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
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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.)
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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
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