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The purpose of the Individuals with Disabilities Education Act (IDEA) 2004 is to protect the educational rights of disabled children so that they may receive a meaningful education as their regular school peers do. However, SB 1284 SD2 HD1 as supported by our Department of Education almost directly contradicts the intent of our federal law in the education of our disabled children.

Despite the passing of Act 179 in 2008 related to the DOE’s authority to monitor students with a disability placed into private placements, SB 1284 SD2 HD1 has survived the Senate committees and the House Education Committee. This bill proposes that Section 302A-443 of the Hawaii Revised Statutes be amended to essentially broaden the scope of the word “monitoring” so that the DOE can “oversee the special education program of a student with a disability when that student is placed into a private school as a result of a hearing officer’s decision, a court order or through programmatic placement.” In doing so, this bill conflicts with certain provisions of IDEA and at the same time ignores the civil rights of the private schools, their students and staff.

Section (f) (2) (a) of SB 1284 SD2 HD1 requires that the private placements provide “a rigorous curriculum and instruction, based on content standards, and aligned with the Common Core State Standards” in addition to the child’s specialized educational program.

IDEA requires the provision of specialized instruction to a disabled child based on his or her own unique learning needs. In the development of a child’s Individualized Educational Program (IEP), the child’s educational team uses many evaluative tools, assessments, tests, and observations to identify a child’s strengths as well as the academic, developmental and functional needs of the child. These findings serve as the starting point for teaching the child and are identified in a child’s IEP.

If a private placement is required by state law to provide a “standard” education, then the child’s program would no longer be specific to the child. This would be inconsistent with IDEA.

In relation to accreditation of a private placement, Section (j) of SB 1284 SD2 HD1 is misleading. It gives a false importance to an accredited school when in reality it has no bearing on how a special education program and related services are implemented or on the quality or level of these services provided to the student at the private placement.

Accreditation of a private placement is neither mandatory nor relevant to Chapter 60 or IDEA 2004. What is required by IDEA involving a private school is the determination of the appropriateness of a child’s educational placement.

In Chapter 60 under 8-60-2, the definition of placement is “an appropriate educational setting for the implementation of the program for a student with a disability based upon the individualized educational 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.) Placement must be provided tin the least restrictive environment.”

It should be obvious that an accredited private school may not be an appropriate placement if the school does not have the resources or trained personnel to implement an IEP. Conversely, a school not accredited as per this bill, could still be determined to be an appropriate placement due to a child’s unique learning needs as identified under IDEA.

As an aside, none of the DOE’s public schools can be accredited under HAIS or HCS but may be accredited under the Western Association of Schools and Colleges (WASC). Yet, out of the DOE’s 286 public schools (including charter schools and excluding post-secondary schools), only 100 are accredited by WASC for 2010-2011. It is ironic that this bill requires the private schools to be accredited for monitoring purposes and yet the majority of DOE schools is neither accredited nor monitored themselves.

It is no secret that the DOE continues to have an adversarial relationship with a handful of privately owned special education schools. For the DOE, the issue has always been about the cost of tuition, fees and services that these schools charge. However, when a court determines that a special education school is an appropriate placement that addresses a child’s specific learning needs, the DOE really does not have much say in this matter except to pay for these services.

SB 1284 SD2 HD1 would create a loophole allowing the DOE to withhold payment to these private special education schools for whatever reason they may deem suitable under the guise of monitoring. The DOE’s decision not to pay could be randomly decided with the child’s education hanging in the balance. This refusal will most likely severely disrupt a child’s education resulting in additional lawsuits.

Another issue related to the DOE’s authority to withhold payments is that it directly challenges a hearing officer’s decision thus further violating a child’s educational rights under IDEA. According to the DOE’s Procedural Safeguards Notice under Hearing Decisions, 34 CFR 300.513, a hearing officer may decide in favor of the parents alleging procedural violations in the DOE’s denial of a free appropriate public education.

Two of these procedural violations are the “deprivation of an educational benefit” and the interference with a child’s right to a free and appropriate public education.”

Once the DOE chooses to withhold payment to a private school for the purposes of manipulating a private school in this manner, the DOE will ultimately violate the child’s right to FAPE again by “depriving” the child from an educational benefit. Should the parents be unable to meet a sudden financial burden for their child’s unpaid services or should the student be forced to go without services as entitled by IDEA, then a gross violation of IDEA will have taken place, all conducted under the purposes of “monitoring” as per SB 1284 SD2 HD1.

Most would agree that the DOE has a responsibility and obligation to provide a Free Appropriate Public Education to all special needs children under IDEA, including those who are placed in a private school at the public’s expense. The fact is that monitoring at these private placements has always been ongoing but the DOE remains unhappy and unsatisfied because of the terms and conditions set by the private schools.

In most instances the DOE is fully capable of monitoring students without “invading” private school campuses. Many of the private school’s documents are provided to the DOE by the parents and many educational documents are actually generated by DOE providers. Observations and assessments are permitted as well as properly scheduled visits if accompanied by parental consent. Many times the DOE’s own providers provide services within the private placement and thus have the ability to provide updates on the student’s educational progress and status on a daily basis.

However, private schools should also have the independent right to deny the DOE access for legitimate reasons including lack of parental consent, unannounced visits, unscheduled visits, inopportune times or dates or inaccessibility of the student at the time of the DOE’s visit. These schools must balance liability issues with their duty to protect their staff and students and the demands from the DOE. SB 1284 SD2 HD1 ignores these considerations altogether.

One major area of concern is related to a parent’s written consent for observations or visits. Parental consent as stated in the DOE’s Procedural Safeguards Notice under 34 CFR 300.9 states that a request for consent must “clearly identify all relevant information including records (if any) that will be released and to whom, related to the action for which the parent gives consent and that the parent must understand and agree in writing to that action.”

However, this bill does not mention the need for parental consent when allowing the DOE 1) to conduct a direct observation of the student at the private school, 2) to review any educational records or documents collected by the private school, and 3) to hold discussions related to the student at the private school.

A lack of parental consent would be inconsistent with IDEA.

HRS Section 302A-443 already permits the DOE to monitor students so this legislation is redundant and unnecessary. This bill permits the DOE to greatly overstep its authority into the private sector yet, when the DOE fails to follow the same rules they expect others to follow, no one of authority will hold the DOE accountable including the legislature, Governor’s Office, the Board of Education, or even from within the DOE itself.

Overall, this bill fails to offer any checks and balances to properly ensure that the legal and civil rights of the private school, its students, and teachers are maintained all the while the DOE is “monitoring” disabled children via rules and regulations that the DOE itself sets forth.

This bill is a weak attempt to allow the DOE to control tuition costs and services at the expense of disabled children when they are forced to pay for the special education and services that they were initially unable to provide when the child was in their public school. This bill is also an attempt to further reduce placement options due to adversarial relationships that exist between the DOE and private special education schools. This bill, as is, will surely lead to additional due process cases and perhaps other civil cases, thus increasing DOE costs, the very thing the DOE is trying to control.

The most appalling aspect in relationship to SB 1284 SD2 HD1 is that the DOE, the loosing party in these instances, in an impartial due process hearing decision, will have the ultimate authority to control, demand and manipulate any private placement or private special education school, i.e. prevailing party, in which a child with a disability has been placed by a hearings officer. The DOE will also have the discretion to develop policies and procedures in regards to monitoring these children without any additional oversight or concern for the private schools.

Given that special education attorneys have provided written testimony as to how SB 1284 SD2 HD1 violates IDEA law, this bill continues to move through the legislature. Many legislators themselves are attorneys and yet they seem intent on keeping this bill alive without understanding the illegalities or the consequences that would result.

Bills such as SB 1284 SD2 HD1 will serve two purposes. It will further diminish the procedural rights of parents and their children thereby contradicting the purpose of IDEA 2004 and it will bring more shame on a state already known around the country for furloughs and the shortest school year.