1


            1   

            2   

            3                SENATE/HOUSE OF REPRESENTATIVES

            4                     THE 21ST LEGISLATURE

            5                        INTERIM OF 2001

            6   

            7   

            8   

            9      JOINT SENATE-HOUSE INVESTIGATIVE COMMITTEE HEARING

           10                        AUGUST 20, 2001

           11                               

           12                               

           13                               

           14       Taken at the State Capitol, 415 South Beretania,  

           15     Conference Room 325, Honolulu, Hawaii, commencing at 

           16             9:10 a.m. on Monday, August 20, 2001.

           17                               

           18                               

           19                               

           20                               

           21            BEFORE:    SHARON L. ROSS, CSR No. 432

           22   

           23   

           24   

           25   




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            1   APPEARANCES:

            2   

            3   Senate-House Investigative Committee:

            4                   Co-Chair Senator Colleen Hanabusa

            5                   Co-Chair Representative Scott Saiki

            6                   Vice-Chair Senator Russell Kokubun

            7                   Senator Jan Yagi Buen

            8                   Representative Ken Ito

            9                   Representative Bertha Leong  

           10                   Senator David M. Matsuura

           11                   Senator Norman Sakamoto

           12                   Senator Sam Slom         

           13   

           14   Also Present:            

           15                   Special Counsel James Kawashima

           16                   Dr. Paul LeMahieu

           17                   Ms. Laurel Johnston

           18                   Mr. Chris Ito

           19                   Ms. Debra Farmer

           20                   Dr. Bruce Anderson

           21                   Dr. Douglas Houck

           22   

           23   

           24   

           25   




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            1                           I N D E X

            2   

            3   WITNESS:  DR. PAUL LeMAHIEU

            4   EXAMINATION BY:                              PAGE

            5          SPECIAL COUNSEL KAWASHIMA.............   7 

            6          CO-CHAIR SENATOR HANABUSA.............  39

            7          SENATOR BUEN..........................  56

            8          SENATOR SLOM..........................  60

            9          SENATOR MATSUURA......................  66

           10          REPRESENTATIVE LEONG..................  71

           11          REPRESENTATIVE ITO....................  73

           12          VICE-CHAIR SENATOR KOKUBUN............  76

           13   WITNESS:  LAUREL JOHNSTON

           14   EXAMINATION BY:                              

           15          SPECIAL COUNSEL KAWASHIMA.............  17 

           16          CO-CHAIR SENATOR HANABUSA.............  39

           17   WITNESS:  CHRIS ITO

           18   EXAMINATION BY:                              

           19          CO-CHAIR SENATOR HANABUSA.............  48

           20          SENATOR BUEN..........................  56

           21          SENATOR SLOM..........................  60

           22   

           23   

           24   

           25   




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            1                    I N D E X, (Continued)

            2   

            3   WITNESS:  DEBRA FARMER

            4   EXAMINATION BY:                              PAGE

            5          SENATOR SLOM..........................  64 

            6          SENATOR MATSUURA......................  66

            7          REPRESENTATIVE ITO....................  73

            8          VICE-CHAIR SENATOR KOKUBUN............  76

            9   WITNESS:  DR. BRUCE ANDERSON

           10   EXAMINATION BY:                              

           11          SPECIAL COUNSEL KAWASHIMA.............  80

           12          SENATOR BUEN..........................  96

           13   WITNESS:  DR. DOUGLAS HOUCK

           14   EXAMINATION BY:                              

           15          SPECIAL COUNSEL KAWASHIMA.........104, 203  

           16          VICE-CHAIR SENATOR KOKUBUN............ 151

           17          CO-CHAIR REPRESENTATIVE SAIKI......... 155

           18          SENATOR BUEN.......................... 165

           19          REPRESENTATIVE LEONG.................. 169

           20          SENATOR MATSUURA...................... 171

           21          REPRESENTATIVE ITO.................... 179

           22          SENATOR SAKAMOTO...................... 183

           23          SENATOR SLOM.......................... 194

           24          CO-CHAIR SENATOR HANABUSA............. 208

           25   




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            1                          PROCEEDINGS

            2              CO-CHAIR REPRESENTATIVE SAIKI:  Good morning.  

            3   Let's call to order our joint Senate-House Investigative 

            4   Committee to investigate the State's efforts to comply 

            5   with the Felix Consent Decree.  We would like to begin 

            6   with roll call for attendance purposes. 

            7              CO-CHAIR SENATOR HANABUSA:  Okay.  Co-Chair 

            8   Saiki?

            9              CO-CHAIR REPRESENTATIVE SAIKI:  Here.  

           10              CO-CHAIR SENATOR HANABUSA:  Vice-Chair 

           11   Kokubun?

           12              VICE-CHAIR SENATOR KOKUBUN:  Here. 

           13              CO-CHAIR SENATOR HANABUSA:  Vice-Chair Oshiro 

           14   is excused.  Senator Buen?

           15              SENATOR BUEN:  Here.

           16              CO-CHAIR SENATOR HANABUSA:  Sen -- 

           17   Representative Ito?

           18              REPRESENTATIVE ITO:  Here. 

           19              CO-CHAIR SENATOR HANABUSA:  Representative 

           20   Kawakami is excused.  Representative Leong?

           21              REPRESENTATIVE LEONG:  Here. 

           22              CO-CHAIR SENATOR HANABUSA:  Senator Matsuura?

           23              SENATOR MATSUURA:  Here. 

           24              CO-CHAIR SENATOR HANABUSA:  Senator Pendleton 

           25   is excused.  Senator Sakamoto?




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            1              SENATOR SAKAMOTO:  Here. 

            2              CO-CHAIR SENATOR HANABUSA:  Senator Slom?

            3              SENATOR SLOM:  Here. 

            4              CO-CHAIR SENATOR HANABUSA:  Co-Chair 

            5   Hanabusa.  We have a quorum.

            6              CO-CHAIR REPRESENTATIVE SAIKI:  Okay.  Thank 

            7   you very much. 

            8              Members, the first item on our agenda this 

            9   morning is the production of documents.  As you know, on 

           10   July 13th, 2001, this Committee authorized the issuance 

           11   of Subpoenas to require the production of documents by 

           12   Dr. Paul LeMahieu or his designee from the State 

           13   Department of Education, as well as Dr. Bruce Anderson 

           14   or his designee from the State Department of Health. 

           15              We would like to begin with the Department of 

           16   Education.  Will Superintendent LeMahieu please step 

           17   forward to be sworn in?  You can sit down.  Thanks. 

           18              CO-CHAIR REPRESENTATIVE SAIKI:  I would like 

           19   to administer the oath at this time, Superintendent.  Do 

           20   you solemnly swear or affirm that the testimony you are 

           21   about to give will be the truth, the whole truth, and 

           22   nothing but the truth?

           23              DR. PAUL LeMAHIEU:  I do. 

           24              CO-CHAIR SENATOR HANABUSA:  Thank you.  We 

           25   would like to, at this time, call upon our Committee's 




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            1   legal counsel, Mr. Kawashima.  

            2                          EXAMINATION

            3   BY SPECIAL COUNSEL KAWASHIMA:

            4        Q.    Good morning, Doctor.

            5        A.    Good morning. 

            6        Q.    Doctor, as Co-Chair Saiki has just pointed 

            7   out, you were served with a Subpoena requiring you or 

            8   your designee to come here and bring certain documents 

            9   as were set forth in Exhibit A to that Subpoena, were 

           10   you not?

           11        A.    Yes, sir. 

           12        Q.    And you are here with those documents?

           13        A.    To the extent that they've been able to be 

           14   produced up to this time, yes.  We do not have all of 

           15   what was requested, and I'm prepared to go over the whys 

           16   and wherefores of that. 

           17        Q.    All right.  I will ask you to do that 

           18   shortly, Doctor.  Let me ask you first, though, as far 

           19   as all of the records and documents we asked for as set 

           20   forth in Exhibit A to the Subpoena with which you were 

           21   served, those documents are under the care and custody 

           22   of the -- and control of the Department of Education, 

           23   are they not?

           24        A.    Yes, they are.  Certain of them are in 

           25   archives, which is what causes some of the difficulty in 




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            1   timely compliance.

            2        Q.    As far as the records you do have with you 

            3   today -- I'm going to allow you to describe them 

            4   shortly, though.

            5        A.    Good. 

            6        Q.    But as far as those records that you have 

            7   brought with you, have any portion of those records been 

            8   removed from the Department of Education's care, 

            9   custody, and control prior to today?

           10        A.    No. 

           11        Q.    I'm not suggesting they were. 

           12        A.    Right.

           13        Q.    I'm just asking you if you know.

           14        A.    No, not to my knowledge. 

           15        Q.    All right.  And have any portion of those 

           16   documents been altered prior to this time?

           17        A.    No, sir. 

           18        Q.    So, will you please describe for us, then, 

           19   Doctor, all of the documents you have brought with you 

           20   pursuant to the requirements of the Subpoena with which 

           21   you were served? 

           22              And if you might go through the -- probably 

           23   the Exhibit A might be the best way to do it; and as you 

           24   go through there, identify what you have.  And the ones 

           25   you don't have, perhaps you can tell us why you don't 




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            1   have them.

            2        A.    Certainly.  I'll be glad to.  First of all, I 

            3   have three sets here to turn over to the panel staff. 

            4              It may be of advantage, because what I'm 

            5   going to do is reference particular documents, if you 

            6   want to take control of them now.  I also have -- for 

            7   the financial information, there is an electronic -- a 

            8   disk with files on all of the financial information as 

            9   well. 

           10        Q.    It seems that you have them segregated, 

           11   Doctor, such that the financial documents with the disks 

           12   are in one Redweil folder you have there?

           13        A.    No.  Actually, all documents -- this is three 

           14   sets.  There are three folders.  Each set -- each folder 

           15   contains a complete set of what we were able to produce 

           16   at this time. 

           17        Q.    I see.

           18        A.    In one of the three, you'll find a file -- 

           19   the disk with the files. 

           20        Q.    Thank you.  Go ahead, sir.

           21        A.    First of all, a couple of general comments 

           22   because I'll refer back to these as we go through some 

           23   of the particular documents.  

           24              The two greatest reasons that everything 

           25   could not be produced by this date -- there are two main 




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            1   reasons.  The first is that the statutes of our state -- 

            2   this Legislature, some considerable time ago -- and I 

            3   will say an editorial that I think it is -- it was 

            4   absolutely the right thing to do -- moved the education 

            5   system in the direction of site-based management and, in 

            6   particular, local, that is to say, school-level control 

            7   over what are called small contracts. 

            8              Up until a certain point in time, small 

            9   contracts were defined as those contracts $10,000 or 

           10   less.  Now, changes over the past couple of years have 

           11   raised that limit to $25,000 or less. 

           12              Authority over such contracts is vested in 

           13   the leadership of the schools; and no small amount of -- 

           14   the requests that you've made by volume -- I don't 

           15   suspect by dollar amount, but by just volume of 

           16   activity -- falls under these small contract 

           17   arrangements.  As a result, the only resource for 

           18   getting information that you seek on each of those 

           19   several contracts is to go to the schools themselves. 

           20              There has been no -- there has been imposed 

           21   no structure whereby authorization, required reporting, 

           22   or anything as might facilitate centralized gathering of 

           23   information like what you're requesting has been 

           24   imposed; and the reason is very simple:  To have imposed 

           25   such a thing would have been to undermine the authority, 




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            1   the flexibility that we all sought to give the folks in 

            2   the schools. 

            3              So, long story short, the only place to turn 

            4   to get that information when a request like yours comes 

            5   through is to literally go back to the schools and ask 

            6   them to pull it from their records; and, of course, 

            7   that's also asking them to survey some number of fiscal 

            8   years. 

            9              And so, our best projection is that that is 

           10   at least a 90-day process.  That is assuming that the 

           11   folks in the schools can and will dedicate resources.  

           12   We will instruct them to do so, if you wish to pursue 

           13   it, certainly; but I say that just so that we're all 

           14   mindful of who we must place the burden on and what the 

           15   burden will look like.  That's the first big reason. 

           16              The second big reason why not everything can 

           17   be available in the five working days which we were 

           18   granted is that prior to -- I want to make sure I'm 

           19   correct at this.  So, what is -- what's the year of 

           20   demarcation on archiving? 

           21              STAFF MEMBER:  Two years. 

           22        A.    Two years.  Prior to the last two fiscal 

           23   years, the information is on archives, which means we've 

           24   got to go mount the tapes, get a programmer to write the 

           25   program to pull off the stuff specific to your request, 




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            1   et cetera, et cetera; and unfortunately, that couldn't 

            2   be done within five working days either. 

            3              And then the third reason is that our system 

            4   is established such that while we have good centralized 

            5   information on contract -- contracts, who they are with, 

            6   the contract amount, which is to say some amount that 

            7   cannot be exceeded without amendment to the contract, 

            8   that sort of information -- contract management -- even 

            9   on the large contracts, contract management is under the 

           10   control of the program managers who execute the 

           11   contract. 

           12              Therefore, again, I'll repeat:  Information 

           13   that includes information such as who the contract is 

           14   with, the start date, the end date, and any amendments 

           15   thereto, the total amount of the contract or an amount 

           16   not to be exceeded and any amendments to that, those 

           17   things, a description however brief describing the work 

           18   scope, everything that would be found literally on the 

           19   contract itself, that is centrally available.  That is 

           20   being provided to you now. 

           21              The one missing piece of information is the 

           22   final expenditure amount.  That has to be drawn from the 

           23   program managers who oversaw the contract and ultimately 

           24   authorized payment under the contract.  And while that 

           25   doesn't take as long as going to the schools -- and as I 




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            1   go through this, you'll see that we're talking about 

            2   differing amounts of time -- that, of course, means 

            3   going out to the offices, the locations that established 

            4   and managed the contract.  

            5              Those three big ideas will explain, really, 

            6   by way of explanation, why literally everything is not 

            7   here in those instances where we don't have literally 

            8   everything.

            9        Q.    (BY SPECIAL COUNSEL KAWASHIMA)  Okay.  Thank 

           10   you.

           11        A.    That said, let me take you quickly through 

           12   what you have requested in your exhibit. 

           13              The first thing under Item 1, we've broken it 

           14   down into three items.  The first is a list of vendors 

           15   contracted for services related to the Felix Consent 

           16   Decree, and you're also asking for that in electronic 

           17   format.  The list of vendors for all procurements other 

           18   than small contracts, for the reasons that I tried to 

           19   make clear earlier, is provided here today.  

           20              The second thing you were asking for in there 

           21   is a list of vendors -- I'm sorry.  Let me -- we're 

           22   breaking it down so we can be clear about what we have 

           23   and what we don't have. 

           24              In addition, you obviously want, we think, 

           25   the small purchase contract information as well.  That, 




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            1   we are not able to provide today for the reasons 

            2   described earlier.  We expect that it will take 90 days, 

            3   three months, to do it because we will send requests to 

            4   all principals, as well as all district superintendents, 

            5   requiring a reporting of that information. 

            6              The third thing is a list of vendors 

            7   contracted for other expenditures related to the Felix 

            8   Consent Decree; and that information should be available 

            9   by the end of next week -- by the end of this month, 

           10   31 August.  That, along with -- let me check with my 

           11   staff on this -- along with expenditure information on 

           12   large contracts --

           13              MS. JOHNSTON:  And for the last two years, we 

           14   have to get the others out of --

           15        A.    Okay.  Yes, I need to differentiate.  What 

           16   I'm describing as reasonably close at hand would apply 

           17   to that information where we are maintaining current 

           18   files, which is to say the last two years.  Prior to 

           19   that, we have to go to the archive route; and that's 

           20   going to be the three-month -- the 90-day thing.  

           21              Item No. 2, you've asked for a list of 

           22   contracts, grants, and any amendments thereto for 

           23   services related to the Felix Consent Decree.  You would 

           24   like to have included vendor names, type of service, 

           25   duration of the contract, contracted amount, contract 




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            1   number, and the amount actually expended. 

            2              Again, for procurements other than small 

            3   purchases, we are providing today all of the information 

            4   required -- requested there other than the contract 

            5   number and the actual expenditures.  Those two pieces of 

            6   information rest with the program managers.  We will 

            7   have to contact program managers severally throughout 

            8   the state, gather that information, and bring it in; and 

            9   we expect that that's a 90-day process. 

           10              Also, in Item No. 2, implicitly in there 

           11   you're asking for all of the same information with 

           12   respect to small purchases.  Apologies for being 

           13   repetitious; but with respect to small purchases, all 

           14   information -- we're able to provide nothing today.  All 

           15   information will have to come by surveying the field, 

           16   and that's the 90 day. 

           17              In Item No. 3, you've asked for a list of 

           18   vendors that have provided services -- any services 

           19   related to the Felix Consent Decree not included in 

           20   Items 1 or 2 above, including invoices or other 

           21   identifying information, identifying number, vendor 

           22   name, type of service, duration, procurement amount, 

           23   amount actually expended for each vendor and by fiscal 

           24   year.  Again, this needs to be retrieved from the 

           25   archives; and that will be 90 days. 




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            1              In Item No. 4, you've asked for documents, 

            2   reports, summarizing moneys expended related to the 

            3   Felix Consent Decree by program ID number as well as 

            4   object code; and you've asked for that for the last two 

            5   fiscal years, fiscal year '00 and fiscal year '01.  We 

            6   are providing that today in its entirety.  

            7              Item No. 5 asks for an organizational chart.  

            8   That is provided to you today. 

            9              And Item No. 6 asks for job descriptions for 

           10   all Felix-related positions apart from classroom 

           11   teachers.  That is being provided today as well. 

           12        Q.    All right.  Does that complete your 

           13   description of what you have with you today?

           14        A.    I think so, yes. 

           15        Q.    Thank you.  Now, Dr. LeMahieu, you say for 

           16   some of these items it's going to be a 90-day process.  

           17   How did you come up with that figure?

           18        A.    You want to come -- have somebody come join 

           19   me?  

           20        Q.    Sure.  Please.

           21        A.    I'm asking Laurel Johnston, who is the 

           22   assistant superintendent for planning, budget, and 

           23   resource development -- you may want to swear her in as 

           24   well.

           25        Q.    Thank you.  We will.




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            1              CO-CHAIR REPRESENTATIVE SAIKI:  I'm sorry.  

            2   Can you state your name for the record, please?

            3              MS. JOHNSTON:  Laurel Johnston. 

            4              CO-CHAIR REPRESENTATIVE SAIKI:  And I would 

            5   like to administer the oath at this point.

            6              Do you solemnly swear or affirm that the 

            7   testimony you are about to give will be the truth, the 

            8   whole truth, and nothing but the truth? 

            9              MS. JOHNSTON:  Yes, I do. 

           10              CO-CHAIR REPRESENTATIVE SAIKI:  Thank you 

           11   very much.  

           12                          EXAMINATION

           13   BY SPECIAL COUNSEL KAWASHIMA:

           14        Q.    Go ahead, Ms. Johnston.

           15        A.    (By Ms. Johnston)  These are estimates of 

           16   time based on some preliminary discussions we've had 

           17   with program managers, as well as district 

           18   superintendents and a couple of principals. 

           19              You must understand, again, that the whole 

           20   effort to send resources down to the schools does allow 

           21   them to have certain flexibility over their resources.  

           22   Therefore, we will have to work with them. 

           23        Q.    Let me ask either one of you.  Dr. LeMahieu 

           24   suggested that the authority on these smaller contracts 

           25   were vested in the leadership of the school and that 




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            1   they had certain information and you had other 

            2   information relating to those contracts; is that 

            3   correct?  But you, of course --

            4        A.    (By Ms. Johnston)  No, that's not correct. 

            5        Q.    That's not correct?

            6        A.    (By Ms. Johnston)  No.

            7        Q.    It's not?

            8        A.    (By Mr. LeMahieu)  Oh, I'm sorry.

            9        A.    (By Ms. Johnston)  We need to delineate 

           10   between those that are -- those contracts that are 

           11   executed under the procurement code, which are those up 

           12   until 1997 that were under $10,000, and, after the law 

           13   was changed in '97, those under $25,000.  Anything under 

           14   that is considered a small purchase.  Those are the ones 

           15   we're talking about that are under the flexibility of 

           16   the schools. 

           17        A.    (By Mr. LeMahieu)  And to be clear, on small 

           18   purchases, all information -- I think this is what we 

           19   were referring to.  There's no differentiation whereby 

           20   we have some information and they have others.  On small 

           21   purchases, all information is out in the schools.  They 

           22   execute them themselves.

           23        Q.    I see.

           24        A.    (By Mr. LeMahieu)  We do maintain -- just for 

           25   the sake of full disclosure, we do maintain a log; but 




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            1   it is maintained on a voluntary basis.  And, frankly, we 

            2   do not consider it trustworthy enough to be a source for 

            3   answering the questions that you have.

            4        Q.    Who maintains that log, Doctor? 

            5        A.    (By Ms. Johnston)  Right now, the budget 

            6   office has control over that log. 

            7        Q.    Budget office?

            8        A.    (By Ms. Johnston)  Let me -- may I clarify?

            9        Q.    Sure.

           10        A.    (By Ms. Johnston)  These are for personal 

           11   services contracts; for services, not goods, services. 

           12        Q.    I understand. 

           13        A.    (By Ms. Johnston)  Okay.

           14        Q.    However, any contracts of that nature, 

           15   Ms. Johnston, you would expect whoever is letting out 

           16   these contracts to be accountable to your office?

           17        A.    (By Ms. Johnston)  Actually, they are 

           18   accountable to the department. 

           19        Q.    Right.  Which is your office, of course? 

           20        A.    (By Ms. Johnston)  No, the budget -- may I 

           21   clarify?

           22        Q.    All right.  Department.  We used the word 

           23   "department."  That's why.

           24        A.    (By Ms. Johnston)  Thank you.

           25        Q.    But they should be accountable to someone, 




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            1   shouldn't they? 

            2        A.    (By Mr. LeMahieu)  Yes.

            3        Q.    And, therefore, shouldn't you have that 

            4   information as to all of those items regarding even the 

            5   smaller contracts?

            6        A.    (By Mr. LeMahieu)  We don't think so.  We 

            7   think that they should be compelled to produce it upon 

            8   request.

            9        Q.    I see.  So, no other accountability then for 

           10   those contracts as to how they let them, to whom they 

           11   let them, procedures they follow? 

           12        A.    (By Ms. Johnston)  This is state law, 

           13   Mr. Kawashima, that allows all state agencies to have 

           14   the flexibility.  It's not just the Department of 

           15   Education.

           16        A.    (By Mr. LeMahieu)  Yeah.

           17        Q.    I'm not suggesting it's not state law, ma'am.  

           18   All I'm saying is whether or not they can be -- they are 

           19   accountable to someone, for example, the department. 

           20              There's no way to determine accountability, 

           21   then, if you give them all the discretion as to those 

           22   types of contracts; am I correct? 

           23        A.    (By Mr. LeMahieu)  Actually, if I'm following 

           24   you correctly, I don't think that I agree.  Having them 

           25   have discretion over their own affairs does not mean 




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            1   that there is a complete absence of accountability.  

            2   When and if there is any need to call them to account, 

            3   we can do that; and they would be expected to justify 

            4   their actions. 

            5              They maintain the records we're speaking of.  

            6   We just simply do not insist that something like prior 

            7   approval or filing of information a priori with the 

            8   department as a condition or a step in the process of 

            9   securing these services be imposed because to do so, 

           10   would, in fact, be to usurp the authority that we all 

           11   wanted to grant them. 

           12        Q.    I understand what you say, Doctor, in terms 

           13   of prior approval; but how about after the services are 

           14   performed, though? 

           15        A.    (By Mr. LeMahieu)  After the fact --

           16        Q.    Do you have someone to review whether or not 

           17   they were performing?

           18        A.    (By Mr. LeMahieu)  Well, people at the 

           19   schools do that review.  They authorize the payment.  

           20   There are records both of that review and their 

           21   authorization.  That's exactly what we're suggesting we 

           22   need to turn to them to secure now. 

           23        Q.    I see.  But in any case, sir, as far as 

           24   whether or not you look at those contracts if a question 

           25   is raised, someone has to bring it to your attention, 




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            1   though, right?

            2        A.    (By Mr. LeMahieu)  Uh-huh. 

            3        Q.    Who would that be?  Who would bring it to 

            4   your attention?

            5        A.    (By Mr. LeMahieu)  Very often in the case of 

            6   individual instances, it would be on an ad hoc basis, 

            7   someone who had some concern about some particular -- 

            8   there have been instances where teachers may have raised 

            9   some question about a contract; and then we were able to 

           10   investigate it. 

           11              There are instances where, perhaps, a 

           12   provider would have raised a question about some 

           13   contracting; and we're able to investigate it.  And then 

           14   on very rare occasions, there are instances such as this 

           15   one where somebody would like all information relevant 

           16   to some area; and we have to pursue it through this 

           17   means. 

           18        Q.    I see.  Now, let me shift gears for a second, 

           19   Doctor, for a few minutes here.  You provided this 

           20   Committee with a letter dated August 16, 2001 explaining 

           21   these things and other things, right?

           22        A.    (By Mr. LeMahieu)  Yes. 

           23        Q.    Now, in this -- let me ask you some 

           24   questions.  In this letter, you do mention the fact 

           25   that -- well, let me quote it.  "We note that most 




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            1   contracts were not executed to specifically provide 

            2   goods and services for Felix class children but, rather, 

            3   were for goods and services provided to all special 

            4   education students."  Do you recall that statement?

            5        A.    (By Mr. LeMahieu)  Yes. 

            6        Q.    Now, however, what -- when you came to the 

            7   Legislature this year for emergency appropriations, they 

            8   were -- these emergency appropriations were related to 

            9   Felix class children, were they not?

           10        A.    (By Mr. LeMahieu)  No, not necessarily.  They 

           11   were driven by compliance with the Felix Consent Decree. 

           12        Q.    I understand that; but, in fact, the 

           13   appropriations that were asked for on an emergency 

           14   basis, as you say, were driven by the Felix Consent 

           15   Decree but related to Felix class children, right?

           16        A.    (By Mr. LeMahieu)  No, sir, not exclusively.  

           17   They were driven -- perhaps a word of explanation will 

           18   help.  The definition of the "class" is all individuals 

           19   birth through 20 identified as eligible for special 

           20   services under special education law or Section 504 who 

           21   need mental health services in order to benefit from 

           22   their educational program.  

           23              The critical attribute -- the critical 

           24   attribute defining the "class" is the mental health 

           25   services; but compliance under the Consent Decree means 




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            1   providing adequate special education services as well 

            2   because substantial compliance under federal law means 

            3   that we have constructed a system that both can 

            4   anticipate and serve a member of this class wherever 

            5   they may arise at whatever time they may arise whether 

            6   or not there are any in that place currently. 

            7              So, for example, if in some school there is 

            8   currently no Felix class children but we open up the 

            9   school year and one or two do, in fact, materialize, 

           10   there must be in that school a special education system 

           11   capable of serving special education children and able 

           12   to anticipate and properly serve this member of the 

           13   class. 

           14              Now, back in 1993 when the Felix matter was 

           15   brought, this system -- this school system, this state, 

           16   had in place a system of care for special education 

           17   sys -- children that was developed to an extent so as to 

           18   be able to serve probably no more than one-half, more 

           19   likely around one-third, of what you might have 

           20   expected. 

           21              Therefore, in order to comply with the 

           22   Consent Decree, we were required not just to deal with 

           23   that critical attribute, the mental health services, but 

           24   build the special education system up to its fullest 

           25   potential so that it could serve special education 




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            1   system -- I'm sorry -- serve special education children 

            2   in the main. 

            3              So, while one can speak on the one hand of 

            4   Felix costs in some unique sense -- and those costs 

            5   would be direct services for mental -- direct mental 

            6   health services, professionals in our schools delivering 

            7   mental health services to members of the class.  While 

            8   it's possible conceptually to speak of a set of costs 

            9   that are uniquely attributable to Felix and Felix only, 

           10   it is also impossible to come into compliance without 

           11   dealing with a whole host of special education needs 

           12   that this system has had to address as well. 

           13              So, my comment in my letter is meant to 

           14   suggest -- and apropos of your question some moments 

           15   ago, when we came to this Legislature with an emergency 

           16   request, just as when we come to the Legislature with a 

           17   budgetary request for this matter, some portion of it 

           18   addresses those costs which are uniquely Felix and none 

           19   other than Felix; and some portions of it address the 

           20   obligation that we have around special education without 

           21   which we couldn't possibly be in compliance. 

           22              And my comment here references the fact that 

           23   that complicated system -- that complicated situation 

           24   is, in fact, the reality; and what it also is 

           25   prefiguring is the fact that in this data which we're 




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            1   providing, in these reports which we're providing, you 

            2   will find a break-out according to two kinds of costs.  

            3   One of them pertains to Felix and Felix only; and the 

            4   other pertains to Felix and special education, 

            5   recognizing that one would not have come into compliance 

            6   and could not possibly come into compliance without also 

            7   dealing with the Felix-henced special education costs 

            8   also.  Hopefully, that helps. 

            9        Q.    Well, let me ask you -- so, you agree that 

           10   there are some costs that are directly attributable to 

           11   Felix, right?

           12        A.    (By Mr. LeMahieu)  Yes, sir. 

           13        Q.    And those have been segregated out?

           14        A.    (By Mr. LeMahieu)  Yes. 

           15        Q.    And then there are some other costs that are 

           16   not directly attributable to Felix; and those, I 

           17   understand you to say, are costs that were required 

           18   because of Felix and other requirements?

           19        A.    (By Mr. LeMahieu)  But they're necessary 

           20   under Felix and the federal law. 

           21        Q.    And now, can we tell from looking at those 

           22   documents, those contracts, for example, how much of 

           23   that contract was because of Felix and how much was 

           24   because of special education?

           25        A.    (By Mr. LeMahieu)  We do not do it on a 




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            1   contract-by-contract basis.  We assign the entirety of 

            2   the contract to one or the other category. 

            3        Q.    And how do you decide which category you're 

            4   going to assign it to?

            5        A.    (By Mr. LeMahieu)  By the nature of the 

            6   services, primarily. 

            7        Q.    Give me an example.

            8        A.    (By Mr. LeMahieu)  Well, if it's a contract 

            9   with a private provider to provide mental health 

           10   services, that is, in fact, the manifest definition of 

           11   the class.  That is the critical attribute of that 

           12   definition.  We would consider that Felix and Felix 

           13   only. 

           14        Q.    Now, that's a direct cost, though?

           15        A.    (By Mr. LeMahieu)  Yes.  Right.

           16        Q.    I'm talking about the ones where it seems 

           17   like you are apportioning between Felix, on the one 

           18   hand, and other costs to get special education up to 

           19   par.

           20        A.    (By Mr. LeMahieu)  In those cases, sir -- 

           21   again, I repeat -- we are not apportioning between them.  

           22   We are putting them together and lumping them into a 

           23   group called Felix and special education.  There is no 

           24   separation of the costs within that contract.

           25        Q.    Within that contract that might be the case.  




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            1   Though, in terms of how you present it, then, to the 

            2   Legislature --

            3        A.    (By Mr. LeMahieu)  Uh-huh.

            4        Q.    -- do you segregate that out -- those costs 

            5   out as to each contract as to how much you would 

            6   attribute to Felix and how much you would attribute to 

            7   special education?

            8        A.    (By Mr. LeMahieu)  No, sir.  We take the 

            9   entirety of the contract amount and make a judgment as 

           10   to whether or not it is Felix and Felix only or whether 

           11   it is Felix and special education made necessary and 

           12   obligated by the Consent Decree. 

           13        Q.    If it is Felix and special -- let's just 

           14   focus on that --

           15        A.    (By Mr. LeMahieu)  Yeah. 

           16        Q.    -- the Felix and special education items.

           17        A.    (By Mr. LeMahieu)  Uh-huh.

           18        Q.    Do you then attribute it to one side or the 

           19   other when you come to the Legislature?

           20        A.    (By Mr. LeMahieu)  Again, when you say "one 

           21   side or the other," do you mean Felix or special ed?

           22        Q.    Yes, yes.

           23        A.    (By Mr. LeMahieu)  No, we do not.

           24        Q.    And so, how do you categorize those items, 

           25   then, when you come to the Legislature, specifically?  




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            1   How do you identify it?

            2        A.    (By Mr. LeMahieu)  Forgive me.  I was 

            3   processing two inputs at once.  May I ask you one 

            4   question that may help clarify?

            5        Q.    Sure.

            6        A.    (By Mr. LeMahieu)  Are you asking about 

            7   contracts, in particular, or expenditures?  I hear you 

            8   speaking of coming to the Legislature with a budget 

            9   request.  So, I'm --

           10        Q.    I'm sorry.

           11        A.    (By Mr. LeMahieu)  -- I'm presuming that 

           12   you're not making a distinction --

           13        Q.    That's a good point.  That's a good point.  I 

           14   was focusing on the emergency appropriations. 

           15        A.    (By Mr. LeMahieu)  Okay.

           16        Q.    So, we are talking about goods and services 

           17   already expended.

           18        A.    (By Mr. LeMahieu)  Okay.

           19        Q.    With that in mind, how do you categorize -- 

           20   or do you categorize, then, even though they're for two 

           21   purposes -- in your mind, there are two purposes.  Do 

           22   you then attribute them to one or the other?  How do you 

           23   bring them to the Legislature so that they can look at 

           24   that and say "I see what that is"?

           25        A.    (By Mr. LeMahieu)  Right.  First of all, they 




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            1   go into the request -- maybe this is the first most 

            2   important thing to know.  They go into the request if 

            3   and only if they are absolutely necessary in order to 

            4   achieve compliance. 

            5              So, let's start with -- and your confining it 

            6   to the emergency request helps greatly.  They go into 

            7   the request if and only if they are necessary to achieve 

            8   compliance. 

            9              Now, in reality, as I was trying to suggest 

           10   earlier, in order to achieve compliance, we have to deal 

           11   with -- and this is just a conceptual distinction.  I'm 

           12   sure to the courts it doesn't matter at all.  They just 

           13   say you do what it takes to achieve compliance; but 

           14   because this Legislature and the auditor have been 

           15   interested in asking questions specifically aimed at 

           16   something called Felix costs and then expressing 

           17   surprise to find that there are special ed costs in 

           18   there as well, a cost for a special education teacher -- 

           19   which, frankly, may not have a Felix child under her 

           20   care, right?  And people say, "That's amazing to us.  

           21   How can that possibly be?  We're asking for Felix 

           22   costs."  

           23              It goes on the list because we will not be in 

           24   compliance unless a licensed special education teacher 

           25   is in place in School X when school opens this year; and 




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            1   so, it went into the emergency request -- costs like 

            2   that, I should say, go into the emergency request for 

            3   one reason and one reason only:  Because they're 

            4   absolutely necessary in order to achieve compliance. 

            5              Now, on the other hand, that special 

            6   education teacher teaching a class of special education 

            7   children or serving special education children in a 

            8   regular classroom may not be serving any Felix children 

            9   in particular this year; and that's caused some 

           10   consternation. 

           11              That's why it's worth taking a moment to 

           12   understand that compliance in this matter is achievable 

           13   and possible only if this system brings on board that 

           14   special education teacher.  And, hence, it's considered 

           15   by us a necessary, mandated, required cost; and, hence, 

           16   it goes into our efforts when we cost them out -- 

           17   whether it's in budget or emergency appropriation, it 

           18   goes into our costing in order to achieve compliance. 

           19              When someone then comes to us and says speak 

           20   only of Felix, speak only of Felix children, the 

           21   services to Felix children, the people serving Felix 

           22   children, or the contracts serving Felix children, then 

           23   we have a certain difficulty; and when people observe a 

           24   difference in the two figures, we have a need to 

           25   explain, which is what I'm trying to do here this 




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            1   morning. 

            2              But I will tell you this, to go back to your 

            3   question, you asked "How do we define what comes to the 

            4   Legislature in the case of the emergency appropriation?"  

            5   First of all, nothing goes on the list unless it's a 

            6   requirement to achieve compliance.  In that sense, we 

            7   consider it clearly to be a Felix compliance cost. 

            8              Beyond that, we are available; and we have 

            9   asked questions -- I'm sorry -- answered questions 

           10   repeatedly.  That's exactly what the process of 

           11   interaction around that submission has been about and, I 

           12   believe, should be about, which is, "This particular 

           13   item here, what's it really for?  Who does it really 

           14   serve?" 

           15              And in that dialogue, very often, people, I 

           16   hope, are getting some sense of those costs that are 

           17   legitimate to achieve compliance but may not be, for 

           18   example, mental health services. 

           19        Q.    All right.  Now -- thank you for your 

           20   explanation, Doctor. 

           21              So, what you're saying is you look at the 

           22   Consent Decree; and in fulfilling the requirements of 

           23   the Consent Decree, there are some costs that have to be 

           24   incurred that one would look at at a first glance and 

           25   not think they were Felix-type costs, right; but because 




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            1   of your requirement to get into compliance, you need to 

            2   expend that cost?

            3        A.    (By Mr. LeMahieu)  Right, those --

            4        Q.    So that you can identify those items, though, 

            5   can't you, that in your -- as far as your calculations 

            6   and your consideration would not be Felix costs directly 

            7   but are needed to comply with Felix?  You should be able 

            8   to do that, right?

            9        A.    (By Mr. LeMahieu)  Yes, and we believe we 

           10   have. 

           11        Q.    You have segregated them out in that sense 

           12   where if we look at a cost and it's not -- it doesn't 

           13   appear to be related to Felix and we go back to the 

           14   Consent Decree and we look at that and its amendments 

           15   and any additions to that Decree, we should be able to 

           16   match them up, shouldn't we?

           17        A.    (By Mr. LeMahieu)  What you will find on this 

           18   list organized by fiscal year is a listing, first, of -- 

           19   let me talk contracts because they're cleanest. 

           20              What you will find on this list organized by 

           21   fiscal year is a list, first of all, of contracts that 

           22   are for Felix services only, targeted to and given only 

           23   to Felix class children.  Those are the pure Felix 

           24   costs.  You will find them identified as such; and 

           25   within fiscal year 2000, for example, the first several 




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            1   entries are these so-called Felix only ex -- contracts. 

            2        Q.    So that those -- those services, those 

            3   contracts, would not have been let except for the 

            4   existence of one or more Felix students?

            5        A.    (By Mr. LeMahieu)  That's correct. 

            6        Q.    All right.

            7        A.    (By Mr. LeMahieu)  That's correct.  That's 

            8   correct.

            9        Q.    I'm sorry I interrupted you.

           10        A.    (By Mr. LeMahieu)  No, no, that's quite all 

           11   right because that does help.  That gives me something 

           12   which I think will clarify, then, the next set. 

           13              The next listing within that same budget 

           14   fiscal year will be a listing of entries that are 

           15   labeled Felix plus special education, okay? 

           16              Again, that's a listing of entries that would 

           17   not have been occurred -- incurred -- that's a listing 

           18   of contracts that would not have been let had there not 

           19   been an obligation to come into compliance; and to use 

           20   your language, which I think does help, that's a listing 

           21   of entries that would not have been let other than the 

           22   obligation to come into compliance, though, they may not 

           23   be for services that are serving just Felix children as 

           24   you've -- as you've framed it. 

           25        Q.    So that looking at those types of contracts, 




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            1   the latter ones you described, Doctor, looking at 

            2   that -- those contracts where they appear not to be for 

            3   Felix only students --

            4        A.    (By Mr. LeMahieu)  Uh-huh. 

            5        Q.    -- or not Felix students at all and then 

            6   looking at the Consent Decree and any of its amendments 

            7   or stipulations, one should be able to determine why, in 

            8   fact, that cost was incurred?

            9        A.    (By Mr. LeMahieu)  Absolutely.  And that's a 

           10   perfectly legitimate thing to do.  There's just one 

           11   other thing that I -- that might clarify also a side of 

           12   this situation. 

           13              I suspect that that correspondence, Felix, 

           14   Felix only, Felix plus, or, as you put it, not at all 

           15   Felix but necessary under the Consent Decree -- I 

           16   suspect that there is a neater -- that that 

           17   correspondence between contract amount, et cetera, et 

           18   cetera, is neater in the example of contracts than in 

           19   the example of under-budgeted items within our budget 

           20   because when we bring personnel on board, for example, 

           21   they serve children; and they serve the children who 

           22   need them. 

           23        Q.    Well, but when you bring personnel on board 

           24   and you consider it to be Felix-related, although it 

           25   does not appear so at first glance, one should be able 




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            1   to go to some requirement in terms of people/teacher 

            2   ratio --

            3        A.    (By Mr. LeMahieu)  Absolutely correct. 

            4        Q.    -- and then confirm that, in fact, that cost 

            5   that does not appear to be related to Felix is, in fact, 

            6   related --

            7        A.    (By Mr. LeMahieu)  Absolutely. 

            8        Q.    -- because of compliance?

            9        A.    (By Mr. LeMahieu)  Yeah. 

           10        Q.    All right.  The areas of documents that you 

           11   were not able to bring forward today and your request 

           12   for 90 days to then obtain those documents for us -- 

           13   you, of course, are familiar with the personnel in the 

           14   state auditor's office, in the Ways and Means Committee 

           15   in the Senate, and the Finance Committee in the House, 

           16   are you not?  Your people have worked with them?

           17        A.    (By Mr. LeMahieu)  Absolutely, yes. 

           18        Q.    And they are qualified, competent people, are 

           19   they not?  You're nodding your head.

           20        A.    (By Mr. LeMahieu)  That's only because -- 

           21   that's because I have -- honestly have no basis on which 

           22   to answer the question. 

           23        Q.    I understand.

           24        A.    (By Mr. LeMahieu)  When I'm asked questions 

           25   about the qualifications of my staff, they're usually 




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            1   referring to something quite particular; and I certainly 

            2   can't speak to those particulars. 

            3        Q.    All right.  Now, would you be willing to 

            4   allow these people, assuming they don't disrupt your 

            5   operations or your ongoing efforts to comply with the 

            6   Decree, allow -- have them assist your personnel in 

            7   obtaining those documents, that information?  

            8   Ms. Johnston?

            9        A.    (By Ms. Johnston)  I think that --

           10        A.    (By Mr. LeMahieu)  Ms. Johnston is a good 

           11   deal more cautious than I am.

           12        A.    (By Ms. Johnston)  Well -- because I've 

           13   worked at both the Legislature and the auditor's office, 

           14   frankly, maybe I have a little bit of an inside view on 

           15   the situation; but I think the schools might be 

           16   reticent, frankly, to allow individuals into the 

           17   schools, No. 1, because some of those contracts might 

           18   have confidential student information in there.  I don't 

           19   know. 

           20              But I think if you wanted your staff to 

           21   provide the framework by which we could collect the 

           22   data -- which you have to understand, we are a 

           23   state-financed school system.  We are not just another 

           24   state agency.  I think it would be very disruptive to 

           25   have folks going through school files at this point, 




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            1   especially when school is just starting.

            2        A.    (By Mr. LeMahieu)  May I answer the question 

            3   with respect to the general principle that you propose?  

            4   Accepting Laurel's, I think, reasonable and good 

            5   cautions, it's well worth sitting down to talk it 

            6   through.  This is actually a long-standing offer that 

            7   we've had out to the auditor's office, to this panel.  

            8   And if we could sit down and talk it through and 

            9   accepting the sincerity of your comment that there be no 

           10   disruption and no intrusion, whether it is, in fact, 

           11   either legal or not permissible, et cetera, et cetera, 

           12   with some discussion around points like that, your 

           13   general question, I would answer yes. 

           14        Q.    Thank you.  Well, in terms of Ms. Johnston's 

           15   point about confidentiality, for example, the auditor's 

           16   office does go into a number of agencies and departments 

           17   where there is such information; and they keep it 

           18   confidential.  They're required by law to do that. 

           19        A.    (By Ms. Johnston)  I understand.

           20        A.    (By Mr. LeMahieu)  We understand that.  We 

           21   also have had examples in the past -- and I'll just make 

           22   this statement and then allow it to people much smarter 

           23   than I to work it out. 

           24              There's confidentiality, and then there's 

           25   confidentiality.  There's federal law protecting the 




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            1   confidentiality of children, their life stories, and 

            2   their family's stories that we have been told, actually, 

            3   by the Attorney General presuppose upon the authorities 

            4   of the auditor to just go wherever her sense of her work 

            5   might take her.  I don't know who is right in that 

            6   matter; but it's certainly something for which we have 

            7   to honor -- those who know law, the advice they give us. 

            8              SPECIAL COUNSEL KAWASHIMA:  All right.  Thank 

            9   you.  I have no further questions of Dr. LeMahieu at 

           10   this time.

           11              CO-CHAIR REPRESENTATIVE SAIKI:  Thank you.  

           12   At this point, we would like to ask members if they have 

           13   any questions limited to the area of the authentication 

           14   of the documents and records just produced. 

           15              Okay.  If not, thank you very much.

           16              CO-CHAIR SENATOR HANABUSA:  I do. 

           17              CO-CHAIR REPRESENTATIVE SAIKI:  I'm sorry.  

           18   Co-Chair Hanabusa. 

           19                          EXAMINATION

           20   BY CO-CHAIR SENATOR HANABUSA: 

           21        Q.    Dr. LeMahieu --

           22        A.    (By Mr. LeMahieu)  Yes, ma'am. 

           23        Q.    -- or Laurel, the $25,000 -- the small 

           24   contracts that you reference, is there a specified 

           25   amount per school that your -- that the administration, 




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            1   your office, permits each school to have?  In other 

            2   words, hypothetically, you would tell each school you 

            3   may issue small contracts not to exceed the aggregate 

            4   amount of $100,000 a year?

            5        A.    (By Mr. LeMahieu)  No.

            6        Q.    Anything like that?

            7        A.    (By Mr. LeMahieu)  We follow the law on that.  

            8   It's a contract-by-contract basis.  Though, we do remind 

            9   them that the practice known as parcelling, that is to 

           10   say, taking larger sums and breaking them up into 

           11   contracts that fit under that cap, is both illegal and 

           12   not acceptable in our view; but we take each contract on 

           13   an individual basis.  And so, we just pass that along as 

           14   the law describes it. 

           15        Q.    I understand.

           16        A.    (By Mr. LeMahieu)  There's no aggregate 

           17   amount. 

           18        Q.    I understand that, Dr. LeMahieu.  Maybe I'm 

           19   not making myself clear.  I don't believe you would 

           20   permit every school to write as many $25,000 contracts 

           21   as it wants.  So, is there some kind of guiding 

           22   principle that either yourself or the Board of Education 

           23   has established that no school shall exceed "X" amount 

           24   or -- you know, arguably a school could write $1 million 

           25   of $25,000 contracts.




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            1        A.    (By Mr. LeMahieu)  Right, right.  And, in 

            2   fact, in theory they could.  There is an overacting 

            3   guiding principle.  The overacting guiding principle is 

            4   their budget for which they are accountable through 

            5   other means, and that simply doesn't permit the practice 

            6   that you're suggesting. 

            7        Q.    Okay.  So, in their respective budgets, are 

            8   they given a line item --

            9        A.    (By Mr. LeMahieu)  Yes. 

           10        Q.    -- of $25,000 of small contracts --

           11        A.    (By Mr. LeMahieu)  No, no, no, no, no. 

           12        A.    (By Ms. Johnston)  Senator, the schools' 

           13   budgets are done by program IDs.  There are over -- I'm 

           14   sure the auditor's office knows this well -- hundreds.  

           15   No school, to my knowledge, would have vast resources 

           16   under those kind of moneys to be able to do the kind of 

           17   contracts you're talking about.  That's why it's going 

           18   to be a challenge.  We are talking about probably very 

           19   small contracts, not thousands and thousands of dollars 

           20   of contracts.  The schools just don't have that type of 

           21   resource available to it. 

           22        Q.    That's my understanding.  So, what I'm trying 

           23   to get at is that when you say it's going to take you 90 

           24   days to come up with this, the image that it calls into 

           25   my mind is that you've got all these schools writing 




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            1   these huge contracts out there.  Is there, like, a rule 

            2   of thumb of some sort that says -- well, on the average, 

            3   do you know what the average is per school as to how 

            4   many small contracts each school may write? 

            5        A.    (By Ms. Johnston)  We don't have that 

            6   information.

            7        A.    (By Mr. LeMahieu)  No, ma'am. 

            8        Q.    Well, would it be a safe assumption on our 

            9   part that it wouldn't exceed, for example, $100,000 of 

           10   small contracts per principal or per school?

           11        A.    (By Mr. LeMahieu)  Actually, I don't think 

           12   that's safe.  Earlier on, we were discussing controlling 

           13   mechanisms; and we were describing the budget and the 

           14   controlling mechanism. 

           15              The budget is divided into object codes, 

           16   program IDs.  They are not permitted to exceed the 

           17   amount budgeted by program ID.  That's a very, very 

           18   serious and stringent cap on both the number and the 

           19   size of these things.  That's why I was confident in 

           20   saying nobody is writing millions of dollars worth of 

           21   $22,000 contracts. 

           22              On the other hand, there is no limit to the 

           23   number; and one can write quite a few $1,500 contracts.  

           24   It's differentiated by the hundreds of program IDs and 

           25   multiplied by the 261 campuses around this state. 




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            1        Q.    Well, is there either a per capita breakdown 

            2   or by school breakdown as to how much of these kind of 

            3   discretionary funds, irrespective of program IDs, that a 

            4   principal has?

            5        A.    (By Mr. LeMahieu)  It -- in fact, you can 

            6   find it right on the Web.  You will find reports that 

            7   tell you -- and if you went to certain -- a program ID 

            8   lines -- for example, people are not taking out 

            9   contracts off of personnel lines, for example.  You 

           10   could go there, and we could -- or we could do it 

           11   together.  I mean, you're looking for some aggregate 

           12   amount of what's possible; but I would remind you, 

           13   that's an upper limit, obviously. 

           14        Q.    Well, what is that upper limit?

           15        A.    (By Mr. LeMahieu)  I don't know.  I haven't 

           16   prepared that for you today.

           17        Q.    Now, you talk about the fact that, you know, 

           18   they can do this -- they can write these amounts of 

           19   moneys; but isn't it at some point in time that these 

           20   funds begin to lapse?  So, doesn't it then come back 

           21   either to yourself, the Board, or somebody that says -- 

           22   I think you would only retain about 5 percent in each 

           23   respective school so --

           24        A.    (By Mr. LeMahieu)  Right. 

           25        Q.    So, at some point in time, you get some 




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            1   reporting back, don't you?

            2        A.    (By Mr. LeMahieu)  Yeah.  Well, we are 

            3   able -- we are able to track -- and thank you for asking 

            4   the question because apropos of our earlier comments 

            5   where we're trying to explain why it is we can't tell 

            6   you specifically the amounts of contracts, who they were 

            7   with, et cetera, et cetera, that might have been 

            8   executed for $750 at a school, in point of fact, we do 

            9   track budget sums; and that's closely monitored. 

           10              And you're absolutely correct that at the end 

           11   of each fiscal year, subject to the laws that govern 

           12   this matter, there is carryover to a certain amount.  

           13   There is lapsing of moneys that have been in the 

           14   school's domain long enough that they no longer are able 

           15   to retain them for carryover.  Those sorts of things are 

           16   at work also, yes; and there are controls over what is 

           17   possible within this small school -- small contract 

           18   domain. 

           19        Q.    Dr. LeMahieu, your responses -- we were 

           20   mixing the -- we're only talking about Felix or 

           21   Felix-related items here.

           22        A.    (By Mr. LeMahieu)  Uh-huh.

           23        Q.    So, are you telling me that any -- at a given 

           24   end of a school period or school year or fiscal year for 

           25   the school, that your office or Ms. Johnston's office 




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            1   does not know how much money is going to lapse back from 

            2   the respective schools on Felix-related items? 

            3        A.    (By Ms. Johnston)  Senator, let me explain 

            4   about the, I guess, bifurcation of the department.  The 

            5   budget office is responsible for compiling the budget.  

            6   It is done by a planning program and budgeting system 

            7   that is required under state law, as I'm sure you're 

            8   aware. 

            9              The accounting office, which is not under the 

           10   budget office, keeps track of the expenditures.  They 

           11   keep track of it based on -- I believe it's generally 

           12   accepted accounting -- government accounting.

           13        Q.    Yes.

           14        A.    (By Ms. Johnston)  Okay.  That's a totally 

           15   different section of the department.  So, if you want to 

           16   talk about expenditures and how they're accounted for, 

           17   you need to talk to the accounting folks.

           18        A.    (By Mr. LeMahieu)  Now, when you --

           19        A.    (By Ms. Johnston)  And they're here; but I 

           20   can talk about the budget, how money is sent out to the 

           21   schools, how it's allocated.  I can't speak to the 

           22   expenditure that --

           23        Q.    So, you can tell us how much money is given 

           24   to each school?

           25        A.    (By Ms. Johnston)  No, I can tell you how 




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            1   much is sent out under program IDs.  That's how the 

            2   budget -- in the State of Hawaii, we're required to do 

            3   it by program structure, not by the way it's accounted 

            4   for on the back-end.  Unfortunately the State of Hawaii, 

            5   like many states, has a bifurcation of the system. 

            6        Q.    So, Ms. Johnston, EDN 150 --

            7        A.    (By Ms. Johnston)  Uh-huh.

            8        Q.    -- what is that to you?

            9        A.    (By Ms. Johnston)  EDN 150 is a program 

           10   budget item.  We have certain program budget categories 

           11   under that. 

           12        Q.    And where -- does it include Felix and 

           13   special education or is it just covering Felix and 

           14   special education?

           15        A.    (By Ms. Johnston)  It includes things -- 

           16   including special education, Felix, and other items.  

           17   It's actually technically the comprehensive student 

           18   support system.  It is not just special education, nor 

           19   is it just Felix. 

           20        Q.    So, if we were look to for the sole issue of 

           21   each school -- since we've brought up this small 

           22   contract issue with each school, if we want to look at 

           23   Felix-related items that you said would be identified by 

           24   program ID --

           25        A.    (By Ms. Johnston)  Uh-huh. 




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            1        Q.    -- besides EDN 150, which may not be only 

            2   Felix or special-ed-related items --

            3        A.    (By Ms. Johnston)  Uh-huh. 

            4        Q.    -- are there other program IDs that would 

            5   also be responsive to Felix or special education -- 

            6   and/or special education budget items?

            7        A.    (By Ms. Johnston)  I believe in -- this 

            8   program ID was established in 1999, wasn't it?  At the 

            9   time the department shredded out what they thought were 

           10   special education, quote, "Felix" items, established us 

           11   to actually develop our comprehensive student support 

           12   system, which is what we want to do. 

           13              There will be some crossover in EDN 100 

           14   because that's where the majority of the positions our 

           15   Superintendent mentioned earlier.  Okay.  Again, this 

           16   department -- 85 percent of our costs is personnel 

           17   driven.  We did not necessarily take a special education 

           18   position and put it under EDN 150. 

           19        Q.    So, the short of it all is is that if we were 

           20   to look at a budget for a respective school, we would 

           21   not be able to go punch in Program ID XYZ and we would 

           22   know all the Felix or Felix-related costs?

           23        A.    (By Ms. Johnston)  Not necessarily that way. 

           24              MS. JOHNSTON:  Chris, maybe you need to --

           25              MR. LeMAHIEU:  Can you come clarify?




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            1              CO-CHAIR REPRESENTATIVE SAIKI:  Could you 

            2   state your name for the record, please?

            3              MR. ITO:  Chris Ito. 

            4              CO-CHAIR REPRESENTATIVE SAIKI:  And what is 

            5   your position with DOE?

            6              MR. ITO:  I'm the accounting director.

            7              CO-CHAIR REPRESENTATIVE SAIKI:  Okay.  Thank 

            8   you.  I would like to administer the oath to you at this 

            9   point. 

           10              Do you solemnly swear or affirm that the 

           11   testimony you are about to give will be the truth, the 

           12   whole truth, and nothing but the truth?

           13              MR. ITO:  Yes.

           14              CO-CHAIR REPRESENTATIVE SAIKI:  Thank you.

           15                          EXAMINATION

           16   BY MR. CO-CHAIR SENATOR HANABUSA:

           17        Q.    You heard the discussion, Mr. Ito.  What I'm 

           18   trying to understand -- I'm trying to get a better 

           19   handle of these small contracts it's going to take us 90 

           20   days to get. 

           21              Now, is there a way, if we were to look at 

           22   each -- well, let's go back.  You heard the testimony 

           23   that it's $25,000 or less.  Those are the small 

           24   contracts.  We agree on that, correct?

           25        A.    (By Mr. Ito)  Right, right.




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            1        Q.    Except for 1997, which is less.  Now, I'm 

            2   trying to understand whether there's a certain amount 

            3   that we can attribute to each school related to Felix.  

            4   Is there such an amount? 

            5        A.    (By Mr. Ito)  If the program IDs that was 

            6   mentioned earlier is identified as Felix -- that's how 

            7   our accounting records are kept, but it may include more 

            8   than just the services of the contracts that were let 

            9   out.  It could be for actual purchase orders for 

           10   supplies and equipment or whatever they buy from 

           11   those -- that program ID. 

           12        Q.    So, in your mind, as the accounting -- what 

           13   is your position, director of accounting?

           14        A.    (By Mr. Ito)  Yes. 

           15        Q.    So, as the director of accounting, when you 

           16   look at program IDs for any respective school, can you 

           17   tell me, if you're looking for Felix -- Felix-related 

           18   costs, what program IDs you would be looking at?

           19        A.    (By Mr. Ito)  The Felix-related costs, the 

           20   program IDs are defined as Felix-related costs, yeah.  

           21   So -- but all expenditures for that program ID are kept 

           22   under one program. 

           23        Q.    And what is that program?

           24        A.    (By Mr. Ito)   Well, it varies.  There's 

           25   various program IDs that have Felix-related costs. 




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            1        Q.    So, do you know them off the top of your 

            2   head, for example?

            3        A.    (By Mr. Ito)  No, I don't. 

            4        Q.    So, what is EDN 150?

            5        A.    (By Mr. Ito)  EDN 150, again, is all -- like 

            6   CSSS, what Laurel is saying.

            7        A.    (By Mr. LeMahieu)  It's the comprehensive 

            8   student support system. 

            9        Q.    So --

           10        A.    (By Mr. LeMahieu)  When we speak in this 

           11   instance of programs, we're talking about a finer cut 

           12   than 150.

           13        Q.    Within the budget of a school?

           14        A.    (By Mr. LeMahieu)  Right. 

           15        Q.    So, if we were to look at a school's budget, 

           16   Mr. Ito, would we be able to get from that school budget 

           17   Felix-related -- will it say "Felix dash supplies, Felix 

           18   dash personnel," something like that?  Is that how it 

           19   looks like?

           20        A.    (By Mr. Ito)  It's all related to the program 

           21   ID, and the object code that we have there is strictly 

           22   office supplies or classroom supplies.  It doesn't say 

           23   Felix.  The program identifies whether it's a 

           24   Felix-related cost or not. 

           25              MR. LeMAHIEU:  Would you give me one moment?




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            1              CO-CHAIR SENATOR HANABUSA:  SURE.

            2              MR. LeMAHIEU:  I think if I ask a question or 

            3   two, it might --

            4              (Discussion off the record.)

            5              MR. LeMAHIEU:  Okay.  I think we understand 

            6   where you're going.

            7              CO-CHAIR SENATOR HANABUSA:  Okay.

            8              MR. LeMAHIEU:  And I think we figured out --

            9              CO-CHAIR SENATOR HANABUSA:  Go ahead.

           10              MR. LeMAHIEU:  I'm going to ask him to check 

           11   me.  You listen to me. 

           12              CO-CHAIR SENATOR HANABUSA:  Okay.

           13        A.    (By Mr. LeMahieu)  One can go into each 

           14   school and identify program IDs.  The program IDs are 

           15   pretty clean, meaning those that are known to be 

           16   Felix -- have Felix costs in them and none other. 

           17              Those that are not thought of as -- well, let 

           18   me give you, within 150, some other real examples.  

           19   Those that are English as a second language are English 

           20   as a second language costs and have no Felix costs in 

           21   them. 

           22              In other words, one can bifurcate into those 

           23   that are Felix-related costs by program ID; and one 

           24   could sum those amounts for schools and then across 

           25   schools for a system.  So, I think where you were headed 




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            1   was:  Is it possible to triangulate to -- the upper 

            2   bound on what these things could possibly be, 

            3   recognizing that the actual amounts fall well within 

            4   probably because in there -- what I think is true, what 

            5   I think Mr. Ito is suggesting, is that in there you will 

            6   have all different manners of expenditures.  You'll have 

            7   some that are supplies and some that are contracts for 

            8   services. 

            9        Q.    So, the --

           10        A.    (By Mr. LeMahieu)  Is what I said accurate?

           11        A.    (By Mr. Ito)  I think if you look at requests 

           12   from before for the last two years, we did give you a 

           13   program ID by-object-code breakdown for each of the 

           14   programs.  So, in that request for the last two years, 

           15   we did show you an object code breakdown, which is 

           16   office supplies, classroom supplies, and by each program 

           17   ID.  So, if -- I think if you look at that report, that 

           18   pretty much gives you an idea of totally by program 

           19   statewide how much we spent for those particular program 

           20   IDs. 

           21        A.    (By Mr. LeMahieu)  So, apropos of your 

           22   question, I think what you're asking for is actually 

           23   provided in here. 

           24              I made the point of asking the question to 

           25   make certain I understood what was being handed over.  




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            1   The contract amounts, the contract object codes, the 

            2   contract lines are also in there.  They're a subset of 

            3   the whole program code set; but you've got it there for 

            4   the whole of the system. 

            5        Q.    So, this -- Mr. Ito, so these program IDs are 

            6   available by each school as well?  Each school is 

            7   trained to do this, correct? 

            8        A.    (By Mr. Ito)  Right, right.  That's how the 

            9   expenditures are made. 

           10        Q.    Okay.  Do these schools give you or someone 

           11   in the department, either on a periodic or yearly basis, 

           12   a reporting as to how much money they're spending?

           13        A.    (By Mr. Ito)  That's an on-line system.  We 

           14   have our FMS on-line system.  They prepare expenditure 

           15   plans and allotments come over to the FMS system and the 

           16   FMS system will monitor the amount of funding that they 

           17   have.  And they cannot exceed that amount by program -- 

           18   by program ID that they have been allotted to -- in the 

           19   FMS system.  So, as purchase orders are made, it reduces 

           20   the balances that is in the allotment for the -- in the 

           21   FMS system. 

           22        Q.    And who creates that allotment per school per 

           23   program ID?

           24        A.    (By Mr. Ito)  The schools prepare an 

           25   expenditure plan from the allocation that the budget 




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            1   office gives them by program ID. 

            2        Q.    Okay.  So, the budget office gives it to 

            3   them?

            4        A.    (By Mr. Ito)  Gives them an allocation and 

            5   then expenditure plans are prepared and the allotment 

            6   comes to the FMS accounting system after the expenditure 

            7   plans are prepared. 

            8        Q.    So, how difficult would it be for you or the 

            9   department to generate for us -- and I don't know if 

           10   it's given there -- by school some kind of -- whether 

           11   it's quarterly or year-end basis, as to what has been 

           12   expended by budgets? 

           13              We can get -- we can, for example, know that 

           14   School Z has a huge amount of allocation for 

           15   Felix-related costs and has expended all this money in 

           16   terms of small contracts; and if we want to start there 

           17   versus starting from A to Z, is that something that you 

           18   can generate for us? 

           19        A.    (By Mr. Ito)  Yes.  The accumulation of the 

           20   school-by-school data made this report for Item No. 4.  

           21   So, if you just want data for -- school by school, it's 

           22   just printing out or giving you an electronic record for 

           23   the school-by-school data; but that's only for the two 

           24   years that we have on-line. 

           25        Q.    I understand.  But it will give us at least 




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            1   an idea of which schools we may want to focus on first, 

            2   will it not?

            3        A.    (By Mr. Ito)  Yes.  So, if you -- we can give 

            4   you that electronic data school by school for Item 

            5   No. 4 -- in Item No. 4 category. 

            6        A.    (By Mr. LeMahieu)  And you will find here 

            7   provided for you already those same data aggregated by 

            8   program restricted only to the Felix-related costs for 

            9   the whole of the system.  One of the lines you will 

           10   find -- one of the object codes in there you'll find is 

           11   contracted services where you wanted to pull out just 

           12   the contract amount to cross the programs. 

           13        Q.    So, we could pull that out by school -- if we 

           14   wanted to look at the contracts by school, we could 

           15   target those specific schools?  That wouldn't be a 

           16   program --

           17        A.    (By Mr. Ito)  What was expended.

           18        A.    (By Mr. LeMahieu)  We could.  We haven't 

           19   provided it yet. 

           20        Q.    Right.  Right.  Okay.  Now, the other 

           21   question I have is that you said that it would take 

           22   three months.  Is it the DOE's plan or expectation that 

           23   you will come back in three months and give us all this 

           24   information or can we work out some kind of a periodic 

           25   kind of production as we go along on those items that 




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            1   you said it would take you three months?

            2        A.    (By Mr. LeMahieu)  Oh.  Well, first of all, 

            3   let me just say, we sincerely want to work together to 

            4   make sure, first of all, that what we provide to you is, 

            5   in fact, what you most need to do the work you have to 

            6   do. 

            7              We are a little bit anxious because when one 

            8   gets a listing like we saw in the Subpoena, it's 

            9   incumbent upon us to make interpretations of what 

           10   exactly it is you want; and absent any discussion, we 

           11   certainly hope we've gotten it right. 

           12              That same spirit also carries over in 

           13   responding to your question.  Not only can we make 

           14   things available in part as they come available, we are 

           15   glad to be directed by what serves you best as to where 

           16   to focus first.  All kinds of things of that sort are 

           17   possible if we can talk.  

           18              CO-CHAIR SENATOR HANABUSA:  Thank you.  I 

           19   have nothing further. 

           20              CO-CHAIR REPRESENTATIVE SAIKI:  Okay.  Thank 

           21   you.  Members, any other questions?  Senator Buen?

           22              SENATOR BUEN:  Thank you.

           23                          EXAMINATION

           24   BY SENATOR BUEN:

           25        Q.    Dr. LeMahieu --




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            1        A.    (By Mr. LeMahieu)  Yes, ma'am. 

            2        Q.    -- how many years has the Department of 

            3   Education had the financial management system in place?

            4        A.    (By Mr. LeMahieu)  Every time you ask one of 

            5   those old-timer questions we've got to --

            6        A.    (By Mr. Ito)  Yeah, about 1992.  We started 

            7   in 1989 to get it on board; but, you know, it took 

            8   several years of work to do. 

            9        Q.    Okay.  So, since it was in place in 1992 and 

           10   it was really -- the bugs taken out and everything -- in 

           11   place, let's say, in 1993 or 1994 in full service, I 

           12   still can't understand -- maybe you can explain to me -- 

           13   why can't we get from the schools the information that 

           14   you're saying it will take three months to give to us?   

           15   I can't understand that. 

           16        A.    (By Mr. Ito)  We need to identify the record, 

           17   and only the school or the program manager knows the 

           18   record.  When I say the "record," I mean the purchase 

           19   order. 

           20              If we don't know what the purchase order 

           21   number is, we don't -- we cannot go to the system and 

           22   identify the record because there may be other contracts 

           23   that the school has that's not Felix-related.  So, we 

           24   can't just pull up everything. 

           25              So, the record that needs to be identified in 




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            1   FMS is the purchase order number.  So, once we know 

            2   that --

            3        Q.    Okay.

            4        A.    (By Mr. Ito)  Even the large ones over 

            5   25,000, we don't have the record -- the program -- 

            6   either the purchase order number or the contract number 

            7   centrally.  It's decentralized at the school or the 

            8   office, and that's where the record is. 

            9              So, somebody needs to let us know what that 

           10   rec -- what that number is in order to -- for us to go 

           11   into the system to find out what the expenditures were. 

           12        A.    (By Mr. LeMahieu)  And so, working just 

           13   within the financial management system, the information 

           14   is undifferentiated as to whether it is, first of all, a 

           15   Felix -- a Felix expenditure; and the other is that it 

           16   is a listing of expenditures and payees only. 

           17              If, for example, you need to know -- as your 

           18   request signals, you want to know which things are 

           19   contracted -- services are contracted or expenditures 

           20   pursuant to contracts, again, you need the record.  You 

           21   need to know that it's the record that's associated with 

           22   a contract because what we know is there was a check 

           23   written for a certain amount to a certain vendor.  And 

           24   some of them are obvious.  Office Max probably is 

           25   providing just what we know Office Max to provide.




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            1        Q.    Does the department have any plans in setting 

            2   up a program to do just that so that you -- you know, to 

            3   identify these areas instead of going back to them and 

            4   having the dialogue and finding out from the schools by 

            5   each program number?  Do you have a plan in place right 

            6   now to do just that?  Because it takes a long time, it 

            7   seems like --

            8        A.    (By Mr. LeMahieu)  No.

            9        Q.    -- to go through that process that you're 

           10   going through now.

           11        A.    (By Mr. LeMahieu)  Absolutely correct.  And 

           12   something probably -- I might have said at the very 

           13   beginning is that, you know, your disappointment in our 

           14   not being able to do this more expeditiously is shared 

           15   by us. 

           16              This has come about because as the 

           17   department's resources have been curtailed over the last 

           18   several years and the new resources that have come in 

           19   have gone directly to address special education needs, 

           20   Felix obligations, et cetera, et cetera, the 

           21   infrastructure that you're asking for has atrophied 

           22   tremendously. 

           23              We used to be able to fool people because we 

           24   used to have large numbers of folks even who, when a 

           25   request like this came in, could pick up the slack.  




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            1   Unfortunately in the last eight years, the number of 

            2   state office positions have dwindled to 43 percent by 

            3   actual count.  That means there aren't even the people 

            4   to do what the machinery cannot for us.  We would like 

            5   to do exactly what you're asking for.

            6              SENATOR BUEN:  Thank you, Dr. LeMahieu.  

            7   Thank you, Co-Chair.

            8              CO-CHAIR REPRESENTATIVE SAIKI:  Thank you 

            9   very much.  Senator Slom?

           10              SENATOR SLOM:  Thank you, Mr. Chair.  

           11                          EXAMINATION

           12   BY SENATOR SLOM:

           13        Q.    I don't want to beat this to a dead -- this 

           14   dead horse about the 90-day period but, really, when 

           15   Mr. Kawashima had asked earlier why 90 days, why not 30 

           16   days, why not 120 days, you had made a statement, 

           17   Dr. LeMahieu, earlier in regard to the voluntary log for 

           18   services saying it was not trustworthy but that you 

           19   could compel the schools.  Why can you not compel the 

           20   schools to get this information in a more expedient 

           21   manner?

           22        A.    (By Mr. LeMahieu)  You mean, if we were to 

           23   issue the orders today saying produce, why could we not 

           24   write in 60 days instead?

           25        Q.    Or 30 days?




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            1        A.    (By Mr. LeMahieu)  Or 30 days?

            2        Q.    Yes.

            3        A.    (By Mr. LeMahieu)  We could write on that 

            4   page whatever we cared to.  We're trying to estimate for 

            5   you what it will take them to actually do what we're 

            6   asking, and we're trying not to make promises that we 

            7   can't keep.  That's very important in this environment. 

            8        Q.    Certainly.

            9        A.    (By Mr. LeMahieu)  So, I'm relying on the 

           10   judgment -- as you heard Ms. Johnston say, having gone 

           11   to the program managers, having spoken to some of the 

           12   principals, having gotten from them a sense of the 

           13   resources they have available to respond to requests 

           14   like this -- I would like to say that I hope we could be 

           15   optimistic and deliver, perhaps, even well within that 

           16   time line.  My preference nonetheless would be to give 

           17   you a time line that we can, in fact, deliver on. 

           18        Q.    Is this actually the first time that you've 

           19   been requested information on this measure?

           20        A.    (By Mr. LeMahieu)  On a wholesale basis, to 

           21   my knowledge, yes, certainly over the time I've been 

           22   here. 

           23        Q.    Information that the auditors sought, did you 

           24   ever find it necessary to try and -- or suggest to 

           25   compel the schools to provide that information so you 




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            1   could give that information to the auditor?

            2        A.    (By Mr. LeMahieu)  The last time the auditor 

            3   looked at financial matters was just prior to my 

            4   arrival.  I'll ask what -- what had to be done to 

            5   comply. 

            6        A.    (By Mr. Ito)  I think in the auditor's audit, 

            7   they asked for information; and we would try to provide 

            8   it.  So, if -- you know, in these kind of situations, 

            9   whatever the request was, whether electronically or 

           10   whether they wanted to see it on-line, those things are 

           11   made available to the auditor's office. 

           12        Q.    But if the information has not been made 

           13   available, what I'm trying to get at:  Was there an 

           14   attempt to try to compel the schools or other 

           15   department -- other agencies within the department to 

           16   provide that information?

           17        A.    (By Mr. LeMahieu)  To our knowledge, we don't 

           18   believe that there has ever been a request for 

           19   information that would have necessitated compelling the 

           20   schools to do this.  We certainly would have done that 

           21   had it been necessary. 

           22        Q.    And is it your contention that all 

           23   information that has been sought in the past has been 

           24   delivered? 

           25        A.    (By Mr. LeMahieu)  Absolute -- as best we 




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            1   can, yes.  We, frankly, recognize that there are holes 

            2   in our information system.  There's no question about 

            3   that.  If your request is:  Is there anything available 

            4   to us that's been withheld, that, I can say with 

            5   confidence, no, absolutely not. 

            6        Q.    Prior to your arrival here or since your 

            7   arrival?

            8        A.    (By Mr. LeMahieu)  Since my arrival I hope to 

            9   say absolutely not.

           10        Q.    One final question, Mr. Chair, that has to do 

           11   with the vendor information in the contracts.  That 

           12   seems to be the easiest for you to provide, and that's 

           13   hopefully what we're going to see in these records. 

           14              It's up to the schools to determine the 

           15   contracts, how they're let and so forth.  Is there any 

           16   kind of mechanism or is the DOA -- DOE specifically 

           17   involved in choosing those contracts -- or those 

           18   contractors?

           19        A.    That's a program question.  I'm going to --

           20              MS. JOHNSTON:  I think Debbie or Lucy --

           21              MR. LeMAHIEU:  Yeah, Debbie or Lucy, come on 

           22   up. 

           23              (Discussion off the record.)

           24              CO-CHAIR REPRESENTATIVE SAIKI:  Could you 

           25   please state your full name for the record, please?




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            1              MS. FARMER:  Debra Farmer. 

            2              CO-CHAIR REPRESENTATIVE SAIKI:  What is your 

            3   position or title with the DOE?

            4              MS. FARMER:  Administrator for special 

            5   education in the DOE.

            6              CO-CHAIR REPRESENTATIVE SAIKI:  Okay.  

            7   Ms. Farmer, I would like to administer the oath at this 

            8   time.  Do you solemnly swear or affirm that the 

            9   testimony you are about to give will be the truth, the 

           10   whole truth, and nothing but the truth?

           11              MS. FARMER:  Yeah.

           12              SENATOR SLOM:  Thank you, Ms. Farmer.

           13                          EXAMINATION

           14   BY SENATOR SLOM:

           15        Q.    My question basically is:  When the schools 

           16   select vendors or when they put a contract out, do they 

           17   do that solely on their own or do they work together in 

           18   concert with other schools or with any mechanism or with 

           19   the DOE directly?

           20        A.    (By Ms. Farmer)  I think it's a variety.  

           21   They may choose from a statewide procurement list of 

           22   vendors on that.  They may -- if the contract is small 

           23   enough, they may just work through vendors that they've 

           24   had experience with in the past, such as trainers or 

           25   giving service like that. 




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            1              And then some schools, they do -- pool their 

            2   money.  Let's say there's going to be a training for all 

            3   teachers in a complex.  They may pool their money so 

            4   they could get the best use of it and then it wouldn't 

            5   be parcelling either. 

            6        Q.    The vendors list that you spoke of, who 

            7   compiles that list?

            8        A.    (By Ms. Farmer)  The procurement office at 

            9   the state, I believe, not in DOE. 

           10              (Discussion off the record.)

           11        A.    (By Ms. Farmer)  No, it's all procurement.  

           12   It's not only special ed services.  It's all procured -- 

           13   it could be for medical services.  It's for 

           14   psychological services, diagnostic services.  The 

           15   procurement office at the state compiles that list. 

           16        Q.    (BY SENATOR SLOM)  And on that list, is there 

           17   a separate category or is there any indication of those 

           18   contractors that have dealt with Felix projects in the 

           19   past?

           20        A.    (By Ms. Farmer)  Yes, I -- there's some names 

           21   there that have dealt with Felix projects in the past. 

           22        Q.    And if I were a contractor or a vendor and I 

           23   wanted to become part of that list, what would I have to 

           24   do to be on that list?

           25        A.    (By Ms. Farmer)  You would have to meet the 




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            1   minimum requirements for the state and fulfill -- I 

            2   would imagine fill out an application and give it to the 

            3   procurement office at the state. 

            4        Q.    And is the DOE involved in the drafting of 

            5   those requirements at all?

            6        A.    (By Ms. Farmer)  No, we are not. 

            7        Q.    So, it's all the procurement office?

            8        A.    (By Ms. Farmer)  Correct.

            9              SENATOR SLOM:  Okay.  Thank you, Ms. Farmer.  

           10   Thank you, Mr. Chair. 

           11              CO-CHAIR REPRESENTATIVE SAIKI:  Thank you. 

           12              Senator Matsuura? 

           13              SENATOR MATSUURA:  I have a couple of 

           14   clarifying questions.

           15                          EXAMINATION

           16   BY SENATOR MATSUURA:

           17        Q.     Are you using the 1998 SWAT bill that we 

           18   passed -- increasing it for the purchase of professional 

           19   service for our children under an IEP? 

           20        A.    (By Ms. Farmer)  I'm not --

           21        A.    (By Mr. LeMahieu)  I'm sorry.  Could you 

           22   repeat?

           23        Q.    In 1998 we passed the bill that you were 

           24   talking about increasing the level of the procurement to 

           25   $25,000.  It was a SWAT bill.




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            1        A.    (By Mr. LeMahieu)  Right.

            2        A.    (By Ms. Farmer)  Uh-huh.

            3        Q.    Basically, are you using that SWAT bill to 

            4   purchase the service -- professional service for 

            5   children under an IEP?

            6        A.    (By Mr. LeMahieu)  We raised -- that was the 

            7   authority under which we raised the minimum -- the lower 

            8   level to 25. 

            9        Q.    No.  But my question is:  Are you using that 

           10   procurement bill that we passed to purchase the 

           11   services, professional services, for children under an 

           12   IEP? 

           13        A.    (By Ms. Farmer)  No.  It could be -- for 

           14   mental health services alone, those kids all have an IEP 

           15   or modification plan, yes. 

           16        Q.    So, basically -- but that law -- as 

           17   administration came to us in 1998, it was specifically 

           18   for purchasing, like, computers.  So, basically, if a 

           19   child like -- if one contractor said, "Okay, I'll do it 

           20   20,000 this year," that child will require 25 -- this 

           21   22,000 every, every year, I read maybe 100,000, $200,000 

           22   per child; but, yet, they parcelled it out in $20,000 

           23   increments every year.

           24        A.    (By Ms. Farmer)  But you don't know if they 

           25   parcelled it out because the child may not need it next 




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            1   year because we review that IEP and the needs of the 

            2   child yearly -- at least yearly, sometimes more often, 

            3   actually.  So, the child may need it for three months 

            4   and not need that same service after that. 

            5        Q.    Correct.  But within your past testimony, you 

            6   said that you have no accountability over the purchase 

            7   of the small contracts.

            8        A.    (By Ms. Farmer)  Right.  The schools --

            9        Q.    I mean, from the testimony that you just 

           10   personally gave us -- to us about a half an hour ago, 

           11   you said you cannot get that information because nobody 

           12   knows where that information -- because you practically 

           13   gave it carte blanche to the -- each individual school. 

           14              So, who in the DOE --

           15        A.    (By Mr. LeMahieu)  Right.  But I think I also 

           16   said that didn't mean that there is an absence of 

           17   accountability. 

           18              Let's follow this particular case.  The 

           19   question, as I understand it, is:  Is it possible 

           20   without review, without any external consideration, for 

           21   a private provider to have $100,000 worth of service 

           22   over several years by parcelling it into 20,000, 22, or 

           23   $25,000 contracts year by year by year; and the answer 

           24   is absolutely not.  Because the next contract cannot 

           25   possibly happen without an IEP involving a whole bunch 




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            1   of people who couldn't care less about procurement but 

            2   are looking on -- at the child and whether or not the 

            3   child needs certain services.  It wouldn't go into the 

            4   IEP, and it certainly can't be procured unless it's in 

            5   the IEP.

            6        Q.    Correct.  Because the problem that we've 

            7   always dealt with with the principals or special ed 

            8   teachers, as we dealt with this past session, is they 

            9   believe they're personally liable. 

           10              Therefore, if your -- you know, the problem 

           11   that we always had was accountability.  They go into an 

           12   IEP.  There's nobody from the DOE or the AG representing 

           13   them or helping them.  And then you give them this carte 

           14   blanche $25,000 for purchase of professional services.  

           15   They're going to give it all -- they're going to give 

           16   it.

           17              So, where is the accountability on that?  Who 

           18   in the DOE or AG's office is helping our special ed 

           19   teachers and our principals? 

           20        A.    (By Ms. Farmer)  I think there's a wrong 

           21   impression that everybody is writing $25,000 contracts.  

           22   The schools are not even hitting that amount.  They're 

           23   writing 5,000, 700, 1,000.  They are not writing $25,000 

           24   contracts just constantly, and I think that's a wrong 

           25   impression if you think the schools are. 




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            1              And they're very in tune with their budget.  

            2   They're very in tune on what parcelling is.  The 

            3   district works very closely with the schools.  So, 

            4   their -- they write very small contracts most of the 

            5   time.  Maybe there will be one or two that is -- reaches 

            6   the 25,000; but not across the board there is not.  So, 

            7   we're talking a -- very small contracts and very short 

            8   timelines usually for these contracts. 

            9        Q.    Okay.  Because it just -- it seems to bother 

           10   me because when -- at -- the testimony that we received 

           11   on this particular SWAT bill, we did not -- we weren't 

           12   given the impression that you were going to be using 

           13   this for the purchase of professional services for -- 

           14   within the IEP system.  We thought you were 

           15   purchasing -- using it to purchase computers. 

           16              They gave us examples of -- by the time they 

           17   go to procurement on computers, by the time they get it 

           18   processed, they can buy a cheaper computer.  That's how 

           19   we fix a leaking roof, fix something like that, not for 

           20   an IEP -- professional services on an IEP. 

           21        A.    (By Mr. LeMahieu)  Well, I -- I mean, I'll 

           22   just speak to my testimony which I can recall somewhat 

           23   dimly.  I don't recall speaking to these several points 

           24   individually one way or the other.  I certainly didn't 

           25   represent that it wouldn't be used in this fashion.  All 




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            1   we're doing is following the law.

            2              SENATOR MATSUURA:  Okay.  Thank you. 

            3              CO-CHAIR REPRESENTATIVE SAIKI:  Excuse me.  

            4   Are you finished, Senator?

            5              SENATOR MATSUURA:  Yes. 

            6              CO-CHAIR REPRESENTATIVE SAIKI:  Okay.  

            7   Representative Leong?

            8              REPRESENTATIVE LEONG:  Oh, thank you.

            9                          EXAMINATION

           10   BY REPRESENTATIVE LEONG:

           11        Q.    Dr. LeMahieu, I guess I have a concern about 

           12   the 90-day period also; and listening to Debbie saying 

           13   that some of these requests are not as large as we 

           14   envision them to be --

           15        A.    (By Mr. LeMahieu)  Uh-huh. 

           16        Q.    -- and knowing that requests come from the 

           17   faculty themselves to the administrator who is the 

           18   principal, it would seem to be that they would have on 

           19   record a file of who requested what and who needed what 

           20   for which particular area. 

           21              Therefore, the schools themselves -- and I 

           22   was thinking again of the administrator, who is the 

           23   actual principal -- could give you that information 

           24   almost right away by looking back into it and not have 

           25   to wait this 90-day period.




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            1        A.    (By Mr. LeMahieu)  Ma'am, all I can say is 

            2   two things:  One is the 90 days was chosen -- and the 

            3   question has already been asked and answered that it's 

            4   just our best estimate of what this would require to do 

            5   it for the entirety of the system.  The 90 days was 

            6   chosen so as to make a commitment that we could, in 

            7   fact, keep.  That's very important between us. 

            8              The other point is one of sympathy for our 

            9   principals.  We who work in the system are aware that 

           10   our principals are beset almost every day -- certainly 

           11   every single week -- with a request for a piece of 

           12   information that they ought to be able to produce almost 

           13   immediately.  We don't dispute that. 

           14              Unfortunately, the aggregate impact of all of 

           15   those requests for all of that information, which could, 

           16   in fact, be produced almost immediately, is an 

           17   incredibly debilitating circumstance for the folks in 

           18   our schools.  I hear it.  You hear it.  We know it well. 

           19              We're reluctant to sort of suspend that thing 

           20   that we already know, which is that these people are 

           21   working incredibly hard to deal with today's requests 

           22   for some information that they ought to be able to give 

           23   just immediately. 

           24              What we will do -- what we will do is take 

           25   this request and make it the No. 1 priority.  It will 




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            1   also be the No. 1 priority alongside many, many other 

            2   things that either this Legislature or the federal 

            3   government or any number of highly placed authorities is 

            4   imposing upon them.  And so, we take 90 days only 

            5   because we recognize the burden that our request to them 

            6   will impose. 

            7              REPRESENTATIVE LEONG:  Thank you. 

            8              CO-CHAIR REPRESENTATIVE SAIKI:  Thank you 

            9   very much, Represenative Leong. 

           10              Representative Ito?

           11              REPRESENTATIVE ITO:  Thank you, Mr. Chair.  

           12                          EXAMINATION

           13   BY REPRESENTATIVE ITO:

           14        Q.    Superintendent --

           15        A.    (By Mr. LeMahieu)  Yes, sir.

           16        Q.    -- I just want to follow up on Senator 

           17   Matsuura's questioning.   You know, if the child needs 

           18   services that the state cannot provide, what is the 

           19   procedure, you know, for out-of-state contracts?

           20        A.    (By Mr. LeMahieu)  Oh, you mean, even if 

           21   there's no one in state --

           22        Q.    Yes.

           23        A.    (By Mr. LeMahieu)  -- to be a provider? 

           24        Q.    Yes.  Ms. Farmer mentioned the procurement 

           25   law --




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            1        A.    (By Ms. Farmer)  Uh-huh. 

            2        Q.    -- that's, you know, within the State of 

            3   Hawaii; but what about outside the State of Hawaii? 

            4        A.    (By Ms. Farmer)  Usually most of the children 

            5   that go out of state -- there are a few that go out just 

            6   for educational purposes, but the majority do go out -- 

            7   to out of state for education and for a related service 

            8   such as mental health. 

            9              We work close -- for those -- the majority of 

           10   the kids, we work closely with the Department of Health.  

           11   And they have identified certain facilities out of state 

           12   that meet their criteria, therapeutic criteria; and we 

           13   place them at those few sites. 

           14              (Discussion off the record.)

           15        A.    (By Ms. Farmer)  How many are out of state 

           16   now?  24.  24 are out of state now. 

           17        A.    (By Mr. LeMahieu)  We have made a concerted 

           18   effort over the past few years -- it was as high as 100  

           19   a couple of years back or close to 100 a couple of years 

           20   back.  We're down to 24 children out of state. 

           21        Q.    Okay.  So, the procurement office does not 

           22   handle this RFP or the contract?  It's the Department of 

           23   Health?

           24        A.    (By Ms. Farmer)  Department of Health pays 

           25   for their portion of the child's stay at that facility.  




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            1   DOE pays for the educational costs at that facility. 

            2        Q.    I now, but that state --

            3              (Discussion off the record.)

            4        A.    (By Ms. Farmer)  There's no contract.  It's a 

            5   tuition.  There's no -- it's not a contract with that 

            6   facility. 

            7        Q.    No.  But is that provider on that procurement 

            8   list?

            9        A.    (By Ms. Farmer)  On our procurement list?  I 

           10   think this is just for -- in Hawaii.  The procurement 

           11   list is just for those in Hawaii. 

           12        Q.    Yes, that's what I'm asking.  What about out 

           13   of state?

           14        A.    (By Ms. Farmer)  Right.  We just -- they meet 

           15   the criteria for DOH in a therapeutic facility -- what a 

           16   therapeutic facility must do; and we place those kids at 

           17   those -- we don't place them at every facility in the 

           18   Mainland.  Those that have -- have injured children in 

           19   the past, that have poor safety records, we don't place 

           20   children there. 

           21        Q.    Okay.  So, it's not on the procurement list 

           22   then?

           23        A.    (By Ms. Farmer)  No, it's not.

           24              REPRESENTATIVE ITO:  Okay.  Thank you very 

           25   much. 




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            1              Thank you, Chair.

            2              CO-CHAIR REPRESENTATIVE SAIKI:  Members, I 

            3   would like to submit a couple of points.  First, 

            4   please -- for witnesses and members, please do not 

            5   interrupt one another because it's very difficult for 

            6   the court reporter to transcribe the conversation. 

            7              And, second, if there are no additional 

            8   questions, we will -- I'm sorry.  Senator Kokubun?

            9              VICE-CHAIR SENATOR KOKUBUN:  Thank you, 

           10   Mr. Chair.  

           11                          EXAMINATION

           12   BY VICE-CHAIR SENATOR KOKUBUN:

           13        Q.    I wanted to ask if the Court or the court 

           14   monitor or the Plaintiffs' attorneys have asked for this 

           15   type of budget information.  

           16        A.    (By Mr. LeMahieu)  Not to my knowledge.

           17        A.    (By Ms. Farmer)  No, I'm not --

           18        A.    (By Mr. LeMahieu)  Not to our knowledge.

           19        A.    (By Ms. Farmer)  No.

           20        Q.    So, they're just aware, basically, of the 

           21   general appropriations that are -- come to each 

           22   department?

           23        A.    (By Mr. LeMahieu)  Yes, absolutely.  They 

           24   track -- forgive me.  I'm sorry.  They track our budget 

           25   requests and they've sort of tracked them through the 




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            1   legislative process.  That's been the depth, really, 

            2   nothing like this. 

            3        Q.    So, in terms of trying to distinguish between 

            4   Felix -- Felix plus special education costs, that's 

            5   something that they are comfortable not knowing?

            6        A.    (By Mr. LeMahieu)  Yeah, I was going to use 

            7   the word unconcerned.  They -- they aren't concerned 

            8   about it as they -- they think it's -- they just want to 

            9   see a set of problems solved.

           10        Q.    All right.  I see, you know, some comments 

           11   being made in that arena that allude to the 

           12   appropriations and the way the money is being spent.

           13        A.    (By Mr. LeMahieu)  Uh-huh, uh-huh. 

           14        Q.    So, I'm -- that's why I wanted to know.

           15        A.    (By Mr. LeMahieu)  Yeah, I apologize for 

           16   that. 

           17        Q.    To what degree of interest are they 

           18   expressing themselves?  You're saying they're not?  

           19   They're basically just looking at the general 

           20   appropriations to the department and that's it?

           21        A.    (By Mr. LeMahieu)  Okay.  Just as a point of 

           22   information, I'm just finding out that there is, in 

           23   fact, a monthly expenditure report -- periodic -- 

           24   quarterly? 

           25              STAFF MEMBER:  Quarterly.




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            1        A.    (By Mr. LeMahieu)  I'm sorry.  There is a 

            2   quarterly report provided of expenditures related to 

            3   Felix as well. 

            4        Q.    (BY VICE-CHAIR SENATOR KOKUBUN)  To who?

            5        A.    (By Mr. LeMahieu)  To the monitor? 

            6              STAFF MEMBER:  To the monitor. 

            7        A.    (By Mr. LeMahieu)  Yeah, it goes through 

            8   the -- into the monitor as part of quarterly reporting.  

            9              (Discussion off the record.)

           10        A.    (By Mr. LeMahieu)  And a copy -- forgive me.  

           11   It's coming into my ear.  I'm being reminded that 

           12   everything that's provided to the monitor is also 

           13   provided to the Legislature as a matter of course on a 

           14   quarterly basis.

           15              VICE-CHAIR SENATOR KOKUBUN:  Thank you. 

           16              CO-CHAIR REPRESENTATIVE SAIKI:  Okay.  Thank 

           17   you, Members.  If there are no additional questions, we 

           18   will take a five-minute recess to give the court 

           19   reporter a break.  

           20              SPECIAL COUNSEL KAWASHIMA:  Chair, I just 

           21   want to remind the doctor:  Will you please leave those 

           22   records when you leave?  And we may have more questions 

           23   of you after we've reviewed them.

           24              MR. LeMAHIEU:  I understand. 

           25              SPECIAL COUNSEL KAWASHIMA:  Thank you.




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            1              CO-CHAIR REPRESENTATIVE SAIKI:  Members, any 

            2   additional questions?  If not, recess, five minutes.  

            3   Thank you. 

            4              (Brief recess.)

            5              CO-CHAIR REPRESENTATIVE SAIKI:  Okay.  We 

            6   would like to -- we would like to reconvene our joint 

            7   Senate-House Investigative Committee. 

            8              At this time, we would like to proceed with 

            9   our second Subpoena that was issued to Dr. Bruce 

           10   Anderson or his designee from the Department of Health. 

           11              So, we're going to wait until the microphones 

           12   are turned on.

           13              I'm sorry.  Thank you very much.  We'll begin 

           14   with the oath of office -- I'm sorry -- the oath.

           15              Do you solemnly swear or affirm that the 

           16   testimony you are about to give will be the truth, the 

           17   whole truth, and nothing but the truth?

           18              DR. ANDERSON:  I do.

           19              CO-CHAIR REPRESENTATIVE SAIKI:  Thank you.

           20              Could you state your full name for the 

           21   record, please?

           22              DR. ANDERSON:  My name is Bruce Anderson.  

           23   I'm the director of the State Department of Health.

           24              CO-CHAIR REPRESENTATIVE SAIKI:  Thank you  

           25   very much. 




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            1              Mr. Kawashima?

            2                          EXAMINATION

            3   BY SPECIAL COUNSEL KAWASHIMA: 

            4        Q.    Dr. Anderson, you also were served with a 

            5   Subpoena requiring you or your designee to bring certain 

            6   records to the Investigative Committee?

            7        A.    Yes, I was. 

            8        Q.    And have you brought those records, Doctor?

            9        A.    Yes, I have. 

           10        Q.    And those records I see --

           11        A.    But let me clarify, if I could. 

           12        Q.    Sorry.

           13        A.    First, if I might, before I explain exactly 

           14   what we have been able to provide, let me begin by 

           15   saying we are, as others, fully committed to supporting 

           16   the Committee's interest in getting information today 

           17   and in the future.  And consistent with what 

           18   Dr. LeMahieu said earlier, we are looking forward to 

           19   working with the Committee on clarifying exactly what 

           20   you need to answer the questions you have. 

           21              We had a hearing with Judge Ezra last week, 

           22   as you may know; and I wanted to emphasize the point 

           23   that if we're going to meet those deadlines that are 

           24   before us, the November 1st deadline, we're going to 

           25   need to focus as much of the energy we possibly can on 




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            1   providing services. 

            2              We are fully committed to providing the 

            3   information this Committee has -- my staff has worked 

            4   since the August 9th date, when we got the Subpoena, 

            5   every day through last weekend to provide this 

            6   information.  And as I say, we're committed to 

            7   continuing to provide information as the Committee 

            8   wishes; but we have not been able to comp -- to compile 

            9   all of the information that's requested. 

           10              And if you would permit me, I would explain, 

           11   of course, what we have been able to provide today and 

           12   what we will in the future. 

           13        Q.    Please, go ahead.  And are you going to 

           14   reference the Subpoena you were served with the exhibit 

           15   to -- attached to it when you do that?

           16        A.    Yes, I will do that.  I will go through the 

           17   items one by one if that's your pleasure.  I think that 

           18   will be the easiest thing to do. 

           19              Let me also mention, as the Department of 

           20   Education, we did submit a letter to the Committee 

           21   outlining both the information that we would be able to 

           22   comply -- compile by today and a schedule for providing 

           23   the remaining information in the near future. 

           24        Q.    All right. 

           25        A.    Let me, before I begin describing exactly 




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            1   what information you are going to be reviewing, point 

            2   out:  The Department of Health has several programs 

            3   providing services to Felix-eligible kids.  We have the 

            4   Early Intervention Program.  It's also commonly called 

            5   the zero-to-three program, which provides services to 

            6   those who are biologically at risk and those who are -- 

            7   have developmental disabilities.  And we have the 

            8   Healthy Start Program, which provides services to kids 

            9   who are environmentally at risk. 

           10              And the programs that you are most familiar 

           11   with are the programs in the Child and Adolescent Mental 

           12   Health Division, which does nothing but provide 

           13   Felix-related kids.  There's one small exception and 

           14   that is we receive a federal grant, about $500,000, to 

           15   provide services for homeless children where we don't 

           16   have state funds for that purpose; but by and large, the 

           17   Children and Adolescent Mental Health Division provides 

           18   only Felix services. 

           19              Just to elaborate, because you don't often 

           20   hear about these programs, the Early Intervention 

           21   Program is primarily responsible for screening kids in 

           22   the hospitals.  They do follow-up assessments and they 

           23   provide appropriate interventions.  The Healthy Start 

           24   Program, in looking at the kids who are environmentally 

           25   at risk, actually does home visitations; but those are 




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            1   the spectrum of Felix-related programs that we have. 

            2              And the reason I mention those is because the 

            3   information we're providing to you is separated out by 

            4   program.  The information provided was compiled by the 

            5   Child and Adolescent Mental Health Division staff and 

            6   the Family Health Services Division staff.  Again, the 

            7   Family Health Services Division includes the Early 

            8   Intervention Program and the Healthy Start Program. 

            9              And before I go much further, let me just 

           10   introduce two other people in the room here who might be 

           11   able to help me answer some questions.  The first is 

           12   Loretta Fuddy, who you may remember is chief of the 

           13   Family Health Services Division, who is now acting 

           14   deputy director for administration.  Loretta, if you 

           15   could identify yourself. 

           16              MS. FUDDY:  Yes, back here.

           17        A.    Okay.  And Anita Swanson, who is the deputy 

           18   director overseeing the behavioral health programs, is 

           19   here; and their staff is also here. 

           20              Within the Family Health Services Division, 

           21   the Early Intervention and Healthy Start Programs were 

           22   able to produce all the documents requested. 

           23              It should be noted we have provided estimates 

           24   for fiscal year '01 expenditures because the claims 

           25   billing cycle and actual reconciliation has not 




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            1   occurred.  Normally it occurs about three to six months 

            2   after the close of the fiscal year. 

            3              Also, it should be noted that information on 

            4   the Healthy Start Program was provided for fiscal years 

            5   '00 and '01 to correspond with the increased 

            6   appropriations resulting from the Court ordered 

            7   stipulations. 

            8              If you want information from prior years, 

            9   please, let me know; but it was in those years where we 

           10   got a very large infusion of funding.  It was in those 

           11   years where, because of the revised Consent Decree, both 

           12   programs were determined to be critical programs for 

           13   funding under Felix.  Again, if you would like prior 

           14   year information, we would be glad to provide that to 

           15   you. 

           16              The information requested from CAMHD is much 

           17   more voluminous; and because records are in storage 

           18   prior to the fiscal year '99-'00 year, they will 

           19   require -- we will require additional staff time to 

           20   compile all the information requested.  For the years 

           21   prior to FY '99-'00, we will provide a complete listing 

           22   of vendors, contractors, and expenditures by 

           23   September 25th, which is about a month from now.  Again, 

           24   all expenditures for CAMHD are for Felix, except for 

           25   that $500,000 I mentioned. 




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            1              Incidentally, we -- our situation is much 

            2   simpler than DOE's from the standpoint of clearly having 

            3   programs identified that do nothing but Felix.  So, it's 

            4   a much more transparent situation as it relates to the 

            5   budget. 

            6              For CAMHD, we have compiled a complete 

            7   listing of vendors, contractors, and expenditures for 

            8   fiscal year '99-'00, which is included in the material 

            9   I'll be submitting today, along with a listing of 

           10   vendors for fiscal year '00-'01.  Actual expenditures 

           11   for last year are not available because, again, the 

           12   claims billings cycle does not close until 

           13   September 30th, 2001. 

           14              As stated in the letter, I mentioned to you 

           15   we anticipate having a complete reconciliation by 

           16   December 19th -- I'm sorry -- December 10th of 2001. 

           17              Again, just to be clear, the September 30th 

           18   is the last date at which any of the vendors can submit 

           19   billings for the last year.  They have three months in 

           20   order to do that.  So, we have to close out the accounts 

           21   and do the reconciliation, which typically takes a month 

           22   or two. 

           23              We're also providing to you a listing of 

           24   organizational charts, position descriptions, and the 

           25   names of people currently in those positions.  Let me go 




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            1   through those materials in a little more detail, and 

            2   I'll be very quick with -- on this if I could.  

            3              I have the -- an example of the materials 

            4   with me.  In some boxes in the corner there, you'll have 

            5   complete sets for your review later.  I'll go through 

            6   these items one by one. 

            7              First of all, with regard to Item 1, which is 

            8   the list of vendors, the list of vendors contracted by 

            9   the Department of Health for services and other 

           10   expenditures related to Felix is complete and submitted.  

           11   They're in several documents you will see here. 

           12              Again, these are by program.  So, when you 

           13   get these materials, you can identify them -- let me 

           14   show you what they look like.  This includes the list of 

           15   vendors.  It's called Exhibit A for the Children and 

           16   Adolescent Mental Health Division. 

           17              And I won't pick these up because they're 

           18   fairly heavy and I might drop them, but the list of 

           19   vendors for the Early Intervention and Healthy Start 

           20   Programs are in these green volumes on my right. 

           21              Please note that where the -- when you review 

           22   the materials, that you'll find a situation where 

           23   contractors are listed several times.  And when they 

           24   are, they have multiple contracts for separate and 

           25   distinct services. 




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            1              For example, the child and family services 

            2   contracts are separated by island.  So, you will see 

            3   four -- the vendor listed four times and you will need 

            4   to know exactly what contract you were looking for in 

            5   order to differentiate those. 

            6              We are certainly willing to provide the 

            7   Committee with more detail and make the contracts 

            8   available to you or your staff for review, the auditor's 

            9   staff or whoever would like to review those materials; 

           10   but the list of vendors is complete. 

           11              As it relates to Item 2, that is, the list of 

           12   contracts, grants, and amendments for services and other 

           13   expenditures for Early Intervention and the Healthy 

           14   Start Programs, this is also complete. 

           15              For CAMHD, the list of contractors for fiscal 

           16   year '99-'00 is complete.  Again, we'll be providing a 

           17   complete list of contracts for prior years as soon as 

           18   they can be retrieved from storage, which should take us 

           19   about a month.  

           20              Again, we don't have to go back to the 

           21   schools and get the information from them as DOE does.  

           22   Our records are in storage and we'll get them as soon as 

           23   we possibly can and we're estimating it will take until 

           24   December -- September 25th to get that material to you. 

           25              As previously noted, you will see multiple 




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            1   contracts with some providers for different services.  

            2   Again, we'll be glad to make copies of these contracts 

            3   available. 

            4              We have some expenditures which are not 

            5   included in Items 1 and 2 pursuant to Item 3.  Some of 

            6   these are for mileage, for car rental expenses, and the 

            7   out-of-state services, for example.  Those, we will be 

            8   providing and have been provided for the years I 

            9   mentioned in the materials I've submitted. 

           10              For Item 4, we've also submitted reports 

           11   summarizing the amount of money expended by program and 

           12   object code for the past two fiscal years.  Those are 

           13   from the famous reports.  As well, other agencies are 

           14   reporting that way.  That is complete; and, again, 

           15   they're compiled separately by program. 

           16              If you want an explanation of how those codes 

           17   are made, we'll be glad to answer those; but you'll find 

           18   a whole series of different codes depending on the 

           19   program, of course. 

           20              Item 5, we've also included organizational 

           21   charts.  We have separated the charts for the senior 

           22   administrative staff.  For example, my position, deputy 

           23   directors, and so forth are in this piece of information 

           24   that we're providing.  And, of course, we separated out 

           25   charts for Early Intervention, Healthy Start, and the 




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            1   Children and Adolescent Mental Health Division. 

            2              You will find updated organizational charts 

            3   with the names of those people who are currently in that 

            4   organization.  So, if you want to track the names 

            5   associated with the positions, we have that for you.  

            6   And by the way, that's current as of August 15th of this 

            7   year.   

            8              Finally, we have included position 

            9   descriptions for all individuals in the Early 

           10   Intervention, the Healthy Start, the CAMHD programs with 

           11   responsibilities related to the Felix Consent Decree. 

           12              Let me, in closing, just mention one other 

           13   thing, if you would permit me.  And that is:  As you 

           14   review these contracts and documents -- and I would hope 

           15   that you review them in the context in which these 

           16   services are provided.  We have had to build a system to 

           17   support these kids very rapidly over a very compressed 

           18   time frame.  If we had 20 years to develop these 

           19   services like most states did, we would probably do so 

           20   in a much more structured and progressive manner. 

           21              As it did -- as it is now, we do have 

           22   obligations to meet.  We have critical deadlines to 

           23   reach.  And how often we didn't have the luxury of going 

           24   out with RFPs and some of the other things that we would 

           25   otherwise have preferred to do. 




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            1              We have special authorities, both 

            2   Dr. LeMahieu and myself, to expedite the contracting 

            3   process.  And you will find information, as you go 

            4   through these materials -- I'm sure the auditor will 

            5   too -- that isn't exactly consistent with how things 

            6   normally work here; but we're not in a situation that's 

            7   normal. 

            8              We're not -- we don't have the luxury of 

            9   going out and going out for bids on services, taking 

           10   those services where we have the least costly bidder.  

           11   We can't simply say "no" to the vendors.  We have to 

           12   provide those services.  In some case, it's not even a 

           13   question of trying to find the lowest cost.  It's a 

           14   question of finding anyone who will provide those 

           15   services irrespective of what the cost might be. 

           16              We have been prudent.  We have done the best 

           17   job we can to make sure the services are being provided 

           18   in a cost-effective manner; but, again, this is not 

           19   business as usual.  So, I just wanted to offer those 

           20   comments as, perhaps, helpful in looking at our 

           21   services. 

           22              I would also add that this is a very dynamic 

           23   situation.  We are shifting to school-based services.  

           24   You-all know that, but services which the DOE -- DOH was 

           25   providing previously, as we move to school-based 




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            1   services, are now going to be provided by the DOE. 

            2              And from that standpoint, we're going through 

            3   a transition where vendors are -- who were once working 

            4   for us are beginning to work for the DOE.  So, it's not 

            5   a simple situation.  It's a complex issue. 

            6              And, again, I welcome your questions.  My 

            7   staff are here to fully support your information needs, 

            8   and we're willing and committed to working with you in 

            9   trying to clarify what we do to support the DOE in this 

           10   regard.  Thank you for that opportunity. 

           11        Q.    Thank you, Doctor.  Let me ask you a few 

           12   questions and make sure we have everything now.  Am I to 

           13   understand, then, that the CAMD documents you're talking 

           14   about where the billing cycle ends on September 30th of 

           15   this year -- that we'll get those documents soon 

           16   thereafter?

           17        A.    Where the billing cycle ends September 30th, 

           18   we'll need until December 10th in order to complete the 

           19   payment process and to reconcile the budget. 

           20              Again, that is just on the payouts for this 

           21   current fiscal year -- I'm sorry -- the last fiscal year 

           22   that just recently ended.  We will give you the lists of 

           23   the names of the contractors and the vendors and so 

           24   forth, but we simply won't have a final amount that we 

           25   paid out until that date. 




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            1        Q.    I see.  I understand.  So, the other data 

            2   relating to those items or those contracts or whatever 

            3   they may be will -- has been provided to us?

            4        A.    Yes, except for the prior years, again, where 

            5   we have information in archives for the CAMHD programs. 

            6        Q.    I'm sorry.  How long did you think that would 

            7   take -- did you say that would take?

            8        A.    Approximately a month, by September -- I'm 

            9   sorry -- September 25th.

           10        Q.    Sorry.

           11        A.    It's outlined in a table that's attached to 

           12   the letter that I submitted to the Chairs, and that is 

           13   accurate. 

           14        Q.    All right.  And who, then, should we contact 

           15   in your department -- if they have questions, as you 

           16   suggested they should ask you about, who should be 

           17   contacted for that?

           18        A.    We can, of course, refer the questions to 

           19   whomever we feel is best at answering the questions; but 

           20   generally I would suggest that any questions related to 

           21   the Early Intervention and Healthy Start Programs be 

           22   directed to Ms. Fuddy, who you saw behind me, my deputy 

           23   director for administration, and any questions related 

           24   to CAMHD or administration of CAMHD referred to 

           25   Ms. Swanson. 




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            1        Q.    All right.  Dr. Anderson, you mentioned at 

            2   the outset about the pressures that are being placed on 

            3   your department because of Judge Ezra's recent hearing.  

            4   Now, understandably there are some things that you need 

            5   to do, of course; but -- and I'm not suggesting you said 

            6   this, but are you saying that what information this 

            7   Committee is asking for and your responding to obtaining 

            8   that information will in any way impair you from doing 

            9   what Dr. -- Judge Ezra has asked for?

           10        A.    Let me put it this way:  Anything we do aside 

           11   from focusing on providing services to these kids is 

           12   going to distract us from those deadlines.  That's not 

           13   to say providing information to this Committee isn't a 

           14   priority.  We are going to do both --

           15        Q.    All right.

           16        A.    -- to the extent we possibly can do that.  

           17   And I'm not going to try to assess priorities. 

           18        Q.    No, I understand.

           19        A.    Serving your Committee is a priority. 

           20        Q.    I appreciate that.  In other words, whether 

           21   or not you can comply with what Judge Ezra has ordered 

           22   you to comply with, the fact that you have to get this 

           23   information for this Committee will not hinder that 

           24   task?

           25        A.    I think you see before you a good-faith 




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            1   effort to get this information to you in a timely way.  

            2   You can expect that to continue. 

            3        Q.    Thank you.

            4        A.    We're committed to that. 

            5        Q.    Thank you.  A couple other areas:  Your 

            6   letter of August 16th, 2001 to the Co-Chairs -- and I'll 

            7   just read a portion here.  I just need to have it 

            8   clarified.  It says, "The information requested will be 

            9   summarized by Child and Adolescent Mental Health 

           10   Division and the Family Health Services Division of the 

           11   Department of Health." 

           12              I'm just focusing on this "summarized."  You 

           13   were just explaining how they would be actually 

           14   separated or categorized, right?

           15        A.    That's right.  Actually --

           16        Q.    You're giving us the information, not 

           17   necessarily summaries of them?

           18        A.    Yes.  Probably a better word would have been 

           19   "compiled" --

           20        Q.    All right.  Thank you.

           21        A.    -- than "summarized."  You have complete 

           22   information on all the vendors, contracts; and 

           23   incidentally, the Early Intervention and Healthy Start 

           24   Programs went so far as to even give you copies of the 

           25   POs in some cases.  So, you have as much information 




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            1   as --

            2        Q.    All right.

            3        A.    -- will be.... 

            4        Q.    Now, what -- one other area I have a question 

            5   about, sir:  You mentioned -- when you were explaining 

            6   about the processes and procedures that needed to be 

            7   followed, I assume, to comply with the Consent Decree, a 

            8   statement you made was that you can't simply say "no" to 

            9   vendors.  Will you explain what you meant by that?

           10        A.    Well, I -- let me say that insofar as we're 

           11   able to do so, we work through the procurement process.  

           12   We issue RFPs.  We look for those who are able to 

           13   provide the services.  We select from those -- those who 

           14   are most qualified who can provide the services at least 

           15   cost.  Often we'll put out a request for services, and 

           16   we simply won't get any takers whatsoever. 

           17              Building the system has required building a 

           18   professional support over a very compressed period of 

           19   time.  And in some places, for example, the rural areas, 

           20   we are desperate to try to find service providers for 

           21   that area.  We're not having a situation where people 

           22   are knocking at our door and demanding that they also 

           23   provide services.  That's not the state at which we're 

           24   in right now.  It may be in years to come where we'll 

           25   have more competition in this area, but we don't at this 




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            1   point in time. 

            2              On some occasions, we're having to go to 

            3   extraordinary lengths to try to find service providers 

            4   who are willing and able to provide services, 

            5   particularly in the rural areas. 

            6        Q.    All right.  I have no further questions at 

            7   this time. 

            8              CO-CHAIR REPRESENTATIVE SAIKI:  Thank you.  

            9   At this point, we would like to take questions from 

           10   members limited to the authentication of the documents 

           11   just produced.  Members, any questions?  Senator Buen?

           12              SENATOR BUEN:  Thank you.  

           13                          EXAMINATION

           14   BY SENATOR BUEN:

           15        Q.    Dr. Anderson, in the information that you are 

           16   producing to the Committee, I understand that there was 

           17   a memorandum of agreement between CAMD and Hawaii 

           18   Med-QUEST.  Do you have that information that -- there 

           19   with you to provide to the Committee?

           20        A.    I don't believe that was included in this 

           21   packet, but let's -- let me ask Ms. Swanson if she has 

           22   that there. 

           23              MS. SWANSON:  No, it is not included.  We 

           24   would be happy to provide it to the Committee. 

           25        A.    We can certainly provide that to you but that 




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            1   wasn't in the contract, per se. 

            2        Q.    (BY SENATOR BUEN)  So, there was a memorandum 

            3   of agreement between CAMD and the Hawaii Med-QUEST or 

            4   what you -- Medicaid?

            5        A.    Right, for reimbursement, that's true. 

            6        Q.    For reimbursement purposes.  Okay.

            7              SENATOR BUEN:  Mr. Chair, is it proper for me 

            8   to ask a question in relation to the memorandum of 

            9   agreement at this time or are we having a later time 

           10   where we can ask these questions?

           11              CO-CHAIR REPRESENTATIVE SAIKI:  We'll have 

           12   opportunities --

           13              SENATOR BUEN:  Okay.  Thank you.  Thank you.

           14              CO-CHAIR REPRESENTATIVE SAIKI:  Thank you.  

           15   Members, any other questions?  Thank you very much, 

           16   Dr. Anderson.

           17              DR. ANDERSON:  Thank you.  

           18              SPECIAL COUNSEL KAWASHIMA:  Again, just leave 

           19   the documents there, Doctor.

           20              DR. ANDERSON:  I'll be taking this set with 

           21   me.  

           22              SPECIAL COUNSEL KAWASHIMA:  Oh.

           23              DR. ANDERSON:  This is my personal copy, and 

           24   there are two boxes of material in the back there. 

           25              SPECIAL COUNSEL KAWASHIMA:  Thank you.




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            1              DR. ANDERSON:  Thank you. 

            2              CO-CHAIR REPRESENTATIVE SAIKI:  Members, at 

            3   this point, the Co-Chairs would like to make a motion 

            4   that we take a vote to go into executive session; and 

            5   the purpose of the executive session generally will be 

            6   to discuss -- to confer with our legal counsel on the 

            7   recent Federal Court hearing involving the motion for 

            8   receivership, as well as to discuss the issuance of 

            9   further Subpoenas and the testimony that we are 

           10   expecting to hear this afternoon from Dr. Douglas Houck.

           11              (Discussion off the record.)

           12              CO-CHAIR REPRESENTATIVE SAIKI:  I'm sorry.  

           13   Members, two additional subject issues for discussion in 

           14   the executive session would include potential rule 

           15   changes to the production of -- to the copying of 

           16   documents produced to our Committee as well as 

           17   communications with Plaintiffs' attorneys in this 

           18   litigation. 

           19              Is there any discussion on the motion?  If 

           20   not, we'll take a role call vote.

           21              CO-CHAIR SENATOR HANABUSA:  Members, this is 

           22   a motion for executive session.  Co-Chair Saiki?

           23              CO-CHAIR REPRESENTATIVE SAIKI:  Yes. 

           24              CO-CHAIR SENATOR HANABUSA:  Vice-Chair 

           25   Kokubun?




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            1              VICE-CHAIR SENATOR KOKUBUN:  Aye. 

            2              CO-CHAIR SENATOR HANABUSA:  Vice-Chair Oshiro 

            3   is excused.  Senator Buen?

            4              SENATOR BUEN:  Aye. 

            5              CO-CHAIR SENATOR HANABUSA:  Representative 

            6   Ito?

            7              REPRESENTATIVE ITO:  Aye.

            8              CO-CHAIR SENATOR HANABUSA:  Representative 

            9   Kawakami is excused.  Representative Leong?

           10              REPRESENTATIVE LEONG:  Aye. 

           11              CO-CHAIR SENATOR HANABUSA:  Senator Matsuura?

           12              SENATOR MATSUURA:  Aye. 

           13              CO-CHAIR SENATOR HANABUSA:  Senator Pendleton 

           14   is excused.  Senator Sakamoto?

           15              SENATOR SAKAMOTO:  Aye.

           16              CO-CHAIR SENATOR HANABUSA:  Senator Slom?

           17              SENATOR SLOM:  Aye.

           18              CO-CHAIR SENATOR HANABUSA:  Co-Chair Hanabusa 

           19   is aye.  The matter is adopted, nine ayes, three 

           20   excused. 

           21              CO-CHAIR REPRESENTATIVE SAIKI:  Okay.  Thank 

           22   you, Members.  For executive session, please convene 

           23   next door in Room 325; and we will recess until 12:30.  

           24   Recess. 

           25              (Recess from 11:18 a.m. to 12:38 p.m.)




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            1              CO-CHAIR SENATOR HANABUSA:  Members, we're 

            2   calling back into session the joint House -- 

            3   Senate-House Investigative Committee to investigate the 

            4   state's efforts to comply with the Felix Consent Decree. 

            5              Before moving on to Dr. Houck, Dr. Anderson 

            6   has informed us that he would like to make some 

            7   clarifying remarks.  Dr. Anderson?

            8              DR. ANDERSON:   Thank you, Chair Hanabusa, 

            9   Chair Saiki, and Members.  I just wanted to elaborate a 

           10   little bit on the answers that I provided previously.  

           11   In particular, to Senator Buen's question about DHS and 

           12   her very astute observation that we may be receiving 

           13   moneys from other organizations. 

           14              Our intent here, of course, is not to cover 

           15   up anything.  And, in fact, the way we interpreted the 

           16   Subpoena was that we were to describe to you all 

           17   expenditures, not income. 

           18              And I know what you're -- I presume what 

           19   you're doing here is wanting to get a complete picture 

           20   of cash flow and so forth and how we're spending money 

           21   in the department; but as it -- over lunch, it occurred 

           22   to me that we were also receiving moneys -- we do have, 

           23   actually, other income besides income coming in from 

           24   DHS. 

           25              Christina Donkervoet mentioned to me, for 




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            1   example, I think we have four or five other contracts or 

            2   sources of funding that we are receiving that we will be 

            3   glad to provide information to you on; but clearly to 

            4   your point, as we read this Subpoena, it focused 

            5   certainly around income and -- I'm sorry -- 

            6   expenditures.  And we do have other information that we 

            7   certainly would be glad to provide to you to give you a 

            8   more complete picture. 

            9              And in that regard, if I could just say one 

           10   more thing:  I laid out to the Committee a concern that 

           11   that we not compromise either the ability of the 

           12   departments to comply with the Consent Decree through 

           13   this process or, of course, inhibit the Committee in 

           14   obtaining information.  And the point that I wanted to 

           15   make was that we are going to do everything we can to 

           16   comply with the Committee's request for information. 

           17              And all I was really urging and pleading for 

           18   you was to be strategic in what information you would be 

           19   asking for so that, to the extent possible, we would be 

           20   minimizing the work that our staff might go through. 

           21              So far, actually, I think you've asked for 

           22   very fair information; and we were certainly able to 

           23   provide it, a list of the contracts and so forth.  And 

           24   I'm very pleased to provide that information to you. 

           25              But, for example, if there's an option for us 




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            1   to provide specific contracts or information related to 

            2   contracts as opposed to copies of all contracts for the 

            3   next -- for a year, that's what I was getting to.  Let's 

            4   try to be strategic. 

            5              The other one point asked for copies of all 

            6   11,000 of our patient records.  That would have taken us 

            7   days and would have filled up several of these rooms.  

            8   That's the kind of information I hope we can avoid 

            9   having to produce; but as I say that, let's be sure that 

           10   we -- that we will do everything we can to provide all 

           11   the information that you wanted. 

           12              We're still trying to understand better what 

           13   you're looking for.  If you want a more complete picture 

           14   of financial cash flow and so forth, you know, we're 

           15   willing to provide that information; and if you can be 

           16   specific with us, that would be helpful.  But thank you 

           17   for the opportunity to clarify those comments.

           18              CO-CHAIR SENATOR HANABUSA:  Thank you, 

           19   Dr. Anderson.

           20              On July 13th, 2001, a Subpoena was authorized 

           21   to Dr. Douglas Houck to appear before the Committee on 

           22   August 11th.  However, due to a family emergency, 

           23   Dr. Houck requested a delay and agreed to appear on this 

           24   date. 

           25              A subsequent Subpoena was issued on 




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            1   August 15th, 2001 requesting that Dr. Houck appear as a 

            2   witness on August 20, 2001.  The Co-Chairs note that 

            3   Committee Rule 2.4(c) authorizes the Co-Chairs to waive 

            4   the ten-day requirement if the witness so agrees. 

            5              Dr. Houck, I see you've already stepped 

            6   forward; and, Doctor, before we begin, we are under the 

            7   impression that you have agreed to waive the Subpoena 

            8   requirement?

            9              DR. HOUCK:  Yes, that is correct. 

           10              CO-CHAIR SENATOR HANABUSA:  Thank you very 

           11   much.  And with that, the Co-Chairs also waive the 

           12   ten-day requirement. 

           13              Dr. Houck, I'm required now to put you under 

           14   oath.  Do you solemnly swear or affirm that the 

           15   testimony you are about to give will be the truth, the 

           16   whole truth, and nothing but the truth?

           17              DR. HOUCK:  I do.

           18              CO-CHAIR SENATOR HANABUSA:  Thank you, 

           19   Dr. Houck.  As we have done in the past, Members, we 

           20   will begin, of course, with the Committee counsel.  And 

           21   after that, we will permit all the members to ask your 

           22   questions and we will be invoking our ten-minute rule.  

           23   So, Mr. Kawashima?  

           24              SPECIAL COUNSEL KAWASHIMA:  Thank you, Madam 

           25   Chair.  




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            1                          EXAMINATION

            2   BY SPECIAL COUNSEL KAWASHIMA:

            3        Q.    Please state your name.

            4        A.    My name is Douglas Houck. 

            5        Q.    And your address, sir?

            6        A.    Okay.  My work address is at the Liliuokalani 

            7   Building on Miller Street in Honolulu. 

            8        Q.    And that is with the Department of Education?

            9        A.    Department of Education, that's correct. 

           10        Q.    And what is your current position with the 

           11   Department of Education, Doctor?

           12        A.    My current position is the director of 

           13   program support and development. 

           14        Q.    All right.  And what duties do you have as 

           15   the director of program support and development?

           16        A.    Okay.  I provide technical assistance to the 

           17   deputy superintendent and the superintendent and other 

           18   DOE staff members regarding the issues, say, the 

           19   Felix/Cayetano Consent Decree, also with matters 

           20   regarding Individuals With Disabilities Education Act. 

           21              I also go out and -- I go from, you know, 

           22   complex to complex or school to school at times if 

           23   issues or questions come up and help try to get matters 

           24   resolved in that area. 

           25              Most of my time at this point -- I would say 




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            1   probably at least 90 percent of my time -- has been 

            2   dealt -- dealing with the Felix versus Cayetano Consent 

            3   Decree. 

            4        Q.    When you say 90 percent of your time has been 

            5   devoted to dealing with the Felix versus Cayetano 

            6   Consent Decree, does that include, therefore, the IDEA 

            7   area you work in?

            8        A.    That is correct, 504, IDEA, that -- those 

            9   areas. 

           10        Q.    So that right now, your work really 

           11   exclusively involves the Felix Consent Decree, the IDEA, 

           12   and Section 504?

           13        A.    That is essentially correct. 

           14        Q.    How long have you been in that position, sir?

           15        A.    I've been in this position since October, 

           16   1998. 

           17        Q.    And before that -- well, strike that. 

           18              When did you start with the Department of 

           19   Education for the State of Hawaii?

           20        A.    I believe I started in August, 1991. 

           21        Q.    All right.  Would you be so kind as to trace 

           22   your progress through the department up to when you were 

           23   appointed director of program support and development in 

           24   1998?

           25        A.    When I came to the State of Hawaii, I came 




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            1   having spent many years working in, say, school 

            2   administration and that type of thing.  And I was 

            3   nearing the end of a career, and I thought it would be 

            4   nice to go back to the classroom and just teach special 

            5   ed and not have to worry about the politics of education 

            6   or the legal issues. 

            7              And I had an opportunity to do that for a few 

            8   months, but then the -- it's funny how things go -- then 

            9   the two vice-principals at that school went on to other 

           10   assignments and I was requested by the principal of the 

           11   school to fill out as a vice-principal for the rest of 

           12   the year.  This is at Lahainaluna High School in 

           13   Lahaina, Maui. 

           14              And I stayed on for the remainder of that 

           15   year and then I was asked to stay on the next year as 

           16   vice-principal and then I was requested to go through 

           17   the administrative training program for the State of 

           18   Hawaii, which I did.  I went through the administrative 

           19   training program.  And, actually, I spent four years at 

           20   Lahainaluna High School. 

           21              At that time there was a person who was the 

           22   director for special services for Maui District, and she 

           23   retired.  And it was suggested that this would be a very 

           24   nice job for me to go into.  I would just have a chance 

           25   to meet with some people and work from, I'm going to 




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            1   say -- until 5:00 or something like that.  So, I went 

            2   ahead and took that position; and I went to work for 

            3   Maui District. 

            4              I arrived in the office on a Monday; and on 

            5   the Wednesday, we had the very first state level Felix 

            6   meeting.  And we came over, and I got involved from 

            7   there on out with Felix issues. 

            8              Actually Maui District at that point was 

            9   selected to go through some of the initial service 

           10   testing in the state.  I participated in the training 

           11   for the service testing, was involved at that point. 

           12              I stayed on Maui District until June, 1997 

           13   when I was requested by the superintendent to come over 

           14   and fill in as the administrator for the state's special 

           15   education section.  And I came over here in June of 

           16   1997.  I worked as the state administrator for the 

           17   special education section through -- until I moved into 

           18   this position for the director of program support and 

           19   development. 

           20              So, I've had work -- four years actually 

           21   working in a school, two years actually working at the 

           22   district level on Maui District, and then four years 

           23   over here working specifically in the state office. 

           24        Q.    All right.  The -- you mentioned the work you 

           25   were doing here in the state office before 1998 when you 




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            1   became director of program support and development.  I 

            2   saw somewhere a title of state district special 

            3   education specialist.

            4        A.    Okay.  That was the -- that was when I was 

            5   the administrator for the special education section.  

            6   Okay.  That was that -- at that point --

            7        Q.    All right.  In lay --

            8        A.    -- before I moved into this position. 

            9        Q.    All right.  In lay terms, Doctor, would that 

           10   mean that you would be the highest level person --

           11        A.    Yeah, I was -- at that point, I was what the, 

           12   say, U.S. Office of Education considered to be the 

           13   director of special education for the State of Hawaii. 

           14        Q.    All right.  Did I understand -- Doctor, did 

           15   you have some background and experience in speech 

           16   pathology and also dealing with mentally disturbed 

           17   children?

           18        A.    Yes, sir. 

           19        Q.    What is that background, sir?

           20        A.    Okay.  Many, many years ago when I received 

           21   a -- my first college -- or first graduation from 

           22   college, I graduated as a speech person, speech 

           23   pathologist.  And this actually was in New York State.  

           24   I was a graduate of the State University of New York 

           25   College at Fredonia.  And that was many years ago, as I 




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            1   said. 

            2              And I worked doing some work in speech 

            3   pathology, but I also worked going -- specifically 

            4   working with children with disabilities as far as an 

            5   educational program.  So, I was sort of doing special 

            6   education before special education actually was set up 

            7   as either a state law in New York or as a federal law; 

            8   and I did that for a number of years. 

            9              I also, in the meantime, picked up a master's 

           10   degree working in, say, the area of language arts, 

           11   education, English education.  That was from the State 

           12   University of New York College in Buffalo. 

           13              I also eventually picked up a doctorate in 

           14   education from the State University of New York at 

           15   Buffalo and, later on, took another master's -- program 

           16   in master's working in public policy, primarily focusing 

           17   upon educational policy at the federal level. 

           18              So, those were the course -- those are the 

           19   degrees that I completed.  I've also taken graduate work 

           20   at the University of Indiana, the University of Maine at 

           21   Orono, and the University of Hawaii. 

           22              From that position, working in a small rural 

           23   school in Upstate New York, I went on to work in a large 

           24   suburban district outside of Buffalo, New York.  I 

           25   became a principal of an 1,800-student high school when 




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            1   I was about, I think, 27 years old, which was pretty 

            2   young -- probably too young to know better at that 

            3   point.  I picked up a lot of experience very quickly. 

            4              While I was finishing up my doctoral program 

            5   at the university, I was invited to go to work in the 

            6   City of Buffalo.  And I went into the Buffalo public 

            7   schools and I worked as a supervisor for curriculum, 

            8   curriculum evaluation for a number of years in the 

            9   Buffalo schools.  And then I became a superintendent of 

           10   a small district in rural New York.  I was there for 

           11   three years.  That was Franklinville District. 

           12              Then I spent ten years as the superintendent 

           13   of schools of a suburban district outside of Rochester, 

           14   New York.  And ten years was a long time because in 

           15   those days 27 months was the average tenure of office 

           16   for a superintendent in New York State. 

           17              New York State, of course, has 740 separate 

           18   school districts; whereas, here, we have just the one 

           19   district.  I completed 25 years of service in New York 

           20   State.  And at that point, I moved to the State of 

           21   Maine; and I was in the State of Maine for about -- 

           22   about six, seven years. 

           23              During that time I was the executive director 

           24   of a residential program for emotionally impaired 

           25   adolescents, also was working as a professor in the 




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            1   graduate program at the University of Maine at Orono.  

            2   And in the work that I did with the children, I actually 

            3   worked for four State Departments.  I worked for the 

            4   Department of Corrections, Department of Human Services, 

            5   Department of Mental Health, and Department of 

            6   Education. 

            7              It was interesting because in the five or six 

            8   years I did that, I don't think there was ever a time 

            9   where all four departments agreed on any issue; but that 

           10   was, again, just sort of a personal experience. 

           11              In that situation in the State of Maine, I 

           12   was, of course, certified in special education; and I 

           13   had special certification to work with children with 

           14   emotional impairments.  So, it was sort of a specialty 

           15   within the area of special education. 

           16              I was also -- also met the requirements for 

           17   superintendency and principalship and what have you. 

           18              Like I say, following that, when I moved to 

           19   Hawaii, my hope was to simply come -- go back to the 

           20   classroom, teach special education; but that's what 

           21   happened. 

           22        Q.    Thank you.  I meant to ask you:  The district 

           23   that you were district superintendent of in New York --

           24        A.    Right. 

           25        Q.    -- you testified that, unlike Hawaii, they 




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            1   have these various districts.  Here, we have one state 

            2   but --

            3        A.    Yes, 700 -- at that time there were 740 

            4   districts. 

            5        Q.    740.  Now, this district that you were 

            6   superintendent of, what nature are you talking about in 

            7   terms of number of schools and number of students 

            8   involved?

            9        A.    We had -- these are smaller districts.  We 

           10   had about 3,000 kids, which was about average for 

           11   districts that size. 

           12              Of course, New York State, they had districts 

           13   ranging from maybe, I guess, what, 400 students up to 

           14   New York City, which has a million and a half.  So, it 

           15   was a wide range.  We had about 3,000 kids in the 

           16   district. 

           17        Q.    All right.  Now, Doctor, you mentioned in 

           18   your testimony a few minutes ago that the concept -- or 

           19   the phrase "service testing," did you not?

           20        A.    Yes, I did. 

           21        Q.    Explain to us what that means.

           22        A.    Okay.  The service testing was originally 

           23   designed as a vehicle to be used by the monitor in the 

           24   state to go in and take a look at outcome measures in 

           25   each -- you know, initially it was done at the district 




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            1   level. 

            2              Going back to, say, 1990 -- '95, 1996, at 

            3   that time they were doing -- setting baseline data in 

            4   the state.  And they went out and they reviewed the 

            5   cases of -- I think it was 88 children in the state.  

            6   They started in Maui District.  They went to central 

            7   district, and they sort of pulled at random children who 

            8   are -- who are eligible to receive special education and 

            9   mental health services, and they had what they call 

           10   protocols. 

           11              A protocol was a whole series of questions 

           12   and items to take a look at everything from student 

           13   attendance to how is the student doing in, say, academic 

           14   achievement to other outcomes from the children or what 

           15   have you.  And you go and you pulled -- it's similar to 

           16   accreditation.  You go in.  You pull the files.  You 

           17   talk with the people who are involved with the child.  

           18   You also have, like, so-called stakeholder interviews 

           19   where you get groups of people together.  And we have 

           20   trained reviewers who would go out and do that. 

           21              Now, I attended the first training session -- 

           22   I think it was September, 1995; it was held at the Felix 

           23   office -- where they went through and explained the 

           24   protocols and what have you.  I did not serve as a 

           25   reviewer because I was an administrator in the district 




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            1   and I could not actually be a reviewer while I'm an 

            2   administrator in the district, but I was involved with 

            3   the actual training. 

            4              Since then, there have been several training 

            5   sessions; and they went from setting the baseline data 

            6   back in 1995, '96 out to -- probably beginning -- I 

            7   think it was somewhere in 1998 where they went in on a 

            8   complex-by-complex basis. 

            9              And at this time, there were two protocols.  

           10   There was a protocol for the school-based services that 

           11   were being provided by the staff and, for the most part, 

           12   the personnel in the schools. 

           13              And then there was a coordinated services 

           14   review; and the coordinated services review, for the 

           15   most part, again, focused upon the children with more 

           16   intensive needs who were receiving, say, multiagency 

           17   services in some place; but these were the children with 

           18   severe needs.  And they were -- and it required a 

           19   coordination of the various service providers and 

           20   agencies to provide these services. 

           21              So, starting in about 1998, the monitor was 

           22   going through with his staff and with our reviewers -- 

           23   because the reviewers at the present time are set up 

           24   almost on, like, a one-third/one-third/one-third type of 

           25   basis.  We had the Department of Education people who 




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            1   participated in the reviews.  We have Department of 

            2   Health people who participated in the reviews; and then 

            3   we have what they call independent reviewers, people who 

            4   work, I believe, under contract with the monitor's 

            5   office. 

            6              And we set up these teams, and these teams go 

            7   into a school.  They spend a whole week in that complex.  

            8   They pull all of these files, all of this information, 

            9   collect all of this data, and they come up initially 

           10   with a preliminary report which is followed later on by 

           11   a final report; and that assesses the system 

           12   performance, the outcomes for the children, this type of 

           13   thing. 

           14              The service testing, as it is constituted, 

           15   gives us a good indicator -- a very good indication of 

           16   the quality of the service being provided and the 

           17   outcomes that are being achieved for the children who 

           18   are receiving these services.  So, it's been going on -- 

           19   at the present time all of the complexes in the state 

           20   have currently been service tested at least once.  Some 

           21   of the complexes have been service tested twice.  I am 

           22   not aware of any who -- where we gone back yet for a 

           23   third time. 

           24              If the complex is successful -- and that 

           25   means they have to have an 85 percent score following 




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            1   the service testing.  If they have an 85 percent score, 

            2   then they're deemed to be successful; and that way, when 

            3   that happens, they can go ahead and go into what they 

            4   call provisional compliance. 

            5              And then they go through -- they review their 

            6   data.  They take a look at how they're going to sustain 

            7   this performance.  And then they have to provide a final 

            8   presentation; and based upon the data presented in the 

            9   final presentation, the monitor makes a recommendation 

           10   to the Court as to whether or not these complexes are in 

           11   final compliance. 

           12              If they do not meet the 85 percent standard 

           13   on either the coordinated services or the school-based 

           14   services, then they have to go back and -- go back on 

           15   the schedule and be scheduled again for service testing. 

           16              When this happens, the people in that 

           17   complex -- these are your teachers, your service 

           18   providers, your DOH folks who are working with the 

           19   complex -- have to put together what they call an 

           20   interagency quality support plan as to how they're going 

           21   to actually make changes so that they can bring this 

           22   complex into compliance.  So, that's essentially what 

           23   service testing is all about. 

           24              From my observation, I believe this is 

           25   probably one of the best indicators of, say, program 




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            1   success that we currently have available.  We get a lot 

            2   of good information from service testing.  We are able 

            3   to use this information to improve the provision of 

            4   services for child -- for our children. 

            5        Q.    Now -- Doctor, thank you.  This service 

            6   testing, though, if I might try to put it in lay terms, 

            7   it is used to measure compliance with the Felix Consent 

            8   Decree, is it not?

            9        A.    That is why it -- that's why it's being used 

           10   at the present time, yes, sir. 

           11        Q.    And as you already testified, you've attended 

           12   training sessions for service testers, have you not?

           13        A.    I've attended at least three separate 

           14   training sessions. 

           15        Q.    And that was merely to observe what they were 

           16   doing to see what the process was?

           17        A.    Because I felt that I needed to be aware of 

           18   what was happening, what was taking place because, in 

           19   many cases, we have to go out and help to assist the 

           20   schools to get ready for the service testing.  We have 

           21   to be able to answer questions; and if there are issues 

           22   that come up in service testing, we need to know more 

           23   about the process that's taking place. 

           24        Q.    Doctor, do me a favor.  Whenever I ask you a 

           25   question, wait until I'm done.  You --




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            1        A.    Okay. 

            2        Q.    You're very good at anticipating what the 

            3   question is --

            4        A.    Okay.  I'll be happy to wait until --

            5        Q.    There you go.  When you and I talk at the 

            6   same time, that young lady there is having a difficult 

            7   taking -- time taking it down.

            8        A.    She's still smiling. 

            9        Q.    She wasn't a few minutes ago. 

           10        A.    Oh, okay.

           11        Q.    All right.  Doctor, now, this -- the 

           12   protocol, though, for the service testing in our -- in 

           13   the case here in Hawaii, that was designed by Ivor 

           14   Groves, the Felix monitor, and his partner, Mr. Foster; 

           15   is that correct?

           16        A.    I believe so. 

           17        Q.    And Mr. Groves, as the court monitor, also 

           18   oversees and controls all of the service testing in the 

           19   state, does he not?

           20        A.    Yes, he does. 

           21        Q.    Now, do the testers themselves review all of 

           22   the cases of all of the children in the Felix class?

           23        A.    No, they have a -- what is supposed to be a 

           24   random sample selected of the children actually being 

           25   provided services in that complex. 




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            1        Q.    All right.  Now, when you say "random 

            2   sample" -- let's talk about "sample" first, if we might, 

            3   Doctor.  They look at a sample; and then upon that 

            4   review of that sample, they decide whether the entire 

            5   school complex is in compliance with the Consent Decree 

            6   or not; is that correct?

            7        A.    Okay.  That is probably one of their major 

            8   criteria to be used for making that decision. 

            9        Q.    And perhaps not the only, but a major one?

           10        A.    I would say a major. 

           11        Q.    And when -- just to clarify, Doctor, when we 

           12   say "school complex," what are we talking about?

           13        A.    Okay.  What we are talking about is that -- 

           14   these are based around the high schools.  We have about 

           15   41 separate high schools set up.  And then we -- after 

           16   we identify the high school, we identify the middle 

           17   school or intermediate school that feeds into that high 

           18   school; and then we identify the elementary schools that 

           19   feed into that middle or intermediate school.  So, what 

           20   we have is a -- sort of a discrete school community made 

           21   up of the high school and the feeder schools coming into 

           22   the high school. 

           23        Q.    And that constitutes the school complex?

           24        A.    Yes, sir. 

           25        Q.    All right.  Now, the sample, therefore, that 




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            1   is chosen to be reviewed is an important factor, is it 

            2   not?

            3        A.    Very important factor. 

            4        Q.    And this sample, though, has to be large 

            5   enough, does it not, Doctor, so that it gives a 

            6   scientifically valid picture of what is happening at 

            7   that complex?

            8        A.    That is correct. 

            9        Q.    And when you say large enough, as a rule of 

           10   thumb, am I correct that the guideline or number of 30 

           11   is a statistically valid number that can be used to draw 

           12   conclusions?

           13        A.    I believe you have taken the same statistics 

           14   course that I took, yes, because in the statistics 

           15   courses, if you're talking about using a statistical 

           16   analysis, you're supposed to -- should have a number of 

           17   sample -- in your sample of at least 30 to 40. 

           18              I have, again, raised the issue from time to 

           19   time, say, with the monitor -- in some cases we're 

           20   talking about, say, a sample of 12 students or a sample 

           21   of 14 students.  Again, this depends upon the size of 

           22   the complex.  If we're talking, say, Farrington complex, 

           23   which has -- I think it's close to 8,000 students, we 

           24   have many, many children who are receiving services. 

           25              If we're talking about Hana, then, the total 




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            1   is only 400 students about in the total Hana school.  

            2   And if we talk about coming up with adequate numbers 

            3   there, it's harder to get a large number. 

            4              We also talk in terms of the number of people 

            5   available to go out and do the service testing.  That's 

            6   why I use the term "indicator."  It is a good indicator 

            7   of the services being provided.  It doesn't actually 

            8   measure distance exactly, say, as a speedometer will; 

            9   but in terms of:  Does it give us an indication of the 

           10   services being provided, yes.

           11        Q.    But it is also, as you have testified, 

           12   though, Doctor, a major factor in determining whether or 

           13   not a complex is in compliance or not in accordance with 

           14   the Felix Consent Decree, though, right?

           15        A.    That is correct. 

           16        Q.    Now, just to be sure, Doctor, when we talk 

           17   about 30, then, as being a large enough sample, there -- 

           18   of course, there are situations where there are a larger 

           19   number of students that might be in a group where you 

           20   want to take a sampling from; and the number would be 

           21   larger than 30 in those cases in general, right?

           22        A.    That's correct, yes.  It depends upon the 

           23   total enrollment of that complex. 

           24        Q.    Sure.  And if there were smaller -- in 

           25   situations where there were smaller numbers, for 




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            1   example, less than 30, what you would do statistically 

            2   is test them all; is that correct?

            3        A.    That would be my preferred course of action. 

            4        Q.    All right.  And also this sample, though -- 

            5   this sampling has to be -- or should be random, should 

            6   it not?

            7        A.    It should be, yes, sir. 

            8        Q.    To be truly representative of the rest of the 

            9   cases in a class such as a Felix class, they should be 

           10   large enough; and they also should be random?

           11        A.    That is correct. 

           12        Q.    Okay.  Now, you are aware, though, Doctor, 

           13   that in the service testing that has been done in this 

           14   case, in the Felix case here in Hawaii, especially the 

           15   smaller schools, they have involved samples of less than 

           16   30 cases, have they not?

           17        A.    Yes, that is true. 

           18        Q.    The -- I have here a number of your 

           19   publications.

           20        A.    Uh-huh. 

           21        Q.    I'm sorry.  You are --

           22        A.    They're not really my publications.

           23        Q.    You're right.  I'm sorry.  It is the Felix 

           24   Monitoring Project --

           25        A.    That is correct, sir. 




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            1        Q.    -- publication that reports on a monthly 

            2   basis a number of things, and one of them is service 

            3   testing results or analyses of service testing results.

            4        A.    Right, that's correct. 

            5        Q.    And having looked at a number of them, 

            6   Doctor, I see where in one case, in a situation where 

            7   there are 295 cases, the sampling was only 18, for 

            8   example, which is a very small percentage also but 

            9   nowhere close to the 30; am I correct?

           10        A.    That is correct. 

           11        Q.    So, in terms of having -- or trying to obtain 

           12   a scientifically valid result, that sampling would not 

           13   achieve that purpose probably, right?

           14        A.    Yeah.  The -- ideally you're going to come up 

           15   with a number which is, say, statistically significant; 

           16   and I was pleased this last -- I won't say last -- month 

           17   that I was able to go to the monitor's office and we 

           18   pulled a number that I found to be statistically 

           19   significant.  And I found that they did -- as they went 

           20   through and they pulled all of the cases that they had 

           21   service tested the entire year basis; and if we went 

           22   back to, say, 1966 where they only tested 88 students --

           23        Q.    I'm sorry.  What year, sir?

           24        A.    1996.  Sorry, wrong year.  1996 they only 

           25   tested 88 students; and at that point, the systems 




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            1   performance score was only 28 percent, which was pretty 

            2   low. 

            3              Now, back -- if we move up now to the year 

            4   2000, when we went out and doing service testing in the 

            5   year 2000, we found that we had 502 students service 

            6   tested for the coordinated services and 499 for 

            7   school-based services.  Now, at that point, our systems 

            8   performance score was up to 65 percent for the 

            9   coordinated services; and school-based services were up 

           10   to 76 percent. 

           11              If I take this last year -- and you have to 

           12   keep in mind this last year that we had the service 

           13   testing, the program ended early because of the 

           14   teachers' strike; but by the time that we did complete, 

           15   we had service tested for coordinated services 396 

           16   students.  And we found 85 percent systems performance 

           17   score, which is a compliance score.  We achieved 

           18   compliance on coordinated services if we talk about the 

           19   state as a whole. 

           20              And if we take the school-based services, we 

           21   service tested 236 students; and we came up with a 

           22   com -- with a systems performance score of 87 percent. 

           23              So, if I'm talking about the state as a 

           24   whole, it would appear that in the year 2000 we did 

           25   reach substantial compliance on a statewide basis. 




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            1        Q.    Let me see if I got that right, Doctor.  What 

            2   you're saying is:  If you look at the service testing 

            3   that has taken place for that year 2000 and you look at 

            4   it as a --

            5        A.    Statewide. 

            6        Q.    -- statewide system, that the State of Hawaii 

            7   has reached substantial compliance?

            8        A.    We have reached the 85 percent that the 

            9   monitor has established for substantial compliance. 

           10        Q.    So that there should be no need, then, for 

           11   the Consent Decree any longer, should there?

           12        A.    I'm not the judge.  I can't make that 

           13   decision. 

           14        Q.    Has that ever been brought forward, Doctor, 

           15   the fact that if you use the figure you're talking about 

           16   in the year 2000, last year, that the state would have 

           17   been in substantial compliance with the Consent Decree?

           18        A.    Actually, it was the 2000-2001 service 

           19   testing.  Again, I can repeat:  In the 2000-2001 service 

           20   testing, for the service testing completed over the 

           21   course of the year, counting all of the students who 

           22   were service tested, we had 87 percent on the 

           23   school-based services; and we had 85 percent on 

           24   coordinated services. 

           25              So, from the state -- from a statewide 




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            1   system, using the monitor's compliance score of 85 

            2   percent, it would appear that on a statewide basis, we 

            3   were there. 

            4        Q.    You're there, so that there should be no need 

            5   for the Consent Decree any longer?

            6        A.    That's not my decision, sir. 

            7        Q.    I understand.  Well, Hawaii is unique in a 

            8   sense that they have a statewide system compared to the 

            9   other states in the country, right?

           10        A.    If Hawaii did not have a statewide system, we 

           11   would not have a Consent Decree. 

           12        Q.    That may be a good point; but it is unique in 

           13   that sense, is it not?

           14        A.    It is the only one of the 50 states. 

           15        Q.    And everything, therefore, in Hawaii's case 

           16   is looked upon on a statewide basis, is it not?

           17        A.    From all the experiences that I've had, we 

           18   talk in terms of the unitarian system and the unitarian 

           19   system meeting compliance standards, yes, sir. 

           20        Q.    So, therefore, Doctor, whose choice was it, 

           21   then -- when we look at Hawaii, which is a statewide 

           22   system, where we look at everything else on a statewide 

           23   basis, why in this case, when we look at compliance with 

           24   the Decree, we only look at it from a complex-by-complex 

           25   basis?




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            1        A.    I am not able to answer that question, sir. 

            2        Q.    With all your experience in New York and in 

            3   Hawaii, your background, all of your exper -- your 

            4   education, you just are not able to answer that, sir?  

            5   I'm not suggesting that you should be able to.  I'm just 

            6   asking --

            7        A.    I'm just saying that decision, as far as I 

            8   know, okay, was probably made through the office of the 

            9   monitor to go out and, say, probably look for outcome 

           10   assessments on a complex-by-complex basis. 

           11        Q.    You don't know why, though, do you?

           12        A.    No, I do not. 

           13        Q.    And has the monitor's office explained to 

           14   anyone why they're doing this, in other words, looking 

           15   at it from a complex-by-complex basis in terms of 

           16   compliance with the Decree as opposed to looking at it 

           17   from a statewide basis like everyone else does?

           18        A.    Again, I'm not able to answer that issue -- 

           19   that question. 

           20        Q.    All right.  Getting back to the questions I 

           21   was asking you about the sampling, though, I understand 

           22   your explanation in terms of an overall basis.  Looking 

           23   at the complexes, though, in terms of the numbers that 

           24   were tested in service testing compared with the number 

           25   of Felix students they had and the overall population of 




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            1   that complex, it appears that this rule of thumb of 30 

            2   was not followed; is that correct?

            3        A.    That is correct. 

            4        Q.    Now, Doctor, there's a -- I understand 

            5   there's another component as far as service -- in 

            6   addition to service testing.  I think you -- you 

            7   explained it in your earlier testimony involving a 

            8   presentation by the school complexes?

            9        A.    Yes, sir.  Okay.  After the, say, complex 

           10   achieves a provisional compliance, which is based upon 

           11   essentially the service testing scores, then, there is a 

           12   period of time whereby the schools go through and gather 

           13   data, talk in terms of how they're going to sustain this 

           14   level of care. 

           15              And then they actually put on, like, a 

           16   presentation where they bring in people, say, who work 

           17   within the school -- they provide data and information 

           18   and provide assurances to the monitor and the 

           19   Plaintiffs' attorneys, who also attend these 

           20   presentations, that not only did they achieve this 

           21   score, this cut-off score; but they are able to sustain 

           22   these services for, you know, an indefinite period of 

           23   time.  So, based upon the presentation which is made, 

           24   then the monitor then prepares a recommendation that is 

           25   then sent on to the Court.  That's my understanding. 




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            1        Q.    The Court has the final say --

            2        A.    The Court -- yes, it's very clear in the 

            3   Consent Decree that the Court does have the final say. 

            4        Q.    Sure.  And you are familiar with these 

            5   presentations, are you not?

            6        A.    Yes, sir. 

            7        Q.    And you also are familiar with comments, 

            8   complaints, you might call them, that have been made by 

            9   people in the field there relating to these 

           10   presentations?

           11        A.    Oh, I've heard some concerns being expressed, 

           12   yes, sir. 

           13        Q.    All right.  You have received complaints, 

           14   have you not, Doctor, from schools that they do not know 

           15   when they have presented enough and that sometimes the 

           16   monitor indicates that he hasn't heard what he wanted to 

           17   hear; is that correct?

           18        A.    I hadn't heard it in exactly those terms; 

           19   but, you know, we have come up with issues.  There had 

           20   been some change in the format of the presentations.  

           21   Initially the presentations were sort of a celebration 

           22   of compliance.  They have become more data driven as 

           23   we've gone along, say, further into the presentations. 

           24              Questions/concerns have come up in the course 

           25   of the presentation.  Normally the school is given an 




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            1   opportunity to respond in a writing -- it's -- very 

            2   specific issues are raised. 

            3        Q.    Thank you.

            4        A.    So, there have been concerns expressed, yes, 

            5   sir. 

            6        Q.    Sure.  Well, perhaps you did not hear those 

            7   complaints in the terms as I have used them; but --

            8        A.    I know --

            9        Q.    -- that was the gist of it, though, right?

           10        A.    I know what you mean, yes, sir. 

           11        Q.    All right.  And the schools were complaining 

           12   that the monitor's evaluation was too subjective; is 

           13   that correct?

           14        A.    I haven't heard that specifically, but 

           15   maybe -- maybe it's implied. 

           16        Q.    Sure.  And arbitrary also at times?

           17        A.    I haven't heard the word "arbitrary" used 

           18   either but.... 

           19        Q.    Would that be an accurate description, 

           20   though, of the --

           21        A.    The nature somewhat of the complaints -- 

           22   where problems have come up in the course of the 

           23   presentation, people have expressed concerns as to why 

           24   they didn't know more about what was to be presented, 

           25   you know, in advance and that type of thing. 




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            1              This is something that, again, our special 

            2   education section and the people there who have been 

            3   going out attending these presentations are providing 

            4   more assistance to the school complexes in making these 

            5   presentations. 

            6        Q.    In a broad sense, Doctor, does the court 

            7   monitor, Mr. Groves, seek your assistance in this 

            8   process?

            9        A.    I don't know if he actually seeks my 

           10   assistance, but we talk a lot about these things.  

           11   Occasionally I've been provided an opportunity to 

           12   provide input, make recommendations.  Sometimes they are 

           13   followed; sometimes they're not. 

           14        Q.    All right.  Now, by the way, Doctor, before I 

           15   get to the next area, I wanted to ask you:  There 

           16   have -- recently there have been comments -- there has 

           17   been criticism of the Legislature and arguments made 

           18   that the state's inability to substantially comply with 

           19   the Felix Consent Decree was because of lack of funding. 

           20              Now, as an aside, I think we've already 

           21   discussed this issue of compliance; and if we accept 

           22   what you and I were talking about earlier, the school 

           23   is, as we sit here today, substantially -- actually, the 

           24   school -- the state, as we sit here today, is in 

           25   substantial compliance with the Decree, is it not?




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            1        A.    Again, that's not my decision; but I can say 

            2   based upon my personal professional experience, having 

            3   worked in New York State and in New England, that I 

            4   would say that the State of Hawaii right now is 

            5   providing a quality -- a level of services which is 

            6   comparable to what is available in New York or New 

            7   England. 

            8        Q.    All right.

            9        A.    And I would probably -- if I had to rank, I 

           10   would say we're somewhere in the top 15 of the 50 states 

           11   right now in the provision of these services. 

           12        Q.    So, in looking at this issue of substantial 

           13   compliance then, Doctor, and also the issue of funding, 

           14   would you agree that as far as the reasons why the State 

           15   of Hawaii has not been in substantial compliance up to 

           16   now -- or if we look at the judge having to decide that 

           17   whenever it is in the near future -- the reason the 

           18   State of Hawaii has not been able to comply certainly 

           19   has nothing to do with funding; am I correct?

           20        A.    From my standpoint, the problems that we have 

           21   experienced getting into compliance have been, say, 

           22   finding numbers of people, finding the special ed 

           23   teachers, finding the speech pathologists, finding the 

           24   service providers, getting them on-line. 

           25              Again, from my experience, I've had many 




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            1   wonderful opportunities to spend a lot of time with 

            2   members of the Legislature in the last four years.  And 

            3   they've asked me questions, hard questions; but that's 

            4   their job.  They're supposed to ask me the hard 

            5   questions; but when we get all done with the process, we 

            6   have found that we do come up with adequate funding.  We 

            7   do provide the bulk of the services that we need to 

            8   provide. 

            9        Q.    Certainly.  So, you would agree, then, 

           10   Doctor, that funding is not one of the reasons the state 

           11   has not been in substantial compliance?

           12        A.    I would not say that that is a major reason, 

           13   sir. 

           14        Q.    Thank you.  Now, Doctor, what is the 

           15   school-based model of providing special education 

           16   services?

           17        A.    Okay.  The school-based model -- again, I 

           18   would have to go back to my own experience.  The 

           19   school-based model is developed elsewhere in the United 

           20   States.  In getting in, say, the mid-'70s, for the most 

           21   part -- in New York State we got into it probably in the 

           22   late '60s because the State of New York had its own 

           23   special education law probably four or five years before 

           24   the '94 -- Public Law 94-142 came into being. 

           25              And what we did at that point is we began -- 




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            1   started building within the structure of the school the 

            2   people to provide services.  In other words, we've gone 

            3   in -- say, school psychologists, school nurses, school 

            4   social workers, increased the number of special 

            5   education teachers, brought in occupational therapists, 

            6   physical therapists, what have you; and in my 

            7   understanding of these 49 of the 50 states, this has 

            8   been the model that has been in use for year after year 

            9   after year. 

           10              Now, the public -- the federal law, first, 

           11   for special education or children -- providing services 

           12   for children with disabilities, the first one came out 

           13   somewhere around 1970.  It did not have much, I guess, 

           14   what you would call teeth in that law.  There was no 

           15   requirement for IEPs, no requirement for due process or 

           16   what have you. 

           17              The first strong law came out about 1974, 

           18   '75; and that was Public Law 94-142.  And at that point, 

           19   the other states -- at least the states that I was 

           20   working in, we were moving to develop these services. 

           21              Again, even in these states, the development 

           22   of services was, in many cases, driven by litigation.  

           23   Litigation was brought.  The schools had to go 

           24   through -- come up with the programs, what have you. 

           25              Again, in the other states, it's left to the 




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            1   state educational agency and the local school districts 

            2   to provide special education and related services; and 

            3   the related service of, say, mental health assistance or 

            4   behavioral health assistance is one of the related 

            5   services that's being provided. 

            6              So, in these states over from -- beginning in 

            7   the 1970s up through until the present time, year by 

            8   year by year by year, they've been putting these 

            9   programs in place. 

           10              When I came to the State of Hawaii, 19 -- 

           11   what, ten years ago, and arrived as a special education 

           12   teacher at Lahainaluna High School in Maui, we did not 

           13   have most of those services.  As a matter of fact, I 

           14   came in at the same time as a lady from Virginia who 

           15   came in to teach special education. 

           16              About the second or third day of the school 

           17   year, I walked out and she had out her copy of Public 

           18   Law 90 -- you know, the public law, federal law.  I 

           19   asked her what she was looking for, and she said she was 

           20   looking for the exclusion for the State of Hawaii.  And 

           21   that was the situation at that point because we simply 

           22   did not have the services available. 

           23              And I know -- when I arrived on the scene, I 

           24   had 14 delightful boys.  People said that they were 

           25   tough customers, but they were pretty good.  And we got 




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            1   along with them just fine; but they did -- they could 

            2   have benefited, say, from some psychological services 

            3   and counseling. 

            4              And I remember writing a letter to the -- 

            5   what they called Children's Place on Maui at that time, 

            6   which would have been now the Family Guidance Center.  

            7   And I got a letter back saying they simply did not have 

            8   the services to provide.  And that was the issue at that 

            9   time. 

           10              Now, I have since been back to this school -- 

           11   and this is ten years later -- and services are 

           12   available; and this has happened over the last ten 

           13   years. 

           14              And as I say, now, I would compare very 

           15   favorably the services that are available in the schools 

           16   in the state to what exists elsewhere in the United 

           17   States. 

           18        Q.    Okay.  Essentially, if I might try to 

           19   summarize that, Doctor, when you talk about a 

           20   school-based model, are we talking about a model 

           21   wherein, within a school, for example --

           22        A.    Uh-huh. 

           23        Q.    -- you have a counselor --

           24        A.    Right. 

           25        Q.    -- a nurse and everyone else in that -- in 




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            1   that group that can provide the -- hopefully the overall 

            2   services that a student might need?

            3        A.    Uh-huh. 

            4        Q.    Right?

            5        A.    Yes.  I guess, when we first got into the 

            6   Consent Decree issue, it was necessary to scramble to 

            7   get services in place when there were no services; and 

            8   we went to contracted services because that was what was 

            9   available. 

           10              And contracted services did provide 

           11   opportunities for some mental health providers to start 

           12   coming on the campus and working specifically with 

           13   individual children, but my experience has been that 

           14   quite frequently these people can be more beneficial by 

           15   providing consultation to teachers and to parents than 

           16   they can by simply taking the child aside and talking to 

           17   the child for a 40-minute period. 

           18              It has -- it has worked very nicely in many 

           19   parts of the -- in many parts of the United States where 

           20   we have these people -- they are integrated as part of 

           21   the faculty, part of the program in the school; and 

           22   they're there every day.  They come in at, you know, 

           23   7:00 o'clock in the morning, work until 4:00 or 5:00 in 

           24   the afternoon.  And they work with the people, work with 

           25   the faculty, work with the children in the context of 




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            1   their educational program; and that is the model that 

            2   the rest of the nation has used to provide these related 

            3   services. 

            4        Q.    Doctor, explain for us -- explain for us -- 

            5   and in that some context -- what a clinical model for 

            6   providing services would be?

            7        A.    Okay.  I guess the simplest thing they could 

            8   do is that if we're talking a clinical or a medical 

            9   model -- and normally in this situation, you assume that 

           10   there is a condition or an illness or a problem; and you 

           11   require the services of these trained humans, I guess, 

           12   if you want to use that term, or the person who is 

           13   knowledgeable of that disability to come in and spend 

           14   time to provide a healing environment or healing program 

           15   for that child. 

           16              If we're talking about a school-based model, 

           17   we're talking a wellness model.  We do not assume that 

           18   the child is ill or sick.  We're talking about -- a 

           19   child normally goes through certain developmental 

           20   sequences, developmental processes.  And there are times 

           21   in the developmental sequences or processes, if we had 

           22   this additional assistance, we can help the child grow 

           23   and develop and become independent within the context of 

           24   that school program.  And that's, I guess, very 

           25   basically the difference between the two. 




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            1        Q.    Well, the clinical model for providing 

            2   services was utilized for a period of time here in the 

            3   State of Hawaii, was it not?

            4        A.    Yes, because we have -- we're under the 

            5   urgency of the Court to get services in place. 

            6        Q.    Well, that decision, though, to place our 

            7   system with -- place within our system a clinical model 

            8   as opposed to a school-based model was made by whom?

            9        A.    I think it was made by collectively the 

           10   leadership of the DOE, the DOH, at that time in accord 

           11   with the -- publicly the request of the monitor, the 

           12   technical assistance panel. 

           13              Again, I was not involved with that decision 

           14   making.  I did express concerns over the years as to -- 

           15   my hope was that we would not remain with that model, 

           16   but that we would move toward a -- more of a 

           17   school-based delivery of service.  

           18        Q.    My understanding, Doctor, is back in 1996, 

           19   you had raised specific concerns about the State of 

           20   Hawaii using a clinical model for providing services as 

           21   opposed to a school-based model?

           22        A.    Yes, that is correct. 

           23        Q.    And I understand also that, to your 

           24   knowledge, the person who made that basic decision was 

           25   Mr. Groves?




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            1        A.    I would expect that Mr. Groves was a party to 

            2   the decision.  I don't know if he was the only one in 

            3   making that decision. 

            4        Q.    And your concerns were well-founded, were 

            5   they not, because this year the system went back to a 

            6   school-based model?

            7        A.    Well, I would say in the last three years, we 

            8   started working in moving toward a school-based model. 

            9              In order to get a school-based model in 

           10   place, you can't just say, okay, we're going to have it.  

           11   You've got to get the -- you've got to get the people 

           12   with the knowledge and the skills actually in the 

           13   place -- in the school to coordinate and provide these 

           14   services. 

           15              We had to go out and we had to create the 

           16   position of the student services coordinator and that 

           17   took a period of time and we started those people about 

           18   two years ago.  

           19              We had problems on something as simple as the 

           20   school psychologist.  Elsewhere in the United States, 

           21   we'll use master's level school psychologists to work 

           22   directly within the context of the school.  We had to go 

           23   out and actually create this position, and this required 

           24   meeting with DHRD for several meetings, meeting with 

           25   people involved, clearing it with, say, the unions 




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            1   involved, what have you.  And we finally got the 

            2   position of a -- say, a school psychologist is created, 

            3   so now that we are able to hire school psychologists. 

            4              I think essentially we had another issue here 

            5   in that services were split between DOE and DOH.  We had 

            6   kind of a dual system for providing these services.  And 

            7   a couple of years ago we brought over the occupational 

            8   therapists and the physical therapists to the Department 

            9   of Education. 

           10              We had many meetings on these issues with 

           11   members of the Legislature, both the Senate and the 

           12   House; and I think it was back in the session laws of 

           13   1999 that actually enabling legislation was put through 

           14   as part of the budget bill in that year to move in the 

           15   direction of school-based services. 

           16              So, there have been people working on this 

           17   both from the Department of Education and the Department 

           18   of Health to realize legislature for some time.  And I 

           19   would have to say that we've had real support -- real, 

           20   real support all the way through from the leadership in 

           21   the Department of Health as we have made these moves.  

           22   They've been very, very helpful and very supportive. 

           23        Q.    All right.  Prior to 1996 when it was decided 

           24   to use this clinical model, essentially, the DOE was 

           25   under a school-based system, was it not?




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            1        A.    School-based system with no resources and no 

            2   people. 

            3        Q.    Now, Doctor, in terms of information that we 

            4   are seeking, you're aware of the type of information we 

            5   are seeking, are you not?

            6        A.    Yes, sir. 

            7        Q.    And you understand that the reason the 

            8   Legislature is so concerned is because taxpayer dollars 

            9   are concerned with this type of spending.  Do you 

           10   understand that?

           11        A.    Yes.  And I also believe that the Department 

           12   of Education supported the resolution to create this 

           13   Committee. 

           14        Q.    Now, the type -- the type of information 

           15   we're seeking -- you sat here today all morning 

           16   listening to the testimony of Superintendent LeMahieu 

           17   and Dr. Anderson as to the type of information we're 

           18   seeking.  You are aware that the information is 

           19   available, are you not?

           20        A.    One of the major problems we have in the 

           21   department is having good data.  Okay.  And I don't 

           22   think this is a shock to anybody here today. 

           23              Again, when I was a superintendent, of 

           24   course, of a smaller district 20 years ago, I was able 

           25   to get the type of data that we're talking about this 




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            1   morning essentially instantaneously from the com -- from 

            2   the data systems that we had to operate.  And that was 

            3   true for the most part of most of, say, the New York 

            4   State schools at that time. 

            5              And I do believe there's been a lot of 

            6   improvements in MIS systems in the last 20 years; but 

            7   unfortunately with the rush to get services out, people 

            8   have not necessarily been able to place an equal 

            9   emphasis upon building the infrastructure to support the 

           10   services.  And I think, from my perception, it would be 

           11   very helpful if the Department of Education had a much 

           12   expanded, much improved current MIS system to provide 

           13   this data. 

           14        Q.    Whose responsibility would it be, Doctor, to 

           15   establish that type of system in a state department such 

           16   as the Department of Education?

           17        A.    Well, it would have to -- you know, there 

           18   have been several requests coming, I think -- from my 

           19   understanding, going to the Board of Education coming on 

           20   to the Legislature regarding MIS systems; but, again, 

           21   people are very busy.  They're trying -- during the 

           22   legislative session, they're very time limited. 

           23              We've had to push to get all of the other, 

           24   say, direct services out, personnel and programs in 

           25   place; and I think it's very important in the very near 




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            1   future to make an investment in getting a very good MIS 

            2   out -- up and operating in actually what I believe is 

            3   the largest department that the state has. 

            4        Q.    Well, Doctor, understanding that there have 

            5   been requests, as you say, from the Board of Education 

            6   and the Legislature for this type of information that 

            7   would have been readily available with a different MIS 

            8   system, you would agree that having that MIS system that 

            9   could allow you to retrieve that information much easier 

           10   would essentially just be a good business practice, 

           11   would it not?

           12        A.    It would be an outstanding business practice. 

           13        Q.    So that -- strike that. 

           14              So, you say that there have been other 

           15   priorities, I guess, that have had to be tended to; and, 

           16   therefore, perhaps the system was not developed and put 

           17   into place.  This Consent Decree has actually been in 

           18   place since 1994, seven years ago, right?

           19        A.    That is correct. 

           20        Q.    So that this rush to do things -- do you know 

           21   why it's a rush when this Decree has been in place for 

           22   seven years and, in fact, in 1994 the target date of 

           23   2000 was given?

           24        A.    Yeah.  I have no idea as to why the target 

           25   date of 2000 was given when they actually wrote the 




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            1   Consent Decree.  I have a sneaking suspicion that the 

            2   people who were involved with actually writing the 

            3   Consent Decree and putting together the initial plan -- 

            4   and this was the initial plan.  The other day we were 

            5   talking about we've never had a plan.  Well, we've -- 

            6   have we ever had plans. 

            7              We've had a master.  We've had an 

            8   implementation plan.  We've had a status report and 

            9   follow-up modification of the plan.  We've had other 

           10   plans put out by specific departments.  We've had the 

           11   monitor's plan for monitoring; but my contention is at 

           12   the time that we started putting these plans together, 

           13   that I don't think people really realized the full depth 

           14   of the problem and the full issue that needed to be 

           15   resolved because at that time -- this is going back 

           16   about, you know, seven, eight years ago -- in terms of 

           17   where the other states were as far as identifying 

           18   children with disabilities and providing services, they 

           19   were, at that point, somewhere between 8 and 14 percent 

           20   of their population.  We, at that point, were around 6 

           21   percent.  We were the lowest of any of the states in the 

           22   United States. 

           23              Now, we are up to around 11 percent; and 

           24   people have asked me, "Haven't we over-identified?"  And 

           25   I say, "No, we have not over-identified" because now out 




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            1   of the 50 states, we are up to 34 -- 33 in rank.  So, 

            2   we're still in the lower half.  And that's from five to 

            3   seventeen. 

            4              If I take the three- to five-year-olds, we 

            5   now rank 47th out of 50, which is pretty down -- pretty 

            6   much down near the bottom.  And if we talk about those 

            7   children from, say, 17 to 20 years old, we now rank dead 

            8   last.  We are 50 out of the 50 states. 

            9              So, we had to identify children.  There was 

           10   the big push to identify the children with disabilities, 

           11   and then there was the big push of where do we find 

           12   special education teachers to teach these children?  And 

           13   if the University of Hawaii is only graduating maybe 18 

           14   graduates a year, we have to go out and we have to find 

           15   people to come and teach these children. 

           16              And right now, the last data I have from the 

           17   U.S. Office of Education is there's a shortage of about 

           18   35,000 special education teachers in the nation.  So, we 

           19   have to go out; and we try to recruit these teachers 

           20   from elsewhere. 

           21              Once we identify these children, we have to 

           22   have teachers.  If we don't have teachers, we cannot 

           23   provide the services.  We have to have psychologists.  

           24   We have to have social workers. 

           25              Now, the University of Hawaii does produce 




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            1   some social workers, but not enough; and even though 

            2   they have a program in their school of education -- an 

            3   educational psychology, they, as of this point, do not 

            4   produce psychologists.  So, we have to find these 

            5   people.  We have to get the people in place, and we have 

            6   to get the services in place so that we are meeting the 

            7   minimum standard of IDEA. 

            8              Now, this morning we talked about:  What does 

            9   the Judge expect out of us?  Last Thursday he told us.  

           10   He said he wants compliance with IDEA; and that's, I 

           11   guess, relatively simple. 

           12        Q.    Well, have you followed the Judge's rulings 

           13   in this case, Doctor?

           14        A.    Oh, yes. 

           15        Q.    What is your opinion of the Judge's ruling in 

           16   this case?

           17        A.    I think the Judge has been fair.  I think the 

           18   Judge has given us time.  I think probably -- I really 

           19   can't speak for the Judge, but I expect that he probably 

           20   hopes that we solve our own problems and he does not 

           21   have to get involved in running a special education 

           22   program.  I'm pretty certain that he probably feels that 

           23   way. 

           24        Q.    Am I to understand, though, Doctor, that in 

           25   terms of the progression, in terms of the increasing 




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            1   numbers of students within this class, if we might 

            2   assume that they are properly identified to be within 

            3   that class --

            4        A.    Right. 

            5        Q.    -- that it has been a steady progression on 

            6   the rise --

            7        A.    Yes. 

            8        Q.    -- is that correct?

            9        A.    Yes, we have -- I think, again, of the 50 

           10   states, as of a couple of years ago, we ranked, I think, 

           11   either second or third in the percentage of increase of 

           12   children identified with disabilities because we started 

           13   so low. 

           14        Q.    All right.  But in terms of the requirements, 

           15   though, that need to be satisfied to comply with the 

           16   Felix Consent Decree, those requirements were in place 

           17   in 1994, were they not?

           18        A.    You mean, what we have to do to comply?

           19        Q.    Yes, sir.

           20        A.    Well, that's been around since -- actually 

           21   complying with IDEA was initially set up in 1975. 

           22        Q.    Correct.  But in terms of the Decree itself, 

           23   if we might just focus on that --

           24        A.    In the Decree itself, there's a section in 

           25   the Decree called 11A, which is a very significant 




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            1   section; and if you look at Section 11A of the actual 

            2   Consent Decree, it talks about meeting the minimum 

            3   standard -- the minimum standard for -- of compliance is 

            4   meeting IDEA, 504, and the principles and standards of 

            5   the Consent Decree. 

            6        Q.    But what I'm saying, Doctor, is that those 

            7   provisions have been in place since this the Consent 

            8   Decree was entered into --

            9        A.    That is correct. 

           10        Q.    -- since back in 1994?

           11        A.    Right. 

           12        Q.    So that the fact that you are still looking 

           13   for certain kinds of professionals, that's nothing new, 

           14   is it?  You were aware back in 19 -- the department was 

           15   aware that you needed those types of professionals --

           16        A.    I don't think -- I don't believe anybody knew 

           17   that they needed that many. 

           18        Q.    And did I hear you say that one of the 

           19   reasons -- well, strike that. 

           20              Did I hear you say earlier that, in your 

           21   opinion, when the people that were involved entered into 

           22   the Consent Decree back in 1994, they did not know what 

           23   to expect?

           24        A.    I do not think that they were fully aware of 

           25   the depth of the issue. 




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            1        Q.    And not fully aware just because of the 

            2   experience that we have or have not had in Hawaii; am I 

            3   correct?

            4        A.    I think that would enter into it, yes, sir. 

            5        Q.    Certainly you can -- --

            6              (Discussion off the record.)

            7        Q.    (BY SPECIAL COUNSEL KAWASHIMA)  Doctor, you 

            8   would agree, though, in terms of what requirements were 

            9   there, whether or not people understood those 

           10   requirements, to your understanding, the parties could 

           11   go back into Court and ask for a -- an amendment or 

           12   relief from that Consent Decree, could they not?

           13        A.    There's a provision, I think, at the very end 

           14   of the Consent Decree whereby either party can go back 

           15   and essentially beseech the Court, yes, sir. 

           16        Q.    Sure.  And other than asking for time, for 

           17   example, you can ask for relief in other forms, can you 

           18   not?

           19        A.    I believe you could, sir; but, again, that's 

           20   a decision that has to be made -- it's a policy 

           21   decision. 

           22              SPECIAL COUNSEL KAWASHIMA:  Thank you.  No 

           23   further questions. 

           24              CO-CHAIR SENATOR HANABUSA:  Members, we will 

           25   take a five-minute break for the court reporter and we 




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            1   will return and we will probably take questioning in the 

            2   order that we take your role beginning with Vice-Chair 

            3   Kokubun.  Thank you. 

            4              (Brief recess.)

            5              CO-CHAIR SENATOR HANABUSA:  Members, we are 

            6   back in session.  We will be opening up questioning to 

            7   the Committee members.  We'll start with Vice-Chair 

            8   Kokubun followed by Co-Chair Saiki in that Vice-Chair 

            9   Oshiro is not present.  So, Vice-Chair Kokubun, do you 

           10   have any questions?

           11              VICE-CHAIR SENATOR KOKUBUN:  Thank you, Madam 

           12   Chair.  

           13                          EXAMINATION

           14   BY VICE-CHAIR SENATOR KOKUBUN:

           15        Q.    I wanted to just follow up a little bit on 

           16   the service testing area.

           17        A.    Okay, sir. 

           18        Q.    Mr. Kawashima had asked about the 

           19   presentations done in the school complexes and talking 

           20   about the role that the court monitor plays in those.  

           21   Does he have the ultimate decision making with respect 

           22   to who passes, who doesn't pass?  Can you give me an 

           23   idea of what his role is in that regard?

           24        A.    Okay.  All I can do is share with you my 

           25   observation from attending some of these.  The monitor 




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            1   listens carefully, reads through the information. 

            2              Normally when it comes near the conclusion of 

            3   the service testing or the presentation experience, he 

            4   will consult with the Plaintiffs' attorneys who also 

            5   happen to be present; and then based upon -- it could be 

            6   a verbal consultation.  In one case, I think it was sort 

            7   of a glance in the direction at the Plaintiffs' 

            8   attorneys. 

            9              The Plaintiffs' attorneys, I -- from my 

           10   perception, do have input into this decision; and in 

           11   some cases the Plaintiffs' attorneys have requested 

           12   additional information.  And then after the additional 

           13   information has been provided, then the complex is 

           14   determined to be in compliance.  So, the -- so, I do 

           15   believe that the Plaintiffs' attorneys do have a role in 

           16   this. 

           17        Q.    Okay.  Well, let me follow up on that a 

           18   little bit.  What authority do they have?

           19        A.    Well, they're the ones who brought the 

           20   initial suit; and they're the ones who -- periodically, 

           21   as we go back to the status conferences and back into 

           22   Court, the Plaintiffs' attorneys do file documents and 

           23   do file motions before the Court. 

           24        Q.    Uh-huh.

           25        A.    So, the Plaintiffs' attorneys have been -- 




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            1   you know, by virtue of the Consent Decree itself, the 

            2   Plaintiffs' attorneys have been continuing participants 

            3   in this dialogue. 

            4        Q.    So, in terms of -- how about for the 

            5   department?  Who participates in that regard?

            6        A.    Okay.  We have -- the Attorney General's 

            7   office represents a department in the state; and 

            8   normally what happens, when it gets into legal issues, 

            9   then the Plaintiffs' attorneys work with the Attorney 

           10   General's office.

           11        Q.    I'm sorry.  I missed that.

           12        A.    The Plaintiffs' attorneys work -- confer with 

           13   the representatives of the Attorney General's office.  

           14   So, the state is represented by the Attorney General. 

           15        Q.    But ultimately it's the court monitor who has 

           16   the say in terms of --

           17        A.    The court monitor is in a position to make a 

           18   recommendation, and that goes back to the Court.  And 

           19   the Court, in this case, could either -- probably be -- 

           20   say, the Court Master, who would be Mr. Portnoy, or it 

           21   could probably go back to, say, Judge Ezra himself. 

           22              Again, I'm not -- I do not participate in 

           23   that level of activity.  So, I really do not know. 

           24        Q.    Okay.  So, you don't know -- would you happen 

           25   to know if the Judge has ever gone against the 




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            1   recommendation of the court monitor?

            2        A.    I do not know that. 

            3        Q.    One follow-up, again, on this area:  You 

            4   know, we talked about noncompliance; and in order to 

            5   meet compliance, you have to follow through and get the 

            6   approval --

            7        A.    Right. 

            8        Q.    -- by the Court based on the recommendation 

            9   of the court monitor.

           10        A.    Right. 

           11        Q.    If there have been changes in terms of how 

           12   the presentation -- what date -- what information is 

           13   required of the presentation, has that ever been viewed 

           14   as a detriment to the timely compliance?

           15        A.    I don't know if it's actually been viewed as 

           16   a detriment; but we have raised issues with the court 

           17   monitor's office as to exactly what needs to be 

           18   presented, how it needs to be presented, again, 

           19   primarily working for clarification. 

           20              See, compliance is more than just service 

           21   testing.  Service testing is a key component of the 

           22   compliance issue, but we are also required to have an 

           23   infrastructure in place.  And the infrastructure in 

           24   place means, you know, hiring the people to provide 

           25   services, having the expertise and the rationale on 




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            1   board; and the service testing is simply one component 

            2   of trying to achieve overall compliance. 

            3        Q.    But it's certainly a very critical --

            4        A.    It's a very important component. 

            5        Q.    I mean, that's the standard that --

            6        A.    Yes, sir.  That's the outcome --

            7        Q.    -- the system is being judged on?

            8        A.    That's the outcome measures for the services 

            9   that are being provided, and it's a very important 

           10   component.

           11              VICE-CHAIR SENATOR KOKUBUN:  Thank you. 

           12              CO-CHAIR SENATOR HANABUSA:  Senator Kokubun, 

           13   are you finished?

           14              Senator -- Representative Saiki followed by 

           15   Senator Buen. 

           16              CO-CHAIR REPRESENTATIVE SAIKI:  Thank you.

           17                          EXAMINATION

           18   BY CO-CHAIR REPRESENTATIVE SAIKI: 

           19        Q.    Dr. Houck, I have a few questions as well on 

           20   service testing because they -- I guess I feel that 

           21   service testing is the crux of this entire lawsuit 

           22   because it determines whether or not we are in 

           23   compliance; and just to make sure that my understanding 

           24   is correct, service testing basically begins with two 

           25   reviews:  The school-based services review and then the 




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            1   coordinated services review?

            2        A.    That is correct.  There are two protocols. 

            3        Q.    If the complexes reach 85 percent in each of 

            4   these reviews, then they are in part -- in partial 

            5   compliance -- provisional compliance?

            6        A.    Provisional compliance, yes, sir. 

            7        Q.    And in order to reach full compliance, 

            8   everything must pass the complex presentation?

            9        A.    That is correct. 

           10        Q.    Okay.  With respect to these two reviews, you 

           11   had mentioned that the -- that student files are 

           12   basically reviewed.  There is a sampling --

           13        A.    That's part of -- part of the review process, 

           14   yes, sir. 

           15        Q.    How -- I had some questions on the sample and 

           16   the extent to which they're random.  How many -- well, 

           17   first of all, how are the -- how are the student files 

           18   selected?

           19        A.    Okay.  The standard procedure is that the 

           20   Department of Education provides the monitor's office 

           21   with a list of students who are re -- found eligible and 

           22   are receiving services.  The Department of Health also 

           23   provides the monitor's office with a list. 

           24              The people in the monitor's office go through 

           25   and they match up the two lists, reconcile the 




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            1   differences, and then make a decision going through -- 

            2   what I have requested that they do is go through and 

            3   then -- say, if they're going to take every third or 

            4   every fourth or every fifth, you put the list in 

            5   alphabetical -- a single list in alphabetical order and 

            6   go through and pull in that fashion.  That's been my 

            7   request. 

            8              There have been some issues coming up -- my 

            9   understanding is that they've, at times, gone through 

           10   and pulled a sample; but then they have to have 

           11   authorization or permission from the parents to include 

           12   the child in the service testing experience.  And in 

           13   some cases, they have not -- I guess -- I understand 

           14   they have not received approval or perhaps a child has 

           15   moved to a different school or something like that has 

           16   happened.  The child is no longer available.  Then they 

           17   go through and they place alternates on the list for the 

           18   service testing. 

           19              That's my understanding as how it works.  The 

           20   final list is pulled together by the Felix monitoring 

           21   office and is sent out to the complex, to the schools, 

           22   by the Felix monitoring office. 

           23              What we have done, Department of 

           24   Education-wise, we've had meetings with our district 

           25   superintendents and our deputy district superintendents 




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            1   in the last few weeks; and we are pushing them to take a 

            2   more active role in reviewing these lists before this 

            3   service testing takes place.  It has -- at times in the 

            4   past, we've gone through the service testing and then 

            5   perhaps people in the schools have raised issues 

            6   regarding the randomness of the selection. 

            7              In this case, it would be more appropriate to 

            8   raise the issues if there were problems regard -- 

            9   regarding the randomness of selection before the service 

           10   testing actually takes place.  And that's what we will 

           11   be doing this year. 

           12        Q.    Okay.  I'm sorry.  Just to clarify, when you 

           13   said that the -- when the DOE and DOH submit their own 

           14   list of students --

           15        A.    Right. 

           16        Q.    -- the lists are reconciled.  What -- how is 

           17   that done?

           18        A.    To make certain that the lists -- that we 

           19   have the same students and the same list and the same 

           20   information.  I think initially -- a couple of years ago 

           21   on the initial complexes there were more questions 

           22   coming up.  It appears that the data right now that we 

           23   are submitting is pretty good. 

           24        Q.    How is the complex supposed to know whether 

           25   or not the sample really is random as far as every third 




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            1   or fourth student being selected?

            2        A.    Essentially I would hope -- okay.  If you're 

            3   going out and doing service testing in a complex, I hope 

            4   if we have five schools in the complex, we have students 

            5   from all five schools; and I would hope that we have 

            6   students that people in the complex feel would provide a 

            7   realistic random selection for that complex. 

            8        Q.    But the only person who really knows whether 

            9   or not the sample is random is the court monitor and his 

           10   staff, I would assume?

           11        A.    Well, they would know more about it than we 

           12   would, yes, sir.

           13        Q.    But outside of DOE and DOH, they're the only 

           14   ones who know?

           15        A.    Yeah, because they are the ones who actually 

           16   make the final determination. 

           17        Q.    Okay.  With respect to the reviews that are 

           18   done, I know that the reviews basically list a series of 

           19   questions that must be answered.

           20        A.    Questions and what things to look for and 

           21   that type of thing, yes, sir. 

           22        Q.    Who asks those questions?

           23        A.    The reviewers.  In other words, there are -- 

           24   we have a cadre of reviewers of the lot -- as I said 

           25   earlier, it's similar to an accreditation process, only 




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            1   I think the reliability with service testing right now 

            2   is better and superior than what we get in our actual 

            3   accreditation process because with the accreditation 

            4   process, we do not have people who are consistently 

            5   reviewers.  Whereas, at the present time in the service 

            6   testing, we do have a consistent cadre of reviewers; and 

            7   it's possible to go through and get reliability measures 

            8   as to the people who are actually doing the reviewing.  

            9   So, I think we have a pretty good team at this point. 

           10        Q.    Who -- when the reviewers go through the list 

           11   of questions and record their data --

           12        A.    Right. 

           13        Q.    -- who actually analyzes that information?

           14        A.    Okay.  The reviewers from -- again, my 

           15   understanding is they prepare these documents, these 

           16   sheets that they have; and then they go through and they 

           17   are sort of interviewed themselves by the people 

           18   involved.  That would be the service testing office, 

           19   what have you, go through and talk with them, review the 

           20   results, pull the documentation together; and then -- 

           21   and at the present time, I believe that the actual 

           22   write-up is being done under a contract with the 

           23   university-affiliated programs so that people at the 

           24   university-affiliated programs are doing much of the 

           25   actual write-up. 




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            1        Q.    I'm sorry.  When you say "write-up," what do 

            2   you mean?  What is being written up?

            3        A.    Okay.  There is a write-up report.  I think 

            4   you have a number of these copies here by the Senator's 

            5   spot this morning.  These are the final reports. 

            6              Typically the service testing takes place, 

            7   and it ends.  Probably a week or a few days go by and 

            8   then there's a presentation made in the complex; and at 

            9   that time, they have what they call the preliminary data 

           10   report, which is issued in -- it's sort of distributed 

           11   to those people who attend that meeting.  And then they 

           12   go through and they do a final complete review and then 

           13   they write these formal, final review documents, again, 

           14   which are on the table.

           15        Q.    Is the underlying data a matter of public 

           16   record?

           17        A.    Most of it -- not the actual service testing; 

           18   but in the final reports, you will find data about the 

           19   schools, staffing data, that type of thing.  A lot of 

           20   that would be public information. 

           21        Q.    Well, underlying data with respect to the 

           22   files that were selected and the questions that were 

           23   asked and the answers that were given?

           24        A.    At this point, for the most -- at this point, 

           25   these are items of information that are held by the 




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            1   Felix office from my perception. 

            2        Q.    Is that public record or is --

            3        A.    I don't really know.  In this case, they are 

            4   part of this process.  I don't know if they're a Court 

            5   record or public record.  I really don't know. 

            6        Q.    Has anybody ever -- has anybody ever 

            7   attempted to obtain that data from --

            8        A.    Not that I'm aware of. 

            9        Q.    You know, with respect to the two reviews 

           10   that are done, if the school does not hit 85 percent, is 

           11   there an opportunity for the school to appeal that 

           12   finding or --

           13        A.    There's no appeal procedure, again, at this 

           14   point.  I know we can raise issues.  We can discuss the 

           15   items, say, with both people in the Felix office; but 

           16   there's a -- no formal review type of thing that I'm 

           17   aware of. 

           18        Q.    Would you agree with me that the sample that 

           19   is used in service testing is probably one of the 

           20   most -- I think is probably one of the most significant 

           21   components of the service testing process?

           22        A.    It's very important. 

           23        Q.    Because is it possible that if you could 

           24   manipulate the sample, you could skew the result in the 

           25   end?




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            1        A.    Well, it depends upon -- the result of your 

            2   service testing would be based upon the cases that you 

            3   are reviewing. 

            4        Q.    Have you received complaints from complexes 

            5   as far as the randomness of these samples?

            6        A.    I've had -- from time to time, principals 

            7   have raised that issue, yes, sir --

            8        Q.    What's the --

            9        A.    -- wondering why -- in some cases, why a 

           10   number of children would be selected in one school and 

           11   very few children in another school, say, down the road.  

           12   That type of issue has been raised. 

           13        Q.    Have you brought those concerns to the 

           14   attention of the court monitor?

           15        A.    Yes, I have.

           16        Q.    And what was the monitor's response?

           17        A.    His concern was -- is that with the 

           18   availability of resources and that in order to meet the 

           19   schedule, this would be -- this is currently the best 

           20   activity done.  He's indicated that given, I guess, the 

           21   best of possible worlds, it would be nice to have, say, 

           22   more children in the sample; but he doesn't -- again, 

           23   these are discussions that we have had. 

           24        Q.    Assuming that service testing is the crux of 

           25   this entire litigation, is that response good enough?




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            1        A.    Well, that's -- these are the discussions I 

            2   have raised with the people involved.  Again, I feel 

            3   that the service testing itself does provide a good 

            4   indicator of what is happening within that complex.  I 

            5   do believe that the selection of the sample is a very 

            6   important aspect of getting a good report or a good 

            7   indication of what is happening; and we have discussed 

            8   these matters, say, with the monitor and the monitor's 

            9   staff from time to time, yes, sir. 

           10        Q.    Okay.  Just to sum up, the -- whether or not 

           11   the sample is truly random is not known by any of us.  

           12   Only the court monitor and the staff really know if that 

           13   sample is random?

           14        A.    Well, if we get a sample which we feel that 

           15   we're finding all children with, say, the same 

           16   disability all clustered in one school, yes, we would 

           17   raise issues about that sample. 

           18        Q.    But nobody here can say with certainty that 

           19   the samples are truly random?

           20        A.    I have to go on the information that we have 

           21   received from the monitor and monitor's staff. 

           22        Q.    So, you rely on what the monitor says?

           23        A.    We don't have much option at this point. 

           24        Q.    How can we determine whether or not the 

           25   samples truly are random, aside from just taking the 




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            1   monitor's word for it?

            2        A.    Well, we can review the lists when we get the 

            3   lists; and then if it comes down to a specific issue -- 

            4   I don't -- you know, we would have to address this 

            5   probably through our Attorney General's office, if that 

            6   was a very specific issue to be addressed, I would 

            7   expect. 

            8              CO-CHAIR REPRESENTATIVE SAIKI:  Okay.  Thank 

            9   you very much. 

           10              CO-CHAIR SENATOR HANABUSA:  Thank you, 

           11   Representative Saiki.  Senator Buen followed -- 

           12   Representative Ito is not here.  So, it would be 

           13   Representative Leong after Senator Buen.

           14              SENATOR BUEN:  Thank you.  

           15                          EXAMINATION

           16   BY SENATOR BUEN:

           17        Q.    Dr. Houck, would you say that given the three 

           18   months extension, that the schools will be in 

           19   compliance, in full compliance?

           20        A.    We've been meeting on that issue quite a bit 

           21   the last few days. 

           22        Q.    So --

           23        A.    Actually we have about 55 days; and we have, 

           24   I think, it's -- I think six out of seven complexes, 

           25   something like that, that we will have to bring into 




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            1   compliance by -- I think the deadline is somewhere 

            2   around November 1st.  I believe it's doable with --

            3        Q.    Okay.  So, you're saying that it's doable.  

            4   In your meetings, what makes you think it's doable?

            5        A.    Okay.  We -- I know the -- I know 

            6   considerably -- I have considerable information on the 

            7   complexes that are scheduled for service testing.  I 

            8   believe that there is a very good likelihood that the 

            9   next six complexes will pass service testing. 

           10              It's going to require support and assistance 

           11   with the people who are working in those complexes.  

           12   Again, it's going to be an intensive task in the next -- 

           13   between now and November the 1st.  I believe that it 

           14   can -- that we can be successful. 

           15        Q.    Okay.  The service testing is part of the 

           16   compliance?

           17        A.    It's only part. 

           18        Q.    Part of the -- okay.  And with the 

           19   infrastructure, let's say, in Maui County, do you say 

           20   that, in your opinion, the infrastructure is in place?

           21        A.    I believe that the services and the personnel 

           22   are currently in place in Maui County, that Maui County 

           23   will probably do much better on the service testing this 

           24   time around than they did in the past. 

           25              Again, we did bring in many more, say, 




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            1   licensed certified teachers this year through the 

            2   Columbus contract.  We've got, like, 138 teachers in the 

            3   state.  Many of these are working in Maui County. 

            4              We have more services also in place in terms 

            5   of the support people, the psychologists.  So, I -- so, 

            6   I believe that the schools -- and we have two schools on 

            7   the list in Maui County that will be up for service 

            8   testing between now and November. 

            9              We have the Maui High complex.  I feel 

           10   comfortable with the Maui High complex.  And then we 

           11   have my old complex of Lahainaluna complex, and 

           12   Lahainaluna complex did pass -- did previously pass one 

           13   of the protocols.  So, at this point, they only have to 

           14   do the school-based services protocol. 

           15              And I understand there are going to be a 

           16   couple of new principals in.  So, it's going to be 

           17   important to provide the assistance and support for 

           18   these two new people who are coming on board.  And I 

           19   believe that with the personnel and programs there, that 

           20   they will be successful this time.  So, I'm en -- I'm 

           21   encouraged by what has happened. 

           22        Q.    So, would you say that you would feel 

           23   comfortable that two or three of the schools in Maui 

           24   County will be in compliance?

           25        A.    I expect that we'll have Maui High complex 




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            1   and Lahaina complex in compliance by November. 

            2        Q.    By November?

            3        A.    And I expect that Baldwin will follow soon 

            4   after. 

            5        Q.    Okay.  What about Molokai and Lanai?

            6        A.    Okay.  Molokai and Lanai, we've had very 

            7   specific problems and problem issues with providing 

            8   staffing in those areas. 

            9              We have, again, through Columbus contract, 

           10   brought -- I think it's either nine or ten licensed 

           11   certified special education teachers to Molokai High 

           12   School this year which we did not have last year.  And 

           13   in terms of the elementary schools over there, they were 

           14   doing quite well last year. 

           15              So, I think that with that additional 

           16   staffing and with the additional time that we have 

           17   before we go back to Molokai, I think that we will be in 

           18   a much stronger position of what we were before. 

           19              Lanai, we've had some other very specific 

           20   issues.  And, again, there has been improvement for the 

           21   folks on Lanai; but, again, part of the issue in the 

           22   past has been finding the qualified teachers, the 

           23   qualified service providers, to go to Molokai or to go 

           24   to Lanai. 

           25              When we hire people, we bring them into the 




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            1   state.  They have a choice of where they're going to go.  

            2   We really can't order them, and Columbus contract did 

            3   provide the option of getting licensed certified trained 

            4   people into these areas.  So, I expect that we're going 

            5   to see improvement this year in Maui County.  I'm very 

            6   firmly convinced of it.

            7              SENATOR BUEN:  Thank you, Doctor.  Thank you. 

            8              CO-CHAIR SENATOR HANABUSA:  Representative 

            9   Leong?

           10              REPRESENTATIVE LEONG:  Thank you.

           11                          EXAMINATION

           12   BY REPRESENTATIVE LEONG:

           13        Q.    Dr. Houck, earlier you stated that there 

           14   seemed to be some conflict in securing data and that you 

           15   inferred or was asked a question of whether we needed an 

           16   MIS improved data system.  And you said yes; but if 

           17   there's conflict now in getting the information, how 

           18   would such a system be -- how would the information be 

           19   procured to enter into such a system?

           20        A.    Well, from time to time over the last few 

           21   years, I've had to come up with data for the Court, 

           22   okay?  And we'll talk about something relatively simple.  

           23   We'll talk about the number of, say, educational 

           24   assistants and the number of teachers, special ed 

           25   teachers, on a statewide basis. 




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            1              I, at this point, in many cases have had to 

            2   end up by going from office to office in the 

            3   Liliuokalani Building and collecting handwritten data 

            4   and taking the handwritten data from this office to this 

            5   office to this office.  And then suddenly I find there's 

            6   discrepancies in the handwritten data, and then I end up 

            7   calling the districts.  And in some cases, I end up 

            8   calling the individual schools and say, "How many people 

            9   do you actually have?" 

           10              Okay.  And this is -- should be a relatively 

           11   simple task, but it's not.  It's a complex task, and we 

           12   have to go through to pull this type of information out 

           13   on task-by-task, handwritten type of situation.  That's 

           14   a -- it creates problems in finding data, getting data 

           15   out there and quickly available. 

           16              I know -- and during our break, the 

           17   superintendent did remind me that we have, in the past, 

           18   made requests for MIS systems.  It's not something that 

           19   we have failed to do; but in terms of, I guess, overall 

           20   priorities, which have had to be established 

           21   legislatively, policy priorities, the emphasis in the 

           22   last few years has been up on building the number of 

           23   people that we do have to provide services.  And that's 

           24   kind of where we are.  And data collection is a problem, 

           25   but that's something we live with.




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            1              REPRESENTATIVE LEONG:  Thank you. 

            2              CO-CHAIR SENATOR HANABUSA:  Are you done?

            3              REPRESENTATIVE LEONG:  Thank you, yes. 

            4              CO-CHAIR SENATOR HANABUSA:  Senator Matsuura 

            5   followed by Representative Ito.

            6              SENATOR MATSUURA:  Thank you.

            7                          EXAMINATION

            8   BY SENATOR MATSUURA:

            9        Q.    Dr. Houck, you know, you mentioned early on 

           10   that the state is in a rush to identify children and 

           11   that we were -- based on percentages, we are one of the 

           12   lowest?

           13        A.    We were the lowest, yes.

           14        Q.    We always dealt with the problem of this -- 

           15   especially with the mon -- with our auditor where we 

           16   wanted to codify the definition; and, yet, we heard some 

           17   testimony this past year that there are groups out 

           18   wanting to iden -- I mean, broaden the definition of 

           19   what a Felix child is, where other people wanted to more 

           20   define.  If we are in such a rush to identify more 

           21   children, are we in a -- just spiralling downhill?  

           22   Because the more we identify, the more services we have 

           23   to provide, the more money, the less in compliant we 

           24   are. 

           25        A.    Well, that's a good question.  I don't know 




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            1   exactly where to start on that one.  Initially in the 

            2   Consent Decree itself -- because much of the Consent 

            3   Decree was based upon the supposition that the state had 

            4   filed to identify children with disabilities, and there 

            5   was an initial requirement actually embodied in the 

            6   Consent Decree that we allowed and we properly 

            7   appropriately identified children for services. 

            8              And I remember walking down the street -- I 

            9   think it was on Maui -- and coming out of a meeting and 

           10   talking with the monitor and some other folks.  And I 

           11   was raising the issue, "If we identify the children and 

           12   we do not have the resources to provide the services, 

           13   how is this going to help?"  And that was my question. 

           14              And it was explained that we really need 

           15   to -- we needed, first of all, to identify the children.  

           16   That was the priority because until we actually had 

           17   identified the children, we did not know the extent of 

           18   the problem and the range of services that need to be 

           19   provided.  So -- okay.  I accepted that point of view. 

           20              He also pointed out to me that until we 

           21   actually identified the children, then we were in no 

           22   position to build a system of care. 

           23              So, we went out and we actually did identify 

           24   the children with disabilities; but then the push 

           25   becomes increasing our numbers of, say, special 




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            1   education teachers from maybe, what, 1,200 to maybe 

            2   2,000 special education teachers.  Where do we find 

            3   them?  How do we get them here?  How do we retain them?  

            4   That's another issue. 

            5              And special ed was only one issue.  We're 

            6   talking about the mental health service providers.  

            7   We're talking about physical therapists, occupational 

            8   therapists, what have you. 

            9              See, the related mental health services is 

           10   only one of the related services that the state is 

           11   required to provide under the provisions of IDEA.  And I 

           12   remember at a meeting in Molokai we kept asking, "Who is 

           13   a Felix kid?  Who is not a Felix kid?"  And, finally, in 

           14   exasperation, I said, "I wish that I had never heard of 

           15   the word 'Felix,' period." 

           16              And everybody looked at me in amazement, and 

           17   conversation stopped.  And they wanted to know what I 

           18   meant.  I said, "Essentially we are under the Court 

           19   order to carry out the provisions of the federal law to 

           20   provide services for children with disabilities.  In 

           21   order to meet the compliance standards of the Court, we 

           22   have to meet that standard of providing services for 

           23   children with disabilities.  The kids who happen to need 

           24   related mental health services, this is only one of the 

           25   related services we have to provide.  So, if we focus 




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            1   only upon Felix, trying to identify just Felix, who is 

            2   the Felix kid, the goal or the responsibility that we 

            3   have as a state is that we have to provide the full 

            4   range of services.  And that's special education and 

            5   related services for children who qualify under 

            6   provisions of federal law." 

            7              And that's the only way that we're going to 

            8   meet the overall compliance of the Court; and, lastly, 

            9   that's what Judge Ezra said.  He's going to hold us to 

           10   the compliance standards of special education, related 

           11   services, or IDEA; and that's the whole range.  That's 

           12   not just somebody called a Felix kid. 

           13              And that's where we keep leading into this.  

           14   What is the Felix kid?  What is the special education 

           15   population? 

           16              And where we are, our task is to provide 

           17   education and related services for all kids with -- who 

           18   need these -- all children with disabilities who fall 

           19   under the provisions of federal law.  And until we do 

           20   that, it will continue being under Court order, so -- 

           21   and that's -- in many ways, the Felix thing becomes a 

           22   side issue, kind of a focus upon just Felix, Felix, 

           23   Felix, when, in reality, we have to meet all of our 

           24   requirements for provision of services for kids with 

           25   disabilities. 




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            1              And it's a hard -- this is a hard task.  And 

            2   we have 49 other states out there who are facing the 

            3   same problem we are.  How do we fund it?  How do we 

            4   support it?  How do we get the services in place? 

            5              And right now, it's up for reauthorization in 

            6   Congress.  It's coming up this next year, and we've been 

            7   in touch with Patsy Mink.  She's on the -- actually the 

            8   Committee, the Conference Committee, that's going to be 

            9   rewriting IDEA.  And right now is an important time to 

           10   be talking as to what's happening and where we are going 

           11   with the Individuals with Disabilities Education Act. 

           12              So, yes, we started out identifying; and my 

           13   question was:  Why were we identifying before we had 

           14   services?  It was explained that that's where we 

           15   started, and that's what we've done. 

           16        Q.    Just one final question.

           17        A.    Yeah. 

           18        Q.    I put it to you because maybe this is a good 

           19   opportunity; and all the rest of the questions I know 

           20   that's coming to my head can be handled in a different 

           21   situation, maybe in another hearing. 

           22              Your testimony prior said that the schools, 

           23   in your opinion, are in compliance on a statewide 

           24   system; and a lot of people seem to be pointing the 

           25   finger at the Big Island all the time as the one that's 




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            1   being the least in compliance.

            2        A.    Well, see, what I'm talking about is 

            3   statewide.  We are -- State of Hawaii, because we are 

            4   under this Consent Decree, are in sort of a -- many ways 

            5   an atypical or unusual position.  There is no other 

            6   state right now that is being monitored to the degree 

            7   that we are for outcome compliance.  There's no other 

            8   state where we have the Federal Court taking complex by 

            9   complex by complex determinations and that type of 

           10   thing.  We are in an atypical situation because we are 

           11   under a Consent Decree.   There's no other state that 

           12   faces the necessity to have the same level or same 

           13   provision of services all the way across the state. 

           14              Because we are under a Consent Decree, we 

           15   have one standard; and if I were to go right now, say, 

           16   to the State of Minnesota, I would expect to find a 

           17   greater range of services in the Minneapolis/St. Paul 

           18   area and in the suburbs than I would expect to find in 

           19   the rural areas of Minnesota. 

           20              And at this point, IDEA has not really 

           21   intervened or got involved with Minnesota on that 

           22   specific issue; but because we are under a Consent 

           23   Decree, we are right now expected to provide the same 

           24   range of services in our rural areas, a Hana or a 

           25   Molokai or a Kau as we are in downtown Honolulu or 




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            1   Mililani.  And we are expected to have one range of 

            2   services all the way across the entire state.  I know of 

            3   no other state that has that standard that they have to 

            4   meet.  So, we have some atypical things that we're 

            5   dealing with here. 

            6        Q.    Well, actually, my question was going to 

            7   be -- what kind of really drives me nuts and, also, the 

            8   situation of we all should be working together as a team 

            9   in trying to deal with this issue at a time.  In your 

           10   professional opinion, are we all, as a state, Attorney 

           11   General, DOH, DOE, the Plaintiffs' attorneys, everybody, 

           12   including Judge Ezra -- are we all working for the 

           13   benefit -- is our money being adequately spent where 

           14   children are actually getting help and getting served or 

           15   is this going to be hurting our education system as a 

           16   whole?

           17        A.    We have children who are being helped and who 

           18   are getting services now where it was not the case five 

           19   years ago, seven years ago, or eight years ago. 

           20              In terms of are we all working together, I 

           21   think for the most part we are.  I've spent, well, the 

           22   last four years of my life spending time with folks in 

           23   the Legislature.  I think that we -- again, you have an 

           24   obligation to make certain that what we're doing is 

           25   right.  You have on obligation to make certain that we 




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            1   are appropriately spending federal funds, and you've 

            2   exercised that obligation.  And you -- if you ask me 

            3   questions, I expect that you're supposed to ask me 

            4   questions; and you've been doing that for the last 

            5   number of years. 

            6              I think by you folks taking your time at this 

            7   point -- taking the time to become more knowledgeable 

            8   and more involved and more invested in what has 

            9   happened, I think that's beneficial; and I think that's 

           10   going to be helpful in bringing the whole state into 

           11   compliance with this Consent Decree area. 

           12              I haven't had any personal contact with Judge 

           13   Ezra; but as I have said earlier, I have found him to be 

           14   fair.  I think he is providing us with every opportunity 

           15   to meet these standards and come into compliance, to 

           16   some degree, to the point of where some parents have 

           17   also expressed concern or dissatisfaction that somehow 

           18   things have not happened more quickly.

           19              And, again, we talked -- Judge Ezra talked a 

           20   little bit about this last Thursday.  He said that the 

           21   federal law does establish a requirement for free and 

           22   appropriate public education, does not establish a 

           23   standard going beyond that; and he wants to make certain 

           24   essentially we, as a state, are in compliance with 

           25   creating appropriate standards. 




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            1              So, I believe -- yes, I believe people have 

            2   been working together.  I think that we selectively have 

            3   made fantastic progress in the last -- especially the 

            4   last three years.  We have made probably more change, 

            5   more improvement to our system of care in the last three 

            6   years than, from my understanding and awareness, anybody 

            7   else has done anywhere else in the United States; but 

            8   that's done because -- that's happened because people 

            9   have worked together. 

           10              Again, I've -- I've had the opportunity to 

           11   work closely with Department of Health.  I think the 

           12   Department of Health/Department of Education here is 

           13   working very nicely with each other.  My experience with 

           14   the Legislature has been very positive --

           15        Q.    Okay.

           16        A.    -- for support.

           17              SENATOR MATSUURA:  Thank you.  No further 

           18   questions. 

           19              CO-CHAIR SENATOR HANABUSA:  Representative 

           20   Ito followed by Senator Sakamoto.

           21              REPRESENTATIVE ITO:  Thank you, Madam Chair. 

           22                          EXAMINATION

           23   BY REPRESENTATIVE ITO:

           24        Q.    Doctor, you know, you mentioned that if we 

           25   change the government's -- the educational government 




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            1   structure, only the Big Island would be in com -- have 

            2   the Consent Decree?

            3        A.    Maui would have had the Consent Decree. 

            4        Q.    Maui and the Big Island?

            5        A.    Yeah, Maui -- actually initially it was an 

            6   issue of cases coming out in Maui District. 

            7        Q.    Okay.  When you mentioned that changed our 

            8   government, you mean you want every island to have their 

            9   own school barn, a county school barn?

           10        A.    Well, I didn't say that.  All I can share 

           11   with you is that when I worked in New York State, we had 

           12   740 districts; and I was working upstate near Rochester, 

           13   New York.  And I got the opportunity to go to the Albany 

           14   area, Long Island area; and I found that I could go 

           15   to -- into any school -- matters were very similar from 

           16   school to school.  There was actually more commonality 

           17   from school to school in New York State than there is in 

           18   the State of the Hawaii even though we have a unitarian 

           19   system. 

           20              In the State of Hawaii, I can go into an 

           21   elementary school and I can drive two miles down the 

           22   road and I'm walking into a different world when I walk 

           23   into an elementary school.  Part of it, I think, is the 

           24   local control in this type of thing; but in terms of 

           25   commonality, we have, in some ways, 250-something unique 




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            1   institutions.  I guess that has both its good and its 

            2   bad points. 

            3        Q.    You know, you mentioned the Columbus 

            4   contract.

            5        A.    Right. 

            6        Q.    How much was the cost of that contract?

            7        A.    Okay.  I don't have that information right 

            8   with me, but we can -- I can --

            9        Q.    I mean, teachers -- did we get our money's 

           10   worth?

           11        A.    Yes.  We got 138 teachers -- licensed, 

           12   qualified, certified teachers that we did not have 

           13   before; and I think that that's going to make a very big 

           14   difference, especially on Molokai, Maui, and the Big 

           15   Island, which is where these people were placed. 

           16        Q.    So, these are --

           17        A.    Yes, I think we got our money's worth.

           18        Q.    So, these are teachers from --

           19        A.    From other states that are licensed and 

           20   certified in other states.  Again, when we go into the 

           21   national market, it's hard to recruit because, as I said 

           22   earlier, I think we have about -- a shortage of about 

           23   35,000 special education teachers nationwide.  So, when 

           24   we go recruiting for special ed teachers, there's 

           25   competition.  And I think the Columbus people were 




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            1   successful at finding people, bringing them here, and 

            2   getting them established.  So, yes, I think it was 

            3   positive. 

            4        Q.    I understand you're going to retire pretty 

            5   soon?

            6        A.    About nine days. 

            7        Q.    Nine days?

            8        A.    What happened -- what happened is that I 

            9   somehow woke up some morning and I found myself in my 

           10   mid 60s and my wife has been ill for the last two years.  

           11   She had a total hip replacement last October, and she's 

           12   had problems on recovery.  And I think -- I think at 

           13   this point I need to be with her and be involved with 

           14   what's going on in her life.  So, that's kind of a 

           15   family situation. 

           16        Q.    Well, thank you very much for helping the 

           17   State of Hawaii.

           18        A.    But I do say that I think everybody in the 

           19   State of Hawaii should be proud of what has been 

           20   accomplished here.  I think it's been a hard road to go 

           21   in some cases but an awful lot has been done and I think 

           22   a lot of people need to be recognized for what has been 

           23   accomplished.  That's my own personal observation.

           24              REPRESENTATIVE ITO:  Thank you, and happy 

           25   retirement.




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            1              DR. HOUCK:  Oh, thank you.

            2              REPRESENTATIVE ITO:  Thank you.

            3              CO-CHAIR SENATOR HANABUSA:  Thank you, 

            4   Representative Ito.  Senator Sakamoto followed by 

            5   Senator Slom

            6                          EXAMINATION

            7   BY SENATOR SAKAMOTO:

            8        Q.    I'm sorry to hear about your wife.

            9        A.    Yeah. 

           10        Q.    I hope she heals up quickly.

           11        A.    Yeah, thank you.

           12        Q.    We've been talking a lot about compliance on 

           13   complexes.

           14        A.    Right. 

           15        Q.    But that's only part of the pie.  The other 

           16   part is system-wide --

           17        A.    Infrastructure --

           18        Q.    -- information systems?

           19        A.    -- people -- the information system is a very 

           20   key component of achieving overall compliance. 

           21        Q.    So, the ISPED system, how is that --

           22        A.    ISPED is now working.  I expect that we're 

           23   going to be working very diligently to get all of the 

           24   data in the system and fully, you know, available and 

           25   useful. 




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            1              Again, our MIS capacity was required by -- if 

            2   you go back to the master plans and that type of thing, 

            3   that was supposed to have been in operation a number --  

            4   a couple of years ago but had been delayed getting up.  

            5   That has to be there for us to achieve overall 

            6   compliance. 

            7        Q.    So, is that part of the November 1st 

            8   requirement?

            9        A.    Yeah. 

           10        Q.    So, other than the complexes, the six more, 

           11   the other parts of Judge Ezra's --

           12        A.    ISPED needs to be going.  We need to have our 

           13   positions -- our specialists positions filled.  There's 

           14   other very specific requirements.  Again, we are still 

           15   waiting to get the written documents coming out of the 

           16   Court.  At that time, we would be in a better position 

           17   to talk about, you know, what has to be done in the next 

           18   55 days. 

           19        Q.    Okay.  So, you would be hopeful that in 

           20   addition to the six complexes, the other requirements 

           21   would be something doable?

           22        A.    Yeah.  These are -- again, we've been meeting 

           23   on this for the last few days.  I believe that all of 

           24   these requirements are doable, but it's going to take a 

           25   push and some concentrated effort to get there. 




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            1        Q.    In the past when we, as the state, have not 

            2   complied with a benchmark or with a deadline, has the 

            3   Consent Decree been changed or has the bar been moved?

            4        A.    Okay.  There have been, like, three different 

            5   sets of benchmarks and what have you.  The initial 

            6   implementation plan or master plan had a -- I don't 

            7   know.  There's 100-and-some benchmarks involved in that. 

            8              When we went through with our last round of 

            9   modifications to the implementation plan, there was 

           10   something like 150 benchmarks involved with that.  And 

           11   then we had a revised Consent Decree as of last 

           12   August 3rd.  And there were -- like, there's 

           13   40-something benchmarks tied up with that. 

           14              The other day I went to -- I took all of 

           15   these different documents, and we run about 83 percent 

           16   compliance on all of those total benchmarks that have 

           17   been in place year after year after year. 

           18              Normally what happens is you go back -- 

           19   essentially the blueprint for the whole Consent Decree 

           20   thing is this book.  This was essentially the blueprint. 

           21              In coming out of this a year later, they came 

           22   up with a status report and modifications.  That's sort 

           23   of like the first set of change orders, if you want to 

           24   use that terminology.  And then there have been a couple 

           25   of other sets of change orders as we've gone down 




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            1   through the situation; but the overall goal and intent 

            2   has remained pretty much consistent over the six-year 

            3   period. 

            4        Q.    Have the change orders been more difficult 

            5   for the --

            6        A.    The change orders have been more specific 

            7   getting into -- in other words, for example, it was easy 

            8   to say you'll have an MIS system.  Then you come down 

            9   to -- in order to get the MIS system, we have to do 

           10   these specific tasks.  So, then, the next set -- the 

           11   first set of change orders comes down and breaks out the 

           12   specific tasks that you have to do to get to the -- sort 

           13   of the general task that was initially identified. 

           14        Q.    So, at this point in time, with the 35,000 

           15   nationwide shortage of special ed teachers -- and we 

           16   still have a shortage here.  My understanding is there's 

           17   a requirement that each school have "X" percent of 

           18   special ed teachers.  Is it possible to get a change 

           19   order for us to say in lieu of an "X" percent at this 

           20   location --

           21        A.    No --

           22        Q.    -- maybe we can provide smaller class size, 

           23   maybe we can provide two extra counselors, maybe we can 

           24   provide an extra social worker?  Because we cannot meet 

           25   all of the specialized requirements of the special ed 




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            1   teacher, can we propose some of that --

            2        A.    There are options.  In other words, in the 

            3   case of coming up, say, to the specific thing of having 

            4   a certain percentage, there has been a saying of if we 

            5   don't make the percentage, what are the other additional 

            6   supports that we can put in place?  So, that's possible. 

            7        Q.    How would that come into place?

            8        A.    Normally it needs a written agreement between 

            9   the parties or a letter from the monitor. 

           10        Q.    Well, has our department proposed or 

           11   anticipated --

           12              MR. LeMAHIEU:  The benchmark says that -- or 

           13   forgive me.  Let me advise him.

           14              (Discussion off the record.)

           15        A.    Okay.  My consultation said that there is a 

           16   benchmark which indicates if we do not meet the 

           17   percentage, it's possible to put in the plan for the 

           18   support how we are going to provide that service. 

           19        Q.    (BY SENATOR SAKAMOTO)  So, that's already 

           20   provided for --

           21        A.    So, that's already provided. 

           22        Q.    -- for some -- 

           23        A.    Yes.  My experience has been, in this case, 

           24   the monitor is kind of like a -- I don't know -- a 

           25   building program.  I know you get involved with 




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            1   building. 

            2        Q.    Uh-huh.

            3        A.    It's like a clerk of the works, right?  There 

            4   are large projects that come in and he's dealing with 

            5   the different parties and he's trying to resolve issues 

            6   and this kind of thing.  And much of the time he will 

            7   function in that sort of fashion.  In other words, he 

            8   can come in, present the issue; and if you can't meet 

            9   this specific thing, then, how can we provide these 

           10   services the best way we can to achieve the same 

           11   outcome?  He has been amenable to that. 

           12        Q.    So, Judge Ezra, Portnoy, Groves --

           13        A.    He, in turn, reports to, say, Mr. Portnoy; 

           14   and, again, those discussions take place.  We are not a 

           15   party to those discussions, but they take place. 

           16        Q.    Changing back to the data system, I know 

           17   several vendors nationwide present information, 

           18   Maximus -- in fact, there's a presentation in another 

           19   room probably right now on another system that's saying 

           20   "We provide data collection to help maximize federal 

           21   reimbursement to help keep track of different things." 

           22              From your experience, do most of the other 

           23   states use outside vendors or how do they collect their 

           24   information?

           25        A.    It will, of course, vary from place to place.  




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            1   Again, going back to New York State, they initially 

            2   early on -- the state was involved with procuring 

            3   outside people to come in and establish, you know, MIS 

            4   capacity and capability. 

            5              As we went into the situation of Web-based 

            6   material, Web sites, and what have you, then, individual 

            7   schools and individual districts became part of it; but 

            8   there always was an overall state guiding plan.  In 

            9   other words, the overall state set up a guiding plan as 

           10   to how these resources -- the hardware was put in place, 

           11   the -- you know, the whole program, so that it was 

           12   possible to collect data on a statewide basis. 

           13        Q.    Would you say that we have a plan and it's 

           14   just that we haven't yet got to the point of funding it 

           15   or we're still working on our plan?

           16        A.    Maybe I need consultation on this.  

           17              (Discussion off the record.)

           18        A.    Well, again, as the superintendent in 

           19   consultation says, yes, we have various plans in place.  

           20   We do rely upon the state, to many extents. 

           21              But, again, this is something which I 

           22   personally believe would really be beneficial and be 

           23   helpful; and that's talking with people in the City of 

           24   Baltimore.  The City of Baltimore was under Court 

           25   oversight for, like, 17 years for special education 




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            1   issues; and they finally are now out from under Court 

            2   oversight. 

            3              And the people there said that the key -- the 

            4   most important thing for getting out from under the 

            5   court oversight was to develop the system-wide MIS 

            6   capacity; and the MIS capacity provided them with the 

            7   ability to come up with information quickly to meet -- 

            8   as problem areas are identified, to address the issues 

            9   and specifics.  And they said that was their No. 1 key 

           10   component in meeting compliance standards. 

           11        Q.    So, would you say that ISPED is half of that 

           12   effort or --

           13        A.    It's part of that effort.  I don't know what 

           14   percentage; but, yes, it's part of that effort. 

           15        Q.    Okay.  Just a few more questions.  In 

           16   children identified with specific disabilities, 14 -- or 

           17   however the health department or the department chooses 

           18   to break them up, in terms of separate from the overall 

           19   identification in terms of 8 to 14 percent, as you go to 

           20   the separate categories of disability, how does our 

           21   identification compare nationwide with other 

           22   jurisdictions?

           23        A.    Pretty much -- right now, we're running 40 -- 

           24   about close to 45 percent is coming in under 

           25   classification on specific learning disabilities; and 




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            1   that's pretty much the case at this point nationwide. 

            2              There are questions being raised as to why 

            3   this one classification is increasing more rapidly than 

            4   what other classifications are.  There have been 

            5   suggestions to the point that maybe we should narrow the 

            6   specific learning disabilities to something -- you know, 

            7   those kids having visual processing problems, auditory 

            8   processing problems, what have you; but essentially the 

            9   learning disabilities classification, in simplest terms, 

           10   is that there is a significant discrepancy between the 

           11   cognitive or the intelligence, whatever you want to call 

           12   it, scores for that child and the child's academic 

           13   scores.  And we have a lot of -- we have -- say, about 

           14   45 percent of our kids are falling into that category. 

           15        Q.    In the service testing or in whatever other 

           16   ways we evaluate our system separate from service 

           17   testing, are we able to say for, say, that particular 

           18   learning disability, we're meeting that here or we're 

           19   not meeting that or for any of the other 13 -- deaf and 

           20   blind, we're meeting it.  Autism, we're halfway there.  

           21   Do we have by disability how well we're meeting or not 

           22   meeting the requirements?

           23        A.    I do not know whether we've gone through and 

           24   broken it out by classification.  I'm not aware of that. 

           25        Q.    Maybe the last question then.  In relation to 




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            1   the disability -- the specific disability and the 

            2   discussions earlier about free and appropriate public 

            3   education and from reading the media, I understand the 

            4   Judge said, "We're not promising a Cadillac, so to 

            5   speak; but we're promising an appropriate level."  Where 

            6   do we get guidance into what is that appropriate level 

            7   as opposed to how strongly or how passionately one side 

            8   advocates that I want this or that service?  How do we 

            9   get to a level that says, "This is an appropriate 

           10   level"?

           11        A.    Okay.  If you go back to the actual IDEA, 

           12   IDEA says that the states have to set up a program for 

           13   children within the state -- for children with 

           14   disabilities and provide them a special education and 

           15   the related services that are required for them to 

           16   benefit from this special education program. 

           17              And from a national perspective, there needs 

           18   to be some discernible relationship between the service 

           19   that's being provided and the child's capacity or 

           20   ability to benefit from that special education program.  

           21   That's normally the standard that's being used. 

           22              In terms of what's happening at any given 

           23   time, there's litigation taking place in the federal and 

           24   state courts across the nation; and they are hammering 

           25   out from that standpoint what the Court considers -- 




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            1   currently consider to be a free and appropriate public 

            2   education. 

            3              Those of us who work with special education, 

            4   IDEA, we're always reading what's happening in the 

            5   Southern Circuit, in the Fifth Circuit, and that type of 

            6   thing so we can get guidance from that. 

            7        Q.    Those Court actions, are they for the 

            8   individual disability?

            9        A.    Many of them are.  They identify the child's 

           10   disability specifically.  In other words, say, a child 

           11   with, what, central auditory processing goes into these 

           12   situations.  These issues come up, goes through the 

           13   various levels of jurisprudence; and they make these 

           14   decisions.

           15        Q.    So, someone could collect --

           16        A.    Yes. 

           17        Q.    -- different federal, state, and circuit 

           18   court information and say, "Here are" -- "here is the 

           19   benchmark"?

           20        A.    Here is what seems to be happening.  And you 

           21   can also get guidance, to some degree, from the U.S. 

           22   Office of Education.  Although, they will advise you 

           23   that they're not going to be giving you legal advice and 

           24   you should contact your -- you know, in that case, it 

           25   would be the Attorney General's office. 




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            1        Q.    So, that's something we're developing --

            2        A.    Yeah. 

            3        Q.    -- more to help the teacher in the IEP

            4   process --

            5        A.    Myself -- each year, I get a report on all of 

            6   the Federal Court cases of the decisions that are being 

            7   rendered.  I also get a publication that comes out, 

            8   like, once a month of what is currently happening on the 

            9   national scene; and a lot of this is sort of still being 

           10   worked out through case law. 

           11        Q.    And that gets filtered down to the school 

           12   level and the --

           13        A.    Yes.  Our district educational specialist, 

           14   they also follow these.  So, that's kind of an ongoing 

           15   development.

           16              SENATOR SAKAMOTO:  Okay.  Thank you, 

           17   Mr. Houck.  Thank you.

           18              CO-CHAIR SENATOR HANABUSA:  Thank you, 

           19   Senator Sakamoto.  Senator Slom? 

           20              SENATOR SLOM:  Thank you, Madam Chair.

           21                          EXAMINATION

           22   BY SENATOR SLOM:

           23        Q.    Dr. Houck, we've heard all day today a pretty 

           24   rosy picture of things that are happening; and, yet, 

           25   most of us get calls on a frequent basis from parents of 




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            1   special ed kids and they're not happy.  And they tell us 

            2   that they're not getting the services that are supposed 

            3   to be provided.  They tell us about changes that are 

            4   made.  They tell us about inconveniences.  Why do you 

            5   think there is that disconnect?

            6        A.    Okay.  We run about 30,000 IEPs a year.  And 

            7   the data that I had from last year is around -- I don't 

            8   know.  It's a little over 300 either went to complaint 

            9   or there was a hearing request filed.  And of that, 

           10   maybe half of them actually went to hearing.  So, in 

           11   terms of the 30,000, we're running about probably 2 

           12   percent, at this point, problem IEP areas. 

           13              If I had a child with a disability, I 

           14   would -- Judge Ezra talked about this the other day -- I 

           15   would want to make certain that I got the very best 

           16   services for my child.  And over the years, I have had 

           17   many opportunities of working -- we tried to, within as 

           18   much as possible, provide the most appropriate services 

           19   that we can for children in the state. 

           20              In some cases, there are disagreements.  

           21   Problems come up.  IDEA does provide for ways of 

           22   resolving these issues. 

           23              We also have the situation where -- having 

           24   been around with the Felix Consent Decree now for a 

           25   number of years and having worked in the community 




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            1   children's councils, organizations, and that, I 

            2   sometimes -- I'm kind of perplexed because we still do 

            3   have people who say nothing is different.  Everything is 

            4   just the same as it was, and that's not true.  I mean, 

            5   we have all sorts of documentation in support to say 

            6   that that's not true; but somehow we're missing each 

            7   other in our conversations.  I don't really understand 

            8   that either. 

            9        Q.    Do you think the documentation is in error? 

           10        A.    No, I think the docu --

           11        Q.    Do you think it's because of the attorneys?  

           12   Do you think it's --

           13        A.    No, I think the documentation is correct. 

           14        Q.    All right.

           15        A.    I think that the Plaintiffs' attorneys -- 

           16   their obligation is to their client.  And when they go 

           17   ahead and they file documents in Court saying that, you 

           18   know, we got to do this, we got to do that, they're 

           19   still advocating for their clients.  And I don't really 

           20   condemn them for doing that because that's what an 

           21   attorney is supposed to do. 

           22              My perception is that there's been a lot of 

           23   change, a lot of improvement, in the State of Hawaii.  

           24   In terms of -- we have a short period of time right now 

           25   to meet the final aspects of getting some complexes into 




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            1   compliance, still building some infrastructure; and the 

            2   overall concern while we've been doing this is we're 

            3   looking toward building a system of care that's going to 

            4   be in place and it's going to be here to serve after we 

            5   get out of this oversight.

            6              And if I were a parent of a child with 

            7   autism, I probably would have been very unhappy for the 

            8   last few years, very bothered, because these are 

            9   children who require highly intensive services.  We have 

           10   made some provision for improving these services; but, 

           11   again, we're still running into getting all of the 

           12   services in place.  And sometimes even with the best 

           13   educational services that we can provide, we're still 

           14   not going to solve all of the problems.  We just aren't.  

           15   We can provide the very best in the way of educational 

           16   programs, special education people, psychologists, 

           17   social workers; but we can't.  We will not be successful 

           18   in solving every problem.  I just don't think it's 

           19   possible. 

           20        Q.    During the past few weeks, it's been good 

           21   sport for everybody to blame the legislature and, 

           22   particularly, this Committee.  We've had complaints from 

           23   the Judge.  We've had complaints from the attorneys, 

           24   from the DOE, the DOH. 

           25              Now, you said today -- you testified earlier 




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            1   today that you didn't think that lack of money was a 

            2   major contributor to the lack of compliance.  Other than 

            3   the MIS data system, what, in your opinion, could or 

            4   should have the Legislature done to reach earlier 

            5   compliance?

            6        A.    I would say, yes, the MIS data system is 

            7   there; but I think in terms of what we have had to do, 

            8   we are on track for doing what needed to be done. 

            9              In terms of, you know, so-and-so -- the Court 

           10   saying so-and-so or Legislature saying so-and-so, I've 

           11   had to chalk that up to saying we've had a newspaper war 

           12   in the community for the last few months.  And these 

           13   people are trying to sell papers, which is good; but 

           14   there's been, I think, people coming out trying to say 

           15   so-and-so said this, so-and-so said that. 

           16              Do I have a rational explanation for it?  No, 

           17   I don't have a rational explanation; but I think it's 

           18   important to maintain where we're going, keep the course 

           19   steady ahead, and to wrap this thing up and get on with 

           20   continuing to build the educational system and what have 

           21   you in the State of Hawaii. 

           22              I personally believe that a good, strong MIS 

           23   capacity in the Department of Education would be a good 

           24   investment; but that's my own personal belief. 

           25        Q.    You've mentioned several times the MIS system 




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            1   and also you were reminded that there was a request 

            2   before the legislature, but do you think that that was a 

            3   priority of the DOE?

            4        A.    I think the major priority of DOE is they've 

            5   got to have more special ed teachers.  They've got to 

            6   have more service providers.  We've got to get these -- 

            7   you know, we've got to maintain our facilities.  I think 

            8   those have been coming across as the primary priority, 

            9   especially with having the Court oversight at this 

           10   point.  That's my only personal opinion. 

           11        Q.    Did you meet with Dr. Gelles and Dean 

           12   Schwartz of the University of Pennsylvania?

           13        A.    Yes, I found them very delightful people but 

           14   not very knowledgeable about IDEA.

           15        Q.    In what way?

           16        A.    They made comments such as the State of 

           17   Kentucky had a definition.  Well, yes, the State of 

           18   Kentucky has a definition.  The State of Kentucky has 

           19   written up in the -- I think it's the regulations of the 

           20   State of Kentucky.  The State of Hawaii also has its own 

           21   Chapter 56 regulations. 

           22              They did not seem in my talking with them -- 

           23   a lot of very significant things have happened in 

           24   Pennsylvania in terms of special education.  I would say 

           25   Pennsylvania is probably one of the leading states in 




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            1   meeting the needs of children with disabilities.  They 

            2   did not seem to be aware of what had actually been 

            3   happening in their own State of Pennsylvania, and I was 

            4   surprised about that. 

            5              I was surprised in that they -- they simply 

            6   did not seem to be that knowledgeable with current 

            7   educational practice.  I think in terms of the social 

            8   work, having to work with, say, a corrections issue, 

            9   juvenile justice, things like that, they were pretty 

           10   good.  That was my own personal opinion. 

           11        Q.    Two more questions.  After you got our 

           12   invitation to come and join us --

           13        A.    Yeah. 

           14        Q.    -- did you get any consultation from any 

           15   other members of the state?  Did they help you or talk 

           16   to you about your testimony?

           17        A.    No, I don't think people bother trying to 

           18   talk to me because I historically over the years said 

           19   about what I thought should be said. 

           20        Q.    So, no one from, say, the Attorney General's 

           21   office or anyone else reviewed your testimony --

           22        A.    Oh, we had a meeting where, I think, that we 

           23   talked about -- primarily the issue was we have 55 days 

           24   left to get to compliance.  How are we going to get -- 

           25   to get these other complexes in place?  But, again, 




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            1   there was no specific things as to what I should say 

            2   here. 

            3        Q.    But no one suggested to you that maybe you 

            4   should not be as independent and ornery as you've been 

            5   known to be in the past?

            6        A.    Oh, people have suggested that in the past, 

            7   yes.

            8        Q.    But you mentioned you are going to be 

            9   retiring in nine days.  You made the --

           10        A.    Then I can be as independent and ornery as I 

           11   want to be. 

           12        Q.    Did you make the ten years full retirement?  

           13   Did you qualify for that?

           14        A.    Yes, yes, I did. 

           15        Q.    Congratulations.

           16              Final question:  You mentioned Patsy Mink.

           17        A.    Uh-huh. 

           18        Q.    And Patsy Mink was in the paper over the 

           19   weekend.  Patsy Mink was quoted as saying, quote, "There 

           20   is this misunderstanding.  There was never a commitment 

           21   or promise of Congress for paying up to 40 percent of 

           22   expenditures," unquote. 

           23        A.    1970 -- when Public Law 94-142 came out -- 

           24   and there was a provision in Public Law 90 -- a 

           25   provision in that public law back in 1975 that within a 




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            1   six-year period, the Federal Government would be 

            2   providing 40 percent of excess costs, in other words, 40 

            3   percent of the costs of providing special education 

            4   services.  The following year Congress took that 

            5   provision out of the law. 

            6        Q.    What is the percentage that Hawaii has 

            7   received from the Federal Government?

            8        A.    Right now we're getting between 6 and 8 

            9   percent. 

           10        Q.    Between 6 and 8 percent.

           11        A.    About 8 percent, I believe. 

           12        Q.    Was it your belief or the belief of the 

           13   department, however, that that 40 percent figure was 

           14   something that was going to help solve the problems?

           15        A.    Well, it -- it would help provide funding and 

           16   financing.  It's not just my belief.  It's -- the 

           17   Council on Exceptional Children is pushing for that.  We 

           18   have the American --

           19        Q.    I guess what I'm asking --

           20        A.    -- Association School Administrators pushing 

           21   for that.  The National School Board Association is 

           22   pushing for that.  I believe the governors group is 

           23   pushing for that. 

           24        Q.    Sure.  I guess what I'm asking is:  Was there 

           25   a belief in Hawaii -- was there a reliance that that 




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            1   figure was part of the equation --

            2        A.    I don't -- 

            3        Q.    -- or something --

            4        A.    I don't believe.  I think that's just been 

            5   talked about as an issue.  I don't think it was ever an 

            6   expectation that that was suddenly going to emerge.

            7              SENATOR SLOM:  Okay.  Thank you, Dr. Houck.  

            8   Thank you, Madam Chair.

            9              CO-CHAIR SENATOR HANABUSA:  Members, we'll 

           10   take a five-minute break to give the court reporter 

           11   time, Dr. Houck time; and we'll be reconvening probably 

           12   a few minutes after 3:00.  Thank you. 

           13              (Brief recess.) 

           14              CO-CHAIR SENATOR HANABUSA:  Members, we are 

           15   back in session.  At this time, we -- I will have -- 

           16   Attorney James Kawashima, he has questions that he would 

           17   like to ask Dr. Houck. 

           18                          EXAMINATION

           19   BY SPECIAL COUNSEL KAWASHIMA:

           20        Q.    Hello again, Doctor.

           21        A.    Hello. 

           22        Q.    Let me ask you -- earlier you had testified 

           23   that you had waived the ten-day requirement.  You kindly 

           24   waived that ten-day notice requirement to come here and 

           25   testify; is that correct?




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            1        A.    That is correct. 

            2        Q.    And you did have a meeting with staff and 

            3   attorneys at the auditor's office last Tuesday, the 4 -- 

            4   let's see -- the 7th?  Do you recall that?

            5        A.    I think it was last Tuesday. 

            6        Q.    Last Tuesday.

            7        A.    I believe it was, yes. 

            8        Q.    And you were told in that meeting at the very 

            9   outset that if you wanted an attorney, you had the right 

           10   to have an attorney there with you?

           11        A.    I believe that was right. 

           12        Q.    And you, again, voluntarily waived your right 

           13   to have an attorney; is that correct?

           14        A.    That's correct. 

           15        Q.    As you were told that you have a right to 

           16   have an attorney here today, and you waived that right 

           17   also?

           18        A.    That is correct. 

           19        Q.    All right.  And in that meeting you had with 

           20   people from the auditor's office, there were attorneys 

           21   there, were there not?

           22        A.    That is correct. 

           23        Q.    And you understood that they represented this 

           24   Committee?

           25        A.    That is correct. 




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            1        Q.    So, you voluntarily spoke with them, gave 

            2   them -- gave them information you had?

            3        A.    That is correct. 

            4        Q.    You did tell them that you had a meeting with 

            5   Deputy Attorney General Russell Suzuki and 

            6   Superintendent LeMahieu that morning.  Do you recall 

            7   telling them that?

            8        A.    Not on -- I don't believe on this specific 

            9   issue.  Although, it may have come up, I think, some 

           10   discussion about the general --

           11        Q.    Well, you did have a meeting that morning 

           12   with the Deputy Attorney General --

           13        A.    Right.

           14        Q.    -- and Superintendent LeMahieu; is that 

           15   correct?

           16        A.    That is correct. 

           17        Q.    And in that meeting that you had, did you -- 

           18   I'm talking about the one with Superintendent LeMahieu 

           19   and Deputy Attorney General Suzuki, you did tell the 

           20   people at the afternoon meeting at the auditor's office 

           21   that you were told either by Mr. Suzuki or Mr. LeMahieu, 

           22   or both of them, that as far as what you were to testify 

           23   to, you were not to say anything that would reflect 

           24   badly on the Department of Education?

           25        A.    No, I don't believe I said that specifically. 




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            1        Q.    Not specifically?

            2        A.    No. 

            3        Q.    Did you say that generally, sir?

            4        A.    No.  What I simply said essentially was that 

            5   what I needed to keep in mind, during the course of my 

            6   testimony or the time that I'm talking with you, is that 

            7   whatever comments I make will become a matter of record, 

            8   which is taking place; and I need to be aware that 

            9   whatever comments that I make that become a matter of 

           10   record could at some point be utilized in the litigation 

           11   and -- regarding this overall issue. 

           12              And in terms of my awareness of that, I need 

           13   to provide you with honest -- my own honest perception 

           14   of what is taking place and work with the Legislature, 

           15   which I have done, again, for four years, again, at 

           16   various -- whenever the Legislature has requested that I 

           17   do so, and be completely honest with the members of the 

           18   Legislature and completely honest with everybody 

           19   involved; but I do need to keep in mind that because 

           20   this will be a matter of public record, that the 

           21   comments that I make, whether they're -- whatever the 

           22   comments are -- whatever the many comments I've made 

           23   today could at some point show up in the form of 

           24   litigation.  And I need to be aware of that. 

           25        Q.    That's what they told you?




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            1        A.    No, nobody told me that.  That was the 

            2   discussion, and that's what I figured out all by myself. 

            3        Q.    The question is, sir:  Did you tell the 

            4   people at that afternoon meeting at the auditor's office 

            5   essentially that what you were to testify to -- what you 

            6   should say is not anything --

            7        A.    No, no.

            8        Q.    -- that would reflect badly --

            9        A.    No, no.

           10        Q.    -- on the Department of Education?

           11        A.    What I told them is that I need to be 

           12   concerned, okay, that what I say is going to be a 

           13   matter -- a matter of record. 

           14        Q.    Certainly --

           15        A.    And anything that I say is a matter -- in 

           16   fact, I did not make any comment that I was going to 

           17   make any comments either good or bad about the specific 

           18   Department of Education. 

           19        Q.    Well, in terms of your comments in terms of 

           20   it becoming a matter of record, sir, you have no 

           21   problems telling the truth, do you?

           22        A.    I have no problem. 

           23        Q.    So that whether the truth made the department 

           24   look bad or not, you would testify to that effect, would 

           25   you not, as you are under oath?




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            1        A.    I expect that today some of the things I said 

            2   may be beneficial to the department and some of the 

            3   things I said were probably not beneficial to the 

            4   department. 

            5              CO-CHAIR REPRESENTATIVE SAIKI:  All right.  

            6   Thank you.

            7              DR. HOUCK:  Okay.

            8              CO-CHAIR SENATOR HANABUSA:  Thank you. 

            9   Dr. Houck, I have some questions for you.  

           10                          EXAMINATION

           11   BY CO-CHAIR SENATOR HANABUSA: 

           12        Q.    I'm trying to work your math here on your 

           13   years.  You have a -- you have ten years?

           14        A.    That is correct. 

           15        Q.    Now, part of the time that you were serving 

           16   in the school system, what we call the Felix Consent 

           17   Decree was not in place?

           18        A.    That is correct. 

           19        Q.    And during the period of time you were at 

           20   Lahainaluna?

           21        A.    Okay.  The Consent Decree initiative started, 

           22   I think, somewhere around 1992, okay?

           23        Q.    I'll make the representation to you the 

           24   actual Consent Decree was signed in '94.

           25        A.    But the initial litigation --




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            1        Q.    '93, I believe.

            2        A.    '92, '93.  And at that point, the -- there 

            3   were -- No. 1, there were articles in the Maui news 

            4   regarding the litigation that was being filed; and then 

            5   in terms of conversation within Department of Education, 

            6   I was aware that there was litigation being filed.  And 

            7   then I think it was '94 sometime I learned that it had 

            8   been -- become a class action suit; and then I believe 

            9   that the Consent Decree itself was finally signed -- 

           10   agreed to by the Court in October of '95.  So, there was 

           11   a period of time beginning '92, '93 where on Maui we 

           12   were aware of this. 

           13        Q.    You made a comment about the fact that 

           14   Lahainaluna -- a fellow teacher asked you to see if 

           15   somehow Hawaii was exempted out of the ID --

           16        A.    Yeah, excluded from IDEA.

           17        Q.    Right.  And then that was -- that would be 

           18   the time that you were --

           19        A.    That would be in 1991. 

           20        Q.    When you were at Lahainaluna as well?

           21        A.    Yes.

           22        Q.    And you have subsequently visited 

           23   Lahainaluna; and I believe in response to Senator Buen's 

           24   questions, you said that you believe that in November, 

           25   they will be -- or they will meet compliance?




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            1        A.    I really do. 

            2        Q.    This is sort of --

            3        A.    They are 50 percent of the way there now.  

            4   They did pass the coordinated services, I think, with a 

            5   92 -- score of 92, I believe.  And what they will be 

            6   working on now are sim -- primarily the school-based 

            7   services that will be tested again coming up -- I 

            8   believe it's the last week in October. 

            9        Q.    And, Dr. Houck, I just want to be sure, so no 

           10   one blames us for your retiring, our Investigative 

           11   Committee has nothing to do with your decision to 

           12   retire?

           13        A.    Actually, when -- actually, I was hoping that 

           14   the Subpoena would be on parchment so it would be 

           15   suitable for framing.  It was a nice Subpoena, but I 

           16   don't think I will frame it. 

           17        Q.    We could accommodate you with that; but -- by 

           18   the way, do you have a successor -- I hate to say -- you 

           19   know, they might just make a leap and say somehow we got 

           20   you to retire and it's disruptive because you don't have 

           21   a successor; but do you have a successor?

           22        A.    My understanding is my position has been 

           23   posted; and my understanding is that Dr. Campbell, 

           24   Robert Campbell, will be filling in on an acting basis 

           25   upon my departure. 




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            1        Q.    Okay.  In your testimony, you went from 

            2   district compliance to complex compliance --

            3        A.    Yes. 

            4        Q.    -- and you sort of just brushed over it.  Am 

            5   I correct in understanding that at one point in time, 

            6   the compliance issue was to be determined district wide 

            7   and then it changed to complex wide?

            8        A.    In 1996, when we first did the first service 

            9   testing -- it would be the 1995-'96 school year -- we 

           10   were actually establishing baseline data; and at that 

           11   point, we went out and were doing the service testing on 

           12   a district-by-district basis. 

           13              Initially, I think there were 19 cases on 

           14   Maui.  In October of '95, I think they went to central 

           15   district; but they eventually put together 88 cases 

           16   selected across the state.  And at that point, the state 

           17   was not doing very well.  Nevertheless, that became the 

           18   baseline data. 

           19        Q.    So, again, your reference to district levels 

           20   was only in that -- that that's what they were testing 

           21   for?

           22        A.    At that point. 

           23        Q.    It was not in any way supposed to be the 

           24   measure for compliance?

           25        A.    At that point, 1995, '96, it was too early to 




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            1   talk about actually measuring for compliance because 

            2   there were so many areas -- so many needs, program 

            3   needs, service needs, that I don't believe there was 

            4   anybody in the state who would have thought that we were 

            5   in compliance in 1995, 1996. 

            6        Q.    I understand that, Doctor; but I guess the 

            7   question is:  There must have been some feeling that we 

            8   had to define what that goal would be if we were able to 

            9   get there.  So, was there, like -- you've testified to a 

           10   statewide system.  You've testified about statewide 

           11   compliance, and I just heard you say district to school 

           12   complex.  So, I'm trying to figure out at what point 

           13   does this whole thing shift, if it shifted at all, to a 

           14   complex issue?

           15        A.    Okay.  I believe that we started working on a 

           16   complex-by-complex basis in 1998, in that area.  Service 

           17   testing was going to be used as an indicator of student 

           18   outcomes, programs success, what have you.  In terms of 

           19   at that point going on a district-wide basis, the 

           20   district would be too large an organization; and it 

           21   would not give you specific information or detail 

           22   regarding the services being provided in a limited set 

           23   of schools. 

           24              So, because -- I think we went to the complex 

           25   system because it's a feeder school set-up.  In other 




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            1   words, the children start at the elementary.  They go 

            2   through -- all the way through the middle/intermediate 

            3   school into the high school; and we have to look at 

            4   commonality transitions, what have you, as the children 

            5   go through that system.  So, in terms of using the 

            6   service testing as one of the factors for determining 

            7   compliance, I believe it was determined that the complex 

            8   was an appropriate way or an appropriate basis to go 

            9   ahead and do this type of service testing or outcome 

           10   measurements. 

           11        Q.    Doctor, you testified about your years of 

           12   experience outside of Hawaii.

           13        A.    Right. 

           14        Q.    And you also testified about the concept of 

           15   governance and that was part of our problem.  So, in 

           16   your experience, how is the compliance issue measured 

           17   elsewhere where you have districts -- like, in -- your 

           18   example of New York is you can go from 3,000 in New York 

           19   City with 1.2 --

           20        A.    A million and a half. 

           21        Q.    Right.

           22        A.    Okay.  Normally in New York -- okay.  New 

           23   York is set up so that there is a state educational 

           24   agency.  It is a well-staffed state educational agency, 

           25   and then there are individual school districts.  I said 




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            1   that at the time I was there, there was 740.  I think 

            2   they have reduced the number somewhat. 

            3              The state educational agency in that 

            4   configuration is primarily a regulatory body.  It 

            5   provides resources and provides regulation.  The State 

            6   of Hawaii, we sort of mixed the roles.  We're sort of 

            7   operational, and we are regulatory simultaneously. 

            8              And I think in many cases -- again, this is 

            9   my personal perception -- in many cases, we are so 

           10   caught up with the day-to-day operations or the 

           11   operational aspect, that the regulatory aspects sort of 

           12   falls back a bit.  I don't think it has the priority 

           13   here that it does in the states where you have a 

           14   regulatory state educational agency.  And with -- okay. 

           15        Q.    So, the -- my question still is:  How do they 

           16   measure -- how do they measure -- 

           17        A.    Okay.  They measure it because the regulatory 

           18   state education agency collects such data as the number 

           19   of, say, certified with -- licensed teachers, special 

           20   education. 

           21              I had to turn in -- I had to provide 

           22   information on the number of licensed certified special 

           23   education teachers I had.  If I did not have fully 

           24   licensed people, I could end up receiving a reduction in 

           25   my state aid or state funding for that school; and there 




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            1   would be penalties involved for not achieving these 

            2   benchmarks, so to speak. 

            3              Okay.  In terms of the MIS system, they 

            4   collect data; and the data appears to be a lot more 

            5   readily available than what we've been able to do here. 

            6              So, in terms of -- by being a regulatory 

            7   agency, they come out.  They monitor -- they effectively 

            8   monitor what is happening.  They come, and they visit.  

            9   They have visitations.  They check data.  They check 

           10   records.  And there's a continuing oversight, which in 

           11   our situation -- again, during the time that I was the 

           12   administrator for our special education section, so much 

           13   of my time was built up as -- was filled with simply the 

           14   operational tasks that we were doing and, again, the 

           15   Felix compliance issues that, in terms of their 

           16   regulatory thing, we still went out and we did 

           17   monitoring; but it was not, say, the priority here that 

           18   it would be if I were in the sit -- working in a 

           19   situation in the state which had, say, an independent 

           20   state educational agency because, again, their primary 

           21   responsibility is provision of resources and regulation. 

           22        Q.    So, in your experience -- let me try it 

           23   again.  I'm not making myself clear.

           24        A.    Yeah. 

           25        Q.    When they measure compliance --




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            1        A.    They --

            2        Q.    -- in the other areas that you've been in --

            3        A.    Yeah, they use --

            4        Q.    -- are they measuring it by the district, the 

            5   school district that's in the consent -- well, approval 

            6   to a consent decision or are they measuring a broader or 

            7   smaller area?

            8        A.    No, they are going to the individual school 

            9   district; and they pick up what they call nonobtrusive 

           10   data.  And this is the data on your staffing, your IEP 

           11   data, what have you.  They also come out and they do 

           12   onsight monitoring and onsight visitation, okay? 

           13              So, we have that aspect from the state 

           14   regulatory agency.  They are not under a Court order.  

           15   So, there is no outcome assessments in New York State.  

           16   There's nobody going around -- going from school 

           17   district to school district doing service testing. 

           18              Now, the state edu -- the -- OSEP, which is 

           19   the Office of Special Education Programs, is moving 

           20   toward outcome assessments.  And I would expect -- or at 

           21   least there is a possibility that in the upcoming 

           22   reauthorization of IDEA, there's going to be a lot -- 

           23   going to be more information, more material in there on 

           24   progress monitoring, progress improvement, outcome 

           25   assessments. 




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            1              I don't know what that's going to look like; 

            2   but, again, right now, at the present time, the State of 

            3   New York is not under a Consent Decree.  And at this 

            4   point in terms of education, there is no, say, service 

            5   testing and no outcome assessments. 

            6        Q.    Have you any experience in other areas where 

            7   they were under, like, a Consent Decree in how they 

            8   measured compliance?

            9        A.    Okay.  I was under -- when I worked in the 

           10   City of Buffalo, we were under Federal Court oversight 

           11   for bussing and racial balance.  And we had considerable 

           12   Court oversight there; but it was primarily dealing with 

           13   the issues of the, say, student populations, percentage 

           14   of populations, transportation issues, and is not -- in 

           15   this case, we were talking academic outcomes.  We were 

           16   doing academic testing and making comparisons on 

           17   academic testing. 

           18        Q.    And was that by your district?

           19        A.    That was by the district because we were 

           20   under Federal Court oversight. 

           21        Q.    You mentioned the service testing.  Have you 

           22   ever seen any raw data from service testing?  In other 

           23   words, when they go in there -- their analysis, have you 

           24   ever seen all that?

           25        A.    Well, I -- I have.  I have seen it.  I 




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            1   have -- from time to time, I have gone over to the Felix 

            2   office; and it's been made available, yes. 

            3        Q.    And have you -- have you been provided a copy 

            4   to -- for example, to take back with you and determine 

            5   how to then get your other schools in compliance in 

            6   this --

            7        A.    Okay.  This information currently is being 

            8   provided by the Felix office.  Much of this 

            9   information -- at the time we do the interagency quality 

           10   support plans coming up -- say, if we have an 

           11   unsuccessful outcome with service testing and we have to 

           12   put a plan together to come into compliance, much of 

           13   this information is available at that point. 

           14        Q.    Do you see it in terms of what's actually 

           15   taken out of the schools, the raw data, if we can call 

           16   it that?

           17        A.    Yeah. 

           18        Q.    Have you seen it?

           19        A.    I've had access to it.

           20        Q.    Let me ask you one final question.  The MIS 

           21   issue that you've raised -- and you have testified at 

           22   length that you've come before the Legislature and 

           23   testified, asked us for money. 

           24        A.    Uh-huh.

           25        Q.    Isn't it true that the Legislature has funded 




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            1   MIS?

            2        A.    You have funded the ISPED system. 

            3        Q.    The ISPED system?

            4        A.    Uh-huh. 

            5        Q.    And by the way, have you talked about your 

            6   concern about this -- you know, the fact that you need 

            7   to have the independence in terms of doing a regular -- 

            8   from the regulatory to do the planning part of it, have 

            9   you discussed that, for example, with the Board of 

           10   Education about the need for that type of separation?

           11        A.    Yeah, I've had meetings with the, say, 

           12   special programs committee of the Board of Education; 

           13   and from time to time, there have been discussion on 

           14   this issue.  But I don't know the exact number of times 

           15   or how frequently.  This is over, as I said, a period of 

           16   the last four years; and we've had a special program and 

           17   we -- a presentation -- I think it was last -- a year 

           18   ago June on the continuous progress, improvement 

           19   monitoring, that type of thing. 

           20        Q.    And it's been your position, as you've stated 

           21   here, that the problem with Hawaii is we get caught up 

           22   in the day to day --

           23        A.    No, I never phrased it as "the problem with 

           24   Hawaii is."  I've kind of raised the issue of how we go 

           25   through and how we separate the roles from time to time. 




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            1        Q.    Do you feel that's where the Board of 

            2   Education will go?

            3        A.    They have -- they have indicated more concern 

            4   with outcomes, especially meeting with the, say, special 

            5   programs committee.  We've had discussion on the service 

            6   testing, the need to get services in place, the need to 

            7   get complexes that are not yet in compliance into 

            8   compliance.  You know, in short, I think in talking with 

            9   our Board of Education, they, too, have realized we've 

           10   come a long ways; but they still -- they believe that we 

           11   still have a ways to go. 

           12              CO-CHAIR SENATOR HANABUSA:  Thank you, 

           13   Dr. Houck. 

           14              MR. HOUCK:  Thank you. 

           15              CO-CHAIR SENATOR HANABUSA:  Members -- 

           16   members, we would like to move on to now -- on the 

           17   agenda is the issuance of further Subpoenas.  The 

           18   Co-Chairs move that the Committee authorize the issue of 

           19   Subpoenas as follows.  As you know, you have approved 

           20   that the Co-Chairs will have discretion in the final 

           21   wording of these Subpoenas and when they shall be asked 

           22   to be returned. 

           23              In the abundance of caution, we would like to 

           24   have the ability to ask for the supplemental records 

           25   from the custodian of records for the Department of 




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            1   Health and Department of Education, depending on what we 

            2   have had produced and whether that leads to any further 

            3   questions; the custodian of records for the Department 

            4   of Accounting and General Services; and the custodian of 

            5   records for the Department of Human Services.  These are 

            6   document requests. 

            7              As far as testimony, we would like to have 

            8   the following persons asked to testify before us:  

            9   Kenneth or Archie Omura; Dr. Robert Campbell; Laurel 

           10   Johnston; Chris Ito; the Attorney General's office, the 

           11   custodian person -- type person there; and the Center 

           12   for Disabilities Studies, Bob Stodden -- Stodden, who is 

           13   the director.  And this is the entity that you've heard 

           14   testimony about that does the actual creation of the 

           15   monitoring reports. 

           16              The Subpoenas will command them to appear 

           17   before the Committee and to produce documents in their 

           18   possession or control relevant to efforts to comply with 

           19   the Felix Consent Decree and at times specified by the 

           20   Co-Chairs.   Any discussion?  If not, Representative 

           21   Saiki?

           22              CO-CHAIR REPRESENTATIVE SAIKI:  Co-Chair 

           23   Hanabusa?  

           24              CO-CHAIR SENATOR HANABUSA:  Aye.

           25              CO-CHAIR REPRESENTATIVE SAIKI:  Senator 




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            1   Kokubun?

            2              VICE-CHAIR SENATOR KOKUBUN:  Aye.  

            3              CO-CHAIR REPRESENTATIVE SAIKI:  

            4   Representative Oshiro is excused.  Senator Buen?

            5              SENATOR BUEN:  Agree.

            6              CO-CHAIR REPRESENTATIVE SAIKI:  

            7   Representative Ito? 

            8              REPRESENTATIVE ITO:  Aye.

            9              CO-CHAIR REPRESENTATIVE SAIKI:  

           10   Representative Kawakami is excused.  Representative 

           11   Leong?

           12              REPRESENTATIVE LEONG:  Aye. 

           13              CO-CHAIR REPRESENTATIVE SAIKI:  Senator 

           14   Matsuura?  

           15              SENATOR MATSUURA:  Aye. 

           16              CO-CHAIR REPRESENTATIVE SAIKI:  

           17   Representative Pendleton is excused.  Senator Sakamoto?

           18              SENATOR SAKAMOTO:  Aye.

           19              CO-CHAIR REPRESENTATIVE SAIKI:  Senator Slom?

           20              SENATOR SLOM:  Aye. 

           21              CO-CHAIR REPRESENTATIVE SAIKI:  The motion 

           22   passes.  

           23              CO-CHAIR SENATOR HANABUSA:  Members and 

           24   members of the public, as you know, the Committee went 

           25   into executive session; and what we would like to inform 




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            1   you about is the following:  The documents that we have 

            2   received, it is the intent of the Committee to make them 

            3   available to the public as soon as possible; but the 

            4   fact that we have not reviewed it -- there have been 

            5   issued raised as to potential breaches of 

            6   confidentiality and privacy matters.  So, the Committee 

            7   will have its attorneys and the auditor's office, which 

            8   is acting as our investigators, review those documents.  

            9   And at the next hearing, we will announce the policy 

           10   that we will adopt as to that specific issue. 

           11              As well, we discussed the costs of 

           12   duplication; and we are exploring whether these 

           13   documents can be placed on the Web and, if anyone is 

           14   interested, they can download it.  We are having some 

           15   technical problems in doing that.  So, until we get a 

           16   firm answer on whether that's possible or not, we will 

           17   have to meet again on that and make the announcement; 

           18   but it is the intent of the Committee to make those 

           19   available to the public as soon as possible. 

           20              As well -- as well, we would like to point 

           21   the Committee -- one of the issues that we raised when 

           22   we went into executive session was communications that 

           23   this Committee has received from attorneys, in 

           24   particular, the Plaintiffs' attorneys from -- who are 

           25   involved in the Felix Consent Decree. 




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            1              What we would like to do is to share with the 

            2   public as to what has occurred and basically, at that 

            3   time, share also what new occurrences has happened 

            4   because we want this proceeding to be free and open and 

            5   the public understand what information we are in receipt 

            6   of. 

            7              No. 3 in the official file on this Committee 

            8   hearing is a letter written by Attorney Eric Seitz to 

            9   myself discussing a meeting that he had with 

           10   Representative Saiki and me; and that occurred on 

           11   June 16th. 

           12              Members, if you recall, that was prior to our 

           13   first hearing; and at that time discussions were held 

           14   about the Subpoena of Ivor Groves and document requests.  

           15   The discussions were more in the nature of -- that the 

           16   Plaintiffs' attorneys had met with Judge Ezra, the 

           17   Special Master Jeff Portnoy, representatives of the 

           18   Attorney General's office and we -- or I understood at 

           19   that time that also other Plaintiffs' counsel was 

           20   present and I believe the monitor was present.  I could 

           21   be mis -- I could have misunderstood; but that was my 

           22   understanding of who was present. 

           23              Representative Saiki and I believe that that 

           24   meeting was off the record.  However, this letter makes 

           25   it not of that nature.  The reason why we believe it was 




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            1   off the record is it was a very informal session called 

            2   by Attorney Seitz' office. 

            3              I kid Representative Saiki about it because 

            4   he was in shorts and rubber slipper and T-shirt, and it 

            5   was at the Blue Moon Restaurant.  So, it wasn't exactly 

            6   what I thought would be a serious type of private 

            7   conversation. 

            8              However, what became known to us after that 

            9   was when the Subpoenas were issued, we, of course, were 

           10   faced with the motion to suppress the Subpoenas issued 

           11   by the Plaintiffs' attorneys.  And we, of course, had 

           12   questions as to why the Plaintiffs' attorneys were 

           13   issuing that motion to quash the Subpoenas which we had 

           14   issued to Ivor Groves as well as Juanita Iwamoto. 

           15              The reason we bring this up here today is 

           16   because there has been conversations about this, and we 

           17   wanted everyone to understand the context in which it 

           18   had occurred. 

           19              It was also disturbing to myself, as well as 

           20   Representative Saiki later, to know that the people who 

           21   finally both filed the motion plus ruled on the motion 

           22   were present at this meeting before that time. 

           23              And in all fairness, the discussion was that 

           24   Ivor Groves could be made available.  However, there had 

           25   to be an understanding as to the scope of the 




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            1   questioning that would take place.  And I will also say 

            2   that Mr. Seitz was kind enough to even offer to write 

            3   the questions for us.  But that was not acceptable, we 

            4   believe, to the Committee; and as you know, the 

            5   Committee as a whole makes the decision and it takes the 

            6   majority of us to move forward on any issue.  So, it 

            7   wouldn't be something that Representative Saiki or 

            8   myself would make a decision upon. 

            9              And with that, I turn it over to 

           10   Representative Saiki.

           11              CO-CHAIR REPRESENTATIVE SAIKI:  Members, I 

           12   just wanted to inform you of a recent conversation that 

           13   we were involved with with Plaintiffs' counsel on 

           14   Saturday morning.  Basically, it was in terms of the 

           15   three-point provisional resolution of this matter; and I 

           16   would like to go over the three points very briefly with 

           17   you for your consideration. 

           18              The first is that -- and the gist of this is 

           19   really to -- to allow the state to reach compliance by 

           20   the November deadline.  The first point is that the 

           21   Committee is requested to convince the Governor to 

           22   settle the most recent HSTA contract dispute.  This 

           23   presumably would allow the state to reach its benchmarks 

           24   by November. 

           25              The second point is for this Committee to 




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            1   suspend this investigation until after November 1st; and 

            2   the third point then is that if we do suspend this 

            3   investigation and if compliance is reached in November, 

            4   that the Plaintiffs' counsel will give us their full 

            5   cooperation with this investigation after November 1st.  

            6   It will give us full access to witnesses and documents 

            7   presumably with the cooperation of the Federal Court 

            8   monitor, his staff, and his consultants. 

            9              We wanted to make this known to the Committee 

           10   members basically for your consideration today. 

           11              CO-CHAIR SENATOR HANABUSA:  Finally, Members, 

           12   you have also received a copy -- and it will be put as 

           13   part of the official file -- a letter drafted by myself 

           14   to the Governor.  The issue in this particular letter 

           15   was the fact that the Attorney General's office 

           16   concurred to the payment of, in this particular case, 

           17   Mr. Seitz' attorney's fees, which included in there the 

           18   meeting with Representative Saiki and myself and also 

           19   matters -- which, when you look at the description, 

           20   involve, I believe, the motion to quash our Subpoenas; 

           21   and the issue is not whether Mr. Seitz is entitled to 

           22   this money.  The issue is whether the Attorney General's 

           23   office and the Governor, who supports this 

           24   investigation, is going to simply permit this to 

           25   continue. 




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            1              As far as the payment of Mr. Seitz' fee in 

            2   this particular case, it's already a judicial order.  

            3   It's been signed off by Judge Ezra, and you have a copy 

            4   of that.  And you also have a copy of the backup 

            5   information which shows you what these payments were 

            6   for.  The total amount is -- and this is public record 

            7   because it's filed with the Court -- 9,000 -- $9,049.28, 

            8   which is exactly what was requested. 

            9              So, this is also something else that we will 

           10   be asking the Attorney General, who you have authorized 

           11   the issuance of the Subpoena to, to give us a breakdown 

           12   on these types of costs.  As you know, many of you have 

           13   received calls from your constituents about how much 

           14   money are the people making; and this is one of the 

           15   issues that was raised. 

           16              So, with that, is there any discussion or 

           17   questions among the Committee members?

           18              Senator Slom?

           19              SENATOR SLOM:  Yes.  Thank you, Madam Chair.  

           20   This is the first time I've seen this report and I 

           21   noticed that there's an expenditure on here listed 

           22   June 26th, billable 2.5 hours; and one of the things is 

           23   "call to Slom."  And I have to say that I have known of 

           24   Mr. Seitz for approximately 30 years.  I've never had a 

           25   conversation with him until that day, in which case 




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            1   unsolicited he called me; and the purpose of the phone 

            2   call was to say that the Co-Chairs, in fact, had broken 

            3   their word on this issue of Subpoenas and to ask if I 

            4   would support the idea of not allowing Subpoenas 

            5   because, as you had said earlier, that the people would 

            6   come voluntarily. 

            7              So, I just want on the record -- I don't know 

            8   why anybody calls a Republican, you know, on a state 

            9   Committee here; but I think it's very interesting that 

           10   these funds -- am I correct that these are part of the 

           11   Felix funds to pay for this, the 9,000?

           12              CO-CHAIR SENATOR HANABUSA:  That's my 

           13   understanding. 

           14              SENATOR SLOM:  Okay.  Thank you, Madam Chair. 

           15              CO-CHAIR SENATOR HANABUSA:  So, with that, 

           16   Members, thank you very much.  This hearing has gone for 

           17   quite a while today.  With that, we will be adjourning 

           18   the hearing.  Thank you, Members.  

           19              (The hearing was adjourned at 3:41 p.m.)

           20    

           21   

           22   

           23   

           24   

           25   




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            1                     C E R T I F I C A T E

            2   STATE OF HAWAII              )

            3                                )   SS:

            4   CITY AND COUNTY OF HONOLULU  )

            5          I, SHARON ROSS, Notary Public, State of Hawaii, 

            6   do hereby certify:

            7          That on Monday, August 20, 2001, at 9:10 a.m., 

            8   the above-described hearing was taken down by me in 

            9   machine shorthand and was thereafter reduced to 

           10   typewriting under my supervision; that the foregoing 

           11   represents, to the best of my ability, a true and 

           12   correct transcript of the proceedings had in the 

           13   foregoing matter.

           14          I further certify that I am not attorney for any 

           15   of the parties hereto, nor in any way concerned with the 

           16   cause.

           17          DATED this 29th day of August, 2001, in Honolulu, 

           18   Hawaii.

           19   

           20   
                                                                          
           21                            SHARON ROSS, CSR NO. 432
                                         Notary Public, State of Hawaii
           22                            My Commission Expires:  4-8-05

           23   

           24   

           25   




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