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Felix ruling
may hasten
compliance

Autonomy for those in
charge is the upshot of
Judge Ezra's decision,
case followers claim

By Crystal Kua
Star-Bulletin

A ruling that found the state in contempt for failing to improve mental health and educational services for special education students may lead to more autonomy in carrying out the so-called Felix consent decree, those who follow the case say.

Those charged with bringing the state into compliance may have the power to hire more special education teachers, change working conditions to attract and keep teachers and other personnel, create more clerical help, increase pay scales and expedite contractual services.

U.S. District Judge David Ezra yesterday found the state in contempt for not complying with the decree, which required the state departments of Health and Education to provide programs to help children with emotional, physical, mental and behavioral problems.

The state had until next month to comply with the settlement of the 1993 class-action lawsuit brought by the parents of Jennifer Felix.

Some say Ezra's ruling gives the state an opportunity to expedite compliance with the decree.

"He's given us more tools to do that," said Ivor Groves, the court-appointed monitor who oversees compliance of the consent decree.

Ezra's decision gives Groves, Health Director Bruce Anderson and Schools Superintendent Paul LeMahieu the power to override rules, regulations, laws and collective bargaining agreements that inhibit compliance.

How the state will proceed will be better defined at a series of hearings.

Ezra noted that the state in general, and the DOE in particular, has been entrenched in a bureaucracy that has slowed progress.

Shelby Floyd, plaintiffs' attorney who argued that the state be held in contempt, said the bureaucracy at times has put employees before children. She said those barriers can now be knocked down.

"They can cut through the red tape," Floyd said. "They will have all kinds of opportunities."

Pearl Asuncion of Molokai, who struggled to get services for her teen-age son diagnosed with a learning disability, said Ezra's ruling means a new beginning for her son and her family.

"The hearing (yesterday) means for me that kids like my son will get what they deserve, get what they need," said Asuncion, who was present in the courtroom when Ezra ruled. "Hopefully, with Judge Ezra overseeing what's happening, now at least we know somebody will say, 'No, you can't do that to that child.' "

Molokai has a long way to go to achieve compliance, she said.

Groves said places with challenges such as Molokai, Waianae, Hana on Maui and Kau and Kohala on the Big Island could get more manpower, training and other advantages.

Ezra recognized that the speed of heading toward compliance has picked up since LeMahieu took over of the state Department of Education and Anderson became head of the Health Department.

"The court is more than happy with that progress," Ezra said.

In the years before their tenures, the administrations of the two departments were "derelict" in carrying out the court order, Ezra said.

"I was pleased that the court acknowledged the improvements that were made in the last year and a half," said Anderson, who added that that cost of delivering services in the health department is about $100 million.

"We know what it takes to succeed today. We've had some success in some areas. We have the resources we need, we just need more time to implement programs and services consistently."

Ezra also found that the state has not met substantial benchmarks and passed up two chances within the past year to ask for an extension of the consent decree.

LeMahieu said an extension was not requested in order to keep the compliance deadline in sight.

Ezra said he could order monetary rewards for special education teachers or that more money be spent on special education, but his goal is not to take away from regular education students.

"We can come way from this case with an enhanced and improved system for everyone," he said.

Ezra said he supports collective bargaining and is not trying to take away from that process.

Karen Ginoza, president of the Hawaii State Teachers Association, declined to comment on the the ruling's implications for the union's collective-bargaining agreement with the state until the union reviews it.

LeMahieu said the authority he and Anderson will have hasn't been specified, but he said their power may include overriding procurement laws to purchase services, changing work conditions to keep people in place, creating clerical support and establishing new positions.

Ezra said about $1 million has been spent on legal fees in the case, money that could have been put to better use in the educational system.

"It is my intent to bring this hemorrhaging to a close," he said.