Continued oversight of Felix program urged
By Johnny Brannon
Advertiser Staff Writer
The special master for the Felix consent decree sharply questioned whether the state will continue improving special-education services for schoolchildren amid political controversy, and he called yesterday for at least 17 more months of close federal court supervision.
And a court-appointed monitor who since 1994 has overseen state efforts to comply with the consent decree also called for continued scrutiny but said he no longer wants the job. Special Monitor Ivor Groves had recommended just three months ago that the state be found largely in compliance with the consent decree and that direct court monitoring cease.
In reports filed with the court yesterday, Groves and special master Jeff Portnoy commended the Department of Education and the Health
Department and said the state should be found in substantial compliance with the consent decree as of March 31.
But each warned that political interference, a lack of adequate money and changes to programs could undermine progress made so far. The reports did not directly specify the political concerns, but both strongly suggested that an investigative committee of lawmakers probing state spending on special education was hampering compliance efforts.
"There continues to be concern about the motivation and intent of the Felix legislative investigative committee," Groves wrote. "While no one wants to see funds not spent efficiently and appropriately, it does not seem that the tactics that have been used are necessary to appropriately address this issue."
He cited an "atmosphere of intimidation and threats" that has resulted in educators "not being sure what the expectations are and whether they are expected to take the necessary steps to get results for children or work to preserve the status quo."
The committee attempted last year to subpoena Groves and other experts who designed criteria and benchmarks for the consent decree, which ended a 1993 lawsuit by the families of Jennifer Felix and other students who charged that state special-education services were abysmal.
U.S. District Judge David Ezra quashed the subpoenas on grounds that the experts were shielded by judicial immunity as officers of the court. The investigative committee agreed last week to soon subpoena 15 Health Department officials who contracted for and oversaw the provision of services.
Groves said he had expected that his services would no longer be needed by now and that family, health and work commitments would prevent him from continuing to serve as monitor.
Recent public allegations by the attorney general's office that the special-education system is riddled with fraud are creating distrust and harming legitimate efforts, Groves continued. One person who worked for a special-education service provider has been convicted for falsely billing $1,800 so far, but investigators have characterized that case as the "tip of the iceberg."
Lawmakers who lead the investigative committee said their efforts are justified and appropriate, and they questioned why Groves had called for more oversight after his recent finding that the state was meeting consent decree goals.
"We have said from the beginning that the Legislature supports special-education services, and we formed the committee in large part because we received reports from the public about abuse and waste in the system," said Rep. Scott Saiki, D-20th (Kapahulu, Mo'ili'ili).
"I really find it difficult to believe the investigative committee deserves all the credit they're giving us," said Sen. Colleen Hanabusa, D-21st (Kalaeloa, Makaha). It's almost like we're the biggest bogeyman in town."
But Portnoy wrote that, in light of questions the committee continues to raise about money spent to comply with the consent decree, "It would be inappropriate for this court to lessen its oversight when the legislative branch of state government appears so dissatisfied with special education services."
Ezra will have the final say on whether additional court monitoring is needed and what form it should take. A hearing is scheduled for Sept. 10.
In an interview, Portnoy said it may be very difficult to find a monitor to replace Groves, a special-education expert who resides in Florida.
"It's not going to be easy for a number of reasons," Portnoy said. "No one is going to want to come over here to take that job is light of the criticism he's been subjected to."
He said the state's executive and legislative branches had given "mixed signals" about their commitment to special education.
"If they can't get their political house in order, it's hard for me to recommend to the court the representation by the departments that they're doing great," he said.
State schools Superintendent Patricia Hamamoto expressed great appreciation for Groves' work.
"His service and perseverance was instrumental to achieving the improvements of the past seven years," she said.
But Groves' report also questioned where the Department of Education would find an additional $10 million needed to sustain the same level of special-education services as last year and whether changes in job classifications would cause school psychologists to quit.
In a response, the state attorney general's office argued that it was too early in the fiscal year to expect the Department of Education to specifically identify where it would save money that could be redirected to special education.
"To identify and 'pigeon-hole' funds at this time only serves to hamper the necessary budgetary flexibility required to meet the entirety of the state's obligations," the response by deputy attorneys general Russell Suzuki and Holly Shikada said.
The programmatic changes cited by Groves were planned and in progress when he found the state in compliance earlier, the attorney general's response continued, and any problems have been addressed.
Unproven allegations of widespread fraud "cannot be presumed true, especially when they are not supported by facts," the response states.
Attorney Eric Seitz, who represents plaintiffs in the 1993 lawsuit, said such statements are further evidence that the attorney general's office has a conflict of interest in the case.
Different branches of the office represent the state agencies that were sued, the investigative committee, and are conducting the fraud probe. Some positions taken by one branch appear to directly conflict others, Seitz said.
Shikada said there was no conflict but that she could not respond in detail until the plaintiffs complete court arguments in which they are alleging the conflict.
Reach Johnny Brannon at jbrannon@honoluluadvertiser.com or 525-8070.
