Report Title:

Felix Class and Special Education Reform

 

Description:

Provides several provisions to improve accountability, performance, efficiency, and effectiveness of the department of education and its services for students in need of health services. (SD1)

THE SENATE

S.B. NO.

2969

TWENTY-FIRST LEGISLATURE, 2002

S.D. 1

STATE OF HAWAII

 


 

A BILL FOR AN ACT

 

relating to education.

 

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

PART I

SECTION 1. From June 2001, to January 2003, the Joint Felix Senate-House Investigative Committee and the Joint Task Force on the Felix Consent Decree investigated the State's efforts to comply with the Felix Consent Decree and endeavored to find solutions to various problems that hindered the effectiveness and efficiency of the State's efforts.

Their efforts revealed systemic problems residing within the department of education that not only caused economic waste but called into question whether students were receiving adequate and effective services.

The purpose of this Act is to implement structural and procedural changes within the department of education to improve efficiency and to ensure that Hawaii's children with a disability receive a quality education.

PART II

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

"Part   . OFFICE OF

EDUCATIONAL ACCOUNTABILITY AND PERFORMANCE

302A-A Definitions. For purposes of this part:

"Executive director" means the executive director of the office of educational accountability and performance.

"Office" means the office of educational accountability and performance.

302A-B Office of educational accountability and performance; executive director and employees. (a) There is established within the board an office of educational accountability and performance, which shall be headed by an executive director.

(b) The board shall appoint, establish the salary of, and may remove, the executive director by a majority vote of its members. The executive director may be appointed for a term of up to four years and may be terminated only for cause.

(c) The board may also appoint such other officers and employees as may be necessary to carry out the duties and responsibilities of the office.

302A-C Duties of the executive director. (a) The executive director shall:

(1) Monitor and evaluate the department's efforts to implement accountability systems as required by law, including sections 302A-1004 and 302A-1301;

(2) Monitor and evaluate the performance of schools in educating all children;

(3) Gather, compile, and evaluate longitudinal data on all students to assess the performance of the pubic school system in providing services;

(4) Review the procedures and practices of the department and assist in the development and adoption of best practices;

(5) Monitor and evaluate interagency practices among the department and other government agencies to improve the efficiency and effectiveness of schools;

(6) Review all pertinent statutes, agency rules, policies, procedures, and practices to identify those that are impeding the effective use of financial and educational resources, including private and community resources, while taking into consideration the reports of the interagency educational accountability working group established in Act 235, Session Laws of Hawaii 2000;

(7) Advise the board on new legislation, programs, and policy initiatives and conduct liaison as required to implement them;

(8) Monitor and evaluate the efforts of the department and related state agencies in complying with federal laws relating to special education and services for exceptional children, including the Individuals with Disabilities Education Act (20 U.S.C. 1400, et seq.) and the Rehabilitation Action of 1973 (29 U.S.C. 794);

(9) Conduct studies, reviews, or evaluations of state educational accountability and performance as directed by the board; and

(10) Submit a report of findings and recommendations to the board annually and as requested by the board; provided that evidence of any unauthorized, illegal, irregular, improper, or unsafe handling or expenditure of state funds or other improper practice of financial administration discovered shall be transmitted immediately to the board.

302A-D Cooperation with the office. Each state department or agency that provides programs and services relating to public education shall cooperate with the office in providing information that the office deems necessary for the effective discharge of its duties. This section and any other section in this part shall not be construed to delegate or detract in any way from the functions, powers, and duties prescribed by law for any other department or agency of this State, nor to interrupt or preclude the direct relationships of any such department or agency in the performance of their respective functions, powers, and duties.

302A-E Special education advisory board. (a) There shall be a special education advisory board administratively placed within the office of educational accountability and performance to advise and assist the executive director in monitoring and evaluating education programs and related services provided to exceptional children.

(b) The special education advisory board shall consist of ten members selected by the executive director from the community and shall include:

(1) An attorney experienced in interpreting and litigating under the state and federal laws relating to special education in public schools;

(2) An accountant experienced in auditing and evaluating the financial performance of large organizations and advising on matters of financial policy;

(3) Four medical and health specialists experienced in treating special education students; provided that the executive director shall consult with the department of health to establish the guidelines, criteria, and procedures for selecting these members; and

(4) Four members of the public.

None of the members of the special education advisory board shall be employees of the department.

(c) The members of the special education advisory board shall be appointed by the board and shall serve without compensation, but shall be reimbursed for necessary expenses incurred in the performance of their duties for the advisory board."

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 2002-2003, for the establishment and operation of the office of educational accountability and performance.

SECTION 4. The sum appropriated by section 3 shall be expended by the board of education for the purposes of this Part.

PART III

SECTION 5. 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 2002-2003, for the employment and salaries of three internal auditors and two support staff for the department of education whose function shall be to ensure fiscal accountability, improve the internal financial controls, and improve responsiveness to fiscal problems within the department of education.

SECTION 6. The sum appropriated by section 5 shall be expended by the department of education for the purposes of this Part.

PART IV

SECTION 7. Chapter 302A, Hawaii Revised Statutes, is amended by adding a new section to be appropriately designated and to read as follows:

"302A-    Department attorneys. (a) The department may appoint or retain by contract one or more attorneys who are independent of the attorney general, to provide legal services for the department, including:

(1) Representation for the department in civil actions to which the department is a party, either directly or through the acts or omissions of its officers or employees;

(2) Advice and assistance to ensure the lawful and efficient administration and operation of the department; and

(3) Other legal service specified by the board.

The board may fix the compensation of the attorneys appointed pursuant to this section. Attorneys appointed or retained by contract shall be exempt from chapters 76 and 89.

(b) Nothing in this section precludes the board from requesting and securing legal services from the attorney general and the department of the attorney general, for the department, for the board or its members, or for the department's officers and employees, upon mutual agreement."

SECTION 8. Section 28-8.3, Hawaii Revised Statutes, is amended:

1. By amending subsection (a) to read as follows:

"(a) No department of the State other than the attorney general may employ or retain any attorney, by contract or otherwise, for the purpose of representing the State or the department in any litigation, rendering legal counsel to the department, or drafting legal documents for the department; provided that the foregoing provision shall not apply to the employment or retention of attorneys:

(1) By the public utilities commission, the labor and industrial relations appeals board, and the Hawaii labor relations board;

(2) By any court or judicial or legislative office of the State;

(3) By the legislative reference bureau;

(4) By any compilation commission that may be constituted from time to time;

(5) By the real estate commission for any action involving the real estate recovery fund;

(6) By the contractors license board for any action involving the contractors recovery fund;

(7) By the trustees for any action involving the travel agency recovery fund;

(8) By the office of Hawaiian affairs;

(9) By the department of commerce and consumer affairs for the enforcement of violations of chapters 480 and 485;

(10) As grand jury counsel;

(11) By the Hawaiian home lands trust individual claims review panel;

(12) By the Hawaii health systems corporation or any of its facilities;

(13) By the auditor;

(14) By the office of ombudsman;

(15) By the insurance division;

(16) By the University of Hawaii;

(17) By the Kahoolawe island reserve commission;

(18) By the division of consumer advocacy; [or]

(19) By the department of education; or

[(19)] (20) By a department, in the event the attorney general, for reasons deemed by the attorney general good and sufficient, declines, to employ or retain an attorney for a department; provided that the governor thereupon waives the provision of this section."

2. By amending subsection (c) to read as follows:

"(c) Every attorney employed by any department on a full-time basis, except an attorney employed by the public utilities commission, the labor and industrial relations appeals board, the Hawaii labor relations board, the office of Hawaiian affairs, the Hawaii health systems corporation, the department of commerce and consumer affairs in prosecution of consumer complaints, insurance division, the division of consumer advocacy, the department of education, the University of Hawaii, the Hawaiian home lands trust individual claims review panel, or as grand jury counsel, shall be a deputy attorney general."

PART V

SECTION 9. Chapter 302A, Hawaii Revised Statutes, is amended by adding three new sections to be appropriately designated and to read as follows:

"302A-    Maintaining longitudinal data, data warehousing, and interdepartmental data sharing. (a) The department shall record and maintain longitudinal data on every student of the public school system. The data shall be stored and warehoused in a manner that allows for efficient, comprehensive, and complex analysis of:

(1) A student's educational record from the date of first entry into the public school system to the date the student reaches twenty-three years of age;

(2) The effectiveness of individual educational programs on individual students;

(3) The expenditures per student; and

(4) Other relevant indicators that express the effectiveness of the public school system and the areas that need improvement.

(b) The departments of education, health, and human services shall establish an integrated information management system that shall provide for the interdepartmental sharing and exchange of student educational and all other records related to providing a student an effective education.

302A-    Asset mapping. The department of education shall map a listing of all department resources and services, including but not limited to:

(1) Special education services;

(2) Parent resources and services;

(3) Services and resources contracted by the department with private entities; and

(4) Community services that supplement educational programs.

The map of department resources and services shall be published in a manner that can be referenced easily by all individuals, including individuals with disabilities, and allows individuals to efficiently find the department resource and service relevant to their needs. The map shall also be published on the Internet.

302A-    Federal reimbursements; Medicaid. (a) The department shall ensure that the department receives and collects all federal funds and reimbursements that the department is entitled to, including reimbursements for qualifying Medicaid services.

(b) The department shall submit an annual report on Medicaid reimbursements including:

(1) The number of students that received qualified and reimbursable Medicaid services;

(2) The number of Medicaid reimbursement claims that were submitted, disallowed, or approved; and

(3) The amount of the Medicaid federal reimbursements received by the department and the amount of claims pending submission."

PART VI

SECTION 10. 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 2002-2003, for school design, improvements, and equipment to accommodate school based health services for students including medically fragile students.

SECTION 11. The sum appropriated by section 10 shall be expended by the department of education for the purposes of this Part.

PART VII

SECTION 12. Section 29-25, Hawaii Revised Statutes, is amended to read as follows:

"[[]29-25[]] Department of education; federal funds; general fund offset. (a) Federal impact aid, U.S. Department of Defense funds, and federal indirect overhead reimbursements received by the department of education shall not be returned to the general fund.

(b) If the amount of federal impact aid and U.S. Department of Defense funds received by the department of education exceeds the authorized appropriation in the general appropriations act or the supplemental appropriations act, [then the governor shall:

(1) Allow the department of education to increase the federal fund expenditure ceiling for all program identification numbers, each by an amount proportionate to its portion of the total general fund appropriation made by the legislature, and by the amount that the federal impact aid and U.S. Department of Defense funds received by the department of education exceeds the authorized appropriation in the general appropriations act or the supplemental appropriations act; and

(2) Allow the department of education to retain the full amount of the general fund offset created by increased impact aid receipts; provided that the department shall not use the general fund offset to create new programs or expand existing programs.]

the department of education shall request prior approval from the governor to increase the federal fund expenditure ceiling for a program identification number. The governor may approve the request; provided that:

(1) The aggregate amount of all requested increases shall not exceed the amount of the excess federal funds received by the department of education;

(2) The purpose of the increase shall not be to create new programs; and

(3) The department of education shall report in writing to the legislature the details of a request to increase a federal fund expenditure ceiling pursuant to this section on the same day the request is submitted to the governor for approval.

(c) The department of education shall submit a report to the legislature, not fewer than twenty days prior to the convening of each regular session, concerning the exact amount and specific nature of federal impact aid, U.S. Department of Defense funds, and federal indirect overhead reimbursements received under this section[.], the details of the program increases approved by the governor, and the expenditure of those funds."

PART VIII

SECTION 13. Chapter 663, Hawaii Revised Statutes, is amended by adding a new section to be appropriately designated and to read as follows:

"663-    Educational officers, teachers, and classified personnel; indemnification. (a) Notwithstanding any other law to the contrary, all claims arising out of the acts or omissions of an educational officer, teacher, or classified personnel, related to the Felix consent decree or related services for children with a disability, including claims permitted against the State under chapter 661, and claims for torts permitted against the State under chapter 662, may be brought only against the department of education, department of health, or both; provided that:

(1) The departments of education and health shall be subject to suit only in the manner provided for suits against the State, including section 661-11; and

(2) The departments of education and health shall not be subject to suit for acts or omissions of gross negligence committed by educational officers, teachers, or classified personnel.

(b) As used in this section:

"Educational officer" includes principals, vice-principals, and professional employees of the state and district offices of the department of education, except those employees in the classified service.

"Children with a disability" means children with a disability as defined in section 302A-101 and members of the plaintiff class under the Felix consent decree.

"Classified personnel" means persons that provide direct educational assistance to students under the direction of a teacher or provide professional services such as speech, occupational therapy, physical therapy, social work, school-based behavioral health, and psychological services to children with a disability.

"Teacher" means a person whose duties in the public educational system are primarily teaching or instruction of students or related activities centered primarily on students and who is in close and continuous contact with students, and shall include but not be limited to classroom teachers, school librarians, counselors, registrars, and special education teachers."

SECTION 14. Section 302A-101, Hawaii Revised Statutes, is amended by repealing the definition of "exceptional children".

[""Exceptional children" includes:

(1) Persons under twenty years of age who deviate from the so-called normal person in physical, mental, social, or emotional characteristics or abilities to such an extent that specialized training, techniques, and equipment are required to enable these persons to attain the maximum of their abilities or capacities; provided that "exceptional children" shall not include "gifted and talented children";

(2) Persons under twenty years of age who by reason of physical defects cannot attend the regular public school classes with normal children; and

(3) Persons under twenty years of age who are certified by a licensed physician eligible for membership in the state medical society as being emotionally maladjusted or intellectually incapable of profiting from ordinary instructional methods."]

SECTION 15. Section 302A-101, Hawaii Revised Statutes, is amended by adding a new definition to be appropriately inserted and to read as follows:

""Children with a disability" means persons under twenty years of age evaluated as having mental retardation, a hearing impairment including deafness, a speech or language impairment, a visual impairment including blindness, serious emotional disturbance, an orthopedic impairment, autism, traumatic brain injury, any other health impairment, a specific learning disability, deaf-blindness, or multiple disabilities, and who by reason thereof, needs special education and related services."

SECTION 16. Chapter 302A, Hawaii Revised Statutes, are amended by deleting the words "exceptional children" and substituting the words "children with a disability", as the context requires.

SECTION 17. Section 302A-604.5, Hawaii Revised Statutes, is amended by amending subsection (b) to read as follows:

"(b) Departmental school district business and fiscal officers shall be responsible for:

(1) Coordinating physical plant operations and maintenance activities with the department of accounting and general services;

(2) Coordinating the training and selection of school custodians; monitoring the performance of school custodians in accomplishing minor repairs with funds from school-level minor repairs and maintenance accounts; and overseeing these accounts at the direction of school principals;

(3) Planning for capital improvement projects with the department of education and the department of accounting and general services;

(4) Ensuring that school facilities comply with the laws and rules regarding:

(A) The provision of a free appropriate public education for [exceptional children with disabilities;] children with a disability; and

(B) The provision of a free appropriate public education for qualified students with disabilities;

(5) Assisting the department, individual schools, and school complexes in forming partnerships with community groups, volunteers, and businesses to obtain donated and discounted repair and maintenance services and materials; and

(6) Developing, coordinating, overseeing, and participating in the data collection for the physical plant analysis report and the maintenance plan for each school."

SECTION 18. This Part does not affect rights and duties that matured, penalties that were incurred, and proceedings that were begun, before its effective date.

PART IX

SECTION 19. The legislature finds that, in the course of the legislature's investigation of the Felix consent decree, concerns were raised that a contractor holding an academic degree was hired to provide various services, but that the degree was not issued by a nationally accredited college or university. The legislature finds that this practice raises questions as to the quality of the services provided, which may not meet the needs of the children under the consent decree.

Accordingly, the purpose of this Part is to amend the public procurement code to require requests for proposals or contracts for services containing degree requirements to specify that the degree must be from an educational institution that is nationally accredited.

SECTION 20. Chapter 103D, Hawaii Revised Statutes, is amended by adding a new section to be appropriately designated and to read as follows:

"103D-    Procurement of services containing academic degree requirements. In any proposal or contract for the procurement of services, including the procurement of professional services under section 103D-304, as appropriate, that requires that the services be performed by a person holding one or more academic degrees, the minimum qualifications set forth in the proposal and contract shall specify that the degree shall be issued by a college or university that has been accredited by an accrediting agency recognized by the United States Secretary of Education."

PART X

SECTION 21. The legislature recognizes that the departments of health and education have worked hard to focus their efforts on serving children that are members of the plaintiff class under the Felix consent decree. Although the departments have done a good job in providing Felix-class children the services they need as mandated by law, the legislature is concerned that there are children that are not members of the Felix-class who may not be the receiving mental health services need.

It is not the intent of this Part to expand the class of children that the departments of health and education must serve. The purpose of this Part is to clarify and emphasize the duties of the departments of health and education to serve the mental health needs of students whether they are members of the Felix class or not.

SECTION 22. Section 321-172, Hawaii Revised Statutes, is amended to read as follows:

"321-172 Children's mental health services branch. There is established within the department of health, mental health division, a children's mental health services branch which shall coordinate the effective and efficient delivery of mental health services to children and youth, including services provided by private nonprofit agencies under contract to the department of health, and be responsible for the development and implementation of centralized and highly specialized programs for children and youth[.]; provided that the children's mental health services branch shall not limit its services or programs to a specific class of children with mental and emotional disorders at any time."

SECTION 23. Section 321-174, Hawaii Revised Statutes, is amended to read as follows:

"321-174 Coordination of services with department of education. The children's mental health services team shall cooperate with the schools located in their particular geographic region in identifying and referring for treatment such children or youths in need of mental health services. In conjunction with the children's mental health services team, the department of education and the department of health shall develop a memorandum of agreement which shall provide for a sharing of responsibilities for the affected agencies and shall include but not be limited to provisions for:

(1) Accepting referrals from the school counselors and diagnostic teams for evaluation and direct treatment of children and youth suffering from mental and emotional disorders;

(2) Providing consultation to enable teachers and other school personnel to aid in the identification and screening of children in need of professional mental health services and the services of psychologists, as defined in chapter 465;

(3) Providing training and education about emotional disturbances of children to teachers, school counselors, and parents;

(4) Assisting the department of education with mental health services and the services of psychologists, as defined in chapter 465 for handicapped children;

(5) Developing an ongoing mechanism to assess, document, and report to the legislature and the governor unmet needs for mental health services for students in each geographic region; and

(6) Performing other related services for school personnel, children, and parents.

No memorandum of agreement established pursuant to this section shall restrict the department of education to refer to the children's mental health services branch only a specific class of children with mental and emotional disorders."

PART XI

SECTION 24. In codifying the new sections added by section 2 of this Act, the revisor of statutes shall substitute appropriate section numbers for the letters used in designating the new sections in this Act.

SECTION 25. Statutory material to be repealed is bracketed and stricken. New statutory material is underscored.

SECTION 26. This Act shall take effect upon its approval; provided that parts II, III, VI, and VIII shall take effect on July 1, 2002.