2010] (Auth: HRS §§ 302A-1120, 312-1) (Imp: HRS § 312-1)

Haw. Code R. § 8-206.1-17 Reference material and requests

(a) Reference service is provided to library customers who come in person, call via the telephone, place a request through other public libraries, submit a request through electronic communication, or mail or telecopy a request.

(b) Reference material may be photocopied and mailed to library customers agreeing to pay the enhanced service fees specified in chapter 8-206.2.

(c) Requests for financial, medical, legal, tax, or consumer information shall be provided from published sources and no opinions or interpretations shall be provided by library staff.

(d) Requests shall be limited to three items per person at one time (e.g., three listings in the telephone directory or three definitions in the dictionary).

(e) All reference material may be restricted for use in the library. Public libraries may not allow a library customer to borrow reference material except under the following circumstances:

(1) When the copy machine in the library is not working;

(2) A library customer requests a short loan period to copy a picture in color and there is a nearby copy agency that has that capability; or

(3) The library manager or designee determines that there is a compelling reason to permit a loan.

The library manager or designee shall determine the length of the reference loan period. The library customer shall provide a valid library card. A library customer shall be assessed any charges for any damage or loss caused by the customer to the reference material. The charges shall be applied to the library customer's library card account.

(f) If reference material is loaned to a library customer, all rules, terms, and conditions applicable to the loan of circulating library material shall apply, unless otherwise specified in this section.

(g) If reference material is also identified by the library manager as desk reference library material, the library customer shall provide a library card or acceptable picture identification to use the item in the public library. Acceptable picture identification is limited to an unexpired driver's license, a current student identification card, or a government issued identification card such as a military ID or a state ID card. The library card or picture identification will be returned to the library customer upon return of the desk reference material. A library customer shall be assessed any charges for any damage or loss caused by the customer to the desk reference material. The charges shall be applied to the library customer's library card or billed directly to the customer.

(h) Heavily used, rare, or fragile reference material may be restricted to use in the public library where it is located. A bibliography may be prepared at the request of a library customer provided there are available resources within the system as determined by the library manager.

(i) When a bibliography is provided, credit shall be given to the individual preparing the bibliography, the public library, and the system. A bibliography shall be dated.

History

[Eff 1/2/96; am and comp 1/7/99; am and comp 05/24/2010] (Auth: HRS §§ 302A-1120, 312-1) (Imp: HRS § 312-1)

Haw. Code R. § 8-206.1-18 Reader's advisory services

A public library may provide reader's advisory services. Reader's advisory services lead library customers to material in the public library that are of interest to library customers, but which are not familiar to library customers.

History

[Eff 1/2/96; comp 1/7/99; comp 05/24/2010] (Auth: HRS §§ 302A-1120, 312-1) (Imp: HRS § 312-1)

Haw. Code R. § 8-206.1-19 REPEALED

History

R 05/24/2010

Haw. Code R. § 8-206.1-20 REPEALED

History

R 05/24/2010

Haw. Code R. § 8-206.1-21 Class and group visits

(a) A public library may introduce its services and resources to school classes and groups within the community or as requested.

(b) The library may introduce its services and resources to students borrowing library material during a class visit to the public library under the following terms and conditions:

(1) Library material may be borrowed for a period up to six weeks upon prior arrangement with the library manager or designee.

(2) A library card may be issued to a minor student upon completion of a library card application signed by the minor's parent or guardian and collected and verified by the student's teacher.

(3) For purposes of this section, a class visit is a prearranged visit by a school class and designed to assist students in the use of library material.

(d) The same organization, or any group or class of the organization, shall not be scheduled more than twice in a single month for a prepared session. A prepared session is one which requires library staff time to plan and conduct. The same organization, or any group or class of the organization, shall not be visited by the same librarian more than twice in the same month.

(e) Unscheduled organizations or groups or classes of an organization arriving unannounced shall receive the same reference assistance as other individual library customers who arrive at the same time. Every effort shall be made to provide fair and efficient service.

History

[Eff 1/2/96; comp 1/7/99; am and comp 05/24/2010] (Auth: HRS §§ 302A-1120, 312-1) (Imp: HRS § 312-1)

Haw. Code R. § 8-206.1-22 Access to HSPLS' online services and resources

(a) The system may provide access to its website to library customers within libraries or remotely.

(b) The system may provide access to its online catalog to library customers within libraries or remotely.

(c) The system may provide access to online resources including those developed and maintained by the system as well as subscription databases and other commercial information sources funded by the system.

History

[Eff and comp 1/7/99; am and comp 05/24/2010] (Auth: HRS §§ 302A-1120, 312-1) (Imp: HRS § 312-1)

Haw. Code R. § 8-206.1-23 Access to online resources via the Internet

(a) Internet-accessible computers may be provided at system libraries as a means of expanding the range of information services.

(b) The system may provide internet-accessible computers to customers with their own valid HSPLS library card.

(d) Library customers shall assume full responsibility for the use of equipment, software, and network connection provided by the system.

(e) Use of the Internet which violates state or federal laws, or any unauthorized access to any computer systems, computers, or restricted data files shall not be permitted.

(f) The system shall develop guidelines in accordance with these rules.

History

[Eff and comp 05/24/2010] (Auth: HRS §§ 302A-1120, 312-1) (Imp: HRS §312)

Chapter 206.2 LIBRARY ENHANCED SERVICES

Subchapter 1 GENERAL PROVISIONS

Haw. Code R. § 8-206.2-1 Applicability

This chapter applies to various library enhanced services which may be provided by public libraries. Except as otherwise provided in this chapter, the provisions of chapters 8-200.5 and 8-200.6 shall also apply.

History

[Eff 1/2/96; comp 1/7/99; am and comp 05/24/2010] (Auth: HRS §§ 302A-1120, 312-1) (Imp: HRS § 312-1)

Haw. Code R. § 8-206.2-2 REPEALED

History

R 05/24/2010

Haw. Code R. § 8-206.2-3 Collection, disposition, and use of fees and charges

(a) The library manager is responsible for all moneys collected from library customers provided under this chapter. All moneys collected by the public libraries shall be deposited and expended in any manner authorized by law.

(b) Fees for enhanced services may be temporarily discounted at the discretion of the state librarian or designee for a specified library promotional purpose.

(c) Any fees, fines, and charges provided in this chapter shall be applied against a library customer's library card account or billed to libraries, persons, or organizations from other states or jurisdictions.

History

[Eff 1/2/96; am and comp 1/7/99; am and comp 05/24/2010] (Auth: HRS §§ 302A-1120, 312-1) (Imp: HRS § 312-1)

Haw. Code R. § 8-206.2-4 REPEALED

History

R 05/24/2010

Subchapter 2 TELECOPYING

Haw. Code R. § 8-206.2-5 Requests to telecopy library documents

(a) Requests to telecopy library documents may be made by telephone, telecopier, or other means, and is provided by a public library as an enhanced service.

(b) Library customers who request that librarydocuments be telecopied to a private home or office shall provide a mailing address and telephone number to call if a transmission cannot be completed. If the library document cannot be telecopied after two days, a photocopy of the library document may be sent by United States mail, first class rate to the address provided by the library customer.

(c) All library documents shall include a telefacsimile cover sheet, substantially similar to the form which is located at the end of this chapter as Exhibit 1, entitled "Telefacsimile Transmittal Form", dated November 1992, and made a part of this section.

History

[Eff 1/2/96; comp 1/7/99; am and comp 05/24/2010] (Auth: HRS §§ 302A-1120, 312-1) (Imp: HRS § 312-1)

Haw. Code R. § 8-206.2-6 Guidelines for telecopying library documents

The following guidelines shall be followed when telecopying library documents:

(1) Public libraries shall only telecopy library documents available for use or loan, except as provided in paragraph (4);

(2) Public libraries may telecopy library documents to public and private libraries, offices, or homes;

(3) Public libraries shall make reasonable efforts to transmit or telecopy requested library documents in a timely manner and no later than two days after a library customer has submitted a request;

(4) Public libraries may telecopy for members of the public up to five pages of state legislative testimony on any bill. Neighbor island library customers' testimony shall be telecopied to the state legislature's toll free number. Public libraries shall not telecopy non-library documents to other elected officials or government agencies.

History

[Eff 1/2/96; comp 1/7/99; am and comp 05/24/2010] (Auth: HRS §§ 302A-1120, 312-1) (Imp: HRS § 312-1)

Haw. Code R. § 8-206.2-7 Enhanced service fees to telecopy library documents

(a) Library documents may be telecopied or faxed directly to a library customer upon agreement to pay an enhanced service fee of $2.50 per page.

(b) A public library shall not assess an enhanced service fee for telecopying or faxing state legislative testimony. The testimony shall be limited to not more than five pages of state legislative testimony on any bill.

(c) If a public library properly attempts to telecopy the requested library documents and is unable to complete the transmission over a two day period, the public library may mail the photocopy of the requested library document to the library customer, who shall be assessed the enhanced service fee provided in section 8-206.2-30 to photocopy and mail library documents.

History

[Eff 1/2/96; comp 1/7/99; am and comp 05/24/2010] (Auth: HRS §§ 302A-1120, 312-1) (Imp: HRS § 312-1)

Haw. Code R. § 8-206.2-8 Receipt of telecopied documents

(a) Public libraries may receive telecopied documents sent by state legislators to their constituents.

(b) State legislators who telecopy documents shall be solely responsible for notifying their constituents that the telecopied documents have been transmitted to a public library for pick-up. Pick-up of telecopied documents shall be limited to the public library's normal hours of operation.

(d) State legislators may telecopy documents to a public library up to twenty-five pages per constituent per day.

History

[Eff 1/2/96; comp 1/7/99; comp 05/24/2010] (Auth: HRS §§ 302A-1120, 312-1) (Imp: HRS § 312-1)

Subchapter 3 INTERLIBRARY LOANS

Haw. Code R. § 8-206.2-9 Interlibrary loan service

Interlibrary loan service is an enhanced service that allows library customers to borrow library material which is not available in the system, and to allow libraries from other states or jurisdictions to borrow library material from the system. Library material which is not available in the system may be obtained from other libraries in Hawaii, from libraries in other states in the United States, or from libraries throughout the world. The public library shall observe all applicable copyright laws and guidelines when providing interlibrary loan service.

History

[Eff 1/2/96; comp 1/7/99; comp 05/24/2010] (Auth: HRS §§ 302A-1120, 312-1) (Imp: HRS § 312-1)

Haw. Code R. § 8-206.2-10 Loan procedures

(a) Library customers wishing to use interlibrary loan service to borrow library material not available within the system shall complete a form, substantially similar to the form which is located at the end of this chapter as Exhibit 2, entitled "Interlibrary Loan Request", dated August 2006, and made a part of this section.

(b) Availability of requested material shall be determined by the library lending the material. The loan period for the requested item shall be determined by the library lending the material. Library customers shall be notified when the requested item is received.

(c) Libraries from other states or jurisdictions wishing to borrow library material from the system shall submit a request in accordance with interlibrary loan guidelines established by the American Library Association. Libraries shall be assessed for this enhanced service in accordance with this chapter.

(d) Unless otherwise specifically provided herein, all terms and conditions applicable to the use or loan of circulating library material shall apply to the interlibrary loan service.

History

[Eff 1/2/96; comp 1/7/99; am and comp 05/24/2010] (Auth: HRS §§ 302A-1120, 312-1) (Imp: HRS § 312-1)

Haw. Code R. § 8-206.2-11 Enhanced service fees for interlibrary loan service

Library customers using the interlibrary loan service to acquire library material not available in the system shall be assessed enhanced service fees in the following amounts:

(1) $10 per item; and

(2) The direct cost incurred by the public library to photocopy, print, mail, or otherwise acquire the requested item from another library not within the system.

History

[Eff 1/2/96; comp 1/7/99; comp 05/24/2010] (Auth: HRS §§ 302A-1120, 312-1) (Imp: HRS § 312-1)

Haw. Code R. § 8-206.2-12 Interlibrary loan service to a non-system library or agency; enhanced service fees

Interlibrary loan service to a non-system library or agency is an enhanced service. The public library may charge the non-system library or agency enhanced service fees in the following amounts:

(1) $15 per item; and

(2) The direct cost incurred by the public library to photocopy, print, mail, or otherwise provide the requested item to the agency or library.

History

[Eff 1/2/96; comp 1/7/99; comp 05/24/2010] (Auth: HRS §§ 302A-1120, 312-1) (Imp: HRS § 312-1)

Haw. Code R. § 8-206.2-13 Fines and charges

(a) Library material borrowed from the system under the interlibrary loan service and returned after the due date shall be considered overdue and the library customer or library shall be assessed overdue fines and charges in accordance with chapters 8-200.7 and 8-200.8.

(b) Overdue library material borrowed by a library customer, library, or agency from a non-system library under the interlibrary loan service shall also be assessed a charge equal to any difference between the overdue fine assessed by the system and any overdue fine, charge, or fee assessed by the library from which the material is borrowed.

(c) Library customers shall also be assessed the replacement value of the item plus a $5 non-refundable processing charge for items that are lost or returned damaged, and any other fees or charges incurred by the public library to acquire the requested item.

History

[Eff 1/2/96; comp 1/7/99; am and comp 05/24/2010] (Auth: HRS §§ 302A-1120, 312-1) (Imp: HRS § 312-1)

Haw. Code R. § 8-206.2-14 Renewals

Renewal of items on loan through interlibrary loan is at the discretion of the lending library.

History

[Eff 1/2/96; comp 1/7/99; comp 05/24/2010] (Auth: HRS §§ 302A-1120, 312-1) (Imp: HRS § 312-1)

Haw. Code R. §§ 8-206.2-15 to 8-206.2-19.1 REPEALED

History

R 05/24/2010

Subchapter 5 LIBRARY FACILITIES, EQUIPMENT, AND SUPPLIES

Haw. Code R. § 8-206.2-20 Library facilities; authorized use and enhanced service fees

(a) A public library facility may be used, and an enhanced service fee may be assessed for:

(1) A library sponsored or co-sponsored activity for no enhanced service fee;

(2) A government agency activity for an enhanced service fee of $20;

(3) An individual or a non-profit organization using the facility as part of a non-commercial or public service activity, and for which no admission charge, registration fee, donation, collection, or other fee is being made, collected, received, or requested for attendance or participation in the activity, may be assessed an enhanced service fee of $25;

(4) An individual or an organization using the facility as part of a non-commercial or public service activity, and for which an admission charge, registration fee, donation, collection, or other fee is being made, collected, received, or requested for attendance or participation in the activity, may be assessed an enhanced service fee of $100;

(5) An individual or a for-profit organization using the facility as part of a commercial activity may be assessed an enhanced service fee of $100.

(b) The enhanced service fee per use is based upon the use of a library facility that does not exceed one calendar day. A library customer may also be assessed the cost for providing one or more security guards or ocustodians or both at a library facility when a library manager determines that one or more custodians or security guards or both are required for the security, maintenance, or protection of library material or facility. If the library facility needs to be cleaned and trash removed after use, the authorized individual or representative will be assessed custodial fees.

History

[Eff 1/2/96; comp 1/7/99; am and comp 05/24/2010] (Auth: HRS §§ 302A-1120, 312-1) (Imp: HRS § 312-1)

Haw. Code R. § 8-206.2-21 Use of audiovisual equipment; enhanced service fees

Audiovisual equipment may be made available for use within the library facility as an enhanced service and upon payment of an enhanced service fee of $10 per item for each use not exceeding one calendar day.

History

[Eff 1/2/96; comp 1/7/99; comp 05/24/2010] (Auth: HRS §§ 302A-1120, 312-1) (Imp: HRS § 312-1)

Haw. Code R. § 8-206.2-22 Procedures for use of library facility or audiovisual equipment; charges

(a) Reservations shall be required for the use of a library facility or audiovisual equipment. The reservation shall be made by an authorized individual or representative with a library manager, either by telephone or in person, no more than twelve calendar months in advance of the date of use.

(b) The authorized individual or representative shall apply for use of the library facility or audiovisual equipment in writing to the library manager on a form supplied by the system and substantially similar to the form which is located at the end of this chapter as Exhibit 3, entitled "Request to Use Library Facilities", dated February 2009.

(c) The library facility key shall be picked up by the authorized individual or representative during normal operating hours prior to use of the library facility. Duplication of any key is strictly forbidden.

(d) Payment for use of the library facility and audiovisual equipment shall be made when the key is picked up. Acceptable methods of payment are cash, check, certified check, or money order.

(e) The authorized individual or representative shall be responsible for the following tasks before closing and leaving the library facility: equipment, lights, and air-conditioners to be turned off; doors and windows to be locked; facility to be left as found when entering; kitchen to be clean; trash to be removed from the premises; and, return the library facility key to the library by dropping the key in the library's book drop.

(f) The authorized individual or representative shall immediately notify the library manager either in writing or by telephone of any cancellation prior to use of the library facility. If the key has already been picked up and the enhanced service fee to use the library facility has been paid, the enhanced service fee shall be refunded, provided the key is returned before the scheduled date of use. The amount refunded may reflect any deduction arising from any cost incurred by the public library to reserve the library facility, including the cost to provide security guard(s) or custodian(s) or both.

(g) If the library facility is not properly secured upon completion of use of the facility and library personnel are required to return and secure the facility, the authorized individual or representative shall be assessed the labor and material cost incurred by the library personnel to return and secure the facility. The labor and material costs shall be determined by the system.

(h) If library personnel are requested to return and re-open the facility after it has been secured, the authorized individual or representative shall be assessed the labor and material cost incurred by the library personnel to return and re-open the facility. The labor and material costs shall be determined by the system.

(i) The authorized individual or representative shall be assessed a service fee for any dishonored check in accordance with section 40-35.5, HRS.

(j) The authorized individual or representative shall comply with state laws and county ordinances and state and county rules including, but not limited to:

(1) Fire code;

(2) Police protection rules; and

(3) Rules of the state department of health.

(k) The authorized individual or representative shall release the State of Hawaii from any responsibility or claim arising out of injuries or damages, or both, incurred during the use of buildings, facilities, or grounds.

(l) The authorized individual or representative agrees to assume the cost of repairs for damages incurred to buildings, grounds, and equipment whether accidental or otherwise at the time of use.

(m) The authorized individual or representative shall secure all necessary performance licenses prior to use of the facilities and shall indemnify the library and system for any failure on their part to do so.

(n) Use of the facility means that HSPLS is merely allowing the authorized individual or representative the use of the facility and not endorsing or affiliated with any events or activities that take place in the facility during such use.

(o) The authorized individual, representative, organization, or company shall not deny anyone admittance or access on the basis of race, religion, color, national origin, sex, including gender identity or expression, sexual orientation, age, disability, ancestry, or marital status, in compliance with state and federal laws.

History

[Eff 1/2/96; am and comp 1/7/99; am and comp 05/24/2010] (Auth: HRS §§ 302A-1120, 312-1) (Imp: HRS § 312-1)

Haw. Code R. § 8-206.2-23 Media production equipment, materials, and supplies; enhanced service fees

(a) The use of various equipment, materials, and supplies for media production may be available as an enhanced service for public use at selected public libraries. These are available on a self-service basis, with limited training provided by library staff. Media production shall not be used for commercial purposes.

(b) A public library may assess an enhanced service fee for the use of equipment, materials, andsupplies upon posting a list of costs for the available equipment, materials, and supplies. Equipment, materials, and supplies may be available for:

(1) Laminating;

(2) Button making; or

(3) Typing.

History

[Eff 1/2/96; comp 1/7/99; am and comp 05/24/2010] (Auth: HRS §§ 302A-1120, 312-1) (Imp: HRS § 312-1)

Haw. Code R. § 8-206.2-24 Print management; enhanced service fees

(a) A public library may offer, as an enhanced service, the use of printers and copiers.

(b) A library customer making a copy or print on a self-service basis shall be assessed a fee of 15 cents per page on a black and white printer and $1 per page on a color printer or on a dual color or black and white printer.

(d) A library customer shall pre-pay up to $10 on their account for use of the printers. Unused print pre-payments shall not be refunded. Print pre-payments are not transferable.

(e) Print charges shall be instituted only after print management software has been installed in all system libraries.

History

[Eff and comp 05/24/2010] (Auth: HRS §§ 302A-1120, 312-1) (Imp: HRS § 312-1)

Subchapter 6 OTHER LIBRARY ENHANCED SERVICES

Haw. Code R. § 8-206.2-27 REPEALED

History

R 05/24/2010

Haw. Code R. § 8-206.2-28 Book bags; enhanced service fees

A public library may make available, as an enhanced service, book bags for purchase by library customers. The public library may assess an enhanced service fee up to $10 for each book bag.

History

[Eff 1/2/96; comp 1/7/99; am and comp 05/24/2010] (Auth: HRS §§ 302A-1120, 312-1) (Imp: HRS § 312-1)

Haw. Code R. § 8-206.2-29 Bestsellers; enhanced service fees

(a) A public library may make available, as an enhanced service, additional copies of a bestseller. A public library may assess an enhanced service fee of $1 for each day a bestseller is rented by a library customer. The rental fee will be determined and assessed when the bestseller is returned, provided that the rental fee shall not exceed $50. The rental fee shall be applied against the library customer's library card.

(b) For purposes of this section, a bestseller is determined by the system and made available for loan as an enhanced service.

(d) A copy of a bestseller shall also be available for borrowing in the circulating collection of a public library which has designated that book to be a rental bestseller, without the assessment of an enhanced service fee and subject to the rules related to the borrowing of print material.

(e) Except as provided in this section, the terms and conditions for borrowing a rental bestseller shall be the same as terms and conditions for borrowing circulating library material.

History

[Eff 1/2/96; comp 1/7/99; am and comp 05/24/2010] (Auth: HRS §§ 302A-1120, 312-1) (Imp: HRS § 312-1)

Haw. Code R. § 8-206.2-30 Photocopied or mailed documents; enhanced service fees

(a) A public library may make available, as an enhanced service, the photocopying or mailing of documents to a library customer. For purposes of this section, "photocopying" includes the use of a microform reader and printer, photocopier, printer, or any other equipment utilized to copy information in any format in accordance with all copyright regulations.

(b) A public library may assess an enhanced service fee of not less than 25 cents per page of a document requested to be photocopied. The customer may be assessed additional charges for color or special feature copying.

(c) A public library may assess an additional enhanced service fee of $1 per page to mail photocopied documents from any public library to a library customer.

(d) Enhanced service fees shall be assessed upon a library customer's library card account.

History

[Eff 1/2/96; am and comp 1/7/9; am and comp 05/24/2010] (Auth: HRS §§ 302A-1120, 312-1) (Imp: HRS § 312-1)

Haw. Code R. § 8-206.2-31 Books by mail service; enhanced service fees

(a) A public library may provide, as an enhanced service, the delivery of a borrowed book to a library customer by mail. Library customers utilizing this service may request the delivery by mail of only circulating library material.

(b) This service shall be provided for an enhanced service fee of $3 for each item mailed plus all applicable postage charges, and shall be assessed upon a library customer's library card account. All applicable terms and conditions for borrowing library material shall also apply to books borrowed and delivered by mail.

(c) When placing a hold on circulating library material, a library customer may request that the reserved item be mailed to their mailing address on record when it becomes available.

(d) There is no limit to the number of items borrowed through the books by mail service. The delinquency threshold as provided in chapter 8-200.8 shall determine loan privileges.

(e) The requested item shall be sent by United States mail, first class.

(f) The loan period for library material borrowed through the books by mail service is twenty-eight days. The loan period begins on the date the library material is checked out on the customer's library card. The loan period ends when the library material is received and checked in by an HSPLS library. Library material returned after the due date shall be considered overdue and fines shall be assessed in accordance with chapter 8-200.8.

(g) Library material borrowed through the books by mail service shall be returned at any public library.

History

[Eff 1/2/96; comp 1/7/99; am and comp 05/24/2010] (Auth: HRS §§ 302A-1120, 312-1) (Imp: HRS § 312-1)

Haw. Code R. § 8-206.2-32 Custom research service; enhanced service fees

(a) Custom research service may be made available at public libraries as an enhanced service upon agreement to pay an enhanced service fee. For purposes of this section, "custom research service" means any research service provided by a public library staff member that requires extensive consultation with a library customer and specialized research knowledge or expertise of a librarian to investigate a complex question or information request by analyzing, creating, interpreting, compiling, indexing, or otherwise synthesizing specific or detailed information from numerous primary, secondary, or interdisciplinary resources within the system or from libraries or other resources not within the system.

(b) If offered by a public library, custom research service may be provided upon agreement to pay an enhanced service fee of $60 per hour. There shall be a minimum charge of $60 for each request or project. Custom research service in excess of one hour shall be charged on a quarter hour basis.

(c) In addition to the custom research service enhanced service fee, a library customer may be charged any other applicable charge or fee necessary to complete or otherwise perform the custom research, including without limitation the following charges:

(1) Computer charges levied by an external database;

(2) Information retrieval costs, including interlibrary loan charges, telecopying, postage, or handling, assessed by libraries not within the system or from other resources; and

(3) Document delivery to the library customer:

(A) Photocopies of any printed material: the photocopying enhanced service fee provided in section 8-206.2-30, plus any shipping and other charges levied by outside resources; and

(B) Telecopying of any printed material: the telecopying enhanced service fee provided in section 8-206.2-7; and

(4) All applicable copyright fees and charges.

(d) Requests for custom research services shall be made on a form substantially similar to the form located at the end of this chapter as Exhibit 4, entitled "Custom Research Service Request", dated December 1996, and made a part of this section.

(e) Completed requests shall be sent to the public library in hard copy or by telecopy transmission.

(f) All enhanced service fees and charges shall be applied against the library customer's library card account.

(g) The library customer requesting custom research service assumes any and all risks and liabilities and waives any claims against a public library arising from any information or research provided by a public library through the custom research service.

History

[Eff 1/2/96; am and comp 1/7/99; am and comp 05/24/2010] (Auth: HRS §§ 302A-1120, 312-1) (Imp: HRS § 312-1)

Haw. Code R. § 8-206.2-33 Sale of books, other print, non-print, audiovisual, and digital resources, including but not limited to films on videocassette or dvd; enhanced service fees

A public library may offer, as an enhanced service, the sale of any book, videocassette, DVD, cassette tape, compact disc, magazine, or newspaper to library customers. This service may be offered in partnership with one or more affiliated online bookseller(s), which would set item, shipping, and other costs. Library customers would access the bookseller(s)'s website. All transactions, including delivery and payment, would take place solely between the library customer and the bookseller(s). The system would not be responsible for any delivery or payment problems between the customer and bookseller(s).

History

[Eff 1/2/96; comp 1/7/99; am and comp 05/24/2010] (Auth: HRS §§ 302A-1120, 312-1) (Imp: HRS § 312-1)

Haw. Code R. § 8-206.2-34 Sale of compact discs, dvds, and other storage media; enhanced service fees

(a) A public library may offer, as an enhanced service, the sale of any compact disc, dvd, or other storage media to library customers.

(b) A public library may not assess the library customer an amount greater than the suggested retail price reflected on the compact disc, dvd, or other storage media plus any applicable handling and postage costs incurred by the public library.

(c) A library manager may determine whether or not to offer any compact disc, dvd, or other storage media for sale to a library customer.

History

[Eff and comp 05/24/2010] (Auth: HRS §§ 302A-1120, 312-1) Imp: HRS § 312-1)

Haw. Code R. § 8-206.2-35 Proctoring tests; enhanced service fees

(a) A public library may provide, as an enhanced service, the proctoring of tests for a library customer.

(b) Library customers utilizing this service shall request the service in advance and shall be responsible for any additional charges such as postage.

(c) A library manager may determine whether or not to offer the proctoring service, the location and the day and time of the service, whether or not additional tasks associated with the proctoring process can be provided, and where specialized knowledge or experience is not required of library staff.

(d) HSPLS staff will bear no liability resulting from the proctoring of the examination(s).

(e) There shall be a charge of $10 per test plus any additional costs required as part of the proctoring procedure.

History

[Eff and comp 05/24/2010] (Auth: HRS §§ 302A-1120, 312-1) (Imp: HRS § 312-1)

Chapter 207 LIBRARY PROGRAMS

Haw. Code R. § 8-207-1 Applicability

This chapter governs programs developed by the public libraries for the general public. This chapter does not apply to programs developed by the library for the blind and physically handicapped.

History

[Eff 8/7/93; comp 05/24/2010] (Auth: HRS §§ 296-19, 312-1) (Imp: HRS § 312-1)

Haw. Code R. § 8-207-2 REPEALED

History

R 05/24/2010

Haw. Code R. § 8-207-3 REPEALED

History

R 05/24/2010

Haw. Code R. § 8-207-4 Programs offered

(a) The system may offer various programs at the public libraries.

(b) All statewide level programs may be available at each public library.

(c) Branch library level programs may be offered at a public library based on availability of public library personnel and community requirements.

History

[Eff 8/7/93; comp 05/24/2010] (Auth: HRS §§ 296-19, 312-1) (Imp: HRS § 312-1)

Haw. Code R. § 8-207-5 Professional performers

(a) Professional performers may be used by the system for various programs.

(b) Professional performers hired for programs for children and young adults shall be auditioned by a panel of not less than three youth services librarians before being engaged to perform at any public library.

(d) Performers hired by the system shall provide services that reflect specialized or unique expertise.

(e) Complaints and poor evaluations submitted by the public and staff may result in removal of the performer's name from the eligible list.

History

[Eff 8/7/93; am 1/2/96; am and comp 05/24/2010] (Auth: HRS §§ 296-19, 312-1) (Imp: HRS § 312-1)

Haw. Code R. § 8-207-6 No charges for programs

All programs offered by the public libraries are free of charge.

History

[Eff 8/7/93; comp 05/24/2010] (Auth: HRS §§ 296-19, 312-1) (Imp: HRS § 312-1)

Haw. Code R. § 8-207-7 Eligibility to participate in programs

(a) All programs shall be offered to the public.

(b) Age or grade specific programs (e.g., young adult summer reading program, preschool or toddler story hours shall be restricted only to those library customers in the specified age or grade range.

History

[Eff § 8-207-108 /7/93; am and comp 05/24/2010] (Auth: HRS §§ 296-19, 312-1) (Imp: HRS § 312-1)

Haw. Code R. § 8-207-8 Program schedule

Whenever possible, program schedules may be published and made available to library customers prior to the program's occurrence.

History

[Eff 8/7/93; comp 05/24/2010] (Auth: HRS §§ 296-19, 312-1) (Imp: HRS § 312-1)

Haw. Code R. § 8-207-9 Location of programs

All programs shall be performed in a public library, except that certain programs may be performed at other locations in a public school or the community based on the size of the anticipated audience. All programs held at sites other than a public library shall be clearly identified as being sponsored by the system.

History

[Eff 8/7/93; comp 05/24/2010] (Auth: HRS §§ 296-19, 312-1) (Imp: HRS § 312-1)

Haw. Code R. § 8-207-10 Restrictions

Public libraries may limit the number of attendees and participants in a program due to room size, fire and safety code, or program requirements. In these instances, library customers may be required to register for the program at the public library.

History

[Eff 8/7/93; am and comp 05/24/2010] (Auth: HRS §§ 296-19, 312-1) (Imp: HRS § 312-1)

Chapter 209 DONATIONS TO PUBLIC LIBRARIES

Haw. Code R. § 8-209-1 Applicability

This chapter governs the receipt of cash and non-cash donations from individuals or organizations to the public libraries.

History

[Eff 8/7/93; comp 05/24/2010] (Auth: HRS §§ 296-19, 312-1) (Imp: HRS §§ 312-1, 312-2)

Haw. Code R. § 8-209-2 REPEALED

History

R 05/24/2010

Haw. Code R. § 8-209-3 Non-cash donations

(a) The system shall receive all non-cash donations (e.g., books, tapes, equipment) from individuals and organizations for use by the public libraries.

(b) Non-cash donations may be made at any public library in the system.

(c) Donors shall be issued an acknowledgment for donated items upon request. The acknowledgment form, substantially similar to the form which is located at the end of this chapter as Exhibit 1, entitled "Gift Acknowledgment", dated 1996, and made a part of this section, shall indicate the type of donation and not the value.

(d) Non-cash donations may be added to the collection of a specific public library. However, the donated item may be available for use at any public library in the system.

History

[Eff 8/7/93; am and Comp 05/24/2010] (Auth: HRS §§ 296-19, 312-1) (Imp: HRS §§ 312-1, 312-2)

Haw. Code R. § 8-209-4 Cash donations

(a) The system shall receive all cash donations from individuals and organizations for use by the public libraries.

(b) Cash donations may be made at any public library in the system.

(c) For cash donations of $100 or more donors shall receive an authorization form, substantially similar to the form which is located at the end of this chapter as Exhibit 2, entitled "Cash Gift Authorization", dated 2007, and made a part of this section. Donors shall indicate any restrictions to the cash gift on the form.

History

[Eff 8/7/93; am and comp 05/24/2010] (Auth: HRS §§ 296-19, 312-1) (Imp: HRS §§ 312-1, 312-2)

Haw. Code R. § 8-209-5 Approval by state librarian

All cash and non-cash donations over $500 shall be approved by the state librarian before being accepted by the system.

History

[Eff 8/7/93; am 1/2/96; comp 05/24/2010] (Auth: HRS §§ 296-19, 312-1) (Imp: HRS §§ 312-1, 312-2)

Haw. Code R. § 8-209-6 Trust funds

All restricted cash donations over $10,000 will be submitted to the department of accounting and general services to be established as a separate trust fund or deposited and expended in any manner authorized by law.

History

[Eff 8/7/93; comp 05/24/2010] (Auth: HRS §§ 296-19, 312-1) (Imp: HRS §§ 312-1, 312-2)

Haw. Code R. § 8-209-7 Right to determine use of non-cash donations

(a) The system shall evaluate all non-cash donations for inclusion in the public libraries' collections.

(b) Items shall be evaluated for suitability based upon:

(1) Condition of the item;

(2) Age of the item; and

(3) Applicability of the item.

History

[Eff 8/7/93; comp 05/24/2010] (Auth: HRS §§ 296-19, 312-1) (Imp: HRS §§ 312-1, 312-2)

Chapter 210.2 ADMINISTRATIVE REVIEW PROCESS

Subchapter 1 GENERAL PROVISIONS

Haw. Code R. § 8-210.2-1 Purpose and scope

The purpose of this chapter is to obtain from the state librarian:

(1) A determination of any contested matter within the state librarian's jurisdiction that is not otherwise resolvable;

(2) A declaration as to the applicability of any rule or order enforced by a library manager, a library administrator, or the problem resolution officer, cited in the problem resolution process; or

(3) A declaration to support a petition for the modification, repeal, or adoption of any administrative rule.

Information about complaints regarding discrimination is contained in chapter 8-205.

History

[Eff 05/24/2010] (Auth: HRS §§ 91-2, 296-19, 312-1) (Imp: HRS § 312-1)

Haw. Code R. § 8-210.2-2 Applicability

This chapter provides a complainant who has gone through the problem resolution process, including filling out the form substantially similar to the form located at the end of this chapter as Exhibit 1, entitled "Request For Problem Resolution", dated June 2008, an opportunity to contest the determination or declaration.

History

[Eff 05/24/2010] (Auth: HRS §§ 91-2, 296-19, 312-1) (Imp: HRS § 312-1)

Subchapter 2 HEARING RELIEF

Haw. Code R. § 8-210.2-3 Action by the state librarian

(a) The state librarian shall determine that a contested matter should be reviewed or a problem resolution decision warrants reconsideration.

(b) If the state librarian supports the decision from the contested matter or problem resolution process, the state librarian shall provide the complainant with a written notice declaring the reasons the decision shall be upheld.

(c) If the state librarian determines that a contested matter should be reviewed or that reconsideration of a decision resulting from the problem resolution process is warranted, the state librarian shall initiate a hearing.

(1) The state librarian shall designate a chairperson who shall form a hearing relief committee;

(2) The committee shall review the contested matter or problem resolution process and decision and provide the state librarian with a recommendation;

(3) The state librarian shall declare a final decision based on a review of the hearing relief documents and the hearing relief committee's recommendation; and

(4) The state librarian shall inform the complainant of the decision and of the complainant's right to a judicial review.

History

[Eff 05/24/2010] (Auth: HRS §§ 91-2, 296-19, 312-1) (Imp: HRS § 312-1)

Haw. Code R. § 8-210.2-4 Judicial review of contested cases

(a) Any party aggrieved by a final decision or order of the state librarian in a contested case or by a preliminary ruling or order of the state librarian of such a nature that deferral of review pending the entry of a subsequent final order would deprive that party of adequate relief is entitled to judicial review in conformance with section 91-14, HRS.

(b) Any party requesting judicial review in writing, shall serve a copy of the request upon the state librarian and all other parties to the proceeding in accordance with the Hawaii rules of civil procedure.

History

[Eff 05/24/2010] (Auth: HRS §§ 91-2, 296-19, 312-1) (Imp: HRS § 312-1)

Haw. Code R. § 8-210.2-5 Time limit to contest a preliminary decision

(a) When issuing a decision on a contested matter the library manager, library administrator, problem resolution officer, or appropriate designee shall provide in writing a final date for the complainant to request a review of the matter.

(b) The final date should be not less than ninety days from the date of the written decision issued to the complainant.

(c) The state librarian may deny review of any matter not contested by the final date for review as established in subsection (a).

History

[Eff 05/24/2010] (Auth: HRS §§ 91-2, 296-19, 312-1) (Imp: HRS § 312-1)

Subchapter 3 RULE RELIEF

Haw. Code R. § 8-210.2-6 Petition for rule relief

Any interested person may petition the state librarian for the amendment, adoption, or repeal of a rule. The petition for rule relief shall identify the text of the rule to be repealed, or the text of any proposed rule, or the text of any existing rule, together with the proposed amendment. The petition shall state concisely the facts and circumstances for the petition, including the petitioner's interest and reasons for filing the petition, the necessity for the relief and the anticipated effect or impact of the relief, the questions or issues raised, and the petitioner's position or contentions.

History

[Eff 05/24/2010] (Auth: HRS §§ 91-6, 296-19, 312-1) (Imp: HRS § 312-1)

Haw. Code R. § 8-210.2-7 Time

(a) The state librarian, within the time permitted by chapter 91, HRS, shall either deny the petition or initiate public rulemaking procedures in accordance with this subchapter and chapter 91, HRS.

(b) The state librarian may deny any petition which:

(1) Discloses insufficient reasons or unreasonable lapse of time justifying the institution of public rulemaking procedures; or

(2) Concerns a matter not within the jurisdiction of the state librarian.

History

[Eff 05/24/2010] (Auth: HRS §§ 91-6, 296-19, 312-1) (Imp: HRS § 312-1)

Haw. Code R. § 8-210.2-8 Additional facts or supplemental memorandum

The state librarian may require the petitioner to submit a statement of additional facts or a memorandum, the purpose of which is to clarify a specific factual issue, position, or contention which will reasonably aid the state librarian.

History

[Eff 05/24/2010] (Auth: HRS §§ 91-6, 296-19, 312-1) (Imp: HRS § 312-1)

Haw. Code R. § 8-210.2-9 Notice of determination

The state librarian shall promptly notify the petitioner in writing of a determination either to deny the petition or to initiate rulemaking procedures. If the state librarian denies the petition, the state librarian shall state the reasons for the denial in the notice to the petitioner.

History

[Eff 05/24/2010] (Auth: HRS §§ 91-6, 296-19, 312-1) (Imp: HRS § 312-1)

Haw. Code R. § 8-210.2-10 Determination final

Unless otherwise provided by law, the petitioner shall have no right to move the state librarian for reconsideration or to seek judicial review of any determination.

History

[Eff 05/24/2010] (Auth: HRS §§ 91-6, 296-19, 312-1) (Imp: HRS § 312-1)

Haw. Code R. § 8-210.2-11 Public hearing

A public hearing shall be held for a petition for rule relief considered by the state librarian. The hearing shall be at the time and place set forth in the notice of public hearing but at that time and place the hearing may be continued from day to day or adjourned to a later day or to a different place without notice other than the announcement at the hearing. The state librarian shall afford all interested persons an opportunity to present data, their views, or arguments, orally or in writing.

History

[Eff 05/24/2010] (Auth: HRS §§ 91-6, 296-19, 312-1) (Imp: HRS § 312-1)

Haw. Code R. § 8-210.2-12 Notice of public hearing

Notice of the public hearing shall be made in accordance with the provisions of chapters 91 and 92, HRS.

History

[Eff 05/24/2010] (Auth: HRS §§ 91-6, 296-19, 312-1) (Imp: HRS § 312-1)

Haw. Code R. § 8-210.2-13 Procedure at public hearing

At the commencement of the public hearing the state librarian or a representative of the state librarian shall read the notice of hearing and shall then briefly prescribe the procedure to be followed at the public hearing. All witnesses testifying at the public hearing shall state their name, address, and who, if anyone, the witness represents. Every witness shall be subject to questioning by the state librarian or by any other representative of the state librarian. Questioning of witnesses by other persons shall not be permitted except when the state librarian expressly permits that questioning.

History

[Eff 05/24/2010] (Auth: HRS §§ 91-6, 296-19, 312-1) (Imp: HRS § 312-1)

Haw. Code R. § 8-210.2-14 Record of public hearing

(a) A record shall be made of all oral testimony in the form of written minutes or verbatim taken at the hearing. All written testimony shall be received and made part of the public record.

(b) Testimony given at the public hearing may be electronically recorded verbatim by the state librarian or designee or upon request of any interested party. It shall not be necessary to transcribe the electronic recording.

(c) The written minutes or electronic record of the proceeding shall constitute the official record of the testimony taken at the hearing, and shall remain in the possession of the state librarian.

History

[Eff 05/24/2010] (Auth: HRS §§ 91-6, 296-19, 312-1) (Imp: HRS § 312-1)

Haw. Code R. § 8-210.2-15 Decision

The state librarian shall render a decision at the public hearing or at a time, date, and place announced at the public hearing. The state librarian, upon request of any interested person, shall issue a concise statement of the principal reasons for and against the decision. In making a decision, the state librarian shall consider all written and oral submissions for the proposed rule relief.

History

[Eff 05/24/2010] (Auth: HRS §§ 91-6, 296-19, 312-1) (Imp: HRS § 312-1)

Haw. Code R. § 8-210.2-16 Waiver

The requirements for public hearing and for notice may be waived by the governor when the state librarian, as a condition to receiving federal funds, is required by federal provisions to adopt rules and the state librarian is allowed no discretion in interpreting the federal provisions as to the rules required to be adopted. The state librarian shall make known to the public the proposed adoption, amendment, or repeal of any rule by publishing a statement as to the substance of the proposed rule change in a newspaper of general circulation in this State, at least once prior to the waiver of the governor.

History

[Eff 05/24/2010] (Auth: HRS §§ 91-6, 296-19, 312-1) (Imp: HRS § 312-1)

Haw. Code R. § 8-210.2-17 Emergency rulemaking

(a) The state librarian may adopt emergency rules pursuant to the requirements of sections 91-3 and 91-4, HRS.

(b) The state librarian's determination that there is imminent peril and the reasons shall be stated in, and as a part of, the emergency rule.

(c) The state librarian shall make the emergency rule known to the public by publishing the rule, at least once, in a newspaper of general circulation in the State, within five days from the date the rule is filed with the lieutenant governor.

History

[Eff 05/24/2010] (Auth: HRS §§ 91-6, 296-19, 312-1) (Imp: HRS § 312-1)

Haw. Code R. § 8-210.2-18 Approval

The adoption, amendment, or repeal of any rule resulting from the review process of this chapter shall be subject to approval of the governor as provided for in section 91-3, HRS.

History

[Eff 05/24/2010] (Auth: HRS §§ 91-6, 296-19, 312-1) (Imp: HRS § 312-1)

Haw. Code R. § 8-210.2-19 Filing and review

Upon approval of the governor, certified copies of any rules being adopted, amended, or repealed shall be filed with the lieutenant governor and legislative reference bureau as provided in sections 91-4, 91-4.1, and 91-4.2, HRS. All rules being adopted, amended, or repealed shall take effect as provided in section 91-4, HRS, and shall be subject to review as provided in section 91-4.1, HRS.

History

[Eff 05/24/2010] (Auth: HRS §§ 91-6, 296-19, 312-1) (Imp: HRS § 312-1)

Haw. Code R. § 8-210.2-20 No restriction on state librarian

Nothing contained in this subchapter shall be construed to prohibit or to restrict the right of the state librarian from initiating the rulemaking proceeding on any matter, whether disclosed in any petition or not.

History

[Eff 05/24/2010] (Auth: HRS §§ 91-6, 296-19, 312-1) (Imp: HRS § 312-1)

Subtitle 4 NON-SCHOOL HOURS PROGRAMS

Chapter 400 AFTER-SCHOOL PLUS (A+) PROGRAM

Haw. Code R. § 8-400-1 Statement of purpose

It is important to recognize the needs of parents for affordable, accessible, and quality after-school services. To address these needs, the following rule is adopted for the implementation of the after-school plus (A+) program of the department.

History

[Eff 3/1/93; comp 8/7/93; comp 4/1/96; comp 3/13/00] (Auth: HRS § 302A-1112) (Imp: HRS §§ 302A-1112, 302A-408)

Haw. Code R. § 8-400-2 Applicability and scope

This chapter shall govern the after-school plus (A+) program of the department, established or hereafter established pursuant to section 302A-408, Hawaii Revised Statutes. With the exception of chapter 41, the provisions of subtitle 2, of title 8, shall not apply to any program governed by this chapter, unless as provided herein. Any parent who feels that there may be a violation of a right to nondiscrimination in education may file a complaint under chapter 41.

History

[Eff 3/1/93; comp 8/7/93; comp 4/1/96; comp 3/13/00] (Auth: HRS § 302A-1112) (Imp: HRS §§ 302A-1112, 302A-408)

Haw. Code R. § 8-400-3 Definitions

As used in this chapter:

"A+ program" means the after-school plus program established by the department for public elementary school-aged children and conducted statewide utilizing public school grounds and facilities. The A+ program is voluntary and is not part of the compulsory educational services provided by the state. The program provides supervision to young children who would otherwise be unsupervised during after-school hours.

"Department" means the department of education.

"District coordinator" means a person who is responsible for the coordination of the A+ program in a school district.

"At-risk student" means a child who is consistently not making satisfactory progress in school or who is in need of a safe, nurturing environment.

"Group leader" means a person who assists the site coordinator in implementing the A+ program at a school site.

"Latchkey" refers to children who have no adult present in the home to provide after-school supervision.

"Parent" means the natural or legal parent, guardian, or other legal custodian of a child.

"Program aide" means a person who assists the site coordinator or group leader in supervising and conducting after-school activities at a school site.

"Site coordinator" means a person who organizes, implements, coordinates and promotes the A+ program at a school site.

History

[Eff 3/1/93; comp 8/7/93; comp 4/1/96; am and comp 3/13/00] (Auth: HRS § 302A-1112) (Imp: HRS §§ 302A-1122, 302A-408)

Haw. Code R. § 8-400-4 Eligibility

All latchkey children enrolled in public elementary schools in kindergarten through grade six, are eligible to participate in the program if they are living with both parents who are employed, a single parent who is employed, parents working in the A+ program, and parents attending colleges, universities, or other types of schools or engaged in job training programs during the hours of A+ operations. Based on space availability, a child who is at-risk may also be recommended by the school principal for enrollment in the A+ program.

History

[Eff 3/1/93; comp 8/7/93; comp 4/1/96; am and comp 3/13/00] (Auth: HRS § 302A-1122) (Imp: HRS §§ 302A-1112, 302A-408)

Haw. Code R. § 8-400-5 Application and enrollment

(a) Application forms for the program shall be available at all public elementary school offices. Applicants shall return the completed form to the school where the child is in attendance during the regular school day. Priority shall be given to applications received before the announced application deadline. Two-thirds of any vacant slots can be filled by children who are [educationally] at-risk and who are recommended by the school.

(b) Site coordinators shall notify parents of the acceptance of the child and will arrange for completion of all registration forms and payment of fees for the first month. Late applicants may be accommodated on a space available basis provided funds are available.

(1) registration form;

(2) emergency card;

(3) registration agreement form for parents; and

(4) identification card (I.D.).

(d) Part-time enrollment is permissible at the discretion of the site coordinator. There shall be no reduction in fees for part-time enrollment. A child shall not be accepted on a drop-in basis.

(e) Based on the demand for and available resources of the A+ program, nondiscriminatory restrictions may be placed on enrollment.

(f) Decision by the principal regarding enrollment shall be final.

History

[Eff 3/1/93; comp 8/7/93; comp 4/1/96; am and comp 3/13/00] (Auth: HRS § 302A-1112) (Imp: HRS §§ 302A-1112, 302A-408)

Haw. Code R. § 8-400-6 Program sites

An A+ program may be established at those public schools where twenty or more students enroll, and if staff availability is adequate to service the demand. In schools where there is no A+ program or where enrollment is restricted by staff shortages, a child may enroll in an A+ program at another school, if space is available, and upon approval by the site coordinator of the site where the child is to enroll.

History

[Eff 3/1/93; comp 8/7/93; comp 4/1/96; comp 3/13/00] (Auth: HRS § 302A-1112) (Imp: HRS §§ 302A-1112, 302A-408)

Haw. Code R. § 8-400-7 Reasonable modifications

(a) The program shall be made available to all eligible children on a nondiscriminatory basis. For the child with a disability who is identified by parents or who are known to the A+ program staff to have special needs, the district will provide such reasonable modifications as are necessary to afford the child an opportunity to participate. The A+ program is not part of the individualized education program (IEP) of the child. In evaluating the needs of the child, site coordinators shall:

(1) Meet with the parents of the child, and the child, if appropriate, and consult with other school staff familiar with the child to identify the particular needs of the child.

(2) Determine what program modifications, if any, will be necessary to reasonably accommodate the special needs of the child;

(3) Determine program changes necessary and whether these modifications can be reasonably provided;

(4) Consider possible alternatives that may offer the child a comparable program; and

(5) Consult with the principal and district coordinator if an amenable agreement with the parents of the child cannot be reached.

(b) The determination of the principal of the disposition of each case, in consultation with the district coordinator, shall be final.

History

[Eff 3/1/93; am and comp 8/7/93; comp 4/1/96; am and comp 3/13/00] (Auth: HRS § 302A-1112) (Imp: HRS §§ 302A-1112, 302A-408)

Haw. Code R. § 8-400-8 Hours of operation

(a) A+ services will be provided on regular school days, beginning after school until 5:30 p.m. The program will not operate when school is closed or when school is open only a half day. The A+ program will be open on early dismissal parent-teacher conference days.

(b) If many parents express a desire for services to be provided until 6:00 p.m., the site coordinator may extend program hours if staff schedules and resources can be rearranged.

History

[Eff 3/1/93; comp 8/7/93; comp 4/1/96; am and comp 3/13/00] (Auth: HRS § 302A-1112) (Imp: HRS §§ 302A-1112, 302A-408)

Haw. Code R. § 8-400-9 Curriculum

The department shall create a program curriculum to provide experiences for children that will excite their curiosity, encourage exploration and inquiry, spur their imagination, and invite experimentation on a wide range of topics. The program may have various components, including enrichment, coordination and physical development, and character development.

History

[Eff 3/1/93; comp 8/7/93; comp 4/1/96; comp 3/13/00] (Auth: HRS § 302A-1112) Imp: HRS §§ 302A-1112, 302A-408)

Haw. Code R. § 8-400-10 Transportation

(a) Transportation to the A+ program is not provided. For a child with permission to attend an A+ program at schools other than the regular school of the child, parents shall make transportation arrangements and assume responsibility for getting the child there. Parents shall notify the site coordinator of the site where the child enrolls and of the arrangements made for the child to get to the A+ program.

(b) Transportation from the A+ program is also the responsibility of the parents. Parents shall notify the site coordinator or designee in advance of how the child is to get home. No modifications in school bus schedules shall be made to accommodate the child participating in the A+ program.

History

[Eff 3/1/93; comp 8/7/93; comp 4/1/96; comp 3/13/00] (Auth: HRS § 302A-1112) (Imp: HRS §§ 302A-1112, 302A-408)

Haw. Code R. § 8-400-11 Child pick-up

(a) A child shall be picked up only by parents or persons authorized by the parents on the registration forms. Parents shall give permission for other types of arrangements, such as:

(1) the child is to be picked up by someone else that day; or

(2) the child is to walk, ride, bike, skateboard; or

(3) the child is to take the bus home; and

(4) the time the parents want the child to be dismissed from the program to do that.

If parents want the A+ staff to release a child to leave the school on the child's own, parents shall sign an authorization for release of an unaccompanied child form, releasing the A+ program and staff of all responsibility for the welfare of the child once the child leaves the school grounds. When a child leaves the A+ program, the child shall check out with an adult on staff, and the parents or persons designated by the parents shall sign the child out on a sign-out sheet, noting the time of departure.

(b) All persons authorized for child pick-up on A+ registration forms shall be issued I.D. (Identification) cards which shall be effective for the school year. I.D. cards shall be shown before the child is released. If a card has been misplaced, the persons who come to pick up the child shall show a picture I.D. A+ staff shall match the social security number on the picture I.D. against their own records before releasing the child.

(c) If, for any reason, the child cannot be picked up by the time the program closes, parents shall be required to contact one of the designees previously authorized by them for pick-up of the child. If the child is not picked up by closing, the site coordinator shall try to contact the parents of the child and then other persons authorized to pick up the child. A child shall be released only to those persons. A $5 late pickup fee, or an amount as established by the superintendent of education, shall be imposed for every fifteen minutes beyond closing time that a student is picked up late (e.g., one to fifteen minutes late, $5; sixteen to thirty minutes, $10; thirty-one to forty-five minutes, $15, etc.). Chronic late pick-ups may be grounds for the termination of the child from the program.

History

[Eff 3/1/93; comp 8/7/93; comp 4/1/96; am and comp 3/13/00] (Auth: HRS § 302A-1112) (Imp: HRS §§ 302A-1112, 302A-408)

Haw. Code R. § 8-400-12 Illness

If a child becomes ill during the A+ program, the site coordinator shall contact the parents or other responsible persons named on the registration form of the child to pick up the child. A child with a communicable disease which normally excludes a child from school as required by the department of health, shall also be excluded from the A+ program. Once readmitted to school, the child may return to the A+ program. A+ staff will not take responsibility for storing, holding, dispensing, or administering medication to the child. An exception may be made for life-threatening situations as prescribed by the child's physician and approved by the district coordinator, with administration by the A+ staff person certified in first aid.

History

[Eff 3/1/93; comp 8/7/93; comp 4/1/96; am and comp 3/13/00] (Auth: HRS § 302A-1112) (Imp: HRS §§ 302A-1112, 302A-408)

Haw. Code R. § 8-400-13 Emergency provisions

(a) At least one A+ staff member with a current certificate in first aid will be on site during A+ program hours. A current certificate means a certificate which is issued by the American Red Cross or any other certifying agency and which is less than three years old.

(b) If a major injury or illness occurs, the child will be transported by ambulance to a hospital or physician. In all cases of injury or illness, attempts will be made to contact parents immediately.

History

[Eff 3/1/93; comp 8/7/93; comp 4/1/96; comp 3/13/00] (Auth: HRS § 302A-1112) (Imp: HRS §§ 302A-1112, 302A-408)

Haw. Code R. § 8-400-14 Termination or suspension from program

(a) A child may be terminated or suspended from the program for:

(1) failure to pay the monthly non-refundable fee or any other outstanding fees;

(2) chronic late pick-up; or

(3) conduct which disrupts the activities of the program or jeopardizes the safety or welfare of the staff or participants.

(b) Prior to termination from the program, the site coordinator at each school site shall meet with the child and the parents of the child to apprise them of the problems and to afford them a reasonable time to take corrective action.

(c) Prior to the suspension or termination of a child with a disability from the program because of misconduct, the site coordinator shall meet with the child and the parents to consider whether the misconduct may be related to the disability of the child, and if found to be related, to make such reasonable modifications as are necessary to afford the child an equal opportunity for participation.

(1) After such reasonable modifications are provided, and if the misconduct of the child with a disability persists and the child is unable to function in the program, the child may be suspended or terminated from the A+ program regardless of the disability of the child.

(2) A child with a disability can be immediately suspended from the A+ program if the conduct of the child presents a clear threat to the physical safety of self or others, or if the child is so disruptive as to make the immediate removal from the program necessary to preserve the rights of other participants. Prior to readmittance from such a suspension, the site coordinator shall meet with the parents to determine whether any reasonable modifications can be provided for continued participation.

(d) The determination of the site coordinator of the disposition of each case, in consultation with the district coordinator, shall be final.

History

[Eff 3/1/93; comp 8/7/93; comp 4/1/96; am and comp 3/13/00] (Auth: HRS § 302A-1112) (Imp: HRS §§ 302A-1112, 302A-408, 302A-1153; 29 U.S.C. 794; 34 C.F.R. 104.27(a) )

Haw. Code R. § 8-400-15 Searches and seizures

Chapter 8-19 shall apply to searches and seizures as may be conducted during the A+ program.

History

[Eff 3/1/93; comp 8/7/93; comp 4/1/96; comp 3/13/00] (Auth: HRS § 302A-1112) (Imp: HRS §§ 302A-1112, 302A-408)

Haw. Code R. § 8-400-16 Parent-teacher conference

Parent conferences are not required but may be arranged at the request of parents, group leaders, or the site coordinator.

History

[Eff 3/1/93; comp 8/7/93; comp 4/1/96; comp 3/13/00] (Auth: HRS § 302A-1112) (Imp: HRS §§ 302A-1112, 302A-408)

Haw. Code R. § 8-400-17 Confidentiality of records

Chapter 8-34 shall apply to records of the A+ program.

History

[Eff 3/1/93; comp 8/7/93; comp 4/1/96; comp 3/13/00] (Auth: HRS § 302A-1112) (Imp: HRS §§ 302A-1112, 302A-408)

Haw. Code R. § 8-400-18 Reporting child abuse

A+ program staff are required to report any suspected cases of child abuse or neglect and shall promptly report the matter orally to the department of human services or to the police department.

History

[Eff 3/1/93; comp 8/7/93; comp 4/1/96; comp 3/13/00] (Auth: HRS § 302A-1112) (Imp: HRS §§ 302A-1112, 302A-408)

Haw. Code R. § 8-400-19 Fees and other charges

(a) A monthly fee up to the total monthly cost per pupil of providing such services during the prior year shall be assessed. This fee shall be rounded to the nearest dollar. A fee waiver or fee adjustment may be provided in accordance with board policy.

(b) Fees shall be collected for the months determined by the superintendent. A child shall be charged the same monthly fee, regardless of the number of days the child participates in the program. There shall be no refunds for unused days.

(c) Monthly fees shall be due and payable at the school, or postmarked if mailed, on or before the first school day of each month. Checks are preferred. A service charge shall be imposed on all returned checks. A late charge of $5, or an amount as established by the superintendent of education, shall be imposed each school day a payment is overdue. Overdue payments may be grounds for termination from the program. There shall be no provision for refunds once payments are made with the exception of reimbursement for advanced payments for services not rendered or for tuition category reclassification, e.g., from full tuition to free or reduced tuition.

History

[Eff 3/1/93; comp 8/7/93; comp 4/1/96; am and comp 3/13/00] (Auth: HRS § 302A-1112) (Imp: HRS §§ 302A-1112, 302A-408)

Haw. Code R. § 8-400-20 Conflict of provisions

The provisions of this chapter are deemed specific to the after-school plus (A+) program of the department and shall control over any conflicting provisions of this title.

History

[Eff 3/1/93; comp 8/7/93; comp 4/1/96; comp 3/13/00] (Auth: HRS § 302A-1112) (Imp: HRS §§ 302A-1112, 302A-408)

Subtitle 5 CHARTER SCHOOLS

Chapter 500 HAWAII PUBLIC CHARTER SCHOOLS PROBATION AND REVOCATION PROCEDURES (REPEALED)

Haw. Code R. §§ 8-500-1 to 8-500-6 Repealed

History

APR 4, 2014

Chapter 501 STATE PUBLIC CHARTER SCHOOL COMMISSION RULES OF PRACTICE AND PROCEDURE

Haw. Code R. § 8-501-1 Purpose

This chapter governs the practice and procedure before the state public charter school commission under chapter 302D, HRS, and shall be construed to effectuate the purposes of that chapter and to secure the just and efficient determination of every proceeding.

History

[Eff NOV 30, 2014] (Auth: HRS § 302D-3.5) (Imp: HRS § 91-2)

Haw. Code R. § 8-501-2 Definitions

As used in this chapter:

"Board" means the board of education.

"Chairperson" means the chairperson of the state public charter school commission.

"Commission" means the state public charter school commission established pursuant to section 302D-3, HRS, as a statewide authorizer.

"Executive director" means the executive director of the state public charter school commission.

"Government record" shall be as defined in section 92F-3, HRS.

History

[Eff NOV 30, 2014] (Auth: HRS § 302D-3.5) (Imp: HRS §§ 91-2, 92F-3)

Haw. Code R. § 8-501-3 Office and office hours

(a) The office of the commission is in Honolulu, Hawaii. All communications to the commission shall be addressed to the commission's office unless otherwise directed by the commission.

(b) The office of the commission shall be open from 7:45 a.m. to 4:30 p.m., each day of the week except Saturdays, Sundays, and holidays unless otherwise provided by statute or executive order.

History

[Eff NOV 30, 2014] (Auth: HRS § 302D-3.5) (Imp: HRS § 91-2)

Haw. Code R. § 8-501-4 Meetings, generally; conduct of meetings

(a) The commission may meet and exercise its power in any part of the State of Hawaii. All meetings shall be conducted in accordance with chapter 92, Hawaii Revised Statutes.

(b) The commission shall afford all interested persons an opportunity to submit data, views, arguments or present oral testimony on any agenda item in an open meeting. The commission may provide for the recordation of oral testimony presented.

(c) The commission may reasonably administer oral testimony so as to limit testimony of excessive duration or limit or prohibit any redundant, immaterial, impertinent, or scandalous testimony or to limit the amount of time for testimony per individual or per issue.

(d) The chairperson may remove any person who wilfully disrupts a meeting.

History

[Eff NOV 30, 2014] (Auth: HRS § 302D-3.5) (Imp: HRS §§ 91-2, 92-3, 92-7)

Haw. Code R. § 8-501-5 Government records

(a) All government records of the commission shall be available for inspection in the office of the commission during established office hours, unless public inspection of these records is prohibited by law.

(b) Government records printed or reproduced by the commission shall be given to any person requesting the same by paying twenty-five cents per page whether transmitted by hard copy or by electronic means.

History

[Eff NOV 30, 2014] (Auth: HRS §§ 92-21, 302D-3.5) (Imp: HRS §§ 91-2, 92F-11)

Haw. Code R. § 8-501-6 Computation of time

The time in which any act provided in this chapter or any rule, policy, or procedure of the commission is to be done is computed by excluding the first day and including the last, unless the last day is a Saturday, Sunday, or holiday and then it is also excluded. Unless otherwise specified in these rules, when the prescribed period of time is less than seven days, Saturdays, Sundays, or legal holidays within the designated period shall be excluded in the computation.

History

[Eff NOV 30, 2014] (Auth: HRS § 302D-3.5) (Imp: HRS § 91-2)

Chapter 502 STATE PUBLIC CHARTER SCHOOL COMMISSION PROCEEDINGS BEFORE THE COMMISSION

Haw. Code R. § 8-502-1 General

The commission, on its own motion, or on petition of any interested person, group, organization, or agency may hold proceedings as it may deem necessary from time to time for the purpose of obtaining information necessary or helpful in the determination of its policies, the carrying out of its duties, or the formulation of its rules. The procedures of the commission, unless specifically prescribed by its administrative rules or by chapter 91, HRS.

History

[Eff. 10/4/2018] (Auth: HRS § 302D-3.5)(Imp: HRS §§ 91-2, 91-6, 92-16, 302D-3.5)

Haw. Code R. § 8-502-2 Filing of documents

(a) All pleadings, submittals, petitions, reports, exceptions, briefs, memoranda, and other papers required to be filed with the commission in any proceeding shall be filed with the commission chairperson. The papers may be sent by mail or hand-carried to the commission's office within the time limit, if any, for the filing. The date on which the paper is actually received by the commission shall be deemed to be the date of filing.

(b) All papers filed with the commission shall be written in ink, typewritten, mimeographed, or printed; shall be plainly legible; shall be on strong durable paper; not larger than 8 1/2" x 14" in size, except that tables, charts, and other documents may be larger, folded to the size of the documents to which they are attached.

(d) Unless otherwise specifically provided by a particular chapter or order of the commission, an original and nine copies of all papers shall be filed unless the papers are printed.

(e) The initial document filed by any person in any proceeding shall state on the first page thereof who may be served with any documents filed in the proceeding.

History

[Eff. 10/4/2018] (Auth: HRS § 302D-3.5) (Imp: HRS § 302D-3.5)

Haw. Code R. § 8-502-3 Docket

The commission chairperson shall maintain a docket of all proceedings and each proceeding shall be assigned a number.

History

[Eff. 10/4/2018] (Auth: HRS § 302D-3.5) (Imp: HRS § 302D-3.5)

Haw. Code R. § 8-502-4 Computation of time

In computing any period of time prescribed by chapters 8-501 to 8-504, or order of the commission, the day of the act, event, or default, after which the designated period of time is to run, is not to be included unless it is a Saturday, Sunday, or legal holiday in the State, in which event the period runs until the next day which is neither a Saturday, Sunday, nor a holiday. Immediate Saturdays, Sundays, and holidays shall not be included in a computation when the period of time prescribed or allowed is ten days or less. A half holiday shall be considered as other days and not as a holiday.

History

[Eff. 10/4/2018] (Auth: HRS § 302D-3.5) (Imp: HRS §§ 1-29, 302D-3.5)

Haw. Code R. § 8-502-5 Continuance or extension of time

Whenever a person or agency has a right or is required to take action within the period prescribed or allowed by chapters 8-501 to 8-504, by notice given thereunder or by an order, the commission or executive director, before the expiration of the prescribed period, with or without notice, may extend the period or, upon motion, permit the act to be done after the expiration of a specified period where the failure to act is clearly shown to be the result of excusable neglect.

History

[Eff. 10/4/2018] (Auth: HRS § 302D-3.5) (Imp: HRS § 302D-3.5)

Haw. Code R. § 8-502-6 Amendment of documents

If any document initiating or filed in a proceeding is not in substantial conformity with the applicable rules of the commission as to the contents thereof, or is otherwise insufficient, the commission, on its own motion, or on motion of any party, may strike or dismiss the document or require its amendment. If amended, the document shall be effective as of the date of the original filing.

History

[Eff. 10/4/2018] (Auth: HRS § 302D-3.5) (Imp: HRS § 302D-3.5)

Haw. Code R. § 8-502-7 Retention of documents by the commission

All documents filed with or presented to the commission may be retained in the files of the commission. However, the commission may permit the withdrawal of original documents upon submission of properly authenticated copies to replace the documents.

History

[Eff. 10/4/2018] (Auth: HRS § 302D-3.5) (Imp: HRS § 302D-3.5)

Haw. Code R. § 8-502-8 Public information

(a) Unless otherwise provided by statute, rule, or order of the commission, all information contained in any pleading, submittal, petition, statement, recommendation, report, or other document filed with the commission pursuant to the requirements of a statute or rule or order of the commission shall be available for inspection by the public.

(b) Confidential treatment may be requested where authorized by statute. For good cause shown, the commission shall grant the request.

(c) Matters of public record may be inspected in the office of the commission during regular office hours. Copies of matters of public record shall be furnished to any person upon request and upon payment of the actual cost thereof as set forth in section 8-501-5(b).

History

[Eff. 10/4/2018] (Auth: HRS § 302D-3.5) (Imp: HRS § 302D-3.5)

Haw. Code R. § 8-502-9 Commission decision

All final orders, opinions or rulings entered by the commission in a proceeding and rules adopted by the commission shall be certified and served upon the parties or persons participating in the proceeding by regular mail or personal delivery by the commission and shall be released for general publication. Copies of published materials shall be available for public inspection in the office of the commission or may be obtained upon request and upon payment of charges, if any.

History

[Eff. 10/4/2018] (Auth: HRS § 302D-3.5) (Imp: HRS §§ 91-2, 302D-3.5)

Haw. Code R. § 8-502-10 Counsel for the commission

The attorney general or a designated representative serving in the attorney general's capacity as counsel for the commission, shall be a party to all proceedings governed by chapters 8-501 to 8-504. The attorney general or designated representative shall be designated as "Counsel for the Commission", and shall be served with copies of all papers and documents as are all other parties to the same proceeding.

History

[Eff. 10/4/2018] (Auth: HRS § 302D-3.5) (Imp: HRS § 302D-3.5)

Haw. Code R. § 8-502-11 Substitution of parties

Upon motion and for good cause shown, the commission may order substitution of parties, except that in case of death of a party, substitution may be ordered without the filing of a motion.

History

[Eff. 10/4/2018] (Auth: HRS § 302D-3.5) (Imp: HRS § 302D-3.5)

Haw. Code R. § 8-502-12 Consolidations

The commission, upon its own initiation or upon motion, may consolidate for hearing or for other purposes two or more proceedings which involve substantially the same parties, or issues which are the same or closely related, if it finds that consolidation will be conducive to the proper dispatch of its business, will not unduly delay the proceedings, and will not impair the rights of any party to the proceedings.

History

[Eff. 10/4/2018] (Auth: HRS S302D-3.5) (Imp: HRS S302D-3.5)

Chapter 503 STATE PUBLIC CHARTER SCHOOL COMMISSION RULES APPLICABLE TO RULEMAKING PROCEEDINGS

Haw. Code R. § 8-503-1 Notice of proposed rulemaking

(a) When pursuant to a petition therefor, or upon its motion, the commission proposes to adopt, amend or repeal a rule, notice of proposed rulemaking shall be published at least once statewide and posted on the Internet as provided in section 91-2.6, Hawaii Revised Statutes. The notice shall also be mailed to all persons who filed a timely written request with the commission for advance notice of the commission's rulemaking proceedings. All notices shall be issued at least thirty days prior to the date set for public hearing. Where a written request for advance notice is filed by a person less than thirty days prior to the date set for public hearing, the notice shall be mailed on the next business day and emailed to the person on the same business day upon receiving the written request.

(b) A notice of the proposed adoption, amendment, or repeal of a rule shall include all information required by statute.

History

[Eff. 10/4/2018] (Auth: HRS S302D-3.5) (Imp: HRS §§ 91-2, 302D-3.5)

Haw. Code R. § 8-503-2 Conduct of hearing

(a) Unless otherwise specifically directed by the commission, all public hearings shall be held at Honolulu when the entire State or where two or more islands thereof are affected by the proposed adoption, amendment, or repeal of a rule. When a matter affects only an island or district other than Oahu, then the hearing shall be held on that island or in that district.

(b) Each hearing shall be presided over by a presiding officer who shall be a commission staff person as determined appropriate by the executive director or a member of the commission as approved by the commission's chairperson. The hearing shall be conducted in a way as to afford interested persons a reasonable opportunity to be heard on matters relevant to the issues involved and to obtain a clear and orderly record. The presiding officer shall have authority to administer oaths or affirmations and to take other actions that are necessary to the orderly conduct of the hearing.

(c) Each hearing shall be held at the date, time, and place set in the notice of hearing, but thereafter may be continued by the presiding officer from day to day at the same time and place or to a later date or to a different place without notice other than the announcement at the previous hearing.

(e) All interested persons, organizations or agencies shall be given a reasonable opportunity to offer evidence and submit data, views, or arguments with respect to the proposed rulemaking. Every witness before proceeding to testify, shall state the witness' name, address, and whom the witness represents, if any, at the hearing, and shall give other information respecting the witness' appearance as the presiding officer may request. The presiding officer shall confine the evidence to the questions before the hearing but shall not apply the technical rules of evidence. Every witness shall be subject to questioning by the presiding officer, other commission members, or the commission's attorney, but cross-examination by private persons shall not be permitted except with the express permission of the presiding officer.

(f) Persons, organizations, or agencies may also file with the commission within the time period specified in the notice of proposed rulemaking a written protest or other comments or recommendations in support of or in opposition to the proposed rulemaking. The period for filing may be extended by the commission by publishing a notice at least once statewide.

(g) Unless otherwise specifically ordered by the commission or the presiding officer, testimony given at the hearing shall be reported and shall be approved by the commission. All supporting written statements and data offered in evidence at the hearing, and which are deemed by the presiding officer to be authentic and relevant, shall be received in evidence and made a part of the record. Unless the presiding officer finds that the furnishing of copies is impracticable, an original and nine copies of all exhibits shall be submitted.

History

[Eff. 10/4/2018] (Auth: HRS § 302D-3.5) (Imp: HRS §§ 91-9, 92-16, 302D-3.5)

Haw. Code R. § 8-503-3 Commission action

At the final public hearing, the commission may make its decision or the presiding officer shall announce the date when the commission's decision shall be made. The commission shall consider all relevant comments and material of record before taking final action in a rulemaking proceeding.

History

[Eff. 10/4/2018] (Auth: HRS § 302D- 3.5) (Imp: HRS § 302D-3.5)

Haw. Code R. § 8-503-4 Emergency rulemaking

Notwithstanding sections 8-503-1 through 8-503-4, if the commission finds that an imminent peril to public health, safety, or morals requires the adoption, amendment, or repeal of a rule upon less than thirty days' notice of hearing, and states in writing its reason for the finding, it may proceed without prior notice or hearing or upon abbreviated notice and hearing as it finds practicable to adopt an emergency rule to be effective for a period of not longer than one hundred twenty days without renewal.

History

[Eff. 10/4/2018] (Auth: HRS S302D-3.5) (Imp: HRS §§ 91-3, 302D-3.5)

Haw. Code R. § 8-503-5 Petitions for adoption, amendment, or repeal of rules

(a) Any interested person, organization, or agency may petition the commission for the adoption, amendment, or repeal of any rule, which is designed to implement, interpret, or prescribe law, policy, organization, procedure, or practice requirements of the commission.

(b) Petitions for rulemaking shall conform to the requirements of section 8-502-2. A petition for rulemaking shall set forth the text of any proposed rule or amendment or specify the rule proposed to be repealed; shall state concisely the nature of petitioner's interest in the subject matter and petitioner's reasons for seeking the adoption, amendment, or repeal of the rule; and shall include any facts, views, arguments, and data deemed relevant by the petitioner. A request for the adoption, amendment, or repeal of a rule which does not conform to the requirements set forth in this section may not be considered by the commission.

(c) Petitions for rulemaking shall be given a docket number and shall become matters of public record upon filing. The commission, within thirty days following the filing of the petition, shall either deny the petition in writing or initiate public rulemaking proceedings as set forth in sections 8-503-1 to 8-503-4. No public hearing or other proceedings shall be held with respect to the determination whether to deny the petition or initiate public rulemaking proceedings. Where the commission determines that the petition does not disclose sufficient reasons to justify the institution of public rulemaking proceedings, or where the petition for rulemaking fails, in material respect, to comply with the requirements of these rules, the commission shall deny the petition and the petitioner shall be so notified together with the grounds for denial.

(d) The provisions of this section, however, shall not operate to prevent the commission, on its own motion, from acting on any matter disclosed in any petition.

History

[Eff. 10/4/2018] (Auth: HRS § 302D-3.5) (Imp: HRS §§ 91-6, 302D-3.5)

Chapter 505 APPLICATIONS, RENEWALS OR NONRENEWALS, AND REVOCATIONS

Subchapter 1 GENERAL PROVISIONS

Haw. Code R. § 8-505-1 Purpose

This chapter governs the application process to become a charter school, renewal or nonrenewal of charter contracts, and revocation of charter contracts pursuant to chapter 302D, Hawaii Revised Statutes.

History

[Eff NOV 30, 2014] (Auth: HRS § 302D-3.5) (Imp: HRS §§ 302D-13, 302D-14, 302D-15, 302D-18)

Haw. Code R. § 8-505-2 Definitions

As used in this chapter, unless a different meaning clearly appears in the context:

"Applicant" means the applicant who submits a charter application to the commission.

"Board" means the board of education.

"Commission" means the state public charter school commission established pursuant to section 302D-3, Hawaii Revised Statutes, as a statewide authorizer.

History

[Eff NOV 30, 2014] (Auth: HRS § 302D-3.5) (Imp: HRS §§ 302D-1, 302D-13, 302D-14)

Haw. Code R. §§ 8-505-3 to 8-505-4 Reserved

History

[Reserved NOV 30, 2014] (Auth: HRS § 302D-3.5) (Imp: HRS §§ 302D-1, 302D-13, 302D-14)

Subchapter 2 APPLICATIONS

Haw. Code R. § 8-505-5 Applications for start-up charter schools

(a) The commission shall develop an application form, process, and processing schedule for applying to become a start-up charter school pursuant to section 302D-13, Hawaii Revised Statutes. The application form shall include a description of the application process and the application processing schedule. The application form shall be made available to any person interested in establishing a start-up charter school.

(b) The commission shall develop policies, criteria, or guidelines for evaluating applications for start-up charter schools. The policies, criteria, or guidelines shall be adopted, and may be amended from time to time, by a majority vote of the commission at a meeting held in accordance with chapter 92, Hawaii Revised Statutes.

(c) If an application is denied, the commission shall notify the applicant in writing, served by registered or certified mail with return receipt requested, stating the reason therefor, with specific references to the adopted policies, criteria, or guidelines. The notification of denial shall also include a statement that the applicant may file an appeal with the board within twenty-one calendar days of receipt of the written notification of denial.

History

[Eff NOV 30, 2014] (Auth: HRS § 302D-3.5) (Imp: §§ 302D-13, 302D-15)

Haw. Code R. § 8-505-6 Applications for conversion charter schools

(a) The commission shall develop an application form, process, and processing schedule for applying to become a conversion charter school pursuant to section 302D-14, Hawaii Revised Statutes. The application form shall include a description of the application process and the application processing schedule. The application form shall be made available to any person interested in establishing a conversion charter school.

(b) The commission shall develop policies, criteria, or guidelines for evaluating applications for conversion charter schools. The policies, criteria, or guidelines shall be adopted, and may be amended from time to time, by a majority vote of the commission at a meeting held in accordance with chapter 92, Hawaii Revised Statutes.

History

[Eff NOV 30, 2014] (Auth: HRS § 302D-3.5) (Imp: §§ 302D-14, 302D-15)

Haw. Code R. §§ 8-505-7 to 8-505-9 Reserved

History

[Reserved NOV 30, 2014] (Auth: HRS § 302D-3.5) (Imp: HRS §§ 302D-1, 302D-13, 302D-14)

Subchapter 3 RENEWAL OR NONRENEWAL OF CHARTER CONTRACT

Haw. Code R. § 8-505-10 Reasons for nonrenewal

A charter contract may be not renewed for any of the reasons set forth in section 302D-18(g), Hawaii Revised Statutes.

History

[Eff NOV 30, 2014] (Auth: HRS § 302D-3.5) (Imp: § 302D-18)

Haw. Code R. § 8-505-11 Application for contract renewal

(a) The commission shall develop a charter contract renewal application form, which shall be made available to each charter school whose charter contract will expire the following year. The renewal application form shall also include a description of the renewal application process, the renewal application processing schedule, and the policies, criteria, or guidelines described in subsection (b).

(b) The commission shall develop policies, criteria, or guidelines for evaluating charter contract renewal applications; provided that evaluation criteria shall be based on the charter contract and consistent with chapter 302D, Hawaii Revised Statutes. The policies, criteria, or guidelines shall be adopted, and may be amended from time to time, by a majority vote of the commission at a meeting held in accordance with chapter 92, Hawaii Revised Statutes.

(c) A charter school seeking renewal shall submit a renewal application to the commission pursuant to the renewal policies, criteria, or guidelines adopted by the commission.

History

[Eff NOV 30, 2014] (Auth: HRS § 302D-3.5) (Imp: HRS § 302D-18]

Haw. Code R. § 8-505-12 Performance report; notification of the prospect of nonrenewal

(a) The commission shall prepare a charter school performance report for each charter school whose charter contract will expire the following year. The performance report shall summarize the charter school's performance record to date, shall be in writing, and shall be served upon the charter contract holder by registered or certified mail.

(b) If applicable, the performance report shall notify the charter contract holder of any weaknesses, deficiencies, or concerns which may result in nonrenewal of the contract and shall include but not be limited to the following:

(1) A clear and specific statement of the

charter school's weaknesses or deficiencies, with references to the applicable contract terms or performance standards that have not been met; and

(2) A statement that the charter contract holder, in its response, may request a hearing conducted in accordance with section 8-505-20 and may request legal representation subject to section 28-8.3, Hawaii Revised Statutes.

(c) The charter school shall have thirty days from the date of mailing of the performance report to submit a renewal application, to respond to the performance report and any identified weaknesses, deficiencies, or concerns, to submit any corrections or clarifications for the report, and to request a hearing.

(d) If the charter contract holder disputes the commission's assessment or claim of weaknesses or deficiencies, the commission, after considering the charter contract holder's response, shall reaffirm, modify, or retract its earlier notification of weaknesses or deficiencies, and shall so notify the charter contract holder in writing served by registered or certified mail.

History

[Eff NOV 30, 2014] (Auth: HRS § 302D-3.5) (Imp: HRS § 302D-18)

Haw. Code R. § 8-505-13 Nonrenewal decision by the commission

(a) The commission shall make a final decision on whether or not to renew the charter contract within forty-five days following receipt of the application for contract renewal and after the hearing, if held.

(b) Within fifteen days of making its decision to renew or not renew the charter contract, the commission shall issue its decision in writing, served upon the charter contract holder by registered or certified mail with return receipt requested. The decision shall set forth, with reasonable specificity, the reason for its decision. The decision shall also include a statement that the charter contract holder may file an appeal with the board within twenty-one calendar days of receipt of the written decision of nonrenewal. The written decision shall be simultaneously transmitted to the board.

History

[Eff NOV 30, 2014] (Auth: HRS § 302D-3.5) (Imp: HRS §§ 302D-15, 302D-18)

Haw. Code R. § 8-505-14 Reserved

History

[Reserved NOV 30, 2014] (Auth: HRS § 302D-3.5) (Imp: HRS §§ 302D-1, 302D-13, 302D-14)

Subchapter 4 REVOCATION OF CHARTER CONTRACT

Haw. Code R. § 8-505-15 Reasons for revocation

A charter contract may be revoked at any time for any of the reasons set forth in section 302D-18(g), Hawaii Revised Statutes.

History

[Eff NOV 30, 2014] (Auth: HRS § 302D-3.5) (Imp: § 302D-18)

Haw. Code R. § 8-505-16 Notification of prospect of revocation

Whenever the commission has reason to believe that a charter contract should be revoked, the commission shall notify the charter contract holder in writing of the prospect of revocation. The notification shall be served by registered or certified mail with return receipt requested and shall include the following:

(1) The reason why revocation is contemplated;

(2) The date by which the charter contract holder shall respond, which date shall be not less than thirty days from the date of notification;

(3) A statement that the charter contract holder may, in its response, request a hearing conducted in accordance with section 8-505-20; and

(4) A statement that the charter contract holder may request legal representation subject to section 28-8.3, Hawaii Revised Statutes.

History

[Eff NOV 30, 2014] (Auth: HRS § 302D-3.5) (Imp: HRS § 302D-18]

Haw. Code R. § 8-505-17 Revocation decision by the commission

(a) The commission shall make a final decision on whether or not to revoke the charter contract:

(1) Within thirty days following receipt of the response from the charter school of the notice of prospect of revocation if no hearing is held; or

(2) Within thirty days of the close of the hearing if a hearing is held.

(b) Within fifteen days of making its decision on whether or not to revoke the charter contract, the commission shall issue a report notifying the charter contract holder in writing, served by registered or certified mail with return receipt requested, of its final decision. The report shall set forth with, reasonable specificity, the reason for its decision. If the decision is to revoke the charter contract, the report shall also include a statement that the charter contract holder may file an appeal with the board within twenty-one calendar days of receipt of the written notification of revocation. The report shall be simultaneously transmitted to the board.

History

[Eff NOV 30, 2014] (Auth: HRS § 302D-3.5) (Imp: HRS §§ 91-2, 302D-15, 302D-18]

Haw. Code R. §§ 8-505-18 to 8-505-19 Reserved

History

[Reserved NOV 30, 2014] (Auth: HRS § 302D-3.5) (Imp: HRS §§ 302D-1, 302D-13, 302D-14)

Subtitle 3 PUBLIC LIBRARIES

Chapter 200.1 GENERAL PROCEDURES FOR LIBRARY SERVICES AND THE USE AND LOAN OF LIBRARY MATERIAL (REPEALED)

Haw. Code R. §§ 8-200.1-1 to 8-2001-16 REPEALED

History

R 05/24/2010

Chapter 200.2 LOAN OF PRINT MATERIAL (REPEALED)

Haw. Code R. §§ 8-200.2-1 to 8-2002-5 REPEALED

History

R 05/24/2010

Subtitle 2 EDUCATION

Part 1 PUBLIC SCHOOL

Haw. Code R. tit. 8, subtit. 2, pt. 1, ch. 41 CIVIL RIGHTS POLICY AND COMPLAINT PROCEDURE (REPEALED)

History

This chapter is based substantially upon Department of Education "Rule 52, Relating to Civil Rights Complaint Procedure for Students." [Eff. 12/9/78; am 7/21/80; R 4/21/86]

Haw. Code R. tit. 8, subtit. 2, pt. 1, ch. 89 CIVIL RIGHTS POLICY AND COMPLAINT PROCEDURE FOR STUDENT(S) COMPLAINTS AGAINST ADULT(S)

Historical Note: This chapter is based substantially upon Department of Education "Rule 52, Relating to Civil Rights Complaint Procedure for Students" and Hawaii Administrative Rules, Title 8, Chapter 41, "Civil Rights Complaint Procedure".

History

Eff 12/9/78; am 7/21/80; R 4/21/86, am and comp 10/28/995

Subtitle 5 CHARTER SCHOOLS

Haw. Code R. tit. 8, subtit. 5, ch. 600 School Facilities Authority Rule of Practice and Procedure

History

The adopted version of this chapter by Hawaii Administrative Rules Listing of Filings, 2024-01, August, eff. 8/11/2024 is not yet available.

Subtitle 2 EDUCATION

Part 1 PUBLIC SCHOOL

Chapter 54 TEACHER LICENSING STANDARDS

Subchapter 6 EDUCATOR PREPARATION PROGRAMS

Haw. Code R. tit. 8, subtit. 2, pt. 1, ch. 54, subch. 6, app A TEACHER PERFORMANCE STANDARDS

INTRODUCTION

The board adopted the Interstate Teacher Assessment and Support Consortium (In TASC new "core teaching standards" which represent a major revision to the Model Standards for Beginning Teacher Assessment and Development No longer limited to assessment and support of new teachers, the new standards define standards of professional practice for all teachers.

There are ten individual standards organized into four priority areas:

The Learner & Learning (standards 1-3)

Content (standards 4-5)

Instructional Practice (standards 6-8)

Professional Responsibility (standards 9-10)

Each standard is divided into the areas of performances, essential knowledge, and critical dispositions.

The core teaching standards include a focus on 21st century knowledge and skills; personalized learning for diverse learners; a collaborative professional culture; improved assessment literacy; and new leadership roles for teachers and administrators The core teaching standards describe what teachers should know and be able to do in today's learning context to ensure students attain these learning goals, as well as encourage teachers to build literacy and thinking skills across the curriculum, and help students address multiple perspectives in exploring ideas and solving problems The core teaching standards also address interdisciplinary themes and the teacher's ability to build on content that draws upon multiple disciplines.

Standard #1: Learner Development

The teacher understands how learners grow and develop, recognizing that patterns of learning and development vary individually within and across the cognitive, linguistic, social, emotional, and physical areas, and designs and implements developmentally appropriate and challenging learning experiences.

1 (a) The teacher regularly assesses individual and group performance in order to design and modify instruction to meet learners' needs in each area of development (cognitive, linguistic, social, emotional, and physical) and scaffolds the next level of development.

1 (b) The teacher creates developmentally appropriate instruction that takes into account individual learners' strengths, interests, and needs and that enables each learner to advance and accelerate his/her learning.

1 (c) The teacher collaborates with families, communities, colleagues, and other professionals to promote learner growth and development.

1 (d) The teacher understands how learning occurs--how learners construct knowledge, acquire skills, and develop disciplined thinking processes--and knows how to use instructional strategies that promote student learning.

1 (e) The teacher understands that each learner's cognitive, linguistic, social, emotional, and physical development influences learning and knows how to make instructional decisions that build on learners' strengths and needs.

1 (f) The teacher identifies readiness for learning, and understands how development in any one area may affect performance in others.

1 (g) The teacher understands the role of language and culture in learning and knows how to modify instruction to make language comprehensible and instruction relevant, accessible, and challenging.

1 (h) The teacher respects learners' differing strengths and needs and is committed to using this information to further each learner's development.

1 (i) The teacher is committed to using learners' strengths as a basis for growth, and their misconceptions as opportunities for learning.

1 (j) The teacher takes responsibility for promoting learners' growth and development.

1 (k) The teacher values the input and contributions of families, colleagues, and other professionals in understanding and supporting each learner's development.

Standard #2: Learning Differences

The teacher uses understanding of individual differences and diverse cultures and communities to ensure inclusive learning environments that enable each learner to meet high standards.

2 (a) The teacher designs, adapts, and delivers instruction to address each student's diverse learning strengths and needs and creates opportunities for students to demonstrate their learning in different ways.

2 (b) The teacher makes appropriate and timely provisions (e.g., pacing for individual rates of growth, task demands, communication, assessment, and response modes) for individual students with particular learning differences or needs.

2 (c) The teacher designs instruction to build on learners' prior knowledge and experiences, allowing learners to accelerate as they demonstrate their understandings.

2 (d) The teacher brings multiple perspectives to the discussion of content, including attention to learners' personal, family, and community experiences and cultural norms, including Native Hawaiian history and culture.

2 (e) The teacher incorporates tools of language development into planning and instruction, including strategies for making content accessible to English language learners and for evaluating and supporting their development of English proficiency.

2 (f) The teacher accesses resources, supports, and specialized assistance and services to meet particular learning differences or needs.

2 (g) The teacher understands and identifies differences in approaches to learning and performance and knows how to design instruction that uses each learner's strengths to promote growth.

2 (h) The teacher understands students with exceptional needs, including those associated with disabilities and giftedness, and knows how to use strategies and resources to address these needs.

2 (i) The teacher knows about second language acquisition processes and knows how to incorporate instructional strategies and resources to support language acquisition.

2 (j) The teacher understands that learners bring assets for learning based on their individual experiences, abilities, talents, prior learning, and peer and social group interactions, as well as language, culture, family, and community values.

2 (k) The teacher knows how to access information about the values of diverse cultures and communities and how to incorporate learners' experiences, cultures, and community resources into instruction.

2 (l) The teacher believes that all learners can achieve at high levels and persists in helping each learner reach his/her full potential.

2 (m) The teacher respects learners as individuals with differing personal and family backgrounds and various skills, abilities, perspectives, talents, and interests.

2 (n) The teacher makes learners feel valued and helps them learn to value each other.

2 (o) The teacher values diverse languages and dialects and seeks to integrate them into his/her instructional practice to engage students in learning.

Standard #3: Learning Environments

The teacher works with others to create environments that support individual and collaborative learning, and that encourage positive social interaction, active engagement in learning, and self motivation.

3 (a) The teacher collaborates with learners, families, and colleagues to build a safe, positive learning climate of openness, mutual respect, support, and inquiry.

3 (b) The teacher develops learning experiences that engage learners in collaborative and self-directed learning and that extend learner interaction with ideas and people locally and globally.

3 (c) The teacher collaborates with learners and colleagues to develop shared values and expectations for respectful interactions, rigorous academic discussions, and individual and group responsibility for quality work.

3 (d) The teacher manages the learning environment to actively and equitably engage learners by organizing, allocating, and coordinating the resources of time, space, and learners' attention.

3 (e) The teacher uses a variety of methods to engage learners in evaluating the learning environment and collaborates with learners to make appropriate adjustments.

3 (f) The teacher communicates verbally and nonverbally in ways that demonstrate respect for and responsiveness to the cultural backgrounds and differing perspectives learners bring to the learning environment.

3 (g) The teacher promotes responsible learner use of interactive technologies to extend the possibilities for learning locally and globally.

3 (h) The teacher intentionally builds learner capacity to collaborate in face-to-face and virtual environments through applying effective interpersonal communication skills.

3 (i) The teacher understands the relationship between motivation and engagement and knows how to design learning experiences using strategies that build learner self-direction and ownership of learning.

3 (j) The teacher knows how to help learners work productively and cooperatively with each other to achieve learning goals.

3 (k) The teacher knows how to collaborate with learners to establish and monitor elements of a safe and productive learning environment including norms, expectations, routines, and organizational structures.

3 (l) The teacher understands how learner diversity can affect communication and knows how to communicate effectively in differing environments.

3 (m) The teacher knows how to use technologies and how to guide learners to apply them in appropriate, safe, and effective ways.

3 (n) The teacher is committed to working with learners, colleagues, families, and communities to establish positive and supportive learning environments.

3 (o) The teacher values the role of learners in promoting each other's learning and recognizes the importance of peer relationships in establishing a climate of learning.

3 (p) The teacher is committed to supporting learners as they participate in decision making, engage in exploration and invention, work collaboratively and independently, and engage in purposeful learning.

3 (q) The teacher seeks to foster respectful communication among all members of the learning community.

3 (r) The teacher is a thoughtful and responsive listener and observer.

Standard #4: Content Knowledge

The teacher understands the central concepts, tools of inquiry, and structures of the discipline (s) he or she teaches and creates learning experiences that make these aspects of the discipline accessible and meaningful for learners to assure mastery of the content.

4 (a) The teacher effectively uses multiple representations and explanations that capture key ideas in the discipline, guide learners through learning progressions, and promote each learner's achievement of content standards.

4 (b) The teacher engages students in learning experiences in the discipline(s) that encourage learners to understand, question, and analyze ideas from diverse perspectives so that they master the content.

4 (c) The teacher engages learners in applying methods of inquiry and standards of evidence used in the discipline.

4 (d) The teacher stimulates learner reflection on prior content knowledge, links new concepts to familiar concepts, and makes connections to learners' experiences.

4 (e) The teacher recognizes learner misconceptions in a discipline that interfere with learning, and creates experiences to build accurate conceptual understanding.

4 (f) The teacher evaluates and modifies instructional resources and curriculum materials for their comprehensiveness, accuracy for representing particular concepts in the discipline, and appropriateness for his/ her learners.

4 (g) The teacher uses supplementary resources and technologies effectively to ensure accessibility and relevance for all learners.

4 (h) The teacher creates opportunities for students to learn, practice, and master academic language in their content.

4 (i) The teacher accesses school and/or district-based resources to evaluate the learner's content knowledge in their primary language.

4 (j) The teacher understands major concepts, assumptions, debates, processes of inquiry, and ways of knowing that are central to the discipline(s) she teaches.

4 (k) The teacher understands common misconceptions in learning the discipline and how to guide learners to accurate conceptual understanding.

4 (l) The teacher knows and uses the academic language of the discipline and knows how to make it accessible to learners.

4 (m) The teacher knows how to integrate culturally relevant content to build on learners' background knowledge.

4 (n) The teacher has a deep knowledge of student content standards and learning progressions in the discipline(s) s/he teaches.

4 (o) The teacher realizes that content knowledge is not a fixed body of facts but is complex, culturally situated, and ever evolving. She keeps abreast of new ideas and understandings in the field.

4 (p) The teacher appreciates multiple perspectives within the discipline and facilitates learners' critical analysis of these perspectives.

4 (q) The teacher recognizes the potential of bias in his/her representation of the discipline and seeks to appropriately address problems of bias.

4 (r) The teacher is committed to work toward each learner's mastery of disciplinary content and skills.

Standard #5: Application of Content

The teacher understands how to connect concepts and use differing perspectives to engage learners in critical thinking, creativity, and collaborative problem solving related to authentic local and global issues.

5 (a) The teacher develops and implements projects that guide learners in analyzing the complexities of an issue or question using perspectives from varied disciplines and cross-disciplinary skills (e.g., a water quality study that draws upon biology and chemistry to look at factual information and social studies to examine policy implications).

5 (b) The teacher engages learners in applying content knowledge to real world problems through the lens of interdisciplinary themes (e.g., financial literacy, environmental literacy).

5 (c) The teacher facilitates learners' use of current tools and resources to maximize content learning in varied contexts.

5 (d) The teacher engages learners in questioning and challenging assumptions and approaches in order to foster innovation and problem solving in local and global contexts.

5 (e) The teacher develops learners' communication skills in disciplinary and interdisciplinary contexts by creating meaningful opportunities to employ a variety of forms of communication that address varied audiences and purposes.

5 (f) The teacher engages learners in generating and evaluating new ideas and novel approaches, seeking inventive solutions to problems, and developing original work.

5 (g) The teacher facilitates learners' ability to develop diverse social and cultural perspectives that expand their understanding of local and global issues and create novel approaches to solving problems.

5 (h) The teacher develops and implements supports for learner literacy development across content areas.

5 (i) The teacher understands the ways of knowing in his/her discipline, how it relates to other disciplinary approaches to inquiry, and the strengths and limitations of each approach in addressing problems, issues, and concerns.

5 (j) The teacher understands how current interdisciplinary themes (e.g., civic literacy, health literacy, global awareness) connect to the core subjects and knows how to weave those themes into meaningful learning experiences.

5 (k) The teacher understands the demands of accessing and managing information as well as how to evaluate issues of ethics and quality related to information and its use.

5 (l) The teacher understands how to use digital and interactive technologies for efficiently and effectively achieving specific learning goals.

5 (m) The teacher understands critical thinking processes and knows how to help learners develop high level questioning skills to promote their independent learning.

5 (n) The teacher understands communication modes and skills as vehicles for learning (e.g., information gathering and processing) across disciplines as well as vehicles for expressing learning.

5 (o) The teacher understands creative thinking processes and how to engage learners in producing original work.

5 (p) The teacher knows where and how to access resources to build global awareness and understanding, and how to integrate them into the curriculum.

5 (q) The teacher is constantly exploring how to use disciplinary knowledge as a lens to address local and global issues.

5 (r) The teacher values knowledge outside his/her own content area and how such knowledge enhances student learning.

5 (s) The teacher values flexible learning environments that encourage learner exploration, discovery, and expression across content areas.

Standard #6: Assessment

The teacher understands and uses multiple methods of assessment to engage learners in their own growth, to monitor learner progress, and to guide the teacher's and learner's decision making.

6 (a) The teacher balances the use of formative and summative assessment as appropriate to support, verify, and document learning.

6 (b) The teacher designs assessments that match learning objectives with assessment methods and minimizes sources of bias that can distort assessment results.

6 (c) The teacher works independently and collaboratively to examine test and other performance data to understand each learner's progress and to guide planning.

6 (d) The teacher engages learners in understanding and identifying quality work and provides them with effective descriptive feedback to guide their progress toward that work.

6 (e) The teacher engages learners in multiple ways of demonstrating knowledge and skill as part of the assessment process.

6 (f) The teacher models and structures processes that guide learners in examining their own thinking and learning as well as the performance of others.

6 (g) The teacher effectively uses multiple and appropriate types of assessment data to identify each student's learning needs and to develop differentiated learning experiences.

6 (h) The teacher prepares all learners for the demands of particular assessment formats and makes appropriate accommodations in assessments or testing conditions, especially for learners with disabilities and language learning needs.

6 (i) The teacher continually seeks appropriate ways to employ technology to support assessment practice both to engage learners more fully and to assess and address learner needs.

6 (j) The teacher understands the differences between formative and summative applications of assessment and knows how and when to use each.

6 (k) The teacher understands the range of types and multiple purposes of assessment and how to design, adapt, or select appropriate assessments to address specific learning goals and individual differences, and to minimize sources of bias.

6 (l) The teacher knows how to analyze assessment data to understand patterns and gaps in learning, to guide planning and instruction, and to provide meaningful feedback to all learners.

6 (m) The teacher knows when and how to engage learners in analyzing their own assessment results and in helping to set goals for their own learning.

6 (n) The teacher understands the positive impact of effective descriptive feedback for learners and knows a variety of strategies for communicating this feedback.

6 (o) The teacher knows when and how to evaluate and report learner progress against standards.

6 (p) The teacher understands how to prepare learners for assessments and how to make accommodations in assessments and testing conditions, especially for learners with disabilities and language learning needs.

6 (q) The teacher is committed to engaging learners actively in assessment processes and to developing each learner's capacity to review and communicate about their own progress and learning.

6 (r) The teacher takes responsibility for aligning instruction and assessment with learning goals.

6 (s) The teacher is committed to providing timely and effective descriptive feedback to learners on their progress.

6 (t) The teacher is committed to using multiple types of assessment processes to support, verify, and document learning.

6 (u) The teacher is committed to making accommodations in assessments and testing conditions, especially for learners with disabilities and language learning needs.

6 (v) The teacher is committed to the ethical use of various assessments and assessment data to identify learner strengths and needs to promote learner growth.

Standard #7: Planning for Instruction

The teacher plans instruction that supports every student in meeting rigorous learning goals by drawing upon knowledge of content areas, curriculum, cross-disciplinary skills, and pedagogy, as well as knowledge of learners and the community context.

7 (a) The teacher individually and collaboratively selects and creates learning experiences that are appropriate for curriculum goals and content standards, and are relevant to learners.

7 (b) The teacher plans how to achieve each student's learning goals, choosing appropriate strategies and accommodations, resources, and materials to differentiate instruction for individuals and groups of learners.

7 (c) The teacher develops appropriate sequencing of learning experiences and provides multiple ways to demonstrate knowledge and skill.

7 (d) The teacher plans for instruction based on formative and summative assessment data, prior learner knowledge, and learner interest.

7 (e) The teacher plans collaboratively with professionals who have specialized expertise (e.g., special educators, related service providers, language learning specialists, librarians, media specialists) to design and jointly deliver as appropriate learning experiences to meet unique learning needs.

7 (f) The teacher evaluates plans in relation to short- and long-range goals and systematically adjusts plans to meet each student's learning needs and enhance learning.

7 (g) The teacher understands content and content standards and how these are organized in the curriculum.

7 (h) The teacher understands how integrating cross-disciplinary skills in instruction engages learners purposefully in applying content knowledge.

7 (i) The teacher understands learning theory, human development, cultural diversity, and individual differences and how these impact ongoing planning.

7 (j) The teacher understands the strengths and needs of individual learners and how to plan instruction that is responsive to these strengths and needs.

7 (k) The teacher knows a range of evidence-based instructional strategies, resources, and technological tools and how to use them effectively to plan instruction that meets diverse learning needs.

7 (l) The teacher knows when and how to adjust plans based on assessment information and learner responses.

7 (m) The teacher knows when and how to access resources and collaborate with others to support student learning (e.g., special educators, related service providers, language learner specialists, librarians, media specialists, community organizations).

7 (n) The teacher respects learners' diverse strengths and needs and is committed to using this information to plan effective instruction.

7 (o) The teacher values planning as a collegial activity that takes into consideration the input of learners, colleagues, families, and the larger community.

7 (p) The teacher takes professional responsibility to use short- and long-term planning as a means of assuring student learning.

7 (q) The teacher believes that plans must always be open to adjustment and revision based on learner needs and changing circumstances.

Standard #8: Instructional Strategies

The teacher understands and uses a variety of instructional strategies to encourage learners to develop deep understanding of content areas and their connections, and to build skills to apply knowledge in meaningful ways.

8 (a) The teacher uses appropriate strategies and resources to adapt instruction to the needs of individuals and groups of learners.

8 (b) The teacher continuously monitors student learning, engages learners in assessing their progress, and adjusts instruction in response to student learning needs.

8 (c) The teacher collaborates with learners to design and implement relevant learning experiences, identify their strengths, and access family and community resources to develop their areas of interest.

8 (d) The teacher varies his/her role in the instructional process (e.g., instructor, facilitator, coach, audience) in relation to the content and purposes of instruction and the needs of learners.

8 (e) The teacher provides multiple models and representations of concepts and skills with opportunities for learners to demonstrate their knowledge through a variety of products and performances.

8 (f) The teacher engages all learners in developing higher order questioning skills and metacognitive processes.

8 (g) The teacher engages learners in using a range of learning skills and technology tools to access, interpret, evaluate, and apply information.

8 (h) The teacher uses a variety of instructional strategies to support and expand learners' communication through speaking, listening, reading, writing, and other modes.

8 (i) The teacher asks questions to stimulate discussion that serves different purposes (e.g., probing for learner understanding, helping learners articulate their ideas and thinking processes, stimulating curiosity, and helping learners to question).

8 (j) The teacher understands the cognitive processes associated with various kinds of learning (e.g., critical and creative thinking, problem framing and problem solving, invention, memorization and recall) and how these processes can be stimulated.

8 (k) The teacher knows how to apply a range of developmentally, culturally, and linguistically appropriate instructional strategies to achieve learning goals.

8 (l) The teacher knows when and how to use appropriate strategies to differentiate instruction and engage all learners in complex thinking and meaningful tasks.

8 (m) The teacher understands how multiple forms of communication (oral, written, nonverbal, digital, visual) convey ideas, foster self expression, and build relationships.

8 (n) The teacher knows how to use a wide variety of resources, including human and technological, to engage students in learning.

8 (o) The teacher understands how content and skill development can be supported by media and technology and knows how to evaluate these resources for quality, accuracy, and effectiveness.

8 (p) The teacher is committed to deepening awareness and understanding the strengths and needs of diverse learners when planning and adjusting instruction.

8 (q) The teacher values the variety of ways people communicate and encourages learners to develop and use multiple forms of communication.

8 (r) The teacher is committed to exploring how the use of new and emerging technologies can support and promote student learning.

8 (s) The teacher values flexibility and reciprocity in the teaching process as necessary for adapting instruction to learner responses, ideas, and needs.

Standard #9: Professional Learning and Ethical Practice

The teacher engages in ongoing professional learning and uses evidence to continually evaluate his/her practice, particularly the effects of his/her choices and actions on others (learners, families, other professionals, and the community), and adapts practice to meet the needs of each learner.

9 (a) The teacher engages in ongoing learning opportunities to develop knowledge and skills in order to provide all learners with engaging curriculum and learning experiences based on local and state standards.

9 (b) The teacher engages in meaningful and appropriate professional learning experiences aligned with his/her own needs and the needs of the learners, school, and system.

9 (c) Independently and in collaboration with colleagues, the teacher uses a variety of data (e.g., systematic observation, information about learners, research) to evaluate the outcomes of teaching and learning and to adapt planning and practice.

9 (d) The teacher actively seeks professional, community, and technological resources, within and outside the school, as supports for analysis, reflection, and problem-solving.

9 (e) The teacher reflects on his/her personal biases and accesses resources to deepen his/her own understanding of cultural, ethnic, gender, and learning differences to build stronger relationships and create more relevant learning experiences.

9 (f) The teacher advocates, models, and teaches safe, legal, and ethical use of information and technology including appropriate documentation of sources and respect for others in the use of social media.

9 (g) The teacher understands and knows how to use a variety of self-assessment and problem-solving strategies to analyze and reflect on his/her practice and to plan for adaptations/adjustments.

9 (h) The teacher knows how to use learner data to analyze practice and differentiate instruction accordingly.

9 (i) The teacher understands how personal identity, worldview, and prior experience affect perceptions and expectations, and recognizes how they may bias behaviors and interactions with others.

9 (j) The teacher understands laws related to learners' rights and teacher responsibilities (e.g., for educational equity, appropriate education for learners with disabilities, confidentiality, privacy, appropriate treatment of learners, reporting in situations related to possible child abuse).

9 (k) The teacher knows how to build and implement a plan for professional growth directly aligned with his/her needs as a growing professional using feedback from teacher evaluations and observations, data on learner performance, and school- and system-wide priorities.

9 (l) The teacher takes responsibility for student learning and uses ongoing analysis and reflection to improve planning and practice.

9 (m) The teacher is committed to deepening understanding of his/her own frames of reference (e.g., culture, gender, language, abilities, ways of knowing), the potential biases in these frames, and their impact on expectations for and relationships with learners and their families.

9(n) The teacher sees him/herself as a learner, continuously seeking opportunities to draw upon current education policy and research as sources of analysis and reflection to improve practice.

9 (o) The teacher understands the expectations of the profession including codes of ethics, professional standards of practice, and relevant law and policy.

Standard #10: Leadership and Collaboration

The teacher seeks appropriate leadership roles and opportunities to take responsibility for student learning, to collaborate with learners, families, colleagues, other school professionals, and community members to ensure learner growth, and to advance the profession.

10 (a) The teacher takes an active role on the instructional team, giving and receiving feedback on practice, examining learner work, analyzing data from multiple sources, and sharing responsibility for decision making and accountability for each student's learning.

10 (b) The teacher works with other school professionals to plan and jointly facilitate learning on how to meet diverse needs of learners.

10 (c) The teacher engages collaboratively in the school-wide effort to build a shared vision and supportive culture, identify common goals, and monitor and evaluate progress toward those goals.

10 (d) The teacher works collaboratively with learners and their families to establish mutual expectations and ongoing communication to support learner development and achievement.

10 (e) Working with school colleagues, the teacher builds ongoing connections with community resources to enhance student learning and well being.

10 (f) The teacher engages in professional learning, contributes to the knowledge and skill of others, and works collaboratively to advance professional practice.

10 (g) The teacher uses technological tools and a variety of communication strategies to build local and global learning communities that engage learners, families, and colleagues.

10 (h) The teacher uses and generates meaningful research on education issues and policies.

10 (i) The teacher seeks appropriate opportunities to model effective practice for colleagues, to lead professional learning activities, and to serve in other leadership roles.

10 (j) The teacher advocates meeting the needs of learners, to strengthen the learning environment, and to enact system change.

10 (k) The teacher takes on leadership roles at the school, district, state, and/or national level and advocates for learners, the school, the community, and the profession.

10 (l) The teacher understands schools as organizations within a historical, cultural, political, and social context and knows how to work with others across the system to support learners.

10 (m) The teacher understands that alignment of family, school, and community spheres of influence enhances student learning and that discontinuity in these spheres of influence interferes with learning.

10 (n) The teacher knows how to work with other adults and has developed skills in collaborative interaction appropriate for both face-to-face and virtual contexts.

10 (o) The teacher knows how to contribute to a common culture that supports high expectations for student learning.

10 (p) The teacher actively shares responsibility for shaping and supporting the mission of his/her school as one of advocacy for learners and accountability for their success.

10 (q) The teacher respects families' beliefs, norms, and expectations and seeks to work collaboratively with learners and families in setting and meeting challenging goals.

10 (r) The teacher takes initiative to grow and develop with colleagues through interactions that enhance practice and support student learning.

10 (s) The teacher takes responsibility for contributing to and advancing the profession.

10 (t) The teacher embraces the challenge of continuous improvement and change.

History

Am and comp 11/17/2019

Haw. Code R. tit. 8, subtit. 2, pt. 1, ch. 54, subch. 6, app B SCHOOL LIBRARIAN PERFORMANCE STANDARDS

INTRODUCTION

The effective school librarian focuses on students' long-term development into responsible and independent learners. Effective students acquire the basic skills and dispositions necessary to achieve autonomy, literacy, responsibility to self and other, and lifelong learning. The ultimate goal is for students to become positive, confident, competent, caring learners who demonstrate initiative, solve problems, set goals, and make decisions that help them to function successfully in a rapidly changing technological society. The educational system must develop citizens who can govern themselves and have a global perspective. The citizens must be flexible, resourceful, and able to deal with open-endedness, complexity, information explosion, and accelerated growth in technologies while maintaining a set of values, individual stability, and integrity.

Standard 1: Teaching for Learning

School librarians are effective teachers who demonstrate knowledge of learners and learning.

They model and promote collaborative planning, instruction in multiple literacies, and inquiry based learning, enabling members of the learning community to become effective users and creators of ideas and information. They design and implement instruction that engages students' interests and develops their ability to inquire, think critically, gain and share knowledge.

1.1 Knowledge of learners and learning

School librarians demonstrate knowledge of learning styles, stages of human growth and development, and cultural influences on learning. They assess learner needs and design instruction that reflect best practices in teaching. They support the learning of various members of the educational community including those with diverse learning styles, physical and intellectual abilities and needs. School Librarians base instruction on interests and needs and link it to the assessment of student achievement.

1.2 Effective and knowledgeable teacher

School librarians implement the principles of effective teaching and learning that contribute to an active, inquiry-based approach to learning. They use a variety of instructional strategies and assessment tools to design and develop digital-age learning experiences and assessments in partnership with classroom teachers and other educators. They document and communicate the impact of collaborative instruction on student achievement.

1.3 Instructional partner

School librarians model, share, and promote effective principles of teaching and learning as collaborative partners with other educators. They participate in curriculum development, engage in school improvement processes, and offer professional development to various members of the educational community as it relates to library and information use.

1.4 Integration of twenty-first century skills and learning standards

School librarians advocate for twenty-first century literacy skills to support the learning needs of the school community. They collaborate with other teachers to plan and implement instruction based on of the AASL Standards for the 21st-century Learner and curriculum standards. They employ strategies to integrate multiple literacies with content curriculum. School librarians integrate the use of technologies as a means for effective and creative teaching and to support PreK-12 students' conceptual understanding, critical thinking and creative processes.

Standard 2: Literacy and Reading

School librarians promote reading for learning, personal growth, and enjoyment. They use a variety of strategies to reinforce classroom reading instruction to address the diverse needs and interests of all readers.

2.1 Literature

School librarians are familiar with a wide range of children's, young adult, and professional literature in multiple formats and languages to support reading for information, reading for pleasure, and reading for lifelong learning.

2.2 Reading promotion

School librarians use a variety of strategies to promote reading for learning, personal growth, and enjoyment.

2.3 Respect for diversity

School librarians develop a collection of reading and information materials in print and digital formats that support the diverse developmental, cultural, social, and linguistic needs of PreK-12 students and their communities.

2.4 Literacy strategies

School librarians collaborate with classroom teachers to reinforce a wide variety of reading instructional strategies to ensure PreK-12 students are able to create meaning from text.

Standard 3: Information and Knowledge

School librarians model and promote ethical, equitable access to and use of physical, digital, and virtual collections of resources. They provide a variety of information sources and services that support the needs of the diverse learning community. They use a variety of research strategies to generate knowledge to improve practice in school libraries.

3.1 Efficient and ethical information-seeking behavior School librarians identify and provide support for diverse student information needs. They model multiple strategies for students, other teachers, and administrators to locate, evaluate, and ethically use information for specific purposes. They collaborate with students, other teachers, and administrators to efficiently access, interpret, and communicate information.

3.2 Access to information

School librarians support flexible, open access for library services. They develop solutions for addressing physical, social and intellectual barriers to equitable access to resources and services. They facilitate access to information in print, non-print, and digital formats. They model and communicate the legal and ethical codes of the profession.

3.3 Information technology

School librarians design and adapt relevant learning experiences that engage students in the use of digital tools and resources. They model and facilitate the effective use of digital tools to locate, analyze, evaluate, and use information resources to support research, learning, creating, and communicating in a global society.

3.4 Research and knowledge creation

School librarians use evidence-based, action research to collect data. They interpret and use data to create and share new knowledge to support and improve practice in school libraries.

Standard 4: Advocacy and Leadership

School librarians advocate for dynamic school library programs and positive learning environments that focus on student learning and achievement by collaborating and connecting with teachers, administrators, librarians, and the community. They are committed to continuous learning and professional growth and lead professional development activities for other educators. They provide leadership by articulating ways in which school libraries contribute to student achievement.

4.1. Networking with the library community School librarians participate and collaborate as members of a social and intellectual network of learners. They establish partnerships with other libraries for resource sharing and networking.

4.2 Professional development

School librarians model a strong commitment to the profession by participating in professional growth and leadership opportunities through joining library associations, participating in professional conferences, reading professional publications, and exploring Internet resources. They plan for ongoing professional growth.

4.3 Leadership

School librarians articulate the roles and relationships of the library program's support of student academic achievement within the context of current educational initiatives. Utilizing evidence based practice and information from education and library research, they communicate ways in which the library program can enhance school improvement efforts.

4.4 Advocacy

School librarians identify stakeholders within and outside the school community who impact the school library program. They use a range of strategies to advocate for school library and information programs, for resources, and for services.

Standard 5: Program Management and Administration

School librarians plan, develop, implement, and evaluate school library programs, resources, and services in support of the mission of the library program and the school according to the ethics and principles of library science, education, management, and administration.

5.1 Collections and Information Access

School librarians evaluate and select print, non-print, and digital resources using professional selection tools and evaluation criteria to develop and manage a quality program of information access designed to meet the diverse curricular, personal, and professional needs of students, teachers, and administrators. They organize school library collections according to current library cataloging and classification principles and standards.

5.2 Professional Ethics

School librarians practice the ethical principles of their profession, advocate for intellectual freedom and privacy, and promote and model digital citizenship and responsibility. They educate the school community on the ethical use of information and ideas.

5.3 Personnel, Funding, and Facilities

School librarians apply best practices related to planning, budgeting, and evaluating human, information, and physical resources. They organize library facilities to enhance the use of information resources and services and to ensure equitable access to all resources for all users. They develop, implement, and evaluate policies and procedures that support teaching and learning in school libraries.

5.4 Strategic planning and assessment

School librarians communicate and collaborate with students, teachers, administrators, and community members to develop a library program that aligns resources, services, and standards with the school's mission. They make effective use of data and information to assess how the library program addresses the needs of their diverse community.

History

Am and comp 11/17/2019

Haw. Code R. tit. 8, subtit. 2, pt. 1, ch. 54, subch. 6, app C SCHOOL COUNSELOR PERFORMANCE STANDARDS INTRODUCTION

The effective school counselor focuses on students' long-term academic, career, and personal/social development; effective school counselor demonstrates the basic skills and dispositions to promote students' autonomy, literacy, responsibility to self and others, and lifelong learning. With developmentally appropriate counseling and guidance, the ultimate goal is for students to become positive, courageous, confident, competent, and caring human beings. The educational system must develop citizens who can govern themselves and have a global perspective. The citizens must be flexible, resourceful and able to deal with open-endedness, complexity. The effective school counselor promotes students' autonomy, literacy, responsibility to self and others, and lifelong learning through developmentally appropriate counseling and guidance.

Standard 1: The professional school counselor plans, organizes and delivers the school counseling program.

1.1 A program is designed to meet the needs of the school.

1.2 The professional school counselor demonstrates positive interpersonal relationships with students.

1.3 The professional school counselor demonstrates positive interpersonal relationships with educational staff.

1.4 The professional school counselor demonstrates positive interpersonal relationships with parents or guardians.

Standard 2: The professional school counselor is able to implement a school guidance curriculum through the use of effective instructional skills and careful planning of structured group sessions.

2.1 The professional school counselor is able to teach school guidance units effectively.

2.2 The professional school counselor is able to develop materials and instructional strategies to meet student needs and school goals.

2.3 The professional school counselor collaborates with staff involvement to ensure the effective implementation of the school guidance curriculum.

Standard 3: The professional school counselor implements the individual planning component by guiding individuals and groups of students and their parents or guardians through the development of educational and career plans.

3.1 The professional school counselor, in collaboration with parents or guardians, helps students establish goals and develop and use planning skills.

3.2 The professional school counselor demonstrates accurate and appropriate interpretation of assessment data and the presentation of relevant, unbiased information.

Standard 4: The professional school counselor provides responsive services through the effective use of individual and small-group counseling, consultation and referral skills.

4.1 The professional school counselor counsels individual students and small groups of students with identified needs and concerns.

4.2 The professional school counselor consults effectively with parents or guardians, teachers, administrators and other relevant individuals.

4.3 The professional school counselor implements an effective referral process with administrators, teachers and other school personnel.

Standard 5: The professional school counselor provides system support through effective school counseling program management and support for other educational programs.

5.1 The professional school counselor provides a comprehensive and balanced school counseling program in collaboration with school staff.

5.2 The professional school counselor provides support for other school programs.

5.3 The professional school counselor develops and distributes a calendar which identifies counseling activities and programs.

Standard 6: The professional school counselor discusses the counseling department management system and the program action plans with the school administrator.

6.1 The professional school counselor discusses the qualities of the school counselor management system with the other members of the counseling staff and/or school administrator.

6.2 The professional school counselor discusses the anticipated program results when implementing the action plans for the school year.

Standard 7: The professional school counselor collects and analyzes data to guide program direction and emphasis.

7.1 The professional school counselor uses school data to make decisions regarding student choice of classes and/or special programs.

7.2 The professional school counselor uses data from the counseling program to make decisions regarding program revisions.

7.3 The professional school counselor understands and uses data to establish goals and activities to support academic achievement.

Standard 8: The professional school counselor monitors the students on a regular basis as they progress in school.

8.1 The professional school counselor is accountable for monitoring students' progress.

8.2 The professional school counselor implements monitoring systems appropriate to the individual school.

8.3 The professional school counselor develops appropriate interventions for students as needed and monitors their progress.

Standard 9: The professional school counselor develops a system for evaluating the results of the counseling program.

9.1 The professional school counselor collects data and analyzes results attained from school counseling activities.

9.2 The professional school counselor works with members of the counseling team, if applicable, and with the principal to clarify how programs are evaluated and how results are shared.

9.3 The professional school counselor uses program assessment to make changes as needed in the school counseling program and calendar for the following year.

9.4 The professional school counselor shares the results of the program assessment with stakeholders.

Standard 10: The professional school counselor is an advocate for students, a leader, collaborator, and a systems change agent.

10.1 The professional school counselor promotes academic success of students.

10.2 The professional school counselor promotes equity and access for students.

10.3 The professional school counselor takes a leadership role within the school setting and/or community.

10.4 The professional school counselor understands reform issues and works to close the achievement gap.

10.5 The professional school counselor collaborates with teachers, parents and the community to promote academic success of students.

10.6 The professional school counselor is a member of effective teams and encourages collaboration among all school staff.

10.7 The professional school counselor uses data to recommend systemic change in policy and procedures that limit or inhibit academic achievement.

History

Am and comp 11/17/2019

Haw. Code R. tit. 8, subtit. 2, pt. 1, ch. 54, subch. 6, app D MODEL CODE OF ETHICS FOR EDUCATORS

Principle I: Responsibility to the Profession

The professional educator is aware that trust in the profession depends upon a level of professional conduct and responsibility that may be higher than required by law. This entails holding oneself and other educators to the same ethical standards.

A. The professional educator demonstrates responsibility to oneself as an ethical professional by:

1. Acknowledging that lack of awareness, knowledge, or understanding of the Code is not, in and of itself, a defense to a charge of unethical conduct;

2. Knowing and upholding the procedures, policies, laws and regulations relevant to professional practice regardless of personal views;

3. Holding oneself responsible for ethical conduct;

4. Monitoring and maintaining sound mental, physical, and emotional health necessary to perform duties and services of any professional assignment, and taking appropriate measures when personal or health-related issues may interfere with work-related duties;

5. Refraining from professional or personal activity that may lead to reducing one's effectiveness within the school community;

6. Avoiding the use of one's position for personal gain and avoiding the appearance of impropriety;

7. Taking responsibility and credit only for work actually performed or produced, and acknowledging the work and contributions made by others.

B. The professional educator fulfills the obligation to address and attempt to resolve ethical issues by:

1. Confronting and taking reasonable steps to resolve conflicts between the Code and the implicit or explicit demands of a person or organization;

2. Maintaining fidelity to the Code by taking proactive steps when having reason to believe that another educator may be approaching or involved in an ethically compromising situation;

3. Neither discriminating nor retaliating against a person on the basis of having made an ethical complaint;

4. Neither filing nor encouraging frivolous ethical complaints solely to harm or retaliate;

5. Cooperating fully during ethics investigations and proceedings.

C. The professional educator promotes and advances the profession within and beyond the school community by:

1. Influencing and supporting decisions and actions that positively impact teaching and learning, educational leadership, and student services;

2. Engaging in respectful discourse regarding issues that impact the profession;

3. Enhancing one's professional effectiveness by staying current with ethical principles and decisions from relevant sources including professional organizations;

4. Actively participating in educational and professional organizations and associations; and

5. Advocating for adequate resources and facilities to ensure equitable opportunities for all students.

Principle II: Responsibility for Professional Competence

The professional educator is committed to the highest levels of professional and ethical practice, including demonstration of the knowledge, skills and dispositions required for professional competence.

A. The professional educator demonstrates commitment to high standards of practice through:

1. Incorporating into one's practice state and national standards, including those specific to one's discipline;

2. Using the Model Code of Educator Ethics and other ethics codes unique to one's discipline to guide and frame educational decision-making;

3. Advocating for equitable educational opportunities for all students;

4. Accepting the responsibilities, performing duties, and providing services corresponding to the area of certification, licensure, and training of one's position;

5. Reflecting upon and assessing one's professional skills, content knowledge, and competency on an ongoing basis; and

6. Committing to ongoing professional learning.

B. The professional educator demonstrates responsible use of data, materials, research and assessment by:

1. Appropriately recognizing others' work by citing data or materials from published, unpublished, or electronic sources when disseminating information;

2. Using developmentally appropriate assessments for the purposes for which they are intended and for which they have been validated to guide educational decisions;

3. Conducting research in an ethical and responsible manner with appropriate permission and supervision;

4. Seeking and using evidence, instructional data, research, and professional knowledge to inform practice;

5. Creating, maintaining, disseminating, storing, retaining and disposing of records and data relating to one's research and practice, in accordance with district policy, state and federal laws; and

6. Using data, data sources, or findings accurately and reliably.

C. The professional educator acts in the best interest of all students by;

1. Increasing students' access to the curriculum, activities, and resources in order to provide a quality and equitable educational experience;

2. Working to engage the school community to close achievement, opportunity, and attainment gaps; and

3. Protecting students from any practice that harms or has the potential to harm students.

Principle III: Responsibility to Students

The professional educator has a primary obligation to treat students with dignity and respect. The professional educator promotes the health, safety and well being of students by establishing and maintaining appropriate verbal, physical, emotional and social boundaries.

A. The professional educator respects the rights and dignity of students by:

1. Respecting students by taking into account their age, gender, culture, setting and socioeconomic context;

2. Interacting with students with transparency and in appropriate settings;

3. Communicating with students in a clear, respectful, and culturally sensitive manner;

4. Taking into account how appearance and dress can affect one's interactions and relationships with students;

5. Considering the implication of accepting gifts from or giving gifts to students;

6. Engaging in physical contact with students only when there is a clearly defined purpose that benefits the student and continually keeps the safety and well-being of the student in mind;

7. Avoiding multiple relationships with students which might impair objectivity and increase the risk of harm to student learning or well-being or decrease educator effectiveness;

8. Acknowledging that there are no circumstances that allow for educators to engage in romantic or sexual relationships with students; and

9. Considering the ramifications of entering into an adult relationship of any kind with a former student, including but not limited to, any potential harm to the former student, public perception, and the possible impact on the educator's career. The professional educator ensures that the adult relationship was not started while the former student was in school.

B. The professional educator demonstrates an ethic of care through:

1. Seeking to understand students' educational, academic, personal and social needs as well as students' values, beliefs, and cultural background;

2. Respecting the dignity, worth, and uniqueness of each individual student including, but not limited to, actual and perceived gender, gender expression, gender identity, civil status, family status, sexual orientation, religion, age, disability, race, ethnicity, socio-economic status, and culture; and

3. Establishing and maintaining an environment that promotes the emotional, intellectual, physical, and sexual safety of all students.

C. The professional educator maintains student trust and confidentiality when interacting with students in a developmentally appropriate manner and within appropriate limits by:

1. Respecting the privacy of students and the need to hold in confidence certain forms of student communication, documents, or information obtained in the course of professional practice;

2. Upholding parents'/guardians' legal rights, as well as any legal requirements to reveal information related to legitimate concerns for the well-being of a student; and

3. Protecting the confidentiality of student records and releasing personal data in accordance with prescribed state and federal laws and local policies.

Principle IV: Responsibility to the School Community

The professional educator promotes positive relationships and effective interactions with members of the school community while maintaining professional boundaries.

A. The professional educator promotes effective and appropriate relationships with parents/guardians by:

1. Communicating with parents/guardians in a timely and respectful manner that represents the students' best interests;

2. Demonstrating a commitment to equality, equity, and inclusion as well as respecting and accommodating diversity among members of the school community;

3. Considering the implication of accepting gifts from or giving gifts to parents/guardians; and

4. Maintaining appropriate confidentiality with respect to student information disclosed by or to parents/guardians unless required by law.

B. The professional educator promotes effective and appropriate relationships with colleagues by:

1. Respecting colleagues as fellow professionals and maintaining civility when differences arise;

2. Resolving conflicts, whenever possible, privately and respectfully and in accordance with district policy;

3. Keeping student safety, education, and health paramount by maintaining and sharing educational records appropriately and objectively in accordance with local policies and state and federal laws;

4. Collaborating with colleagues in a manner that supports academic achievement and related goals that promote the best interests of students;

5. Enhancing the professional growth and development of new educators by supporting effective field experiences, mentoring or induction activities across the career continuum;

6. Ensuring that educators who are assigned to participate as mentors for new educators, cooperating teachers, or other teacher leadership positions are prepared and supervised to assume these roles;

7. Ensuring that educators are assigned to positions in accordance with their educational credentials, preparation, and experience in order to maximize students' opportunities and achievement; and

8. Working to ensure a workplace environment that is free from harassment.

C. The professional educator promotes effective and appropriate relationships with the community and other stakeholders by:

1. Advocating for policies and laws that the educator supports as promoting the education and well-being of students and families;

2. Collaborating with community agencies, organizations, and individuals in order to advance students' best interests without regard to personal reward or remuneration; and

3. Maintaining the highest professional standards of accuracy, honesty, and appropriate disclosure of information when representing the school or district within the community and in public communications.

D. The professional educator promotes effective and appropriate relationships with employers by:

1. Using property, facilities, materials, and resources in accordance with local policies and state and federal laws;

2. Respecting intellectual property ownership rights (e.g. original lesson plans, district level curricula, syllabi, gradebooks, etc.) when sharing materials;

3. Exhibiting personal and professional conduct that is in the best interest of the organization, learning community, school community, and profession; and

4. Considering the implications of offering or accepting gifts and/or preferential treatment by vendors or an individual in a position of professional influence or power.

E. The professional educator understands the problematic nature of multiple relationships by:

1. Considering the risks that multiple relationships might impair objectivity and increase the likelihood of harm to students' learning and well-being or diminish educator effectiveness;

2. Considering the risks and benefits of a professional relationship with someone with whom the educator has had a past personal relationship and vice versa;

3. Considering the implications and possible ramifications of engaging in a personal or professional relationship with parents and guardians, student teachers, colleagues, and supervisors; and

4. Ensuring that professional responsibilities to paraprofessionals, student teachers or interns do not interfere with responsibilities to students, their learning, and well-being.

Principle V: Responsible and Ethical Use of Technology

The professional educator considers the impact of consuming, creating, distributing and communicating information through all technologies. The ethical educator is vigilant to ensure appropriate boundaries of time, place and role are maintained when using electronic communication.

A. The professional educator uses technology in a responsible manner by:

1. Using social media responsibly, transparently, and primarily for purposes of teaching and learning per school and district policy. The professional educator considers the ramifications of using social media and direct communication via technology on one's interactions with students, colleagues, and the general public;

2. Staying abreast of current trends and uses of school technology;

3. Promoting the benefits of and clarifying the limitations of various appropriate technological applications with colleagues, appropriate school personnel, parents, and community members;

4. Knowing how to access, document and use proprietary materials and understanding how to recognize and prevent plagiarism by students and educators;

5. Understanding and abiding by the district's policy on the use of technology and communication;

6. Recognizing that some electronic communications are records under the Freedom of Information Act (FOIA) and state public access laws and should consider the implications of sharing sensitive information electronically either via professional or personal devices/accounts; and

7. Exercising prudence in maintaining separate and professional virtual profiles, keeping personal and professional lives distinct.

B. The professional educator ensures students' safety and well-being when using technology by:

1. Being vigilant in identifying, addressing and reporting (when appropriate and in accordance with local district, state, and federal policy) inappropriate and illegal materials/images in electronic or other forms;

2. Respecting the privacy of students' presence on social media unless given consent to view such information or if there is a possibility of evidence of a risk of harm to the student or others; and

3. Monitoring to the extent practical and appropriately reporting information concerning possible cyber bullying incidents and their potential impact on the student learning environment.

C. The professional educator maintains confidentiality in the use of technology by:

1. Taking appropriate and reasonable measures to maintain confidentiality of student information and educational records stored or transmitted through the use of electronic or computer technology;

2. Understanding the intent of Federal Educational Rights to Privacy Act (FERPA) and how it applies to sharing electronic student records; and

3. Ensuring that the rights of third parties, including the right of privacy, are not violated via the use of technologies.

D. The professional educator promotes the appropriate use of technology in educational settings by:

1. Advocating for equal access to technology for all students, especially those historically underserved;

2. Promoting the benefits of and clarifying the limitations of various appropriate technological applications with colleagues, appropriate school personnel, parents, and community members; and

3. Promoting technological applications:

(a) that are appropriate for students' individual needs;

(b) that students understand how to use and;

History

Am and comp 11/17/2019