Sunday, February 07, 2010


DHS defends QExA, DOE defends Furlough Fridays at 9th Circuit on Wednesday Feb. 10

by Larry Geller

This week three judges of the 9th Circuit Court of Appeals will hear cases in Honolulu.  The court calendar is here (pdf).

Two cases in particular may be interesting to follow. Both will be heard on Wednesday, February 10, in the calendar starting at 9:00 a.m.  There is no way to predict what time the cases will be heard. Some of the cases may take time, some may settle in the hallway or in the Starbucks downstairs.

If you would like to observe, the courtroom is located at 1132 Bishop Street on the 6th Floor.

Hawai'i Coalition v. State of Hawai'i is fourth on the calendar. There won’t be oral arguments in this case. As far as we, the public, go, this may not be interesting. The Court has been briefed (as it is for all the cases) and that’s probably it. The judges might just say “We’ll get back to you.”

This case relates to alleged cutbacks in state Medicaid services, and is very timely (see also: Hawaii may delay payments to Quest health plan, Honolulu Advertiser, 2/7/2010).

It’s not fair to snip from a complicated case, but this excerpt from the initial complaint will give you a flavor of it:

HCFH brings this complaint against Defendants because they have failed to reasonably ensure that the required level of access to providers and continuity of medical services will be in place for Medicaid's most fragile and medically challenged population, the more than 37,000 Medicaid-eligible or enrolled aged, blind, and disabled individuals, wrongfully infringing upon their Federal and State law rights and impermissibly discriminating against them as a consequence of the fact that they are disabled.

Many HCFH members and non-members who will be affected by Defendants' implementation of QExA depend on the medical services Medicaid provides them for their very survival day-by-day. These are patients whose health and medical needs require careful and detailed planning based upon levels of certainty little understood or appreciated by people who have never had to contend with severe physical challenges or rely on medical devices and daily services.

Last on the calendar is N.D. v. State of Hawaii DOE, the Furlough Friday case argued in District Court by attorney Carl Varady on behalf of special needs students.

The case was heard by a 9th Circuit judge flown in after our local crew recused themselves. While he did not grant an injunction against the state, Judge Wallace Tashima did rule that plaintiffs are suffering irreparable harm. I suspect that his words will be echoed during Wednesday’s oral arguments.

There’s no predicting the outcome of any court case, of course. Nor can we expect an immediate ruling on Wednesday, though that also could happen.

Should the 9th Circuit rule for the children, however, that could end Furlough Fridays full stop. It could also open the floodgates for compensatory education hearings to make up the time the special ed kids have lost.

It’s important to note that the IDEA (Individuals with Disabilities Education Act) guarantees that special needs students will receive a Free Appropriate Public Education, or FAPE. A school or school district cannot claim poverty as an excuse for not delivering.


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