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Master wants
faster Felix decree
compliance

He will ask that the time frame
for the state to implement the
Felix decree be moved
to June 30, 2001

By Crystal Kua
Star-Bulletin

A court-appointed special master wants the state to move faster toward compliance with a federal consent decree on improving special education services in Hawaii public schools.

Special master Jeff Portnoy yesterday called an agreement among parties in the Felix consent decree to give the state an 18-month extension "unacceptable."

Portnoy said he will recommend to the federal judge overseeing the case that the state instead get a one-year extension, requiring substantial compliance with the consent decree by June 30, 2001.

Portnoy said he also will recommend to U.S. District Judge David Ezra that he suspend state laws governing teacher licensing, procurement, civil service, collective bargaining and assignment of personnel. Ezra will decide whether to accept or reject Portnoy's recommendations.

Streamlining the process

The 1994 Felix consent decree was the result of a settlement reached in a federal lawsuit brought on behalf of Jennifer Felix, which alleged that the state was violating federal law by not providing adequate education and mental health services to special needs children.

The state had until June 30 to be in substantial compliance with the consent decree, but Ezra found the state in contempt for not improving services by the deadline.

Yesterday, the state and plaintiffs' attorneys brought Portnoy a list of issues on which they had reached agreement.

Those issues include suspensions of laws that have "effectively hindered" the ability of the departments of Education and Health to fill necessary positions to carry out the requirements of the consent decree, Portnoy said.

Specifically, they would like to see:

The law covering licensing of teachers suspended, so that special education teachers in good standing with the Hawaii Teacher Standards Board won't lose their credentials or licenses after the three-year time limit to become licensed runs out.

The pension and retirement system law modified, so that retired special education teachers will be allowed to return to the classroom without loss of retirement benefits.

The Health and Education departments given authority to supersede requirements in civil service law, compensation law and collective-bargaining statutes to set up a career ladder structure for teachers, educational assistants, school psychology and necessary support staff.

The procurement law suspended for a year so the departments can enter into contracts with service providers more quickly.

The Education and Health departments permitted to assign employees to areas and positions as required to carry out services.

A representative of the Hawaii Government Employees Association, which represents white-collar workers including principals, said the union has concerns about suspending the collective-bargaining sections of the law. "We're researching it with legal counsel," Lei Desha said.

Unions are concerned

Joan Husted of the Hawaii State Teachers Association said the teachers union also is concerned about the effect on collective-bargaining issues related to teachers.

Schools Superintendent Paul LeMahieu said he plans to bring the unions to the table to figure how to best proceed with compliance. "I have told the unions that having that authority and using that authority in any tyrannical fashion are two very different things," LeMahieu said. "I have no intention to use it as a tyrant."

State Heath Director Bruce Anderson also said he will not use these new powers lightly. "We don't intend to use those authorities unless we absolutely have to."

Having the authority would mean the departments could fill positions with highly skilled professionals, such as autism specialists, by recruiting from the mainland. The departments plan to fund $34 million in extra positions from their budgets, then ask the state Legislature for an emergency appropriation next session.

But both LeMahieu and Anderson said their current plans may be more difficult to follow under the shortened time schedule proposed by the master.

The state plans to ask for the full 18 months in coming days.