Report Title:

Joint Senate-House Investigative Committee; Felix Consent Decree


S.C.R. NO.



S.D. 1


H.D. 1







WHEREAS, in 1993, Jennifer Felix, represented by her mother, sued in Federal District Court alleging that the State failed to provide adequate mental health services to children and adolescents in need of those services to benefit from their educational programs; and

WHEREAS, in 1994, the case was certified to be a class action suit on behalf of all children and adolescents between birth and age twenty with disabilities who reside in Hawaii and who are eligible for and in need of educational and mental health services, but not receiving those services (Felix class); and

WHEREAS, on October 25, 1994, the Felix Consent Decree (Decree) was approved, specifying the parameters under which the State is obliged to provide free appropriate public education to the Felix class, as required under the Individuals with Disabilities Act (IDEA) and Section 504 of the Rehabilitation Act (Section 504); and

WHEREAS, as a condition of entering the Decree, the State waived its right to appeal any matter covered by the Decree; and

WHEREAS, the State was to meet the requirements of IDEA and Section 504 and the stated principles and standards of the Decree by June 30, 2000; and

WHEREAS, the State did not meet the requirements, and in May 2000, the U.S. District Court found the State in contempt, and rather than imposing penalties, the judge granted the Superintendent of Education and the Director of Health extraordinary powers to make necessary changes, whatever the cost, by December 31, 2001; and

WHEREAS, if they fail, the court could take over the education system; and

WHEREAS, since 1994-1995, the number of children in the Felix class has grown from an estimated 2,894 to 11,842 in 1999-2000, and Felix expenditures have increased from $181,071,352 to $301,863,705 in 1999-2000; and

WHEREAS, this has a significant impact on the State's budget and is a source of continuing frustration to lawmakers, in part because two Auditor's reports remain critical of the State's efforts to comply with the Decree; and

WHEREAS, Auditor's Report No. 98-20 Assessment of the State’s Efforts Related to the Felix Consent Decree, December 1998, highlighted three major problem areas – failure to ensure that the requirements of the Decree were clear, failure to identify clearly and accurately funding related to the Decree, and a lack of effective leadership; and

WHEREAS, the 1999 Legislature responded to the charge that the State does not clearly and accurately identify funding related to the Decree by creating a new budget program designation, EDN 150, Comprehensive School Support Services; and

WHEREAS, Act 91, Session Laws of Hawaii 1999, required the Department of Education (DOE) to submit a detailed report in both 2000 and 2001 on EDN 150 allocations and expenditures for special education, the Decree, and comprehensive student support services; and

WHEREAS, the Act also required the DOE and the Department of Health (DOH) to develop procedures for transfer of the delivery of mental health services from the DOH to the DOE; and

WHEREAS, the Auditor's January 2001 report, Follow-Up Review of the State's Efforts to Comply with the Felix Consent Decree, found, however, that the DOE continues to combine Felix-related administrative and service costs with other special education costs, and that the Department of Health (DOH) combines costs for compliance with costs for the delivery of services; and

WHEREAS, as a result, the Auditor concluded that it is impossible to examine the budgets and determine the cost of core and essential services versus the costs of new, experimental, and non-essential services; and

WHEREAS, as a result, the State is unable to determine how and when it might meet the requirements of the Decree; now, therefore,

BE IT RESOLVED by the Senate of the Twenty-First Legislature of the State of Hawaii, Regular Session of 2001, the House of Representatives concurring, that:

(1) The Legislature hereby establishes a joint Senate-House investigative committee pursuant to chapter 21, Hawaii Revised Statutes, to investigate the State's compliance with the Felix Consent Decree;

(2) The joint Senate-House investigative committee shall be composed of twelve members, of which six shall be members of the State Senate, appointed by the Senate President, and six shall be members of the State House of Representatives, appointed by the Speaker of the House;

(3) The purpose and the duties of the joint investigative committee and the subject matter and scope of its investigatory authority shall be to investigate, gather information, assess, and make recommendations to the Legislature concerning:

(A) The recommendations and implementation of the Auditor's Report No. 98-20 Assessment of the State’s Efforts Related to the Felix Consent Decree, December 1998;

(B) The recommendations and implementation of the Auditor's Report Follow-Up Review of the State's Efforts to Comply with the Felix Consent Decree, January 2001;

(C) Changes in fiscal and decision-making authority and accountability due to the transition from a primarily medically-based service delivery system focused on providing Felix-related services by specialists off of school campuses in clinical environments to a primarily education-based service delivery system focused on providing Felix-related services by specialists on school campuses in classroom environments;

(D) How best to facilitate the transition from a special education service delivery system temporarily based on compliance to a Decree to a more permanent one that is cost-effective, efficient, based on measures and outcomes, and compliant with IDEA and Section 504; and

(E) Federal and other sources of funding for special education in the public school system of Hawaii;

(4) The joint investigative committee shall have every power and function allowed to an investigating committee by law, including without limitation the power to:

(A) Adopt rules for the conduct of its proceedings;

(B) Issue subpoenas requiring the attendance and testimony of witnesses and subpoenas duces tecum requiring the production of books, documents, records, papers, or other evidence in any matter pending before the Committee;

(C) Hold hearings appropriate for the performance of its duties, at such times and places as the Committee determines;

(D) Administer oaths and affirmations to witnesses at hearings of the Committee;

(E) Report or certify instances of contempt as provided in Section 21-14 of the Hawaii Revised Statutes;

(F) Employ professional, technical, clerical, or other staff and expend such funds appropriated for Senate and House of Representatives operating expenses for 2001 as necessary for the proper performance of its duties; and

(G) Exercise all other powers specified under Chapter 21 of the Hawaii Revised Statutes with respect to investigating committees;

(5) The joint investigative committee shall be appointed by the Senate President and Speaker of the House of Representatives exclusively from the membership of their respective bodies;

(6) The joint investigative committee shall provide by rule for the submission, by a witness’s own counsel and counsel for another individual or entity about whom the witness has devoted substantial or important portions of the witness’s testimony, of written questions to be asked of the witness by the Co-Chairs;

(7) The joint investigative committee shall provide by rule for the submission of proposed questions at a hearing in accordance with Section 21-11(b), Hawaii Revised Statutes;

(8) The joint investigative committee shall provide by rule that each witness intended to be called be given ten days notice of (A) the date and time of the witness’s appearance, (B) a short plain statement of the areas to be inquired into with respect to that witness’s anticipated testimony, and (C) a list of or copies of the principal documents about which that witness may be questioned; provided that these requirements shall not limit the joint investigative committee’s discretion to inquire into related matters. The rule may provide that the Co-Chairs may waive the ten days notice if the witness so agrees;

(9) The joint investigative committee shall provide by rule that a draft report of the investigative committee’s findings and/or conclusions concerning any matter that is the subject of its hearings shall be made available to all those entities or persons who were the subjects of or who were witnesses who testified at any hearing. Any person or entity to whom a draft report is made available shall be given a period of no less than fourteen days within which to make written responses to the draft findings and/or conclusions. The written responses, if any, shall be included as an appendix to the final report of the joint investigative committee; and

(10) The joint investigative committee is authorized to exercise its powers continuously throughout the 2001 Regular Session, the interim between the 2001 and 2002 Regular Sessions, and shall thereafter be dissolved unless further extended by the Senate and the House of Representatives;


BE IT FURTHER RESOLVED that the Senate President and Speaker of the House of Representatives, from time to time, may refer to the joint investigative committee specific matters that are within the scope of the Committee’s jurisdiction, and that the Committee shall work in cooperation with the President and Speaker for the purposes stated in this Concurrent Resolution; and

BE IT FURTHER RESOLVED that the joint investigative committee shall submit its written findings and recommendations to the Legislature twenty days prior to the convening of the Regular Session of 2002; and

BE IT FURTHER RESOLVED that certified copies of this Concurrent Resolution be transmitted to the President of the Senate, Speaker of the House of Representatives, Governor, Superintendent of Education, and Director of Health.