What Happened to the Felix Consent Decree?-New Monitor Report Highlights DOE’s Continuing Failure to Support Special Education Students

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    A lack of detail in the sparse 14-page June 2003 status report on the state’s progress on sustainability under the Felix Consent Decree during the period of October 2002 to March 2003 as filed in U.S. District Court makes it appear that the Department of Education — given 10 years by U.S. District Judge Ezra to come into compliance with special education law — is no longer even pretending to provide mental health services for special education children as ordered in the original and revised Felix Consent Decree. Incredibly, the concerns highlighted in the report are nearly identical to the first status report to the court in 1998.

    In 1993, U.S. District Judge Ezra found that qualified handicapped children were not receiving access to mental health services that would allow them to benefit from their education. The state then entered into a consent decree that would allow autonomy to create a system of care by June 2000. However, when the deadline arrived, the court found the state in contempt, despite over $1.4 billion dollars in department expenditures as well as millions channeled through the court mandated Felix Monitoring Project for outside consultants and providers in a rush to privatize and create an array of mental health services. The result was an enormous ballooning of State Departments of Health, Education and Attorney General administration and budgets while state workers busied themselves planning for a “system of care.” The number of identified special education students rose exponentially, but outcomes for children remained poor.


    Two years later in June 2002, after an in-depth investigation by The Joint House and Senate Felix Investigative Committee and a scathing legislative audit highlighting probable profiteering through the lack of management controls and the design of benchmarks which seemed more to do with the benefit of consultants than it did with appropriate educational services to students, Ezra found the state in substantial compliance, but continued the consent decree until December 2003. Ezra ordered the Department of Health and Department of Education to submit a sustainability plan within 90 days of the ruling.

    The court never formally accepted the August 2002 State Department of Health and Education Interagency Plan to Sustain System Performance Beyond the Felix Consent Decree. Court Monitor Juanita Iwamoto claims that no objections were made to the content of the plan. However, no motion was filed and neither plaintiffs nor general public were given access to the plan.

    DOE Focuses on System Performance vs. Individual Outcomes

    According to the status report, the DOE’s plan consists of implementing its Standards Implementation Design, using a service-testing instrument similar to the one developed by ex-Court Monitor Ivor Groves to measure system performance, not compliance with the Individuals with Disabilities Act (IDEA ’97). Through a self-monitoring process, the DOE now promises to track compliance issues, such as out of home placements, discipline and suspensions, personnel and vacancy reports, service delivery gaps, complaints and due process hearings, but does not specify how it will correct these problems.

    The DOE developed eleven infrastructure goals, including qualified special education teachers and an adequate number of aides in the classroom, but the majority of these goals have not been met, according to the report. The DOE did not even bother to supply information on School Based Behavioral Health goal.

    Fifteen performance goals include meeting the IDEA mandated timeline for evaluations and a goal of no more than 30 days interruption in the delivery of educational and mental health services, although even a one day interruption would be in violation of state and federal law.

    A performance goal that 99.9 percent of students eligible for special education services will not have documented disagreement, i.e. due process. While the current number of due process hearings is level with last year at 135 cases, these are only the cases that proceed to hearing. Meanwhile, a majority of due process cases are settled and thus remain undocumented.” The monitor reports a general consensus among parents that it is much cheaper for the state to settle than it is to create the needed array of mental health services for children.

    Other goals include a leveling off of the high rate of suspensions for special education students, a decrease in the number of students placed in the home instead of at school and the use of the 4140 exit form that removed 1306 special education students from school this year. This number represents almost exactly the number of children previously on 504 plans with mental health services. The DOE reports reasons for student’s exit from school as “home school,” alternative education program or students who have “reached their 15th birthday and are suitably employed.”

    Department of Health, Child and Adolescent Mental Health Division (CAMHD)
    Still Doesn’t Get It

    Amidst claims of increasing sustainability efforts, primarily due to the transfer of Felix students from CAMHD to the DOE and Developmental Disability Division, the Department of Health still offers goals such as “95 percent of youth (will) receive the specific services identified by the educational team plan,” despite federal law mandating that every eligible child receive such services.

    The Court Monitor recommends that barriers to services be identified, although an in-depth Barriers Analysis was submitted to the court in February 1999. To date, the barriers remain unchanged.

    No specific activities or goals are offered for the Developmental Disability Division in servicing “some of the most vulnerable persons.” The Court Monitor makes a plea for “assurances,” but not corrective action to provide services to children.

    The status report closes with words from Court Monitor Ivor Groves in his April 2002 report, “The Department of Education and Department of Health must have the time and organizational stability to make refinements, solve problems and create true teamwork at the child, school, district, and state levels in order to achieve high consistency and quality education for every child, even the most challenging children and families.”

    If the inaction of the federal court continues to deny real relief to plaintiffs in the form of mandated services or monetary compensation, these departments may continue to have all of the time in the world to fulfill their obligations.

    ”’To view the full report, see:”’