By Kevin Dayton
and Alice Keesing
Advertiser Staff Writers
Angry lawmakers in the state House may stall an emergency measure to pump another $137 million into special education services as part of a strategy to control the soaring costs of the Felix consent decree.
By delaying the appropriation for two or three months, lawmakers hope to pressure the state departments of Education and Health to cut the costs of the mental health services required by the consent decree, a federal court order that already has cost the state $300 million.
At the same time, lawmakers plan to search for legal avenues the state might use to fight the constantly expanding costs of Felix. House Speaker Calvin Say said the object is to "hold their feet to the fire."
Schools Superintendent Paul LeMahieu said any move to delay or withhold money for special education could jeopardize the state’s efforts to comply with the court order.
"It will put the system very badly at risk," he said. "And my concern is it will be viewed by the court as a willful act."
Last May, U.S. District Judge David Ezra found the state Health and Education departments in contempt after they failed to improve special education services as he had ordered in 1994. The departments were granted a reprieve and given extraordinary powers to cut through state laws in order to meet a second deadline in December of this year.
Yesterday’s move by leading House Democrats demonstrates the boiling frustration over the increasing cost of the consent decree, which some lawmakers have taken to calling "the black hole."
And a state auditor’s report released last month added fuel to the fire by raising serious questions about the state’s efforts. The report’s authors suggested the lack of a clear definition for which children are eligible for help under Felix has inflated the number of children getting services.
Lawmakers say they want assurances the departments are actually improving the system rather than throwing money at it to meet a deadline. They are planning to spend $500,000 to allow the state auditor to continue its review of the Felix decree.
"Am I going to roll over and play dead for something that we don’t see results on behalf of the child?" asked Say, D-18th (Palolo, St. Louis, Kaimuki).
But LeMahieu said there has been significant improvement in the system.
"We’re not just throwing money at a problem, we’re solving a problem," he said. Sixty percent of Hawai‘i’s school complexes — which each consist of a high school and its feeder elementary and intermediate schools — have shown compliance, compared to none 15 months ago.
LeMahieu said the extra money needed to reach compliance made it necessary to ask for an emergency appropriation to cover their costs until the end of the fiscal year on June 30. The total request from the Health and Education departments is $137 million, which accounts for 80 percent in state emergency appropriations this year.
Say said it is obvious the departments were doing enormous amounts of deficit spending over the last seven months, providing services to youngsters that the departments didn’t have enough money to provide.
"By God, when you already have a base (budget) of $240 million? It’s ridiculous," Say said.
LeMahieu said the department is constantly re-evaluating the cost of Felix and that not all of its share of the emergency request has been spent. For example, money budgeted for special education teachers will not be necessary because the department has not been able to hire all the teachers it needs.
But what Say finds even more unsettling is that the programs financed with the emergency funding are expected to continue at their current levels of spending.
Earlier this year the state Department of Budget and Finance estimated the cost of Felix would top $360 million in fiscal year 2003. That’s up from the $68.6 million the state spent on special education in 1993, the year the Felix case began.
House leaders met with LeMahieu and his staff for two hours yesterday at LeMahieu’s request to discuss the issue, Say said.
LeMahieu yesterday expressed frustration at the mounting pressure. He said he and his staff have been meeting with lawmakers about Felix since August.
"After all this time it is a bit frustrating for them to be just starting on this," he said.
LeMahieu said it’s unclear exactly what the consequences would be for Hawai‘i’s schools if the money was delayed. However, he said, he would do everything in his power to stop money being taken away from regular education programs.
But there would be no such assurances if the system fails to meet the December deadline and the federal judge takes over, LeMahieu said. The federal court can divert money from other programs to special education.
Say said the Legislature is scrutinizing that possibility and the Legislature might be able to contest the action in the 9th U.S. Circuit Court of Appeals.
"We’re looking at all the avenues for a legal battle with our consultants," he said.
Say said lawmakers won’t outright refuse to make the emergency appropriation "until we know have some legal grounds, that we may have a chance of getting the department to revise their projections of costs."
Doing otherwise, he said, would be "just like giving you a blank check."
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