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CDCAN

October 21, 2010

Class Action Lawsuit To Maintain AB 3632 Mental Health Services for 20,000 Special Education Students Filed in Federal Court In LA by Four Public Interest Legal Advocacy Organizations

  • Lawsuit To Maintain AB 3632 Mental Health Services for 20,000 Special Education Students Filed in Federal Court
  • Class Action Lawsuit Seeks to Reverse Impact of Governor’s $133 Million Line Item Veto That He Claims Suspended the State Law

SACRAMENTO, CALIF (CDCAN) [Updated 10/22/2010  11:50 PM  (Pacific Time)]  - Four  public interest legal advocacy organizations filed on Thursday (October 21)  in federal court in Los Angeles a class action lawsuit seeking to maintain critical mental health services for over 20,000 students in special education under what is known as the “AB 3632 mandate” after Governor Arnold Schwarzenegger used his line item veto power on October 8th, to cut out a $133 million appropriation made in the 2010-2011 State Budget to reimburse counties for providing those services.  [Note: CDCAN will send out and post on the CDCAN website a copy of the lawsuit when it is available]

The federal lawsuit was filed by Public Counsel, Disability Rights California (formerly Protection and Advocacy, Inc), Mental Health Advocacy Services and Gibson, Dunn & Crutcher on behalf of the over 20,000 students who advocates say have critical need of the “AB 3632 mandated mental health services” provided through county mental health departments in order to stay in school. The services include crisis counseling, case management, medication management and residential placement.

"While the adults quibble about who is responsible -for funding, for services, for this entire mess, it is the children who are harmed. In the midst of this chaos, we are stepping up to fight for their continuity of care,” said Laura Faer of Public Counsel, in announcing the lawsuit.  Public Counsel, founded in 1970, is the nation’s largest pro bono law office, working on behalf of low-income children, youth, adults and families (website:  www.publiccounsel.org )

The mental health services administered by the counties under AB 3632 impacts thousands of children in special education across California.  Federal law requires the states to provide these mental health services to eligible students – but California in 1984 passed a state law that designated the counties with primary responsibility in the State to carry out that federal requirement.

Community mental health, disability and other advocates from nearly every side of the issue had opposed the suspension during budget hearings earlier this year saying it would cause “chaos” and “confusion” and loss of critical mental heath services for students who need them.

Others pointed out that the schools have not been able in the past, prior to AB 3632,  to meet the requirements of providing needed mental health services for special education students. Those problems, advocates pointed out, was the main reason in 1984 for AB 3632.

Governor Made Line Item Vetoes To Long Delayed 2010-2011 State Budget on October 8th

Facing a budget deficit of over $19 billion, Governor Arnold Schwarzenegger on October 8, signed the long delayed 2010-2011 State Budget, after reaching an agreement with the four Democratic and Republican Legislative leaders a week earlier.

Following passage of the budget after a long drawn out session in both houses on October 7 and 8th, the Governor made line item vetoes that totaled $962 million included eliminating $133 million for mental health services for special education students and as a result – the Governor says - suspends a state law known as the AB 3632 mandate.  It is not clear if the Governor’s line item veto in and of itself suspends the mandate or state law – though it clearly does have the impact of not funding it.

The Governor in his proposed budget in January as part of a package of spending cuts and other solutions to close a project deficit that by May grew to over $19 billion, wanted to suspend that state law, in addition to a major proposed reduction to counties for mental health services.  The budget subcommittees rejected the county mental health reduction proposed by the Governor and in August,  the Budget Conference Committee rejected the Governor’s proposal to suspend the AB 3632 mandate. 

The Governor’s October 8th line item vetoes also included sweeping cuts to the CalWORKS program – the State’s “welfare to work program” and to “Stage 3” child care.  Both programs include many children and adults who have disabilities and/or a mental health need. 

Major Issue For Many Disability and County Mental Health Advocates

The issue of funding and elimination of $133 million from the AB 3632 mandate the Governor says suspends the law,  is considered critical by mental health and disability advocates – including advocates for the counties because they contend special education students will face loss or disruption of critical mental health services, which comes on top of other reductions made in previous years and this year to mental health community-based services, Medi-Cal, regional centers and other services.

The Governor’s line item veto contained no provisions for transition for the counties, schools or families impacted or additional funding to the schools to provide those services instead.

The lawsuit filed on Thursday (October 21) is seeking to maintain AB 3632 mandate mental health services.

Impact Will Hit Other Program Budgets

Unless the action by the Governor is reversed and services are maintained, the impact will be felt to the  schools across the state impacting over 20,000 students.

It will also have possible significant budget impact on certain other agencies – such as the 21 non-profit regional centers contracted by the Department of Developmental Services, to coordinate funding and services to over 240,000 children and adults with developmental disabilities.  While developmental disabilities itself is not covered under the AB 3632 mandate, a significant number, including those with autism spectrum disorders – are “dually diagnosed” meaning they have been diagnosed as having a developmental disability that makes them eligible for services under the State’s Lanterman Developmental Disabilities Services Act and a mental health need that is covered under the AB 3632 mandate.

If schools fail to provide the mental health services required under federal law – a student with developmental disabilities and mental health needs eligible for regional center funded services could require the regional center to pay for those services.  That is a cost that would not have been calculated in the current budget for the 21 regional centers and could impact availability of funding for other services they fund for thousands of other children and adults with developmental disabilities.

Other Comments by Advocacy Organizations and Public Interest Law Firm Who Filed Lawsuit

Mental Health Advocacy Services (Jim Preis): "One student precipitously cut off from care is Andrew, a 17 year old who was adopted from the foster care system when he was 2 and ½ following exposure to fetal alcohol and drugs. He was hospitalized following suicide attempts. Finally, the appropriate services for Andrew were lined up through Los Angeles County Mental Health. Because of the veto, he is now stuck in juvenile hall without the services he needs." 

Mental Health Advocacy Services is a non-profit organization that provides free legal services to more than 3,000 children and adults every year. Website:  www.mhas-la.org

Disability Rights California  (Candis Bowles): "Since the Governor blue-penciled the services, our phones have been ringing across the state. Parents are scared about what will happen next. We've had calls about kids who no longer get services designed to keep them in the community. There are children ready to leave institutions but can't because the support services are gone." 

The organization was founded in 1978 and serves about 50,000 people in California every year and advocates in the area of disability, mental health and senior rights  Website:  www.disabilityrightsca.org

Gibson, Dunn & Crutcher LLP law firm (John Sharer):  "We are sure that many of the legislators who are disability rights champions will be working toward a fix of this unacceptable situation. In the meantime, we are bringing suit to prevent the interruption of critical mental health services for the thousands of students who need them."  

Gibson, Dunn and Crutcher LLP is a world wide law firm with more than 1,000 attorneys working in 17 offices in all parts of the world, including Europe, Asia, the Middle East and South America. Website: www.gibsondunn.com

AB 3632 Was Authored by Then Assembly Speaker Willie Brown in 1984

The federal Individuals with Disabilities Education Act (IDEA) entitles all students with disabilities and/or mental health needs to a “free, appropriate public education” that prepares them to live and work in the community.  Advocates say these services at this point in a child’s life are important and plays a critical role in helping children with mental health needs in special education transition into adulthood and the availability of employment, career and higher education opportunities. 

The federal law includes a requirement for mental health services for children in special education in order to benefit from public education. Under federal law, these children can receive services regardless of their parents’ income level.

Prior to 1984, schools were entirely responsible for providing these mental health services for students in special education who needed them.  With major concerns that students with mental health needs were not receiving needed and necessary mental health services as required by federal law, in 1984, then Assembly Speaker Willie Brown (Democrat – San Francisco) authored AB 3632 required the counties to provide these services for students who qualify for them, though it wasn’t until 1999 that state regulations were finalized.

Like other state mandates or requirements, the State has not fully reimbursed the counties for these services, forcing them to use other funding. The Department of Mental Health reported to the Legislature this past year during budget hearings that claims for the past three State budget years totaled $211.9 million, of which the State paid $51.2 million from the 2009-2010 claim, leaving a balance of $160.7 million still owed to the counties.

The Governor’s line item veto made October 8, 2010 that he says effectively suspends the AB 3632 mandate means that the counties would not be responsible for providing these mental health services – with responsibility falling back on the schools.  How or when that happens – with the school year well underway and three months into the State budget year – is unknown at this point.  The lawsuit filed on October 21, 2010 is seeking to maintain those services. 

Background of AB 3632 Mandate Related Actions in 2010

  • January 2010 - The Governor proposed, as part of his 2010-2011 State Budget proposed last January and again in May, to suspend the AB 3632, that places a requirement or mandate on the counties to provide mental health related services for students in special education. The suspension would mean the K-12 schools would be responsible for providing these mental health services for its special education students – though without providing additional funding for that purpose. 
  • May-June 2010 - The legislative budget subcommittees, after hearing the proposal, referred the issue to the Budget Conference Committee.
  • August 2010 - The Budget Conference Committee on August 4, 2010 rejected the Governor’s proposal to suspended the AB 3632 mandate and also provided for an augmentation (additional appropriation)  of $133 million in General Funds (non-Proposition 98 – the education funding guarantee in the state constitution) to the Commission on State Mandates for payment of prior year AB 3632 mandate claims in 2010-11. (Item 8885-295-0001)
  • October 7-8, 2010 - That amount and the AB 3632 mandate still remained in the main budget bill as passed by the Assembly on October 7th and State Senate on October 8th, which the Governor eliminated using his line item veto power.  As a result of that action, the  Governor says the AB 3632 mandate is suspended. It is not clear if the result of his line item veto in and of itself suspends the mandate since normally suspending any mandate requires approval of the Legislature – though using his line item  veto power to eliminate funding for the mandate essentially has the same impact unless the counties or other entities make up the reduction with other funding sources. 
  • October 21, 2010 – class action lawsuit filed in federal court in Los Angeles to preserve the AB 3632 mandated services by three advocacy organizations and a public interest law firm.  The case is pending.