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The Honolulu Advertiser

Posted on: Wednesday, June 1, 2005

Special ed better, yet still burdened

By Johnny Brannon
Advertiser Education Writer

Public education services for mentally and emotionally disabled students are better and more widely available in Hawai'i than ever before, thanks to a landmark 1993 lawsuit that forced the state to make system-wide improvements.

But as federal court supervision of those services officially ended yesterday, people on all sides of the issue said that does not mean all problems associated with the suit have been solved for good.

From the start to the end

1993: Lawsuit filed on behalf of Maui student Jennifer Felix to challenge the lack of services for mentally disabled special education students.

1994: State agrees to consent decree that requires wide range of services and improvements.

1998: State auditor finds that a lack of clear requirements made compliance with consent decree difficult.

2000: Federal court finds state in contempt for failing to comply with consent decree.

2001: Legislature convenes joint Senate-House investigative committee to probe costs associated with consent decree.

2002: All schools come into provisional or full compliance with consent decree.

2004: State and plaintiffs agree on reporting plan to maintain compliance.

Yesterday: Felix lawsuit officially terminated.

"This is not the end of the journey," said Attorney General Mark Bennett. "In many ways, this is really the beginning of the journey, because while we are in compliance, the obligation that we have to provide a free and appropriate education to our special education students continues, and will continue."

The suit, filed on behalf of disabled Maui student Jennifer Felix, alleged that the state failed to provide services required by the federal Individuals with Disabilities Education Act. The suit grew into a class-action case on behalf of all learning-disabled children in Hawai'i.

The Felix Consent Decree that resulted in 1994 came to dominate the education agenda in Hawai'i for more than a decade, and likely cost the state more than $1 billion.

The state has approximately 11,000 Felix-class public school students, and continuing to provide the special services they are entitled to will cost about $350 million per year, state schools superintendent Pat Hamamoto said. In 1994, all spending on special-needs children totaled only $80 million.

The suit "forced us to take a good long look at what we were doing," and led to much-needed changes, Hamamoto said.

"I will be forever grateful for (the consent decree), because it taught us about good educational systems, how to help students, and how to pull together for the children," Hamamoto said. "I really believe it was a blessing in disguise."

The road to compliance was long, hard and controversial. Audits criticized poor management of efforts to comply with the consent decree; U.S. District Judge David Ezra found the state in contempt of court for failing to improve services as ordered; and lawmakers sharply questioned huge expenditures for services.

To this day, the state is unable to say specifically how much was spent in relation to the consent decree since its inception. The cost of continuing without court supervision should be less, but it will still be very significant, Bennett said.

"Like in every other state in the country, every other school district in the country, it is a large burden," he said. "It takes a great deal of resources, and in that we are not in any way unique."

Rosaline Cardona has not followed the Felix case, but knows how important it is to have a strong special education program.

Special education services at Ka'iulani Elementary School have made a huge difference for her first-grader Daniel, who entered kindergarten far behind his peers.

Thanks to special classes with only three other students and an individualized education plan, 7-year-old Daniel is already reading and up to grade level in math. "They get a lot of help," Cardona said. "He gets a lot of work ... because they're trying to get him up to grade level."

What impresses her is that the school has been able to help Daniel without the use of medication, which educators at another school had recommended to control his hyperactivity.

"It's way better here. He's really doing good and he really loves math," she said.

Sylvia Brown's daughter has been using special education services since she was 3 because of a speech delay and difficulty learning English.

Speech classes have been so effective that when her daughter begins the fourth grade at Kamaile Elementary next year, she may need no extra help at all.

Educators have been so dedicated that at one point a Department of Education tutor actually visited the Browns' home for special sessions until Brown's daughter was ready to start preschool.

Brown suspects the assistance might have been less intense without the consent decree forcing the DOE into action. "People usually do the best they can, but when jobs are on the line, that certainly puts a different perspective on things," she said. "It's made a big difference."

Now that the state is no longer being monitored, Brown isn't convinced the same level of services will be provided, but she's pretty sure the state won't want to face another lawsuit.

"Most people know now that there are consequences when things are below par. I think that's pretty clear now that the (consent decree) has happened," she said.

Sen. Colleen Hanabusa, who co-chaired a special investigative committee of lawmakers that probed state spending related to the consent decree, said there is no doubt that it has cost more than $1 billion.

An earlier lack of communication between state agencies led to many problems reaching compliance and accounting for spending, she said. Responsibilities for complying with the court order are mainly handled by the Department of Education, but had been split with the Department of Health.

"There were a lot of territorial issues between the departments back then," and Felix compliance spending was not routinely tracked separately from other special education expenditures, said Hanabusa, D-21st (Nanakuli, Makaha).

Pressure to comply with the consent decree also appeared to create an environment of poor accounting that was ripe for abuse, she said.

Several therapeutic aides were indicted on theft and fraud charges for allegedly billing the state for services that were never provided, Hanabusa noted. And a healthcare company agreed to pay up to $1 million to settle an investigation into alleged overbilling.

The state probably could have ended the consent decree sooner if it had been better organized, she said.

"I think if there's anything we must all recognize, it's that there's a lesson here," Hanabusa said. "When there's a federal mandate, we must come into compliance, or the consequences are there. ... We're almost celebrating getting out of something that we shouldn't have been in to begin with. But the most important thing is that the children are our responsibility. How many of them have been really sacrificed along the way" because services weren't available?

Rep. Scott Saiki, who also co-chaired the investigative committee, said different interpretations by consultants and officials about what was needed led to many of the problems.

"I think there was probably mass confusion, because early on there were consultants that advised the department that they were in compliance," said Saiki, D-22nd (McCully, Pawa'a).

Attorney Eric Seitz, who represented the lawsuit's plaintiffs, said the situation is clearly better.

"I think we feel generally very good that there are many, many more children who are receiving services than were capable of being given those services some years ago when we started this," he said. "The services are at a much higher level, and at a much better quality, and far more consistent than the system could have delivered not too long ago.

"We've brought to Hawai'i many, many more qualified special education teachers, speech pathologists and people who are experts in areas of children's mental health than existed in Hawai'i before, and so we have resources that we never had. So overall, I think the world for these children in Hawai'i has changed dramatically."

But some problems remain, and the issues should not be forgotten now that the court case is settled.

"It's still a battle for kids on an individual level to get what they need consistently," Seitz said. "There are still ups and downs. There are still vagaries about funding and about consistency of services when contracts are changed and somebody who was working with a particular child finds that for the next fiscal year his or her contract has not been extended and so the families have a good deal of insecurity that lingers on. And that's just a factor in any kind of a public system."

Advertiser education writer Treena Shapiro contributed to this report. Reach Johnny Brannon at 525-8084 or jbrannon@honoluluadvertiser.com.