Policy Brief – Felix Decree
Senator Norman Sakamoto
May 21, 2006
In May 1993, Jennifer Felix, represented by her mother, filed a suit in federal court alleging that the State of Hawaii failed to provide her with adequate mental health services.1 In March 1994, the suit expanded into a class action suit. In May 1994, U.S. District Judge David Ezra found the State in violation of federal law. In order to avoid a federal takeover of its schools, the State entered into a consent decree that obliged it to fully implement a system of care for special needs students by June 30, 2000.
BACKGROUND
The Felix decree was based upon federal legislation that mandated that children with disabilities be given access to education. Prior to the 1970s, millions of children with disabilities received little or no formal public education.2 In response to this situation, the U.S. Congress, in 1973, enacted Section 504 of the Rehabilitation Act, which stipulates that a qualified person with a disability cannot be excluded from any program receiving federal funding. In 1975, Congress passed the Education for All Handicapped Children (later known as the Individuals with Disabilities Education Act), which requires states to provide children with disabilities a "free and appropriate public education."3
Complying with the Felix Decree
As a result of the Felix Consent Decree, the State was faced with the challenge of drastically expanding and improving services to students with disabilities. The challenged turned into a major political crisis. The State was forced to ramp up spending for special education at a time when it was cutting back other programs because of an economic recession. Moreover, effective program implementation was hindered by bureaucratic inertia: lack of coordinated efforts, clear communication, and strong leadership between the Department of Health (DOH) and the Department of Education (DOE).4
The State had considerable difficulty complying with the consent decree and on two occasions – August 1996 and February 1998 – requested an extension. When the May 2000 deadline arrived, Judge Ezra found the State in contempt. Rather than put the State's educational system under federal control, Judge Ezra gave the School Superintendent and the Director of Health super-powers to reach the 56 benchmarks laid out by the court. These super-powers allowed them to bypass state procurement laws as well as collective bargaining laws. Although intended to expedite compliance with the mandates of the Felix decree, the super-powers also put the agencies at loggerheads with the Legislature.
HOW THE LEGISLATURE RESPONDED
In an attempt to comply with the Felix decree, DOH contracted out services to private agencies. However, reports of uncontrolled spending and potential conflict of interests surfaced. In December 1997, the Legislature by letter from the Senate President and the Speaker of the House requested the State Auditor to carry out an assessment of the State's efforts to fulfill the mandates of the Felix Decree.5 In December 1998, the Auditor released a scathing report in which she noted that the State had paid out between $2.3 million and $3.5 million for undelivered services and that DOH was not properly overseeing the contracted services. The audit identified three problem areas that were hindering State compliance: (1) unclear goals, (2) inadequate identification of funding sources for Felix related programs, and (3) lack of leadership leading to excessive paperwork, an inadequate care coordination policy, and poor monitoring of program quality.6
The Legislature tackled these problems through special provisos inserted in the 1999 budget bill (House Bill 100, Act 91). The budget allotted $143 million for Fiscal Year 1999-2000 and $156 million for Fiscal Year 2000-2001 (Section 34) for Felix related programs. A new budget category -- EDN 150 "Comprehensive School Support Services" -- was created for the purpose of identifying and tracking funding related to comprehensive support services, including the ramping up of services related to the Felix Decree. The bill further mandated that the DOE provide the Legislature with a detailed report on Felix related spending (Section 33). It also called for the transfer of adolescent mental health services from DOH to DOE (Section 22). This massive intervention by the Legislature stemmed from the failure of the state bureaucracy to deal with the problem on their own.7 Similar provisos were included in subsequent budget bills.
In January 2001, the Auditor released a follow-up report noting that the DOE's commingling of Felix related costs with other special education costs made it impossible for it to carry out an assessment. In response to these and other concerns Senator Sakamoto introduced Senate Concurrent Resolution 65, which authorized a Joint Senate-House Committee for the purpose of investigating the State's efforts in complying with the Felix Decree. The Felix Investigative Committee began holding hearings in June 2001. In December, it released its Final Report in which three factors were identified as making compliance problematic: (1) unclear requirements combined with the DOE's exploitation of the court's "money is no object" expectations, (2) poor oversight and accountability between DOE and DOH, and (3) the "superpowers" granted to DOE and DOH which allowed them to bypass State procurement and personnel laws.8
As chair of the Senate Education Committee, Senator Sakamoto took an active role in resolving the Felix crisis. He moved major legislation that facilitated the restructuring of DOE and DOH to ensure that disabled students received the care and education they deserved. He authored the resolution authorizing the Felix Investigative Committee. As a member of the committee, he made on site visits to classrooms on Oahu and the Neighbor Islands – Waipahu, Kapolei, Kauai and Molokai -- to observe how disabled students were being taught, listened to parents testify about their struggles to get a decent education for their child, and questioned care providers about the delivery of services. Of the problems that the State was experiencing with meeting the Felix decree Sakamoto commented: "The car is running, but because it was put together so quickly, there's some loose nuts and bolts. We're looking to tighten where the oil drips and the water leaks."9
WHERE WE ARE TODAY
On April 8, 2004, Judge David Ezra found the State to be in "substantial compliance" and approved a plan to end court oversight.10 In June 2005, the State was released from the Felix Consent Decree.11
The Felix Decree has had a significant impact on the State's educational system. Once a neglected, under-funded program, special education has become a comprehensive set of programs. There is now a more aggressive effort to identify special needs students as well as a more concerted effort to ensure delivery of appropriate education and mental health services to them. The percentage of special needs students has grown from 6.5% (11,692 students) in 1993 to 11% (20,469 students) in 2004.12 With respect to funding, where special education accounted for $75 million in 1994, by 2006 it grew to $324 million.13
Although Felix consent decree is behind us, the State of Hawaii still has the task of improving on our system of care for students with disabilities. The school complexes – high schools, middle schools, and elementary schools – have worked cooperatively to create and enhance a system for educating special needs students based on their individual education plan. Also, the autism team and school teams have done a good job to improve our schools for special needs students. In the 2006 session, in response to constituent advocacy we heard Senate Bill 2733, which sought to give parents of autistic children more say in the development of their child's individualized education program.
As a result of this hard work Hawaii received national recognition from the UCLA Center for Mental Health in Schools for its comprehensive student support system. Doctors Linda Taylor and Howard Adelman noted: "This comprehensive, multi-faceted component of the state's school improvement effort makes major systemic changes to bring together the necessary support so that every student can have an equal opportunity to succeed at school. This is truly pioneering work that other's across the country are learning from as we all strive to improve the outcomes for children and youth."14
1 Jennifer Felix was left brain-damaged, epileptic and visually and speech impaired as a result of a viral infection when she was an infant. While in California, she attended a special school for therapy and counseling, but when she moved to Maui in 1983, her family could not find any similar services for her. A panel of "experts" had her placed in a hospital despite the admitting doctor's misgivings. She was later placed in a residential facility in Texas. Crystal Kua, "Felix decree: Problems and Progress," Honolulu Star-Bulletin, May 29, 2000, http://starbulletin.com/2000/05/29/news/story2.html ; Treena Shapiro, "Decree came too late to help Jennifer," Honolulu Advertiser, June 1, 2005, http://the.honoluluadvertiser.com/article/2005/Jun/01/ln/ln02p.html.
2 Students with disabilities were typically put in a corner or expelled from school. Judge Ezra notes, "When I took the case on 11- 1⁄2 years ago, parents of autistic children had nowhere to go. The students were typically put in a corner or expelled from school." Susan Essoyan, "Special-ed spending sees jump since '94," Honolulu Star-Bulletin, April 18, 2004, http://starbulletin.com/2004/04/18/news/story5.html.
3 For a useful overview see: Hawaii Auditor, "Appendix A: Chronology of Events and Background on the Felix Consent Decree," Assessment of the State's Efforts Related to the Felix Consent Decree, Report 98-20, pp. 47-51, http://www.state.hi.us/auditor/Reports/1998/98-20.pdf. See also, Hawaii Legislature, Joint Senate-House Investigative Committee to Investigate the State's Compliance With the Felix Consent Decree – Final Report, pp. 1-3.
4 Sidney Rosen, "ViewPoint – A Felix Solution," Honolulu Star-Bulletin, March 3, 2001, http://starbulletin.com/2001/03/03/editorial/viewpoint.html ; Robert M. Rees, "What About Amber?" Honolulu Weekly, July 4, 2001, http://www.honoluluweekly.com/archives/coverstory%202001/07-04-01%20Amber/07-04-01%20Amber.html.
5 Auditor, Assessment of the State's Efforts Related to the Felix Consent Decree (Report No. 98-20), p. 59 note 1.
6 Auditor, Report No. 98-20, p. 11.
7 There were earlier attempts by the Legislature to facilitate the delivery of services to children with disabilities between the two agencies. In 1980, the Legislature amended §321-174 of the Hawaii Revised Statutes (HRS) to require DOE and DOH to develop a memorandum of agreement describing responsibilities for the provision of services to handicapped children. Then in 1982, the Legislature amended §301-27 of the HRS to require that DOH cooperate with the DOE with provision of health services including mental health.
8 Joint Senate-House Investigative Committee to Investigate the State's Compliance With the Felix Consent Decree, Final Report, p. 7. http://www.capitol.hawaii.gov/session2004/felix/comm_rpts/final.pdf
9 Crystal Kua, "Legislature weighs options for special ed supervision," Honolulu Star-Bulletin, January 29, 2002, http://starbulletin.com/2002/01/29/news/story10.html.
10 Susan Essoyan, "Court scales back oversight of special education," Honolulu Star-Bulletin, April 9, 2004, http://starbulletin.com/2004/04/09/news/index11.html.
11 Dan Martin, "Felix case is dismissed, but education legacy continues," Honolulu Star-Bulletin, June 1, 2005, http://starbulletin.com/2005/06/01/news/index4.html.
12 Dan Martin, "Felix case is dismissed, but education legacy continues," Honolulu Star-Bulletin, June 1, 2005, http://starbulletin.com/2005/06/01/news/index4.html.
13 Patricia Hamamoto, "Busting some myths about the DOE budget," Superintendent's Update (#06-04), March 2, 2006. http://doe.k12.hi.us/periodicals/update/2006/0604.pdf.
14 Student Support Services, Hawaii Department of Education, "National Recognition for Hawaii's Comprehensive Student Support System," Student Support!¸ (Vol. 2 No. 4) December 2001.