E.R.K. v. Department of Education

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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 Alston Hunt Floyd & Ing will be in touch with all 495 Class Members soon, but here are a few common questions we have received.

(1)   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.

(2) 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.

(3) 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.

(4)  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.

(5) 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.

(6) 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.