Wrightslaw - News - Hawaii Punished for Ignoring Children

[Note: This page includes 3 stories from different news publications about this case.]

May 30, 2001.
State Punished For Ignoring Children - Decision Opens Door To Thousands Of Families

HONOLULU, 6:31 p.m. HST May 30, 2001 -- The state's neglect of special education children could soon be costing Hawaii taxpayers even more money.

In what may be a landmark decision, U.S. District Judge David Ezra ruled Wednesday that parents of special needs children may be entitled to millions of dollars in damages from the state for out-of-pocket money spent on their children, lost income and even emotional distress.

"This is a terrifically significant decision that could affect probably thousands of families in the state of Hawaii," attorney Carl Varady said. Varady represents families of special needs children.

But Wednesday's decision was rooted in the case of 6-year-old Amber Nahale. Amber needs two-to-three hours of therapy a day to overcrome autism. The Nahales also have an autistic son.

While the state is legally obliged to pay for the therapy, it didn't for several years, forcing Amber's parents to pay thousands of dollars for therapists.

"We were having to pay for eveything," Amber's father, Guy, said. "We had garage sales and we borrowed money from parents, from cousins."

The family sued to force the state to pay for their children's therapy. But the state argued that the class-action Felix consent decree, which is forcing the state to spend millions of dollars on special education in public schools, barred lawsuits by individual families.

Ezra Wednesday rejected that argument and even set up a streamlined process to get families into court faster.

"It's a real benefit to families who have waited, some of them for years, in order to be reimbursed and ompensated for the harm that the state has caused them," Varady said.

However, each family would have to sue individually with a daunting task: proving that the state was deliberately indifferent to the needs of their children.

The state had no official reaction to the ruling, though it is expected to appeal, perhaps all the way to the U.S. Supreme Court. (Source: KITV News, May 31, 2001)

Special Education Takeover Sought

By Alice Keesing, Advertiser Education Writer, June 1, 2001.

In the wake of a federal court ruling that clears the way for families to sue the state for services, attorneys today will file a motion asking the court to take over Hawai'i's special education system.

The motion is an indication that events may be coming to a head in the long-running Felix case, which orders the state to improve special education services.

Seven years after he issued the Felix consent decree, U.S. District Judge David Ezra has said he is running out of options. He already has found the state in contempt for not meeting an earlier deadline. And he fought a war of words with legislators recently, warning he would step in if they did not stop playing politics with Felix financing.

And now, arguing that the teachers' strike has made it impossible to meet the court's December deadline, the state wants another six months to get the job done.

But the plaintiff attorneys in the Felix case argue the state was already out of compliance before the strike and has repeatedly failed to meet the court's deadlines. Although there has been significant progress in the past two years, attorneys say students still are denied services, and they want a receiver to take over.

"(An) important aspect that we think the court has to reckon with is the Legislature is deliberately sabotaging the efforts to achieve compliance, and there is no way to protect the progress we have made, and any future progress, without a receiver," said attorney Shelby Floyd.

The Legislature delayed financing requests from the departments of Education and Health while lawmakers scrutinized the millions of dollars being spent on Felix. Legislators have said they want to be sure the money is spent wisely and reaches the children who need it.

State schools superintendant Paul LeMahieu believes the Department of Education can finish the job by June 2002, and points to Ezra's recent comments praising the progress of the departments of education and health.

Ezra will hear the motions June 22. If a receiver is appointed, that person would have all the powers of the federal court to bring Hawai'i into compliance with federal special education law. Ezra also has the power to fine the state or require it to find the money needed to improve services.

"A receiver could create, in essence, a firewall between the departments and the Legislature or the executive branch - anybody who was intending to put the brakes on progress," Floyd said.

Meanwhile, another related ruling by Ezra this week could put even more pressure on the state and expose it to million-dollar lawsuits.

Ezra ruled that a family can sue to force the state to pay for therapy for their autistic daughter. He also said the parents can seek punitive damages for the emotional distress they may have suffered while trying to get services for their 6-year-old daughter.

"That can get conceivably expensive," Floyd said. "That's the potentially big numbers. I think this is a major arrow in the quiver of parents as far as getting services to kids."

The state had argued that lawsuits by individual families should be barred because the state already is subject to the Felix consent decree. It also said the state should be immune based on a recent Supreme Court ruling in relation to the Americans with Disabilities Act.

But Ezra disagreed, dismissing the state's arguments and allowing the case brought by Guy and Patricia Nahale to proceed.

Guy Nahale, who is a Honolulu Police Department sergeant, called the ruling fair.

"I think we're on our way to making things right," he said. "What we would like to see out of this is a system where special-needs children will get the services that are needed. It's not about money. It's about getting the services to the children."

Nahale said he made repeated requests to the state since 1997 to finance his daughter's education, but received no response. Patricia Nahale quit her job to care for her daughter, and the family sold her car, held garage sales and borrowed thousands of dollars from family and friends to help pay for services for their daughter.

In an earlier settlement offer, the Nahale's asked the state for $1.8 million. Their case is scheduled to begin June 19.

In court documents, the state argued that allowing emotional distress damages in such cases "without carefully circumscribed standards, will adversely affect the State of Hawaii's ability to provide special education programs to the thousands of students in the state who need such services."

Attorney Jeff Portnoy, the court-appointed master in the Felix case, said while the ruling gives Felix-class parents a right to pursue claims, it "does not open the floodgates" for every parent to successfully bring a damage action against the state. A plaintiff must prove "deliberate indifference," meaning the state showed either bad faith or gross misjudgment in handling a case, Portnoy said.

The Department of Education is working to create the system that will help prevent situations such as Nahale's, LeMahieu said. And he hopes the ruling does not undercut that effort.

"The award of punitive or compensatory damages may provoke recourse to the courts well in advance of the system handling its problems," LeMahieu said. "That would be too bad."

Attorneys petitioning for Felix Overseer

Critics say schools have failed to meet special-ed targets

By Crystal Kua, Star-Bulletin, June 1, 2001

A motion was expected to be filed today asking a federal judge to appoint a receiver to oversee the state's compliance in the Felix consent decree, an attorney for the plaintiffs said.

"We've asked the court for relief, so it's serious," Shelby Floyd said last night.

The federal consent decree came about as a result of a lawsuit filed on behalf of special-needs student Jennifer Felix. The lawsuit said the state was violating federal law by not providing adequate educational and mental health services to special-needs students. The decree mandates improvements to those services.

A combination of reasons led to the decision to file the motion for a receiver, Floyd said. First, the state failed to meet several benchmarks that were agreed to last year, she said.

Second, the Legislature's actions in reducing Felix-related funding requests this past session were seen as effectively "sabotaging" efforts by the state departments of Health and Education to carry out their compliance plans, she said.

And third, Floyd added, there is evidence that schools are limiting services as the burden of providing programs for special-needs children shifts from the Health Department to the DOE.

U. S. District Judge David Ezra is being asked in the motion to order the parties to meet to select a person to serve as a receiver and to determine the powers of that receiver.

The judge is also being asked to extend the consent decree for a year from the December 2001 compliance deadline.

Floyd said the Felix plaintiffs believe it will take the departments that long to achieve compliance, and it will give the parties time to see what the Legislature does next session.

This request comes as state attorneys earlier this month also asked the court for an extension of about six months.

The plaintiffs' attorneys are not the only ones worried about the transition to school-based services.

Deborah Hill of Maui has an 11-year-old son who is autistic. He is being seen at home by a therapist who helps him with his communications skills.

As the state prepares for a major shift in philosophy in how it provides services to special-needs children, with the DOE taking the lead from the Health Department, Hill sees confusion in the planning process and is afraid that her son and other Felix children could get shortchanged and lose valuable professional assistance, like her son's therapist.

"Whether the school can fill the niche ... as it stands, they don't even know what they're supposed to be doing," Hill said. "They are trying to implement a program that they don't have any idea how it works."

Not so, state schools chief Paul LeMahieu told Star-Bulletin editors and reporters earlier yesterday.

He said that the schools, instead of contracting mental health professionals, should be providing the needed services to special-needs students because it falls within the educational perimeters of the law.

"It's not a mental health problem," LeMahieu said. "This is an education problem."

Beginning July 1, the Department of Education will begin the transition to becoming responsible for providing services to about 7,000 students who currently fall under the consent decree.

"We're the right place to solve this," LeMahieu said of the schools.

As part of the federal mandate, the DOE will take over from the Health Department's role of providing services to the 7,000 students.

The preparation for the transition to school-based services is being done by beefing up the infrastructure needed to provide these services, LeMahieu said.

Internally, the department will get more money in its budget for assuming the responsibility.

The department is also bringing on more school psychologists, social workers, educational assistants and counselors.

LeMahieu pointed out that the Department of Health budget to service the 7,000 students amounts to $34.5 million but that the DOE projects that the cost will be reduced to $28 million next year by the transition to school-based services.

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