Judge issues final Felix ultimatum
By Alice Keesing
Advertiser Education Writer
The battle over special education escalated yesterday as federal Judge David Ezra issued one last ultimatum: If the Legislature fails to come up with millions of dollars by June, he will fine the state and take over the troubled system.
"Federal judges don't make threats," Ezra quoted an old friend from the bench during a hearing yesterday on allocating money for the Felix consent decree. "They make promises, and they keep their promises."
And despite some tough talk earlier in the day by Senate President Robert Bunda, House and Senate conferees last night approved a state budget that boosts special education spending by $43 million a year, which is a portion of what the state departments of education and health have asked for in the biennium budget.
Legislators and Ezra have been at loggerheads for weeks on the issue.
Senate Ways and Means Committee Chairman Brian Taniguchi, D-Manoa-Mo'ili'ili-McCully-Pawa'a, and House Finance Committee Chairman Dwight Takamine, D-North Hilo-Hamakua, said the amount added to the budget would put annual spending for Felix health and educational services at nearly $350 million.
"I'm not sure we met his goal, but I'm not sure that's our responsibility," Takamine said. "Clearly the judge has to be accountable to enforcing the federal law. The Legislature, on the other hand, plays a different role and has different responsibilities.
"The approach of the Legislature has always been to focus in on the needs of the Felix child and to try to ensure that the resources that are provided benefited all of the Felix children," he said.
Taniguchi said "we are not trying not to fund anything, we are trying to see that all the Felix goals are met, and we feel they can be met given the resources that we are providing."
Bunda had said earlier yesterday, "Over the course of the period, he's alluded to taking over the whole system, and I'm thinking to myself, 'Well, be my guest.' And if you want to take over the system just for the disabled, come up with the money then. Show us the money.'
"I ain't about to give him a blank check," said Bunda, D-22nd (Wahiawa, Waialua, Sunset Beach). "I'm sure the members of our caucus don't want to do that either."
Legislators have struggled with Felix money this session, saying they want to be sure the millions of dollars are reaching the children for whom they are intended. Legislators also have pointed out it is their responsibility to examine and approve department budget requests.
The state is racing to meet a December deadline to show improved services as required by the Felix consent decree, which Ezra issued in 1994 after finding the state's treatment of special-needs children to be woefully inadequate. The departments of education and health have asked for about $150 million and $105 million, respectively, in the biennium budget to meet that deadline.
Ezra yesterday held a hearing to consider the stringent cuts the Legislature has made in those budget requests. Lawmakers are scheduled to put finishing touches on the budget tomorrow night, but the House and Senate can agree to extend the session, which would give them more time. It has been suggested the Legislature could redirect money that was set aside for public employee pay raises but will not be needed.
No way to meet deadline
Despite significant progress, the state already has fallen behind on its obligations to the court, and schools chief Paul LeMahieu and health director Bruce Anderson this week said there was no way they could meet the December deadline without all the money they asked for.
Ezra has found the state in contempt for not meeting an earlier deadline, and yesterday he said he will give the state one more chance. But if the money is not available by June, he will step in.
That could result in fines of $200,000 a day. That money would go to the federal government, Ezra said, and the state would still have to find yet more money to pay for special education.
The other option is appointing a receiver over the school system, which Ezra said would be a "disaster" that could go on for at least five years. A receiver would be given power to improve the special-education system, using whatever money was necessary.
"If the state Legislature is concerned about oversight, they will lose all oversight," he said. "They will have nothing to say. It will be completely out of their hands."
Yesterday, Rep. Scott Saiki, who heads a special legislative committee investigating Felix, reaffirmed lawmakers' fears.
Lawmakers are concerned that the number of children identified as "Felix-class" has been inflated and that the decree has become an "open-ended entitlement."
They point out that the federal government pays only 10 percent of Hawai'i's costs for enforcing what is a federal mandate.
They point to special-education spending that has risen from $181 million in fiscal year 1995 to almost $302 million in 2000.
They say a state auditor's report found that the DOE and DOH cannot show whether students are benefiting from the increased services.
And they worry that Felix will drain money from other human services, public safety, higher education and other regular education programs.
Staff Writer Lynda Arakawa and the Associated Press contributed to this report.
