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Déjà Vu All Over Again

Mental Health Services

After AB 3632

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Everything Old is New Again

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Introduction

AB 3632 was “repealed” in June 2011

Inoperative July 1, 2011

Repealed January 1, 2012

So now what?

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Introduction

We’ll look at—

History and current state of law

Post-3632 services

Post-3632 procedures

Operations for transitional year

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Pre-1984

School districts were responsible for providing all special education services to children

Including mental health services

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Introduction

1984-2011

County mental health agencies (CMH) provided IEP mental health services

CCS provided medically necessary OT/PT

Districts retained ultimate responsibility for providing FAPE

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Fast-Forward

October 2010, Gov. Schwarzenegger “vetoed” mandate funding and declared AB 3632 mandate “suspended”

June 2011, CA Legislature passed AB 114 eliminating most of AB 3632

Sole responsibility shifted back to school districts

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Current Law

AB 114

Shifts burden for mental health services back to districts

State Department of Health Services still responsible for medically necessary OT/PT

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Current Law

AB 114

Calls for the modification or repeal of old regulations implementing AB 3632

All regulations, except those relating to CCS, will likely be repealed

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Current Law

What about the money?

$222 million of which $3 million goes to necessary small SELPAs – ongoing

$98 million to CMH this year only - in future to SELPAs

$31 million pre-referral may be used for any mental health service - ongoing

$69 million in IDEA dollars continues

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Current Law

We’re ready!

School districts have come a long way between 1984 and 2011

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The FAPE Standard

School-based mental health services now governed by the IDEA

Rowley standard

Mental health as arelated service

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When required as a related service

34 C.F.R. § 300.34

• “Related services means transportation and such developmental, corrective, and other supportive services as are required to assist a child with a disability to benefit from special education . . .”

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What Is Included?

34 C.F.R. § 300.34

Related services include:

Psychological services

Counseling services

Medical services for diagnosticor evaluative purposes

School health services

School nurse services

Social work services in schools

Parent counseling and training

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Medical Services?

IDEA only requires diagnostic or evaluative medical services

But that doesn’t eliminate school health services – just no services that only a licensed physician can provide

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Irving Independent School Dist. v. Tatro(1984) 468 U.S. 883

Student required catheterization

Services capable of being provided by trained lay person

District argued it was a medical service

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Tatro

Supreme Court adopts bright-line rule

• Districts must provide health care service, if necessary, unless the service can only be provided by a licensed physician

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Cedar Rapids Community School Dist. v. Garrett F. (1999) 526 U.S. 66

Medically fragile student

• Required constant health care and variety of services

• No individual services required doctor’s care

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Cedar Rapids

Result

• Supreme Court affirmed Tatro decision

• District was required to provide all services; a physician was not required to provide any of the individual services

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Medication monitoring

Required under AB 3632

Includes prescribing, administering, dispensing, and monitoring of psychiatric medication

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Medication monitoring

By law, cannot be performed by nurse or lay person

New regulations will likely not require districts to perform

However, can a non-physician assist?

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Nursing Health Care Services

IDEA requires “. . . health services that are designed to enable a child with a disability to receive FAPE . . .”

• Includes school nurse services provided by nurse

• School health services provided by nurse or other qualified person

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Ask –

Is the service necessary?

Can it be performed by a school nurse or other health provider, other than a licensed physician?

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Practice Pointer

The school’s duties on medication for students with IEPs are the same –whether the student has mental health issues or ADHD or other needs

Analyze your obligations for medication for students with mental health services just as you would for a student taking ritalin or insulin

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What About Residential Placements?

34 C.F.R. § 300.104

If a residential placement is necessary to provide FAPE, the program, including non-medical room and board, must be at no cost to the parents

Requirements to hold expanded IEP team meeting and adopt mental health recommendations were eliminated

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Residential Placements

Use traditional FAPE analysis to determine when required

Rarely is residential the least restrictive

Consider the “primary purpose” of the residential placement

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District not responsible

Clovis Unified School Dist. v. OAH (9th Cir. 1990) 903 F.2d 635

• Student hospitalized to address psychiatric needs

• Discharged to a residential program

• Ninth Circuit test: Is the placement to address educational needs? Or medical and emotional problems separate from the learning process?

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Clovis

• Residential placement was primarily medical in nature

• Court found in favor of the school district

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District responsible

County of San Diego v. SEHO (9th Cir. 1996) 93 F.3d 1458

• Student attended day treatment program

• Did okay in academics

• Refused to participate in therapy

• Failed to make progress on mental health goals

• Unilaterally placed in residential setting

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District responsible County of San Diego v. SEHO

• Court asked three questions:1. Was the placement supportive of student’s education?

2. Were medical or social-emotional problems intertwined with student’s ability to learn?

3. Was the placement primarily to aid the student to benefit from special education?

• Result: Yes to all three questions - County responsible

• Note: Clovis court found # 1 and #2 inadequate and rested on #3 alone

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Ashland School District v. R.J. (9th Cir. 2009) 588 F.3d 1004

• Student engaged in risky and violent behavior outside of school

• At school, student was generally successful

• Parents made unilateral residential placement

• District was not responsible for the placement

This case to be discussed in more detail later . . .

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Procedures No Longer Required

What’s gone?

Some steps are no longer required

• Two-step referrals

• Pre-referral services

• Expanded IEP team meetings

• Mental Health as Case Manager

• Six-month placement reviews

All Gone!!

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Practice Pointer #1

No more two-step referral

Include everything in the first assessment plan

Don’t forget releases of information

Now there’s only onebite at the apple!

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Practice Pointer #2

No second chance on placement

Use your district’s experience with NPS placement as guidance on how to address residential placements

The good news - the buck stops with schools, no more waiting around for mental health

The bad news – same as the good news

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New Procedures

Assessments

Fewer steps . . . but

• Who is qualified to assess?

• What should be included in the assessment?

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New Procedures

Qualified Assessors

School psychologists

• Remember: Only school psychologist can administer individual tests of emotional functioning and psychological evaluations

Social Workers

Family Therapists

Psychiatrists

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New Procedures

Assessment Components

Observations

Record review

Psychosocial interview

Psychological evaluation?

Psychiatric evaluation?

Remember – the focus is on educational benefit

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New Procedures

Current IEPs with AB 3632 Services

Review IEPs to ensure delivery of service

No IEP meeting if no change in service

No IEP meeting if change in provider – but informing parent a good idea

IEP meeting required, if changing or eliminating service

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Practice Pointer

To change or eliminate medication management on the IEP, work with the parent to explain the change in law and address the issue cooperatively if possible

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New Procedures(See Appendix pg. 51)

The IEP: What should the team consider?

Start with these questions

What needs are identified by the assessment?

Are the student’s needs affecting his or her education?

Are mental health services necessary to address educational needs?

Remember: Category of eligibility doesn’t matter!

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Operational Issues

There arestill questions:

The ambivalence ofthis statement isregrettable but

deemed necessaryin light of recent developments

2011 Anthony Discenza

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Operational Issues

Who is qualified to provide services?

Counseling

• Depends on type

• Guidance counselor can provide basic counseling but not therapeutic counseling

• LMFT, LCSW can provide psychotherapy, social work services

• School psychologist can provide most forms of counseling, but not social work

(Cal. Code Regs., Title 5, § 3065.)

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Operational Issues

Who is qualified to provide services?

Nursing

• Licensed RN

• Licensed Vocational Nurse under supervision by an RN

• Credentialed School Nurse

• Trained lay person

(Cal. Code Regs., tit. 5, § 3065(i).)

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Operational Issues

Related services may be provided by

District or county office employees

NPA/NPS contractors

Employees/vendors/contractors of State or local mental health/public health agencies

(Cal. Code of Regs., Title 5, section 3051(a)(4).)

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Operational Issues

Staffing Mental Health services

Contract with Mental Health

Hire qualified staff

Contract with independent providers

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Operational Issues


Pros

• CMH already set up to provide services

• Maximize access to AB 100 and Medi-Cal dollars

Cons

• CMH can be inefficient, expensive

• Some demand hold harmless provisions in MOUs

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Operational Issues

Hire qualified staff

Determine district need for staff

• Review IEPs

• Develop list of staff qualified to provide services

• Determine staff capacity to take on mental health services

• Hire additional qualified staff if needed, in consort with SELPA, other districts

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Operational Issues

Contract with qualified independent providers

Contract directly with providers who are NPAs

Contract directly with non-NPAs that also contract with mental health

Seek a waiver of certification requirement from CDE

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Operational Issues

Limitations on residential placements?

Under AB 3632, mental health agencies could only fund certain residential facilities

• In-state, facilities were required to be licensed by Department of Social Services

• Out-of-state facilities required to have non-profit status

• Rates were negotiated by DSS

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Operational Issues

Limitations on residential placements?

Districts likely not bound by the same requirements as mental health

Districts can negotiate their own rates

But how do districts determine which residential facilities they can contract with?

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Operational Issues

Contracting with Residential Facilities

Negotiate rates independently

Continue students in existing placements

Contract with a residential facility with NPA status or obtain a CDE waiver

Contract with an NPS with a related LCI

Contract directly with residential facilities under Tit. 5, Cal. Code Regs., § 3051(a)(4)(C)

– Allows districts to provide services through entities also contracting with Dep’t. of Health Services or Mental Health, even if contractor is not an NPA/NPS

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Operational Issues

Contracting with residential facilities

Are districts required to perform site visits?• AB 3632 required monitoring by mental health

• Now LEAs responsible for compliance– Verify that facility has current contract with mental health

where relevant

– Verify that related service providers are qualified

• Site visits are always good!

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Operational Issues

Can Districts Access Medi-Cal Funding?

Answer: Maybe

Medi-Cal Funding

• Provides reimbursement for mental health services for children under 21

• Not just special education students

• Currently, only mental health (or its contractors) can access

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Operational Issues

How can we access Medi-Cal?


• Mental health provides services, seeks reimbursement through Medi-Cal

Become a Medi-Cal provider

• District becomes provider through contract with mental health and seeks reimbursement directly

• Requires district to serve ALL Medi-Cal eligible children – unless a special arrangement

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Operational Issues

How can we access Medi-Cal?

Contract directly with approved Medi-Cal providers

• Providers seek reimbursement and share cost savings with districts

Modify state plan for Medi-Cal funding

• State action required to allow districts to access funding directly

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Operational Issues

Case Study: Desert/Mountain SELPA

Large SELPA

• 175 schools in 20,000 square mile area

CMH wanted SELPA to bring all students to one clinic for services

• Huge costs

• SELPA had to step in to resolve the problem

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Operational Issues

Case Study: Desert/Mountain SELPA

SELPA decided to become a Medi-Cal provider

• Obtained a contract from CMH to provide services to all Medi-Cal eligible children in the SELPA

• Now provides school-based services to 2,500 Medi-Cal students/year plus 687 IEP students

• Annual cost per student: $5,500 for weekly outpatient

– That’s about 1/3 of CMH costs for two times per month

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Conclusion

Looking to the Future

Expect (some) guidance from CDE

State task force established

Look for new regulations to clarify, but not add to, district obligations

Possible guidance on issues related to contracting with mental health providers

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Conclusion

A Brave New World

Address needs earlier

Fewer residential placements

Fewer due process hearings

Students receive better services

The state saves money

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15 minutes of fun!!

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Break time – 15 minutes please!

Up next – All Things Considered

Documents

DéjàVu All Over Again - f3law.com › downloads › SES2011-DejaVuAllOverAgain.pdf51 Operational Issues Contracting with Residential Facilities Negotiate rates independently Continue