Re: Item 4440 Department of Mental Health; Item 6100 Department of Education – AB 3632
February 8, 2011
Honorable Carol Liu
Chair, Senate Budget Subcommittee #1, Education
California State Senate
Capitol Building, Room 5019
Sacramento, CA 95814
Dear Senator Liu:
Disability Rights California is a statewide nonprofit that has worked to advance the rights of Californians with disabilities for over thirty years, and is the designated protection and advocacy agency for people with disabilities under federal and state law. We recognize the fiscal challenges the state faces but also believe that creative “outside the box” thinking can result in economic efficiencies, eliminate out-dated models of providing services and achieve good policy outcomes.
While this letter pertains to the mental health and education budget proposals, we want to point out: The Brown FY 2011-12 budget reduces every health and human services program, causing real harm to Californians with disabilities. Not only will many people lose services from more than one program, these reductions come on top of the cuts in both income and services they have borne in recent years. There is a better way; we propose that the governor and Legislature consider the funding strategies included in this letter, details of which we can provide.
The Brown budget proposal
- Includes $98.6 million General Fund to cover mental health services for students, mandated under federal law, for prior year costs incurred by counties per a state mandate created by AB 3632.
- Shifts Mental Health Services Act (MHSA) funds to the Department of Mental Health, to replace the General Fund for AB 3632 services, the Early and Periodic Screening, Diagnosis and Treatment Program (EPSDT) and mental health managed care General Fund savings of $861.2 million in 2011-12.
- Realigns to counties AB 3632, EPSDT, and mental health managed care 2011-12 and replaces MHSA funding with dedicated revenue commencing 2012 and beyond.
Prior Year Costs for AB 3632
We support funding of prior year costs incurred by counties for the AB 3632 program.
One-year funding shift to Mental Health Services Act
We support continued funding of the AB 3632 program, EPSDT and mental health managed care. However, we are concerned that using MHSA money will lead to a reduction in community mental health services and violate maintenance of effort and non-supplantation requirements of the MHSA even though the governor does not believe it will.
A reduction in community mental health services could occur as a result of the shift leading to homelessness and institutionalization, increased use of emergency rooms, and incarceration of people currently served by MHSA programs. The governor’s proposal could radically shift the focus of the state’s mental health system from home and community services primarily to hospital and institutional care. This would most likely violate the “integration mandate” under the Americans with Disabilities Act (ADA). (42 U.S.C § 12132; 28 C.F.R. § 35.130(d)). The United States Supreme Court in Olmstead v. L.C. ex rel. Zimring, 527 U.S. 581 (1999), held that the “integration mandate” required that persons with disabilities be served at home and in the community when (1) community services would be appropriate, (2) the individual does not oppose community services, and (3) community services can be reasonably accommodated. Id. at 607.
AB 3632
AB 3632 was a bill passed in 1986 by the California Legislature that mandates county mental health departments to provide mental health special education related services to children who need them pursuant to an Individualized Education Plan (IEP). They did this to maximize the unique expertise offered by county departments of mental health and to better coordinate public resources to support students with disabilities receiving special education services. Under AB 3632, county departments of mental health were responsible for providing services such as, case management, counseling, medication management, and residential placement and sometimes out-of-state residential placement.
We are concerned about discussions to remove the mandate from county mental health and place the responsibility on the local educational agencies. We need to come up with a longer term solution for providing services to children in special education who need mental health services before taking this step, if at all. The same principles that existed when AB 3632 was signed into law are equally important, if not more so, today. Without a longer term solution many children who need mental health services to benefit from their education – will experience delays in receiving services or will not receive services at all. It will lead to increased long term costs as children’s unmet mental health needs reach a crisis level. Children will require intensive, higher-cost interventions, such as hospitalization and institutionalization. Further children may drop out of school and end up on the streets or in the juvenile justice system.
Under the Individuals with Disabilities Education Act, California is required to fulfill maintenance of effort obligations. Not maintaining funding levels could jeopardize millions in federal funds. Funds that California cannot afford to lose during these difficult economic times.
We are concerned that school districts cannot pull down the same level of Medicaid federal dollars for mental health services as county mental health can. Further it may take up to a year or more for most local education agencies to set themselves up to effectively bill Medicaid – causing the state to lose millions in matching funds. We urge you to look into these issues before repealing AB 3632.
AB 3632 Recommendations:
We recommend that the state move forward with an AB 3632 study in order to assess the strengths and weaknesses of the current fiscal and service delivery system, and identify options for improving accountability for effective services and positive student outcomes.
If the legislature does remove the mandate from counties, we recommend that transition planning occur over a period of time in order to reduce the impact on children. Some of the elements of a transition plan should include:
- A transition plan should include all aspects of a child’s service needs across systems.
- The child and his or her family should be engaged in the transition process and efforts made to elicit information about wishes and desires related to transition.
- Information should be shared between multiple agencies with all entities involved on the same page with respect to the transition planning process.
- Recognition of the needs of certain populations, such as children in foster care or the juvenile delinquency system, must be planned for with appropriate transition planning, including cultural sensitivity and language needs of the child and family.
- The IEP team and other multidisciplinary teams must be involved in the transition process; transition plans must be practical, realistic, informed and maximize resources in order to provide continuing care and foster self reliance and educational benefit in the child.
- Protocols must clearly delineate responsibility for care during transition.
- Children and their family must be well informed about the transition planning process and backup plans should be in place at all levels during the transition.
- Follow up contact should be made to monitor progress towards transition.
Realignment of programs to the counties
We support continued funding of AB 3632, EPSDT, and mental health managed care. We are concerned that realignment to the counties may result in quite different services from county to county for individuals with disabilities. While we believe counties should structure services to meet the needs of their communities, we recommend that the legislature establish minimum service standards and performance measures to ensure individuals with disabilities obtain continuity of quality services from county to county. Once the realignment proposal is more fully fleshed out, we may have additional concerns.
Our recommended minimum standards include the following: the continuum of care available in the county, the criteria for services, the process to seek and obtain services, and the appeal or grievance process.
Funding Strategies
Eliminate Outdated Service Models
Ensure adequate funding of community based mental health services and eliminate outdated service models by phasing out locked Institutes for Mental Disease, which are not eligible for a Medicaid match, and increasing the number of individuals who can move from state psychiatric hospitals to the community by expanding the Conditional Release (ConRep) program.
Children’s Mental Health Services including Residential Placement
1. Restore the AB 3632 mental health special education program (and avoid the potential loss of federal special education funds) in the current year and transition to a new, more efficient system based on recommendations from a legislatively funded study expected by June 30, 2012, and maintain funding for the program.
Please let me know if we can provide further information or you have questions about this letter.
Very truly yours,
Margaret Johnson, Esq.
Advocacy Director
Disability Rights California
CC: Honorable Members of the Senate Budget Subcommittee on Education
CC: Kim Connor, Consultant, Senate Budget Subcommittee on Education
(1) “Young Hearts & Minds: Making a Commitment to Children‘s Mental Health,” available from http://bsalhc.ca.gov/studies/161/report161.pdf