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).