Legislators balking at Felix decree costs

With the price tag for the Felix consent decree at $716 million for the next two years, politicians yesterday signaled fears that the cost is spiraling out of control.

At a legislative hearing that revealed the increasingly poisonous atmosphere surrounding compliance with the federal court order, lawmakers also asked if the state is making it too easy for children to get special education services and if schools are being influenced by lawyers and advocates to deliver more services than are necessary.

Gov. Ben Cayetano also said yesterday he is looking at the cost of Felix.

"Right now, I think that we may have an overinflated Felix budget that we’re going to have to take a look at and see whether we can refine it and become a little more efficient," he said.

Last May, U.S. District Judge David Ezra found the state departments of Education and Health in contempt after they failed to improve special education services as he had ordered in 1994.

Instead of imposing penalties, Ezra granted schools Superintendent Paul Le-Mahieu and Health Director Bruce Anderson extraordinary powers to make necessary changes, whatever the cost.

They now face a December deadline to reach compliance. If they fail, the court could take over the education system, appointing a monitor who Suzuki said would "have a blank check to the state to reach compliance."

Already the compliance effort is cutting into the state’s resources. For example, 80 percent of the $133 million in state emergency appropriations this year is earmarked for Felix.

State Budget Director Neil Miyahira told The Advertiser the state has never faced a federal mandate of such magnitude.

Sen. Brian Taniguchi, (D-McCully, Mo‘ili‘ili, Manoa), said that finding out about the cost of Felix was like "sticker shock." And while he said legislators want to resolve the issue, some had hard questions for state administrators at a briefing for the House Finance and Senate Ways and Means leadership yesterday.

Rep. Scott Saiki, (D-Kapahulu, Mo‘ili‘ili), asked what the consequences would be if the Legislature does not provide the money the departments say they need.

"If the Legislature does not approve the necessary funds to the departments, the obligation would still exist," said Deputy Attorney General Russell Suzuki, and money might have to be taken from other educational programs.

After the meeting, Saiki said the size of the Felix budget is a real concern, and that he and other lawmakers will be looking closely at the requests.

"The Legislature is basically reduced to a rubber stamp," he said. "In my opinion, this is the No. 1 public policy issue in the state. The federal court and the plaintiffs’ attorneys are driving this."

LeMahieu said he understands the concerns, but that Hawai‘i is playing catch-up after years of neglecting children with special needs.

"It’s a lot of money," he said. "But when you understand what’s going on throughout the country, it’s not the case that things are wildly out of control here."

Hawai‘i spends 14 percent of its education budget on special education compared with a national average of 24 percent, he said. The additional money being requested in the next biennium budget would increase Hawai‘i’s special education spending to 18 percent.

And while the money is not solely for Felix-class children — those with mental disabilities — LeMahieu told legislators that the state cannot address Felix-class students without addressing all other special education students who also are protected by federal law.

But legislators clearly have concerns about where the money is going.

"Is the state, because of the case filed here, going beyond what is really required?" asked Sen. Cal Kawamoto, (D-Waipahu, Pearl City).

Suzuki acknowledged some schools are doing more than is necessary. The problem, he said, is that teachers and principals often are intimidated by medical experts and lawyers into granting services that may not be needed.

Teachers and principals need more training, he said, so they can make the right decisions.

Meanwhile, House education chairman Rep. Ken Ito, (D-Kane‘ohe), yesterday said legislators are looking at ways to pay for all education needs. Ideas that have been floated include giving the Board of Education taxing powers, starting a lottery or asking the federal government for more money to support compliance with federal laws, he said.

Cayetano said he’s continuing to review the Felix budget.

"I think both departments have come forward with what is their best scenario," he said. "But it doesn’t seem like they would be able to implement all phases of what they’re proposing in a timely manner. For example, I think the Department of Education wants to hire maybe as many as 2,000 educational assistants to help them, and it may not make sense for us to give the money up front if they’re not able to hire people."

Staff writer Lynda Arakawa contributed to this report.

Consent decree facts, figures

Hawai‘i spent $68.6 million on special education in 1993, the year the Felix case began. For fiscal year 2003, the state Department of Budget and Finance estimates it will spend $360.8 million.

The number of special education students has increased from 12,000 in 1994 to 20,000 this year.

The most important measure of Hawai‘i’s compliance with Felix is the number of school complexes that have passed a test of the services they provide. A complex is made up of a high school and its feeder elementary and intermediate schools.

In November 1999, none of the 41 complexes had passed the service testing. This month, six are in full compliance and nine are in provisional compliance, leaving 26 still not in compliance.

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