More oversight needed, special-ed monitor says

By Johnny Brannon
Advertiser Staff Writer

A special monitor for the Felix consent decree has reversed his position and called for up to two years of additional court scrutiny of costly state efforts to improve special-education services for schoolchildren, according to lawmakers investigating state spending on the services.

And a special master overseeing the case said he has strong concerns about whether the state will continue the progress made so far and will submit his recommendations to the court early next week.

Meanwhile, the lawmakers' joint Senate-House Felix Investigative Committee agreed yesterday to subpoena 13 Department of Health officials who were involved in contracting and providing special-education services.

The committee also voted to try for a second time to compel testimony from a court-appointed consultant who helped design compliance criteria for the consent decree, and to fight allegations that the attorney general's office has a conflict of interest in the case

Committee co-chairman Rep. Scott Saiki said he had been informed by people in a position to review a report by court-appointed special monitor Ivor Groves that he had reversed his 3-month-old recommendation that U.S. District Judge David Ezra find the state in compliance with consent decree goals.

Groves' report is not public because it has not yet been filed with the court. Saiki said he had not seen the document himself but was convinced that he had received an accurate description of its contents.

"It's very curious because only three months have elapsed since he made his finding of compliance, and I'm not sure what occurred to change that," said Saiki, D-20th (Kapahulu, Mo'ili'ili).

Groves could not be reached for comment. But Jeff Portnoy, the court's special master for the case, confirmed that he had requested that Groves prepare a confidential report and has provided copies to attorneys for the state and plaintiffs in the lawsuit that led to the 1994 consent decree.

Portnoy declined to comment on the report's findings or to say what led him to make the request, but said that he was concerned whether the state had met all the consent decree goals and would continue those efforts.

"There are two issues: compliance and sustainability," Portnoy said. "They are both important, and they are separate. The issue of sustainability is the primary issue I'm reviewing right now."

Portnoy said he would attach Groves' report to a larger document that he was preparing and would likely file with the court by Tuesday. A hearing to review Groves' earlier finding of compliance was postponed last month until September at Portnoy's recommendation. Ezra will make the final decision on whether the state needs additional court oversight and what form it would take.

The state has spent more than $1 billion improving special education services since the start of the consent decree, but Saiki and other lawmakers have long questioned whether the money was used effectively.

Sen. Colleen Hanabusa, the investigative committee's other co-chair, said she looked forward to questioning health officials who oversaw the provision of special education services until the Department of Education assumed most of those duties last year.

"We've gotten too many complaints that students were not receiving services they're entitled to, so we have to go back to the source, the Department of Health," said Hanabusa, D-21st (Kalaeloa, Makaha).

State health director Bruce Anderson said the subpoenaed officials would gladly testify before the investigate committee and would have answered lawmakers' questions even if they weren't legally required.

"We certainly have nothing to hide and would be happy to provide information," Anderson said. "I'm pleased that they want to talk about these issues because information provided to the committee has been incomplete, and it's important to get the whole story."

But plaintiff's attorney Eric Seitz bitterly blasted the investigative panel and said its efforts will waste time and money.

"They're grandstanding, and it's going to have serious and expensive repercussions," he said. "We'd like to finish the compliance without political grandstanding, but regrettably, it's an election year."

Seitz said he was incensed at the committee's continued efforts to question Judith Schrag, a member of a court-appointed technical assistance panel that helped map out state compliance efforts and goals used to measure them.

"They're absolute idiots," Seitz said of the lawmakers. "That'll never happen, and they're wasting taxpayer money in their efforts to do so."

Ezra quashed an earlier subpoena for Schrag, but the committee agreed yesterday to press for a reconsideration of that decision. Schrag now resides on the Mainland and Seitz said it is doubtful she can be forced to return for questioning.

But Hanabusa said the committee should be allowed to question Schrag because she had been deposed for a separate Felix-related court case and Ezra had quashed committee subpoenas for the two other members of the technical advisory panel.

The plaintiff's attorneys have alleged that the attorney general's office is hopelessly conflicted in the case because it represents the investigative committee as well as the state agencies that were sued, and also is investigating allegations of fraud by service providers the state hired to comply with the consent decree.

Hanabusa said she sees no conflict of interest, and state Attorney General Earl Anzai has stated the same. The committee agreed to authorize its attorneys "to do whatever is necessary to represent us" in future court hearings regarding the allegations and sanctions the plaintiffs are seeking.

Reach Johnny Brannon at jbrannon@honoluluadvertiser.com or 525-8070.