Report Title:

Education; Felix

 

Description:

Defines the class of children eligible for special education programs and services. Establishes a voucher program allowing parents of special education children to obtain special education services from private organizations. (HB1678 HD1)

 

HOUSE OF REPRESENTATIVES

H.B. NO.

1678

TWENTY-FIRST LEGISLATURE, 2001

H.D. 1

STATE OF HAWAII

 


 

A BILL FOR AN ACT

 

relating to education.

 

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF HAWAII:

SECTION 1. The legislature finds that despite significant gains toward achieving compliance with the mandates of the Felix v. Cayetano consent decree, there are still major impediments to full compliance and to providing quality services to individuals within the Felix v. Cayetano plaintiff class (Felix class). A recent report from the auditor, conducted by independent consultants, delineated many of the problems that still face the State with regard to the Felix lawsuit that has cost over $300,000,000 since 1994.

These expenditures will continue to rise unless there is a concerted effort made to ensure that services for individuals in the Felix class are provided in a cost-effective manner. There are two significant drivers of the costs associated with the Felix lawsuit that need to be addressed legislatively. One of these is that the Felix class has expanded at an extraordinary rate since 1994. In that year, there were fewer than three thousand individuals who had been identified as belonging in the Felix class. That number rose to nearly twelve thousand in 2000. An expansion in the number of individuals receiving services was expected as services were steadily increased, but the numbers have quickly eclipsed expectations and have resulted in tremendous costs.

The consultants' report asserts that the main reason for the uncontrolled increase of eligible individuals is that the departments of education and health lack a viable working definition of the Felix class. This ambiguity results in an inflated number of individuals who are included in the class, as well as significant problems in attempting to appropriate funds and account for Felix expenditures.

The legal definition of the class is "all children and adolescents with disabilities residing in Hawaii, from birth to 20 years of age, who are eligible for and in need of education and mental health services." However, there is no established "working" definition that would allow eligibility for Felix-type services to be ascertained in a consistent manner. The legal definition provides little practical guidance to those who are directly involved in the determination of eligibility for these services. A working definition should provide definite standards for inclusion and exclusion that can be consistently applied. The current legal definition does not accomplish this as it does not provide any specific criteria that can be utilized practically to determine eligibility in the Felix class.

The Felix ruling determined that the State was not fulfilling its duties as required under two federal laws: the Individuals with Disabilities Education Act (IDEA) and section 504 of the Rehabilitation Act of 1973. These laws cover a wide range of individuals whose right to services is guaranteed, and in the case of IDEA, the conditions covered by the Act are specifically identified. However, the Felix class is more restrictive than the federal guidelines in that it is limited to those who require mental health treatment. In other words, a student with a physical ailment that is covered by one of the two federal laws should not be included in the Felix class unless that individual also requires mental health treatment. With no working definition to provide a framework for determining the composition of the Felix class, it becomes extremely difficult to control eligibility and allocate funds. Because there is currently only a one-sentence guideline in place that requires significant interpretation, it is nearly impossible to train departmental employees consistently and establish a consensus on the makeup of the Felix class.

Another problem that drives the costs of Felix compliance is that the most cost-effective treatments available are not always utilized. There are numerous private providers of Felix-type educational and health services that provide comparable services at extremely reduced costs. In some instances, services are being paid for by the State that are three to four times as expensive as services provided elsewhere. However, parents of individuals in the Felix class are not free to select providers, and are not able to take advantage of more cost-effective providers in the market.

One way to cut costs is to ensure that the most cost-effective services available can be selected by parents. This can be accomplished by allowing the use of service vouchers with which parents may purchase services for their child. The department of education would administer these vouchers allowing parents to select a provider of educational or other services that would not otherwise be available to them.

Accordingly, the purpose of this Act is to:

(1) Statutorily establish a working definition of the Felix class of students; and

(2) Establish a system of service vouchers by which parents of students in the Felix class may purchase services.

SECTION 2. Chapter 302A, Hawaii Revised Statutes, is amended by adding two sections to part II to be appropriately designated and to read as follows:

"§302A- Felix class; eligibility. (a) The following operational criteria shall be used to guide the department of education and the department of health and all affected departments of the State to determine eligibility for special education and mental health services in accordance with the Felix v. Cayetano consent decree. Nothing in this section shall be construed as an attempt to redefine or a redefinition of the plaintiff class as described in the Felix v. Cayetano consent decree.

A child shall be eligible for services as required by the Felix v. Cayetano consent decree if the child is found to fall within each of the following paragraphs:

(1) The child resides in the State and is younger than twenty-years-of-age;

(2) The child is diagnosed as having one or more of the following conditions:

(A) Learning disability such as autism, attention deficit disorder, or dyslexia;

(B) Mental retardation;

(C) Emotional or behavior disorders;

(D) Substance abuse problems;

(E) Developmental delays in language and communication skills, social or emotional development, or adaptive behavior;

(F) Speech or language impairment; or

(G) Multiple disabilities, at least one of which falls within subparagraphs (A) through (F); and

(3) Upon diagnosis of a condition or conditions under paragraph (2), there is:

(A) Abrupt and significant deterioration of school performance (as measured by grades);

(B) Obvious decline in the mastery of educational objectives;

(C) Severe decreases in classification productiveness; and

(D) Sudden inability to master more advanced, complex skills, or to accomplish long-term projects, such as semester papers.

(b) Children who are disabled, but not part of the Felix class shall include children whose disabilities are limited to one or more of the following:

(1) Mobility impairment;

(2) Vision impairment;

(3) Hearing impairment;

(4) Epilepsy;

(5) Neurological disorders that require assistive technology but do not impair the intellectual learning process such as multiple sclerosis or muscular dystrophy; and

(6) Time-limited emotional disorders such as disorders commonly termed "adjustment disorders".

(c) As used in this section:

"Adaptive behavior" refers to the effectiveness with which a student meets the standards of personal independence and social responsibility expected of the student's age and cultural group. There should be a significant positive correlation between the student’s IQ and adaptive behavior.

"Attention deficit disorder" (abbreviated as "ADD"), or "attention deficit hyperactivity disorder," means a long-term and pervasive condition causing severe distractibility and impulsiveness in children, making it difficult for them to control behavior and complete assignments.

Children with attention deficit disorder often:

(1) Fail to give close attention to details;

(2) Make careless mistakes;

(3) Have difficulty sustaining attention to and completing tasks;

(4) Do not seem to listen when spoken to directly;

(5) Fail to follow instructions carefully;

(6) Act restless or nervous;

(7) Talk excessively;

(8) Blurt out answers before hearing the whole question; and

(9) Have difficulty awaiting their turn.

The hyperactivity component may or may not be present.

"Autism" means a developmental disability significantly affecting verbal and nonverbal communication and social interaction. Specific characteristics often associated with autism are:

(1) Engagement in repetitive activities and stereotyped movements;

(2) Resistance to environmental change or change in daily routines; and

(3) Unusual responses to sensory experiences.

"Developmental delays" means significant delays diagnosed in language skills, cognitive abilities, gross/fine motor function, social/emotional development, and self-help/adaptive functioning. This term applies to children ages three through nine who exhibit disabilities, which cannot be attributed to other disability categories.

"Dyslexia" means an information processing disorder that hinders a child's ability to understand and perform tasks related to reading, writing, spelling, math, and sometimes music. Many dyslexics have trouble matching letters to their corresponding sounds. Some common characteristics include the reversal of letters and words (such as reading saw instead of was), and defects in the visual and auditory perception and memory considered necessary for reading.

"Emotional or behavioral disorder" means a condition exhibiting one or more of the following characteristics over a long period of time and to a marked degree that adversely affects a child’s educational performance:

(1) An inability to learn that cannot be explained by intellectual, sensory, or health factors;

(2) An inability to build or maintain satisfactory interpersonal relationships with peers and teachers;

(3) Inappropriate types of behavior or feelings under normal circumstances;

(4) A general pervasive mood of unhappiness or depression; or

(5) A tendency to develop physical symptoms or fears associated with personal or school problems.

This group of disorders includes schizophrenia. The term does not apply to children whose behavior is associated with visual or auditory disabilities, motor disabilities, mental retardation, specific learning disability; nor to children raised in a disadvantaged environmental or economic situation; nor to children who are socially maladjusted, unless it is determined that they have a clinical emotional disturbance.

"Learning disability" means any disorder in one or more of the basic psychological processes involved in understanding or in using language, spoken or written, that may result in an imperfect ability to listen, think, speak, read, write, spell, or do mathematical calculations. The term includes conditions such as perceptual disabilities, brain injury, minimal brain dysfunction, dyslexia, and developmental aphasia. The term does not include learning problems that are primarily the result of visual, hearing, or motor disabilities, of mental retardation, of emotional disturbance, or of environmental, cultural, or economic disadvantage.

"Mental retardation" means significantly subaverage intellectual functioning, existing concurrently with deficits in adaptive behavior and manifested during the developmental period, which adversely affects a child’s educational performance.

"Multiple disabilities" means physical or sensory impairments occurring in combination with each other or concomitantly with other disabling conditions. Children in this category exhibit two or more severe disabilities that are likely to be life-long, significantly interfere with independent functioning, and may necessitate environmental modifications to enable the individual to participate in school and society. Examples include orthopedically impaired and mentally retarded or hearing impaired and mentally retarded. A specific learning disability and a speech or language impairment do not constitute a multiple disability.

"Speech or language impairment" means reduced ability, whether developmental or acquired, to comprehend or express ideas through spoken, written, or gestured language. This term includes stuttering, impaired articulation, or a voice impairment that adversely affects a child’s educational performance.

"Substance abuse problem" means a diagnosed addiction to or chronic abuse of alcohol, narcotics, or other controlled drug, that requires medical treatment and psychological counseling.

§302- Service vouchers. The department shall establish a service voucher system by rule pursuant to chapter 91 wherein families of children found to be in the Felix class pursuant to section 302- may exchange vouchers issued by the department to obtain a set dollar amount of services. The services for which the voucher may be used shall be limited to those specifically related to the conditions for which the student has been classified in the Felix class."

SECTION 3. There is appropriated out of the general revenues of the State of Hawaii the sum of $ or so much thereof as may be necessary for fiscal year 2001-2002 for the voucher program established in this Act.

The sum appropriated shall be expended by the department of education for the purposes of this Act.

SECTION 4. New statutory material is underscored.

SECTION 5. This Act shall take effect on July 1, 2001.