Thursday, February 8, 2001
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Posted on: Thursday, February 8, 2001

Legislators advised to avoid running afoul of Felix order

By Jennifer Hiller
Advertiser Staff Writer

State senators yesterday returned to a topic that has quickly become rote at the Legislature: how to control the ballooning cost of the Felix consent decree.

Members of the Education and Health and Human Services committees pressed schools Superintendent Paul LeMahieu and Department of Health officials on why they should approve $48.4 million in emergency appropriations to meet the requirements of the federal decree, which requires that Hawaii must improve its special-education services.

Sen. David Matsuura, D-2nd (S. Hilo, Puna), chairman of the Committee on Health and Human Services, said the Legislature cannot be handed a bill for Felix costs and not know how the money is being spent.

"You guys keep coming at us for money, money, money," Matsuura said. "We have no executive control."

Under the federal court order, the Department of Education has increased special-education spending from $80 million in 1994 to $121 million in 1999, and the price tag for the next two years is pegged at more than $700 million.

LeMahieu urged lawmakers to stay on course and try to avoid running afoul of the court order.

The additional money will put the school system on track to reach full compliance with the consent decree by September — the beginning of the next school year. More than half of the state’s children already attend schools that are at least partially compliant.

But Sen. Norman Sakamoto, D-16th (Moanalua, Salt Lake), chair of the Committee on Education, said he was tired of arguing about what U.S. District Judge David Ezra will think of the plans for special education. Sakamoto said he instead wants assurances that parents, children and teachers won’t be disappointed by the state’s special education services.

"I know many of us are under this Felix aura. Felix will pass," Sakamoto said. "When the consent decree is gone, can this help us stay on course?"

In May 2000, Ezra found the state in contempt for not improving services as he had ordered six years before and ordered the process speeded up. Backed by considerable federal powers, Ezra granted special authority to the education and health departments to supersede some state laws to get the job done, leaving it up to the state to find the money to do so.

The state now faces a December deadline. Should the state fail to meet the deadline, the court could divert money from other federal programs into special education.

The authors of a state audit of the Felix decree have told legislators that Hawaii opened the floodgates for special-education spending without defining which students are eligible. Although there are more services available for special-needs children, there is no evidence of what has been achieved or whether money was spent wisely, they said.

State Auditor Marion Higa told senators she favors a legislative definition of which students fall into the Felix class.

LeMahieu said a new definition could broaden the definition of a Felix class child, but if the definition restricts the number of students eligible, the state could again be found in contempt, he said.

The Felix consent decree stems from a 1993 federal class-action suit for students — including Jennifer Felix of Maui for whom it is named — that accused the state of violating federal laws requiring adequate services related to the mental health and education of special-needs children.

The decree requires the state education and health departments to better identify special-education students who also need mental health services, and to treat and educate them in the "least restrictive environment."

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