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Hawaii

Is there a law or regulation clearly stating if parents’ Individuals with Disabilities Education Act (IDEA) rights transfer to adult students?

• Yes, Haw. Rev. Stat. § 302A-491(a) clearly states that parental rights generally transfer to students when they turn 18 years old.

Is there a law or regulation clearly stating if parents’ IDEA rights transfer to incarcerated students?

• No, Hawaii’s transfer-of-rights statute does not clearly state whether parental rights transfer to incarcerated students.

Does the law or regulation clearly state that parents have a right to notice post transfer?

• No, Hawaii’s transfer-of-rights statute does not clearly state that parents have a right to notice post transfer.

Does the law or regulation clearly state that rights do not transfer to adult students with legal guardians or conservators?

• No, Haw. Rev. Stat. § 302A-495 merely states that guardians’ decisions preempt those made by “an agent or educational representative.” But Haw. Rev. Stat. § 302A-491(a) does not expressly except students subject to guardianship orders from rights transfer.

Does the law or regulation clearly mention alternatives to guardianship?

• Yes, Haw. Rev. Stat. § 302A-491(b) clearly states that an adult student may execute a “power of attorney for special education” to appoint an agent responsible for the student’s educational decisions.

Is there a law or regulation creating a “special procedure” to appoint representatives for adult students deemed unable to give informed consent?

• Yes, Haw. Rev. Stat. § 302A-493 creates a special procedure to appoint an educational representative “if a student lacks decisional capacity to provide informed consent.” A “qualified licensed professional, such as the student's primary physician, psychologist, psychiatrist, or the department of health developmental disabilities division” may find a student lacks capacity to consent based on one of the following criteria:

  “(1) The student's inability to understand the nature, extent, and probable consequences of a proposed educational program or option, on a continuing or consistent basis;

  (2) The student's inability to make a rational evaluation of the benefits or disadvantages of a proposed educational decision or program as compared with the benefits or disadvantages of another proposed educational decision or program, on a continuing or consistent basis; or

  (3) The student's inability to communicate such understanding in any meaningful way.” Id. at § 302A-493(b).

Do parents lose the right to make a due process complaint or to sue if their students’ right to a free, appropriate public education (FAPE) is violated if their rights transfer?

• Possibly not. A hearing officer has denied a school district’s motion to dismiss a parent’s due process complaint with regard to her adult son for lack of standing. The son’s former principal testified that he was not capable of providing informed consent, but Hawaii had not established a special procedure pursuant to 20 U.S.C. § 1415(m)(2). In the hearing officer’s mind, this failure appeared to estop the school district from asserting the mother lacked standing, because she would have been appointed educational representative had Hawaii complied with the IDEA. In re Dep’t of Educ., State of Hawaii, Hawaii State Educ. Agency No. 00-71, 102 LRP 3747 (Mar. 15, 2000).

Does state educational agency guidance clearly explain the applicable laws and/or regulations regarding transfer-of-rights?

• Yes, Hawaii’s 2019 Procedural Safeguards Notice clearly states that parental rights transfers to students when they turn 18 years old. Further, this notice clarifies Hawaii’s transfer-of-rights statute by stating that parental rights do not transfer to students subject to guardianship orders and also that parents have a right to notice post transfer. This notice also succinctly describes a power of attorney for special education as an alternative to guardianship that prevents rights from transferring. Last, Hawaii’s State Special Education Section’s 2009 Q&A sheet accurately describes options available under Hawaiian law.