Tuesday, October 26, 2010

Breaking Down the IEP: Postsecondary Goals & Transition Services

For a student who is 16 or older, or who will turn 16 while this IEP is in effect, the IDEA requires that the written IEP document include:

"(aa) appropriate measurable postsecondary goals based upon age appropriate transition assessments related to training, education, employment, and, where appropriate, independent living skills; (bb) the transition services (including courses of study) needed to assist the child in reaching those goals; and (cc) beginning not later than one year before the child reaches the age of majority under State law, a statement that the child has been informed of the child's rights... that will transfer to the child on reaching the age of majority..."
20 U.S.C. section 1414(d)(1)(A)(VII).

"The big picture"

Transition planning is arguably one of the most important parts of the special education process. When enacting the IDEA, Congress recognized that:

Disability is a natural part of the human experience and in no way diminishes the right of individuals to participate in or contribute to society. Improving educational results for children with disabilities is an essential element of our national policy of ensuring equality of opportunity, full participation, independent living and economic self-sufficiency for individuals with disabilities.

20 U.S.C. section 1400(a)

The very first "purpose" of the IDEA as contained in the statute states:

to ensure that all children with disabilities have available to them a free appropriate public education that emphasizes special education and related services designed to meet their unique needs and prepare them for further education, employment, and independent living.

20 U.S.C. section 1400(d)(1)(A).

Thus, the IDEA places importance on educating students with disabilities so that they are prepared for "further education, employment, and independent living," and in order to allow them to enjoy "full participation, independent living and economic self-sufficiency" in society. Without appropriate transition planning, these purposes could not be met.

When does this apply?

The requirement that the IEP document contain postsecondary goals and transition services begins at age 16. This means that the IEP that will be in effect at the time that the child turns 16 will need to meet these requirements. It is not OK for the District to wait until the next IEP review taking place after the child's 16th birthday to add postsecondary goals and transition services to the IEP.

What are postsecondary goals?

Postsecondary goals are measurable goals related to the student's prospective outcomes for after high school - how and where the student will live, work, engage in the community, and receive further education. Postsecndary goals should be based upon transition assessments and take into consideration the student's strengths and weaknesses. In developing postsecondary goals for the IEP, the student's preferences and long-term plans become more relevant and important to consider. The IDEA specifies that transition planning be "results-oriented," so it is appropriate for post-secondary goals to look forward to the results or outcomes that the student desires and which are appropriate for that individual students. Goals can be related to further education, empolyment, independent living, community participation, etc. Setting clear and measureable postsecondary goals will allow the IEP team to determine what transition services, related services, and specialized education will be necessary to achieve those goals.

What are transition services?

The IDEA defines transition services as

"A coordinated set of activities and services for a child with a disability that
(1) is designed to be within a results-oriented process, that is focused on improving the academic and functional achievement of the child with a disability or to facilitate the child's movement from school to post school activities, including postsecondary education, vocational education, integrated employment (including supported employment), continuing and adult education, adult services, independent living, or community participation;
(2) is based on the individual child's needs, taking into account the child's strengths, preferences and interests; and includes (i) instruction, (ii) related services, (iii) community experiences, (iv) the development of employment and other post-school adult living objectives, and (v) if appropriate, acquisition of daily living skills and provision of a functional vocational education."

Friday, October 22, 2010

News: AB 3632 Mandate Suspended; Mental Health Services in a State of Chaos

Governor’s Line Item Veto Suspends AB 3632 Mandate for Mental Health Services in California

On October 8, 2010, Governor Schwarzanegger signed the state’s budget for fiscal year 2010-2011, while using his line item veto to cut billions of dollars to state funded programs. Among the programs affected are mental health services provided to students with disabilities under what is known as the AB 3632 Mandate. The Governor used his veto to eliminate approximately $133 million in funds apportioned for the state to reimburse County Mental Health agencies for mandated services they have already funded. At the same time, the Governor suspended the AB 3632 mandate going forward.

AB 3632 was enacted in 1984 in order to assign County Mental Health departments the financial responsibility for funding mental health services required pursuant to students’ IEPs. Under AB 3632, County Mental Health departments also funded residential placements for students who were eligible under the category of “Emotionally Disturbed” and required residential placement in order to receive an appropriate special education program.

The Governor’s action has been called “unconscionable” by many, and leaves school districts, SELPAs, County Mental Health departments, providers, residential treatment facilities, and IEP teams in a complete and utter state of chaos. Parents and students are unfortunately likely to be immediately and negatively impacted.

Suspending AB 3632 services does not eliminate mental health services or residential placements, but instead returns the responsibility for these state mandated services to the local education agencies (school districts). However, as each County Mental Health department and each School District reacts to the chaos individually and decides what action to take, there will almost certainly be disruption in services for many students.

Please read more in depth information on this blog at:

Mental Health Services in State of Chaos in California: Part 1 - What Happened? (http://a2zeducationaladvocates.blogspot.com/2010/10/mental-health-services-in-state-of.html)

Mental Health Services in State of Chaos in California - Part 2: What Happens Next? (http://a2zeducationaladvocates.blogspot.com/2010/10/mental-health-services-in-state-of_22.html)

Already, litigation on this issue has begun. On October 21, 2010, in Los Angeles, a class action lawsuit was filed in federal court by Public Counsel, Disability Rights California, Mental Health Advocacy Services, and Gibson, Dunn & Crutcher, in order to "preserve lifeline services for more than 20,000 students." (You can find read the press release on Disability Rights California's website (http://www.disabilityrightsca.org/) as well as the complaint filed in federal court).

Mental Health Services in State of Chaos in California - Part 2: What Happens Next?

On October 8, 2010, Governor Schwarzanegger used his line item veto to cut billions from the state budget for fiscal year 2010-2011, including $133 allocated to County Mental Health agencies for AB 3632 services. Please read Part 1 in this Series on this blog for more information about the suspension of the AB 3632 mandate.

The Governor has made it clear that he intended to suspend the mandate for AB 3632 (mental health services) in California. AB 3632 allocated responsibility for the provision of mental health services pursuant to a child's IEP, as well as residential placements for emotionally disturbed students, to county mental health agencies.

Mental health services under AB 3632 included
  • individual or group psychotherapy
  • collateral services
  • medication monitoring
  • intensive day treatment
  • day rehabilitation
  • case management services
Title 2, California Code of Regulations, Section 60020(i).

Outpatient services are provided at a clinic or public DMH agency, or may be located on a school campus in some circumstances. "Intensive day treatment" and "day rehabilitation" services are intensive mental health services provided in community based or residential treatment program settings.

Additionally, residential placements were funded under the AB 3632 mandate for students who were eligible under the category of "emotional disturbance" and who required a residential educational placement in order to receive an appropriate special education program. (*note: residential placements for students under other categories of eligibility were already the responsibility of the school districts / local education agencies).

Residential placement is an out-of-home placement in a residential treatment facility with a school program certified as a Non Public School (NPS) and appropriate mental health and day rehabilitation services as part of the program. *Residential placements are on the "continuum of placement options" under the California Education Code.

The Governor's suspension of the mandate has caused chaos, confusion, and controversy throughout the state. Because mental health services are mandated by federal law (the IDEA) to be provided as part of a student's IEP if they are required for that student to access an educational benefit, the suspension of the California-specific AB 3632 mandate does NOT eliminate mental health services for students who require them. Nor does the Governor's action mean that residential placements will, as a matter of course, no longer be available for students in California.

The State of Chaos for County Departments of Mental Health

On October 12, 2010, the Executive Director of the state Mental Health Directors Association sent a memo to all County Mental Health agencies regarding the current state of AB 3632 services. The memo addresses questions arising from the suspension of the mandate, such as whether the Governor actually had the legal authority to suspend a mandate. Additionally, it indicated that there was uncertainty about factors such as the date on which the suspension was effective (October 8th or retroactive to the start of the fiscal year), whether / how counties will ever be reimbursed for the costs incurred from 2004 forward for providing services, and how funding will be accessed / provided for transition of services to school districts.

The Memo set forth "Issues/Actions" for counties to consider, discussing the pros and cons of each action. Subsequently, County Mental Health agencies across the state have each interpreted / implemented these "actions" individually, giving rise to a true state of confusion across California.

It appears to be fairly consistent that most County Mental Health agencies in Southern California are no longer accepting any new IEP referrals from school districts, stating that they do not have the legal right or responsibility to be involved in the IEP process. Los Angeles County Department of Mental Health (LACDMH) and San Diego County Department of Mental Health have reportedly taken this position. Additionally, counties that have taken this action are in most cases refusing to attend IEP meetings or participate any further in cases in which the DMH assessment had already occurred but the IEP meeting had yet to be held.

Reportedly, County Mental Health agencies have also been communicating with school districts, SELPAs, and contracted-residential placement staff, with inconsistent statements made. In some reports, Counties have indicated that students already in residential placements will continue to be funded through the end of this year, but in other reports, Counties have indicated that students will no longer be funded in residential placements effective immediately.

What is truly the "unknown" is what action County Mental Health agencies have taken / are taking to work with SELPAs and school districts to determine how to effectively transition students' services to the school districts.

The State of Chaos for School Districts / Local Education Agencies

Related services and appropriate placements (even residential placements) must be provided to a student as part of a Free Appropriate Public Education in order to meet the child's unique needs and provide them with educational benefit. If mental health services are required as a part of FAPE, they must be provided. It has always been the case that even though California allocated funding-responsibility to county mental health agencies under the AB 3632 mandate, the state education agency (CDE) through the school districts / local education agencies remained ultimately responsible for ensuring that the child was provided with a FAPE. See 20 U.S.C. sections 1400(8), 1401(22); 1412(a)(11)&(12); 34 C.F.R. sections 300.341, 300.360; California Education Code section 5600 & 56031; California Government Code sections 7570 et seq.

As courts have stated;
When disputes between agencies over funding arise, the school district must "ensure that the placement is at no cost to Parent, as provided for in 20 U.S.C. section 1412(a)(10)(B)(i). In other words, if there is to be a fight over payment, it is to be between the [school district] and [the other public agency], not between the parent and the [agency]."
School Board of Lee County Florida v. E.S., 561 F. Supp. 2d 1282 (M.D. Fl. 2008).

"Compliance with duties under the IDEA is a serious matter... Thus, it is not surprising that Congress would impose a duty on local education agencies to continue services to students if local a mental health agency refused to do so."

County of Tuolumne v. Special Education Hearing Office, James G, et al, 45 IDELR 15 (C. Ct. App. 2006) (citing 20 U.S.C. section 1412(a)(12)(B)(ii)).

All related services necessary for a child to benefit from special education / required for the child to make progress towards IEP goals, are the responsibility of the child's school district. Provision of an appropriate placement, including, when required, a residential placement, is also the responsibility of the child's school district. These responsibilities fall within the general duty of the school district to make a FAPE available to each child within its jurisdiction.

Thus, school districts in California are now left with the obligation and responsibility to continue to provide mental health services and residential placements, even though just a few weeks ago the funding responsibility fell on another agency. School districts are not permitted to refuse to provide services pursuant to an IEP, or to refuse to include services that are necessary in the IEP when it is developed, simply because a funding source is not identified. If the county mental health agency refuses to fund services, or ceases funding previously funded services, for any reason (such as the current suspension of the mandate), the school district must assume responsibility.

On October 18, 2010, the California Department of Education, Special Education Division, issued a memorandum to all SELPAs, County Offices of Education, the Advisory Committee on Special Education, Nonpublic School Administrators, and "Interested Individuals, Agencies and Organizations" addressing the present issues. In that memo, CDE called the Governor's actions "unconsionable" and indicated that the suspension of the mandate had created a "state of chaos" in California.

The intention of the memo was to "remind all special education local planning areas (SELPAs), county offices of education (COEs), and local education agencies (LEAs) [school districts] of their responsibility to provide mental health services to students with disabilities." The CDE cited to California Government Code sections and the IDEA. It stated "If a public agency other than an educational agency fails to provide or pay for the special education and related services... the LEA (or State agency responsible for developing the child's IEP) must provide or pay for these services to the child in a timely manner." (quoting 34 C.F.R. section 300.154(b)(2).

Despite this reminder, and the clear legal mandate from the federal law, a state of confusion has definitely ensued, and many school districts are reportedly telling parents that residential placements will no longer be offered, IEP meetings will not be held to discuss needed mental health services, etc.

The State of Chaos for Parents, Students and the Community

Many strange things have happened since the Governor's actions on October 8th. Some parents have been told by school districts (or by residential school staff, who were told by school districts or mental health agencies) that all residential placements would cease to be funded immediately. Other parents have reported that they have heard that the school districts won't continue to fund the residential placements if the child can "survive" outside of that setting. IEP meetings that were scheduled to review assessments by County Department of Mental Health professionals, and thus to determine necessary mental health services, are reportedly being canceled across the state.

School districts and IEP teams in California are so used to having the AB 3632 mandate, that they have forgotten the fact that residential placements and mental health services are not something "special" or "unique" to California. Thus, some school districts are understandably confused about how to make the determination of necessary services and placement under the genre of "mental health."

The community as a whole is certainly affected by the chaos, and litigation on these issues will likely be plentiful. It will take the collaborative efforts of non-profit legal services offices and the community of special education attorneys, advocates and parents, likely working with school districts, mental health agencies, etc, to address this issue in the long term. On October 21, 2010, in Los Angeles, a class action lawsuit was filed in federal court by Public Counsel, Disability Rights California, Mental Health Advocacy Services, and Gibson, Dunn & Crutcher, in order to "preserve lifeline services for more than 20,000 students." (You can find read the press release on Disability Rights California's website, as well as the complaint filed).

Here are some final points to keep in mind if you are being told that services are going to stop, that placement is going to end, etc:

1. Most importantly, remember that ANY change to your child's IEP, including the placement and services he/she receives, cannot be done unilaterally / outside of the IEP process. At the least, an IEP meeting should be held and/or you should be given prior written notice of any proposed changes, after which you have the right to disagree with the proposal. You shouldn't sign an "administrative addendum" or other IEP document that is simply sent to you stating that residential placement is no longer available.

2. If a service is listed in an IEP already (i.e. outpatient mental health services, residential placement), that service / placement is, by definition, related to the student's education. No matter what agency was funding them before, services that were not related to a child's education and necessary for the child to make progress should not have been listed in the IEP. Thus, the school district's should not be able to argue that they are not responsible for mental health services or residential placement because those things were not "educationally related."

3. If a school district has made a referral for assessment by County Mental Health under AB 3632, and now that assessment will not go forward because of suspension of the mandate, the obligation to evaluate the child in this area falls back onto the District. The school district is obligated to evaluate a child in all areas of suspected disability, and the referral can be argued to be indication that the district acknowledges this as an area of suspected disability / an area that needs to be assessed.

4. A district's unilateral determination to stop services or placement due to the lack of funding through the department of mental health may give rise to a compliance issue, which can be addressed through a compliance complaint filed with the CDE, or to due process issues, which can be addressed by requesting a due process hearing with the Office of Administrative Hearings. Likely, there will be an influx of these types of cases in the coming weeks.

Finally, this is certainly all confusing and chaotic, and school districts, mental health agencies, providers, and parents are left to figure out on a case by case basis what will happen next. If you are impacted by this and fear that services will be eliminated, you should consult with a special education attorney for assistance.

Wednesday, October 20, 2010

Mental Health Services in State of Chaos in California: Part 1 - What Happened?

The Individuals with Disabilities Act (“IDEA”) requires that students with disabilities be provided with a “free appropriate public education,” which includes provision of related services necessary for a child to benefit from his or her special education. Related services includes “mental health services,” and since “FAPE” must be provided at “no cost to parents,” this obligates the educational agency to fund mental health services required to allow the student to benefit from their education.

In California, prior to 1984, concerns arose that the federal mandate for provision of appropriate mental health services as a part of a student’s IEP was not being implemented effectively. The mental health needs of students with disabilities were largely ignored, sometimes until more extreme interventions, like the juvenile justice system or hospitalization, were required. There was also a concern regarding the lack of coordination of services between school districts and other public agencies. Based on these concerns, the state legislature enacted what is known as AB3632, assigning the responsibility for mental health services to the state department of mental health, through the county departments of mental health. Thus, AB3632 assigned responsibility for mental health goals on a child’s IEP, mental health services, and even residential placements for seriously emotionally disturbed students, to an agency other than the local educational agency (i.e. school district) even though these components of the IEP are related to the student’s receipt of FAPE.

Over the past several years, much talk has occurred regarding the funding for AB3632 services. It has almost always been known to be an “underfunded” mandate. Counties estimate an amount in the hundreds of millions in terms of the money that has been spent on mandated services that has not been reimbursed by the state in accordance with the provisions of AB3632.

Enter Governor Schwarzenegger.

In 2005, the Governor’s budget proposed to suspend the AB3632 mandate. Advocacy groups, school districts, and even county mental health agencies argued against suspension noting that confusion and chaos would ensue if the obligation to fund and provide mental health services suddenly was shifted back to school districts without an appropriate transition. It was noted that school districts were not prepared to take on this obligation, that they did not employ the appropriate mental health professionals to provide these services, and that there was an “institutional disincentive for school districts to identify children as having complex and potentially costly mental health service needs if schools become the only agency responsible for meeting those needs.” See “AB3632,” Adolescent Mental Health Policy News, California Adolescent Health Collaborative, April 2005 (www.californiateenhealth.org).

In 2010, the issue arose again. In May 2010, a proposal to revise the AB3632 mandate was contemplated in the California General Assembly. Again, advocates argued that “suspension of AB3632 would most likely result in complete disarray and gaps in services for children as shifts in responsibility for and funding of the services occur.” See Letter to Honorable Dave Jones, AB3632 May Revision Proposal – Oppose, Disability Rights California (www.disabilityrightsca.org).

On October 8, 2010, Governor Schwarzenegger utilized his “line item veto” to veto approximately $133 million within the state budget package for reimbursement to County Mental Health for “back claims” of amounts owed to them for providing mandated AB3632 services. At the same time, Governor Schwarzenegger stated that he was “suspending the AB3632 mandate.” Thus, effectively as of that date, county Mental Health is no longer required to provide mental health services to students pursuant to their IEPs, and school districts will now be required to provide these services and placements. No additional funding was allocated in the budget to cover the expenses that will be occurred in order to meet these obligations. (*there is debate regarding whether the Governor could use a "line item veto" to effectively eliminate an entire mandate, which will likely be one subject of litigation in the coming days, weeks and months. Meanwhile, what we know is that in fact, the Governor's intention with this action was to suspend the mandate).

The action has been called by many “unconscionable” and certainly creates a state of chaos for school districts, county mental health agencies, parents, and students. See, e.g., “Governor’s proposal puts kids’ mental health services at risk,” Michael C. Watkins (www.santacruzsentinel.com); “CDCAN Report #190-2010” (www.cdcan.info/node/1357). It is uncertain what the Governor could have possibly believed he was accomplishing by this action. Ultimately, it will not save the state any money to cut out of the budget funding for “mental health services” through AB3632 specifically, as these services are still mandated to be funded. The financial burden will simply shift to the already over-burdened school district, and the state as well as local educational agencies will also likely incur expensive legal fees because of issues arising out of this state of chaos.

Stay tuned to the blog for more information. Tomorrow's postings will cover "What happens next after the Governor's veto?"(the all important question, with somewhat speculative answers).