Not Acceptable R-word PSA Wins YouTube Award

This PSA for "Spread the Word to End the Word," which features Glee stars Jane Lynch and Lauren Potter, brought awareness to why the "R-word" is simply unacceptable.  The ad won the YouTube DoGooder Nonprofit Video Award in the "Fearless Video" category for its fearless take on this important issue.

You can read more about the video, the campaign to end the R-Word and this award at the following links:

https://www.disabilityscoop.com/2012/04/17/r-word-youtube-award/15413/

http://www.youtube.com/user/EndtheRword?ob=0&feature=results_main

http://r-word.org/

http://youtu.be/wMV-bTMgJGg

Call to Action: Save the Lanterman Act!

The following is a message from the ARC and UCP CA's collaborative efforts to save the Lanterman Act in California. Please make phone calls to your state legislators today to try and save the important programs that the Lanterman Act provides to children and adults with disabilities here in California!

Action Alert: The Arc and UCP CA Collaboration

Dear Friends,

Our community's overwhelming turnout in the Capitol and numerous calls and visits to legislators, asking them to save the Lanterman Act, paid off. The Legislature so far has rejected most of the developmental services service cuts that the Brown administration proposed.

But the fight continues. We need your advocacy again -- this morning.

Here's where we stand. The Legislature's budget committees, with both Democrats and Republicans voting for us, reduced the size of the cut to community services for people with developmental disabilities by $386 million. We are all working to sustain our system within these remaining cuts but we are asking you to help us fight the Brown administration's process for achieving $174 million of the cuts in state funds.

The administration wants $174 million to come from purchase-of-service "standards," or "best practices" as the Legislature has started calling them. This idea has been rejected repeatedly by the legislature and opposed by every community advocacy group in years past. While standards and best practices sound good they are actually cost cutting measures to that will change service: (1) eligibility, (2) duration, (3) frequency, (4) rates, (5) provider qualification, etc. for everyone, establishing standard arbitrary limits as opposed to our current method of determining needs through the person centered IPP or IFSP.

The Legislature is in recess and will vote soon on the state budget and bills to cut spending to balance the budget. One of the bills, AB 98, would direct the administration (specially, the Department of Developmental Services) to develop "best practices" and recommend them to the Legislature by May 15. There are two calls I'm asking you to make before then to help head off that threat -- one to each of your two local state legislators, your state senator and assemblymember.

If you don't know who they are, go to http://capwiz.com/thearc/state/main/?state=CA&view=myofficials , enter your ZIP code, scroll down to "state senators" and "state representatives," and click on their names.

If you already have talked to staff members in your legislators' local or Capitol offices, call those staff members again. Otherwise, call their Capitol offices.

Here is what you might say to each of them

1. Ask to talk to someone about the developmental services budget.

2. Write down the staff member's name.
3. Introduce yourself, give them you address, and tell them why you care. For example, if you're the parent of someone with a developmental disability, say so.
4. Tell them that you are against Section 1 of Assembly Bill 98, the developmental services budget "trailer bill" (they'll know what that means). That's the section about "best practices." Ask that the legislator try to get it removed from the bill.

5. Even more important, whether or not Section 1 stays in the bill, ask the legislator to make a statement when the bill comes up for discussion today. Ask that the legislator say, when the Department of Developmental Services presents its recommendations for "best practices to the Legislature on May 15, the Legislature should consider the community organizations' alternatives for ways to make savings in the budget while doing less damage to the IPP than the administration's recommendations would likely do. The idea is to serve notice now that the Legislature will consider our community's recommendations equally with the administration's.

I know this is complicated. I wish I could make it simpler. I think that, if you stick to the five things I've suggested, your legislators will get the message. We've been working hard here in Sacramento to get this message to them since the Assembly Bill 98 came out yesterday.

If you want to read the bill for yourself, go to www.leginfo.ca.gov/pub/11-12/bill/asm/ab_0051-0100/ab_98_bill_20110314_amended_sen_v98.html . Section 1 starts on page 5.

Thank you for your advocacy.

Greg

Greg deGiere

Public Policy Director

The Arc and United Cerebral Palsy in California

1225 Eighth Street, Suite 350

Sacramento, CA 95814

News: Stipulated TRO Issued In AB 3632 Case

Educationally-related mental health services to continue, despite Governor's veto and suspension of mandate

A class action lawsuit was filed last week by the collaborative forces of various public interest law organizations in Los Angeles in response to the Governor's line item veto of funding for mental health services and suspension of the AB 3632 mandate.

More information about this issue:
Our previous blog posts: News: AB3632 Suspended... Mental Health Services in State of Chaos: Part 1... Mental Health Services in State of Chaos: Part 2...
Press Release about the Class Action (on Disability Rights California's webpage)
Public Counsel's story about the class action (on Public Counsel's webpage)
The complaint filed in the class action

As part of the class action litigation, Plaintiffs sought a Temporary Restraining Order (TRO) against various defendants. The Plaintiffs sought an order to require the state department of education (CDE) to take certain actions to monitor and track changes in local policies and practices related to mental health services, exercise its authority under the law to compel local education agencies (i.e. school districts) to ensure that students receive mental health services without delay or interruption, and disburse federal IDEA funds including those specifically delineated for mental health services on the same basis as they were disbursed prior to the Governor's actions on October 8th. Additionally, as to the "local" defendants, including the LA County Department of Mental Health, Plaintiffs sought a TRO requiring the continued provision of mental health services, including assessments, attendance at IEP meetings, and providing services and funding residential placements, at the same level as was previously provided in accordance with the procedures existing prior to the Governor's veto.

State Department of Education (CDE) Action and Agreement to Disburse Funds

On October 29, 2010, Jack O'Connell, State Superintendent of Schools, announced that CDE would be releasing $76 million in federal IDEA funds reserved for state level activities to county offices in order to fund educationally-related mental health services through county mental health agencies. Thus, these funds would be available to ensure the continuation of services mandated by federal law for students with disabilities.

In announcing this action, O'Connell stated "I refuse to let the Governor's misguided action prevent severely disabled students from getting the mental health care they need from qualified providers... The Governor's veto does not override federal law; School districts must still implement the IEP... yet most districts don't have the expertise to provide psychiatric and medical management of necessary medications and other mental health services..." See California Department of Education News Release; October 29, 2010 http://www.cde.ca.gov/nr/ne/yr10/yr10rel122.asp

Stipulated TRO for Provision of Services by LA County DMH

Yesterday, November 2, 2010, the federal judge in the U.S. District Court for the Central District of California signed a stipulated Temporary Restraining Order in this matter. Because of the assurances of disbursement of reserved funding by the CDE, funding would be available to LACDMH to provide services in accordance with the practices and procedures for distribution of funds existing before October 8, 2010. Thus, the stipulated TRO provided that LACDMH would "resume and continue to provide and monitor educationally-related mental health services... attend IEP meetings and authorize services, and complete assessments..." either until the "reserved" funding runs out or until January 14, 2011, whichever occurs first.

What does this mean?

The issue regarding funding for educationally related mental health services in California is by no means resolved. However, locally in Los Angeles County, the process for providing these services through a student's IEP will theoretically return to the same practices and procedures as before the veto by the Governor, and the subsequent chaos of the past few weeks, occurred. At least for the time being - the "reserved" funding will not last forever, and the long term problem still requires a resolution. For students and families throughout California, Mr. O'Connell's action is a step in the right direction towards ensuring stability in the provision of much needed services during this time of confusion. It means that funds will be disbursed for the provision of services through the counties. Additionally, CDE has continued to remind local school districts of their ultimate responsibility to provide students with a FAPE, and the CDE has agreed to issue directives regarding these obligations in an attempt to ensure and oversee compliance. Within the context of the class action, the Plaintiffs involved have agreed to inform CDE of any information that they obtain regarding non-compliance by a local school district of its obligation to provide or pay for related mental health services when a non-educational agency fails to do so.

For more information, please check out the following links:

Order on Stipulated TRO (as related to local defendants)

Stipulation and Notice of Withdrawal (as related to agreement with state defendants)

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.

Call to Action on the Truancy Bill: Part 3

Truancy Bill Part 3: Sample Letter

Please read Part 1 and Part 2 for more information on this topic, including contact information and instructions for contacting the Governor's office.

Below is a sample letter for parents, advocates, etc to utilize in order to contact the Governor's office about this issue. You can (and should) personalize this letter prior to sending it.

INSERT YOUR CONTACT INFORMATION

INSERT THE GOVERNOR'S CONTACT INFO (See Part 2 of this series)

DATE

Re: SB 1317 / Please Veto

Dear Governor Schwarzenegger:

I am writing to request that you veto SB 1317, the truancy bill authored by Senator Leno. There are already serious penalties for parents who neglect their children, a concept which includes failure to ensure that the child is educated. Since this bill comes into play with a student who has missed 10% of the year to date, depending on the time of year, it could be applied based on a small number of absences. It is vague in defining parent fault: it applies to a parent "who has failed to reasonably supervise and encourage the pupil's school attendance." It does not set forth any exception for parents who are not currently encouraging school attendance for very good reasons. It could easily be interpreted to make absences that do not fall within the narrow excuse categories recognized by law, regardless of the reasons for those absences, a serious offense capable of wreaking financial havoc through large fines and separating families by jailing parents. Students miss school for many reasons, some obviously bad and some of which may represent the best choices in bad circumstances. Their out of school activities range from committing juvenile offenses to caring for sick siblings to watching TV to receiving intensive educational services for 30-40 hours per week at their parents' expense. This bill treats very different types of "truancy" the same. It could easily worsen the problems that lead to absences.
While the theory seems to be that prosecutors will use discretion wisely, it is not realistic to expect that they will be able to investigate reasons for truancy in each case, and this bill does not require them to. Alternatives to punishment are optional. Though the bill does not apply to home schoolers who intend to home school and provide appropriate paperwork from day one, it would greatly endanger parents forced into informal homeschooling by absence of appropriate special education services or by bullying midway through the school year. Districts in special education disputes would attempt to apply it to students who are in tutoring programs that are not certified as schools. This bill would empower administrators who refuse needed services or who dismiss complaints about bullying and harassment without adequate investigation. It would allow oppositional teenagers to create massive legal problems for their parents. It would terrify parents who have good faith, reasonable beliefs that their child needs to be removed temporarily from school until problems are discussed and addressed, and could frighten them out of taking steps which are necessary for their children's progress and even safety.
Please work this budget year on protecting school funding, and figuring out how parents and teachers can work together to do more with less. Please veto this measure which would instead pit schools and parents against each other.

Sincerely,

YOUR NAME

Call to Action on the Truancy Bill: Part 2

Truancy Bill Part 2: How to get involved and make yourself heard on this issue

Please read Call to Action on the Truancy Bill: Part 1 for information about why this bill would be unjust for parents of students with disabilities.

Contacting the Governor: For this "call to action," Parents, advocates, attorneys and others in the special education community are encouraged to send a letter (see sample in Part 3) by either email or fax, or call one of the office numbers below to provide your input.

1. Email: http://gov.ca.gov/interact#email

2. By fax or phone call to Governor's office in Sacramento:

Governor Arnold Schwarzenegger
State Capitol Building
Sacramento, CA 95814
PHONE: 916-445-2841
FAX: 916-558-3160

3. By fax or phone call to District office across CA

Fresno Office
2550 Mariposa Mall #3013
Fresno, CA 93721
PHONE: 559-477-1804
FAX: 559-445-5328

Los Angeles Office
300 South Spring Street
Suite 16701
Los Angeles, CA 90013
PHONE: 213-897-0322
FAX: 213-897-0319

Riverside Office
3737 Main Street #201
Riverside, CA 92501
PHONE: 951-680-6860
FAX: 951-680-6863

San Diego Office
1350 Front Street
Suite 6054
San Diego, CA 92101
PHONE: 619-525-4641
FAX: 619-525-4640

San Francisco Office
455 Golden Gate Avenue
Suite 14000
San Francisco, CA 94102
PHONE: 415-703-2218

Part 3 of this posting will include a sample letter for your use, courtesy of the California Association of Parent Child Advocacy.