Report Title:
Joint Senate and House Investigative Committee; Felix Consent Decree
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THE SENATE |
H.C.R. NO. |
84 |
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TWENTY-FIRST LEGISLATURE, 2001 |
H.D. 1 |
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STATE OF HAWAII |
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ESTABLISHING A JOINT SENATE AND HOUSE COMMITTEE TO INVESTIGATE THE STATE'S EFFORTS TO COMPLY WITH THE FELIX CONSENT DECREE.
WHEREAS, in 1993, Jennifer Felix, represented by her mother, sued in Federal District Court alleging that the State failed to provide adequate mental health services to children and adolescents in need of those services to benefit from their educational programs; and
WHEREAS, in 1994, the case was certified to be a class action suit on behalf of all children and adolescents between birth and age twenty with disabilities who reside in Hawaii and who are eligible for and in need of educational and mental health services, but not receiving those services (Felix class); and
WHEREAS, on October 25, 1994, the Felix Consent Decree (Decree) was approved, specifying the parameters under which the State is obliged to provide free appropriate public education to the Felix class, as required under the Individuals with Disabilities Act (IDEA) and Section 504 of the Rehabilitation Act (Section 504); and
WHEREAS, as a condition of entering the Decree, the State waived its right to appeal any matter covered by the Decree; and
WHEREAS, the State was to meet the requirements of IDEA and Section 504 and the stated principles and standards of the Decree by June 30, 2000; and
WHEREAS, the State did not meet the requirements, and in May 2000, the U.S. District Court found the State in contempt, and rather than imposing penalties, the judge granted the Superintendent of Education and the Director of Health extraordinary powers to make necessary changes, whatever the cost, by December 31, 2001; and
WHEREAS, if they fail, the court could take over the education system; and
WHEREAS, since 1994-1995, the number of children in the Felix class has grown from an estimated 2,894 to 11,842 in 1999-2000, and Felix expenditures have increased from $181,071,352 to $301,863,705 in 1999-2000; and
WHEREAS, this has a significant impact on the State's budget and is a source of continuing frustration to lawmakers, in part because two Auditor's reports remain critical of the State's efforts to comply with the Decree; and
WHEREAS, Auditor's Report No. 98-20 Assessment of the State’s Efforts Related to the Felix Consent Decree, December 1998, highlighted three major problem areas – failure to ensure that the requirements of the Decree were clear, failure to identify clearly and accurately funding related to the Decree, and a lack of effective leadership; and
WHEREAS, the 1999 Legislature responded to the charge that the State does not clearly and accurately identify funding related to the Decree by creating a new budget program designation, EDN 150, Comprehensive School Support Services; and
WHEREAS, Act 91, Session Laws of Hawaii 1999, required the Department of Education to submit a detailed report in both 2000 and 2001 on EDN 150 allocations and expenditures for special education, the Decree, and comprehensive student support services; and
WHEREAS, the Act also required the Department of Education and the Department of Health to develop procedures for transfer of the delivery of mental health services from the Department of Health to the Department of Education; and
WHEREAS, the Auditor's January 2001 report, Follow-Up Review of the State's Efforts to Comply with the Felix Consent Decree, found, however, that the Department of Education continues to combine Felix-related administrative and service costs with other special education costs, and that the Department of Health combines costs for compliance with costs for the delivery of services; and
WHEREAS, as a result, the Auditor concluded that it is impossible to examine the budgets and determine the cost of core and essential services versus the costs of new, experimental, and non-essential services; and
WHEREAS, as a result, the State is unable to determine how and when it might meet the requirements of the Decree; now, therefore,
BE IT RESOLVED by the House of Representatives of the Twenty-First Legislature of the State of Hawaii, Regular Session of 2001, the Senate concurring, that:
(1) The Senate and House hereby jointly establish an investigative committee pursuant to chapter 21, Hawaii Revised Statutes, to investigate the State's compliance with the Felix Consent Decree;
(2) The purpose and the duties of the committee and the subject matter and scope of its investigatory authority shall be to investigate, gather information, and make recommendations to the Senate and House concerning any matter relating to the Felix Consent Decree;
(3) The committee shall have every power and function allowed to an investigating committee by law, including without limitation the power to:
(A) Adopt rules for the conduct of its proceedings;
(B) Issue subpoenas requiring the attendance and testimony of witnesses and subpoenas duces tecum requiring the production of books, documents, records, papers, or other evidence in any matter pending before the committee;
(C) Hold hearings appropriate for the performance of its duties, at such times and places as the committee determines;
(D) Administer oaths and affirmations to witnesses at hearings of the committee;
(E) Report or certify instances of contempt as provided in Section 21-14 of the Hawaii Revised Statutes;
(F) Employ professional, technical, clerical, or other staff and expend such funds appropriated for Senate operating expenses for 2001 as necessary for the proper performance of its duties; and
(G) Exercise all other powers specified under Chapter 21 of the Hawaii Revised Statutes with respect to investigating committees;
(4) The committee shall be appointed by the Senate President and the Speaker of the House and consist of eight members, two of whom shall be appointed by the Senate President and the Speaker of the House to serve as the committee co-chairs;
(5) The composition of the committee with regard to majority and minority members shall be on a proportional basis;
(6) The investigative committee shall provide by rule for the submission, by a witness’s own counsel and counsel for another individual or entity about whom the witness has devoted substantial or important portions of the witness’s testimony, of written questions to be asked of the witness by the Chairs;
(7) The investigative committee shall provide by rule for the submission of proposed questions at a hearing in accordance with Section 21-11(b), Hawaii Revised Statutes;
(8) The investigative committee shall provide by rule that each witness intended to be called be given ten days notice of (A) the date and time of the witness’s appearance, (B) a short plain statement of the areas to be inquired into with respect to that witness’s anticipated testimony, and (C) a list of or copies of the principal documents about which that witness may be questioned; provided that these requirements shall not limit the investigative committee’s discretion to inquire into related matters. The rule may provide that the Chairs may waive the ten days notice if the witness so agrees;
(9) The committee shall provide by rule that a draft report of the investigative committee’s findings, conclusions, or both, concerning any matter that is the subject of its hearings shall be made available to all those entities or persons who were the subjects of or who were witnesses who testified at any hearing. Any person or entity to whom a draft report is made available shall be given a period of no less than fourteen days within which to make written responses to the draft findings, conclusions, or both. The written responses, if any, shall be included as an appendix to the final report of the investigative committee; and
(10) The committee is authorized to exercise its powers continuously throughout the 2001 Regular Session, the interim between the 2001 and 2002 Regular Sessions, and shall thereafter be dissolved unless further extended by the Senate and the House;
and
BE IT FURTHER RESOLVED that the Senate President and the Speaker of the House, from time to time, may refer to the investigative committee specific matters that are within the scope of the committee’s jurisdiction, and that the committee shall work in cooperation with the President and Speaker for the purposes stated in this Resolution; and
BE IT FURTHER RESOLVED that the committee shall submit its written findings and recommendations to the Senate and House twenty days prior to the convening of the Regular Session of 2002; and
BE IT FURTHER RESOLVED that certified copies of this Resolution be transmitted to the President of the Senate, Speaker of the House, Governor, Superintendent of Education, and Director of Health.