The DOE and Act 129

by Teresa Chao

Act 129, signed into law on June 15, 2011 is intended to allow the DOE to monitor and supervise the implementation of a disabled child’s educational program while placed in a private placement at the DOE’s expense.  

Most people do not oppose the monitoring of a child’s programming and placement as required by the Individuals with Disabilities Education Act (IDEA).

However, it is the intentional, calculated way in which the DOE has applied this law that raises questions as to its true purpose.

This law has led to increased litigation against the DOE in the form of administrative hearings and federal court cases where the issues lie with the validity of Act 129 as a state law that serves to undermine the intent of IDEA, a federal law, in the provision of a Free Appropriate Public Education (FAPE) to special education students.

In the past, the DOE is known to regularly withheld tuition payments for students who were legally awarded reimbursements either via an administrative hearing or via a settlement agreement.  More often than not, the DOE would pay, usually many months overdue without consequence.  This tactic is nothing new to schools such as the Pacific Autism Center, Assets, Variety School and Horizons Academy of Maui to name a few.

With Act 129, the DOE now has a legal avenue to withhold tuition reimbursements from private schools indefinitely until it is resolved in the courts.  At the same time, this has resulted in consequences that neither benefits the student nor the public.

One such school, Loveland Academy, will most likely be Act 129’s first casualty.  It has provided special education and services to students with autism and other disabilities since 1999 and has been a placement that has often been found to be appropriate for various special education students, most of whom, due to the nature of their disability, would not be able to participate in a regular public school classroom. 

The DOE has always balked at paying tuition for the highly specialized education provided by Loveland and similar schools; however, it was the DOE’s initial failure to provide FAPE to the child in the first place that resulted in the child’s placement.

Recently, the DOE refused to obey Judge Susan Oki Mollway’s order to pay Loveland Academy $700,000 it is owed. As a delay tactic, the DOE filed a motion to be heard on August 21, 2012 to present its arguments as to why it should not be held in contempt and whether or not its bank accounts will be garnished.

Loveland Academy has managed to survive the last 13 years of legal maneuvering and excessive litigation by the DOE but the refusal to pay monies owed has led to the school’s demise. Loveland Academy closed its doors on July 27, 2012 leaving the children without an alternative placement at the beginning of the new school year and the anxiety of not knowing what lies ahead in their future. 

Consequently, this closing becomes another denial of FAPE for all students whose legal placement was Loveland Academy.  Given that the DOE does not have any other appropriate placements available that provides the types of mental health and other related services similar to that of Loveland Academy, this will result in additional lawsuits, most likely all at the taxpayer’s expense.

In another federal case, Judge Alan Kay explained that “Act 129, section (1)’s mandate, that the DOE must withhold funding if monitoring is obstructed during a Stay Put serves to negatively impact the child and can lead to irreparable harm.” Given that IDEA was ‘enacted with the child in mind,’ it is in ‘the public’s best interest for the DOE to pay for the student’s educational costs so that the student can continue to receive FAPE’ until the litigation is completed.

Irreparable harm to the child was a major deciding factor in ordering the DOE to pay for the student’s tuition at Loveland Academy.  In contrast, the DOE, who is charged with maintaining the student’s best interests, argued that it is in the “public’s best interest to enforce the IDEA and Hawaii state laws and that the public’s interest would not be served by devoting tax dollars to pay approximately $260,000 to Loveland for unverified and unexamined services in these “hard economic times.”  The DOE did not mention anything about the student’s best interest.

As the DOE’s argument focused on sparing taxpayers from the tuition costs owed to Loveland Academy, how much will taxpayer’s really end up paying in legal fees over and beyond what it already owes?  How can these excessive costs incurred by the DOE truly in the public’s best interest especially in these “hard economic times?”

The Special Education Advisory Council (SEAC) is an agency created through IDEA for the purposes of monitoring the provision of special education and programs to children with disabilities.

In SEAC’s June 2011 report, it reported that the DOE’s Special Education Section reported $2,999,320 in direct costs for due process hearings for SY 2005-2006. “This included attorney’s fees when parents prevailed in due process hearings, the costs for related services and private placements due to settlement agreements and hearing decisions.”  SEAC noted that this figure “did not include mediation contracts, expenses related to corrective actions under State complaints, DOE’s expert witnesses, appeals, or in-kind support of the Attorney General’s Office.”

The true costs of litigating against parents are unknown to the public as the DOE and AG’s office claim that they are unable to make a determination due to various reasons.  However, based on SEAC’s report, it seems that the DOE’s legal fees would be substantial when this $2,999,320 is extrapolated to today’s present value.

In this same report, SEAC found that Hawaii’s rate of hearing requests is 5 to 6 times the national average and Hawaii had the second highest rate of hearing requests per 10,000 students behind New York for school year 2008-2009. Also, Hawaii’s rate of resolution for these hearing requests was 67 percent compared to the national average of 91 percent indicating that once the “line is drawn in the sand,” there is little desire for mediation between the parents and the DOE.

Also for SY 2009-2010, SEAC noted that out of the 148 due process hearing requests, 50 cases resulted in a settlement agreement and 66 resulted in a decision as of June 2011. Out of the 66 cases that were decided by a hearing officer, the parents prevailed in 56 percent of the time whereas the DOE prevailed in 44 percent of these cases.  When the DOE agrees to a settlement, it usually results in a favorable situation for the parents.  With that in mind, it appears that Hawaii parents will most likely win either in a due process decision or reach an agreement with the DOE, approximately 59 percent of the time.

SEAC concluded that out of the last 5 of the 7 years studied, the “DOE is at fault at a majority of hearings where the DOE did not “understand the student’s needs adequately to offer the student FAPE.  At the same time, the DOE choose to proceed to hearing on “flawed cases”--cases where TRUE violations of IDEA have occurred, rather than to offer a settlement to parents.”

After 12 years of the Felix Consent decree and 7 years after its conclusion, the statistics show that the DOE still does not understand the concept of providing FAPE to the IDEA student.  When parents win due process or earn a settlement agreement more often than flipping a coin, that is a problem for the DOE.  After the DOE throws millions of taxpayer’s dollars into litigating, delaying, postponing or whatever the tactic may be, in order to deter, scare and drain both emotionally and financially, parents and private schools, amazingly, it is still not enough for the DOE to win “flawed” cases. 

As for the role of Act 129, it is the DOE’s legal way of cheating the student out of a free appropriate public education by providing a legal avenue to escape the responsibility and lawful obligation owed to the student, the private school and federal government.  At the same time, the withholding of tuition payments can and will lead to undesired consequences for the students, private schools and the community none of which are in anyone’s “best interest” except for that of the DOE.  As for the taxpayers, they have no say in the matter because they have never truly held the DOE accountable for anything.

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