E.R.K. v. Department of Education

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Frequently Asked Questions



(1) What has happened in the lawsuit so far?

In 2013, a court ruled that the DOE was violating federal law for several years by requiring special education students to leave school at age 20.  Under federal law, special education students in Hawaii have the right to stay in school until they get a regular diploma or reach the age of 22.  After this ruling, Hawaii changed its illegal state law that prohibits special education students from remaining in the DOE until age 22.  Now, special education students no longer have to leave at age 20.
(2) What about the students who were forced to leave before they turned 22? 

In 2014, the court decided that the students who were forced to leave early, including you/your child, are entitled to receive free services from the DOE to make up for the time that they lost.  Since then, the lawyers for the class have been working to reach as many people as possible to tell them about their right to these free services.
We have also worked with the DOE to try to design a set of services for a small “pilot group” to determine the DOE’s ability to figure out what services are needed by Pilot Group Class Members in the pilot group and to design a plan of useful services for those Pilot Group Class Members. 

From May to June 2015, the DOE assessed the Pilot Group Class Members to determine their current academic, behavior, and independent living levels.  In July and August 2015, the DOE produced reports on each person and an offer

Members, but have not yet received a response from the DOE.

In October, we presented a potential plan of services to be offered (including community college, one-to-one vocational supports, vocational counseling, speech therapy, behavioral counseling, and other services) to Class Members with various types of disabilities.  The judge has instructed the DOE to review and respond to the list. 
If you would like more information, the status reports and the potential listing of services that Class Members may receive are available on our website:


(3) 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 participate in the lawsuit to receive free 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.


(4) 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.

(5) Does the class member or legal guardian of class member get “final say” on whether or not to accept offer of services?

Yes. Each Class Member (or his or her legal guardian) has the right to reject any offer of services from the DOE. As your legal counsel, we will advise you as to the benefits and drawbacks of accepting any offer from the DOE, but the decision to accept the DOE’s offer of compensatory services is ultimately made by the Class Member or his or her legal guardian.

In the case where a legal guardian accepts or rejects the offer of services from the DOE on behalf of the class member, we are required to provide the court with a copy of the legal guardianship documents. 

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

At this time, the parties and the Court are discussing providing education services to Class Members and/or a fund from which services can be paid for. Reimbursement of education expenses already paid out may be provided for certain Class Members.

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

We have discussed the following with the Court and the DOE. Some or all of these may be considered, depending on the individual case:

  • The Class Member’s 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;
  • Up-to-date assessment data.
  • If the class member participates in a clarification interview, the class member’s statements either adding to or subtracting from the questionnaire responses
(8) Have Class Members started to receive services?

To date, the DOE has not provided services to any Class Member. In early October 2015, we submitted our counterproposals to the DOE’s offer of services for several Pilot Group Members. We have not yet received a response from the DOE regarding our counterproposals. We have also provided a chart proposing many services to the DOE, but have not had a response. The DOE’s failure to provide services is unacceptable because these services were ordered to be provided by the Court. We are pressing the DOE to move faster.


    (9) When can we expect to receive services?  


We expect the DOE to begin rolling out offers of services to class members this summer with services beginning before the end of the year.