POLICY LETTER: September 26, 2005 to Hawaii Department of Education Special Education Director Dr. Paul Ban

Dated September 26, 2005Dr. Paul BanDirectorSpecial Education SectionHawaii Department of EducationP.O. Box 2360Honolulu, Hawaii 96804Dear Dr. Ban:Thank you for your response of June 29, 2005 to the Office of Special Education Programs' (OSEP) March 22, 2005 letter regarding Hawaii's public charter schools. In the March 2005 letter, OSEP requested the following information and determinations: 1) whether a free appropriate public education (FAPE) was made available to students with disabilities enrolled in certain public charter schools with personnel vacancies and, if not, whether any students with disabilities that attended those public charter schools are entitled to compensatory services; 2) whether reimbursements were appropriate in cases where a public charter school with personnel vacancies incurred additional costs for making FAPE available to enrolled students with disabilities. In addition, OSEP expressed concern about whether the proposed changes to Hawaii's New Century charter schools statute were consistent with the Individuals with Disabilities Education Improvement Act (IDEA) of 2004, including the newly enacted provision at Section 613(a)(5)(A) and asked for clarification regarding the State's compliance with 34 CFR 300.241.The Hawaii Department of Education (HIDOE) reported, in its June 29, 2005 letter, that it identified special education personnel vacancies in 10 of Hawaii's public charter schools for the period between 2000-2004. HIDOE made determinations for each of these charter schools as to whether FAPE was made available to children with disabilities attending these schools and whether the schools incurred additional costs in ensuring the provision of FAPE. As part of that determination, HIDOE reported that it reviewed individualized education programs (IEPs) and other related school records, and conducted interviews with school staff. HIDOE determined that FAPE was made available to children with disabilities attending these public charter schools and therefore, compensatory services were not required. In two of the 10 schools, Kihei Public Charter High School and Kanu O Ka'aina, HIDOE determined that the schools were entitled to reimbursement. Kihei Public Charter High School received reimbursement in the total amount of $49,121.28 for the periods covering school year (SY) 2002-2003 and SY 2003-2004. Kanu O Ka'aina was reimbursed $11,914.00 for SY 2001-2002. HIDOE reported that, in partnership with the National Association of State Directors of Special Education, it is developing a primer to promote communication and collaboration and provide technical assistance and guidance on special education in Hawaii's public charter schools. HIDOE also reported that the State's most recent Annual Performance Report (APR) submission included information pertaining to Hawaii's monitoring system including information on how the State monitors public charter schools. Information and data in the APR will be addressed under separate cover. To address OSEP's concern regarding the provisions in the State's statute, HIDOE submitted Sections 17 and 18 of Session Bill 1643, the State's revisions to Section 302A-1188 of the Hawaii Revised Statutes. HIDOE indicated that this bill was enacted as Act 87. The submitted language includes a provision specifying that HIDOE shall be responsible for the provision of FAPE and setting out that a New Century charter school that enrolls or identifies an enrolled student with disabilities is responsible for providing the services on the child's IEP, but that where the charter school is unable to provide these services, then HIDOE is to provide the IEP services, through a collaborative process that may include an offer of staff, funding or both. The programs and services are to be determined collaboratively with the student's IEP team that includes the student's parents or legal guardian. Although the submitted revisions appear to address OSEP's previous concerns, it is not clear whether this provision is also intended to cover the distribution of federal Part B funds. Therefore, OS/s/Troy R. JustesenActing DirectorOffice of Special Education Programscc: Honorable Patricia HamamotoPage PAGE 2 Dr. Paul Ban