Status

The parties in this class action lawsuit have reached a settlement agreement.

If you are a class member eligible to receive free services, we are trying to reach you! Please click here if you believe you may be a class member to whom we have not spoken yet.

Newsletter and Updates

ERK Special Education Lawsuit Newsletters:

Survey

If you are an Eligible Class Member who has received correspondence from Alston Hunt Floyd & Ing and/or Dentons, please complete the online survey regarding your goals and compensatory services.

If you have not received the survey and aren't sure if you are an Eligible Class Member, please call our hotline at (808) 441-6268 or email us at erkclassaction@dentons.com.

Types of Services

Need help setting goals and choosing compensatory services? Please see below for some of the services that are available to our Eligible Class Members.

A. THERAPY

Occupational Therapy - services provided by an occupational therapist to improve a person’s ability to perform tasks for independent functioning (i.e., writing, dressing, feeding, bathing).
Physical Therapy - services provided by a physical therapist to improve a person’s mobility throughout the home, workplace and community.
Orientation and mobility services - services for Blind and Visually-Impaired persons provided to enable the person safe movement within home/community; and to teach use of information received by the senses (i.e., sound, temperature, and vibrations to maintain or regain orientation and line of travel).
Speech-language pathology services - diagnosis of speech and/or language impairments, determining course of habilitation and providing the necessary therapy to advance communication skills necessary for independent life skills and employment.

B. COUNSELING

Parents counseling and training - helps parents to understand the special needs of their child and to acquire the necessary skills that allow them support the implementation of their child’s Individual Service Plan (“ISP”).
Psychological services - the administration of psychological assessments, interpretation of assessment results, and consulting with service providers/family members in developing a work, recreational and home plan using positive behavioral strategies.
Recreation - participation in community-sponsored recreational programs (i.e., Special Olympics)
Rehabilitation counseling services - services that focus on career development, employment preparation, achieving independence, and integration in the workplace and community of a person with a disability.

C. ASSISTIVE TECHNOLOGY (“AT”)

Interpreting services - for the Deaf and Hard of Hearing, includes oral, cued and/or sign language transliteration, sign language interpretation, and transcription services, such as TT-Y, CART, C-Print and Type Well.
Transportation - travel to/from home to employment site, school, medical appointments and community services/activities. Specialized equipment (such as adapted buses, lifts, ramps, and standers) may be provided for a person with a disability.

Benefits Accounts

If you take the initiative to establish either a Special Needs Trust or an ABLE Account in the name of the eligible class member, we can simply deposit settlement funds directly into that Trust or Account to benefit the class member.

Case Background

Lawsuit on Behalf of Young Adults in Special Education Excluded from School Before Age 22

The parties settled this class action lawsuit in December 2017. Please check our newsletters section for more information regarding the settlement.

What was this lawsuit about?

This lawsuit challenged Act 163, a Hawai`i law passed in 2010. Act 163 barred students from attending public school if they were at least twenty years old on the first day of school. The plaintiffs—special education students who were adversely affected by the law and the Hawai`i Disability Rights Center—filed suit on July 27, 2010, a few weeks after the law became effective.

Act 163 unfairly harmed special education students aged 20 and 21. Hawai`i provides free educational services to non-disabled individuals regardless of their age. Even if non-disabled students “age out” of high school, they are eligible to attend the Community Schools for Adults to continue their secondary education until they receive a high school diploma. However, these adult schools have no programs or services for special education students, only general education students. The effect of Act 163 was that non-disabled students could receive educational services until they turned 22 (and older), but special education students could not.

In August 2013, the U.S. Court of Appeals for the Ninth Circuit ruled that this double standard violated the federal Individuals with Disabilities Education Act (“IDEA”), which requires that states provide a “free appropriate public education” to all children with disabilities residing in the state who are under age 22.

What’s happening now?

Act 163 law no longer prevents older special education students from receiving services. After the Ninth Circuit ruled that Hawai`i’s law violated the IDEA, the legislature amended the language of the law so that it does not apply to special education students. Now, special education students may receive special education and related services until they get their high school diploma or reach the age of 22.

However, this lawsuit was required to restore services to older special education students who were harmed by Act 163 while it was in effect. Under the IDEA, the education plans that are created each year for older special education students include individualized goals for their lives after high school (such as further education, training, employment, and independent living skills) and set up plans to provide for the students’ transition services and activities needed to pursue and reach their goals, whether they include college attendance, work, or their own individual paths.

As a result of this lawsuit, 495 former special education students can get free services. The law did not change until 2014, and the DOE did not begin to send 20- and 21-year-olds a notification of their right to continued IDEA services until 2014. During that time, many students with disabilities left school early without receiving all of the services to which they were entitled. Others who were affected may include students who dropped out or left school before 2010, but were not properly notified of their right to return because of Act 163. These persons are now between 22 and 26 years old. On August 22, 2014, the court ruled that affected individuals are entitled to free services to be funded by the DOE called “compensatory education.”

Now that the class action lawsuit has been settled, there is a Settlement Fund available to provide students with the services they need in settings suitable for their age, needs, and goals. These services may be available in a wide range of places such as community colleges, work programs, or other places.

Class Members and those assisting them will pay nothing out of pocket for legal and other support services.

We have written all of the class members at the addresses available from DOE records, but about half of our letters were returned. We are working to find current contact information so that we can speak with every class member in 2019.

If you believe you may be a class member or know someone else who may be, please contact us today!.

Court Documents

Relevant Laws and Statutes

Court Orders

Motions and Order Regarding ID of Class Members

Additional Plaintiffs' Pleadings

Frequently Asked Questions

Now that the class action lawsuit E.R.K. et al. v. Hawaii Dept. of Education has been settled, we know that Class Members, their families, and caregivers will have questions about the services they are entitled to, and how to go about enrolling for services and/or receiving reimbursement for services received. Settlement Administrator Justice James Duffy and attorneys from Dentons will be in touch with all 495 Class Members soon, but here are a few common questions we have received.

My child currently receives services from the Department of Health or another provider and I do not want these services to be disrupted. If we choose to receive compensatory services paid for by the DOE, will those compensatory services affect or interfere with my child’s current services?

No, the DOE’s compensatory services will not affect Class Members’ current services. The DOE’s compensatory services will serve only to supplement the Class Member’s current services, according to the Class Member's individual schedule and availability. Alternatively, Class Members may be able to be reimbursed for some services already received.

Will my child be required to return to their home school to receive the compensatory services? Where will my child receive services?

Class Members will be able to receive their services either (1) at home, (2) in their community, or (3) from a third-party provider. The location where each Class Member receives his or her services will vary from person to person. Returning to their home school will not be required.

Does the Class Member or legal guardian get “final say” on whether or not to accept an offer of services?

Yes. Each Class Member (or his or her legal guardian) has the right to select the services they wish to obtain, with guidance and assistance from the Hawaii Disability Rights Center. The decision to accept the available free compensatory services funded by the DOE will ultimately be made by each Class Member or his or her legal guardian.

Will there be an option to receive money instead of education services?

No. However, reimbursement of expenses already paid for services may be available for certain Class Members, if the correct supporting documentation is available.

What factors will be considered in determining what each class member gets?

The court has established the maximum compensation levels to be applied to each Class Member. The Settlement Administrator will take into account some or all of the following factors in determining the compensation amount for each individual Class Member:

  • The Class Member’s life goals;
  • Services received while in high school per Class Member’s last IEP;
  • Services currently provided by the Department of Health or any of its divisions (if applicable);
  • Feedback from Class Members and parents/guardians regarding Class Members’ current needs;
  • Past assessment data from Class Member’s DOE education records; and Up-to-date assessment data.

When can we expect to receive services?

We expect to be able to coordinate with the Settlement Administrator to begin rolling out offers of services and reimbursements to Class Members this summer.

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