AB 114 Stakeholder Webinar Q&A - Announcements & Current Issues (CA Dept of Education):

AB 114 Stakeholder Webinar Q&A

The following questions were submitted to the California Department of Education (CDE) during the first AB114 Stakeholder Webinar.

The questions are arranged in categories, and therefore are not provided in the order in which they were submitted.

Local Educational Agencies (LEA) Responsibilities

Q. What are the district’s responsibilities in this new structure?

A. The district’s responsibilities for a student suspected of, or having, an eligible disability include identification, assessment, and as applicable, provision of special education and related services as identified in the IEP.

Q. Are school districts responsible for medication management?

A. For more information on medication management, please see the CDE guidance titled “AB 114: Medication Monitoring".

Funding

Q. How do we access funds quickly when needed for non-public school placements?

A. LEAs should have funds available for this purpose already. In addition to the first apportionment of Proposition 98 funds provided for this specific purpose, state general funds are being allocated through the 602 formula, so those funds should also be available now.

Q. Can special education funds be spent for residential room and board?

A. Yes. Proposition 98 funds and IDEA funds may be used for this purpose. Please see the CDE guidance titled “AB 114: Available Funding Sources and Spending Parameters” for more information on these sources.

Q. Can the Proposition 98 apportionment to districts for the provision of related services be carried over? Is there guidance on which funding sources are to be used first: Proposition 98 or IDEA funding?

A. Proposition 98 funding is for use in the 2011-12 fiscal year and may not be carried over. The decision of which funding source to use first is left to local discretion.

Q. Our LEA has completed its billing process for 2010-11 with our county mental health agency. Previously they have billed us for a greater amount than our “pass through” money but we only “passed through” the amount we were allotted. This time, CMH is asking for their bill to be paid in full and is telling us to use our SB70 money to cover their costs. Can the CDE provide guidance to us on this request?

A. Local agreements between LEAs and county mental health departments should contain provisional language regarding reimbursement for services provided.

Q. May LEAs or SELPAs develop a contract or MOU with their county mental health agency whereby the county mental health agency passes through its AB 100 (Proposition 63) funding to the LEA or SELPA to have the LEA or SELPA provide or contract for the provision of mental health services identified on students' IEPs?

A. Proposition 63 funds are under the purview of the Department of Mental Health, therefore the CDE is unable to answer questions concerning options for the use of those funds. By law, LEAs are required to provide the CDE with copies of agreements that LEAs have reached with their county mental health agency concerning the use of current-year Proposition 63 funds, but the CDE has no role in evaluating or approving those agreements.

Residential Placement

Q. Is a diagnosis that a student is Emotionally Disturbed a requirement for the student to receive a residential placement under IDEA?

A. No. IDEA does not make that distinction. LEAs may place children with other disability designation in residential placements based on individual student needs and placement decisions made by the student’s IEP Team.

Q. While residential room and board facilities are being certified, districts may face liability concerns. Is there some state provision that protects districts’ liability during this transition time?

A. Please see the memorandum titled “Assembly Bill 114: Residential Care for Students With Disabilities”. An LEA should seek to ensure that all residential room and board facilities are appropriately authorized to provide services, per the various options outlined in the memorandum.

Q. How will the CDE be monitoring NPAs and NPSs that obtain certification for the sole purpose of providing residential care for students?

A. For information on NPA and NPS certification and monitoring processes, please contact the Interagency-Nonpublic Schools/Agencies Unit at 916-327-0141.

Q. Is it still required that the IEP team be expanded to include a mental health case manager when a child is placed residentially?

A. The provision for an expanded IEP team (Government Code [GC] Section 7572.5) called for a representative of the county mental health department to be included in a child’s IEP team when residential placement was being considered. This section was deleted by Section 33 of AB 114. The IDEA and state law establish requirements for composition of an IEP Team. IDEA requirements are provided in the Code of Federal Regulations, Title 34, Section 300.321. See EC Section 56341 for California law concerning IEP Team composition.

Personnel

Q. What qualifications or credentials or licenses are required to provide the related service of counseling for students who have been identified as Emotionally Disturbed?

A. See Title 5, Section 3065(f), California Code of Regulations for a list of the licensure options for providing the related service “counseling and guidance”. Licensure requirements for this service are based on the service to be provided, and are not specific to the disability of the student. For additional information, please see CDE guidance titled “AB 114: Requirements for Securing the Services of Mental Health Professionals to Provide Related Services to Special Education Students”.

Q. If mental health services are indicated on an IEP, may school counselors with Pupil Personnel Services Credentials provide the services, or must Marriage and Family Therapists (MFTs) or MFT interns provide those services?

A. Pursuant to Title 5, Section 3065, a credentialed school counselor may provide counseling and guidance to students on an IEP. Depending on the specific type(s) of mental health services to be provided the student, a PPS: School Counseling credential may or may not qualify an individual to provide the service(s). Please refer to Title 5, Section 3065 for more details.

Q. Are there going to be new state regulations concerning qualifications for school psychologists given that they may be asked to provide services previously provided by Licensed Clinical Social Workers, Marriage and Family Therapists and Clinical Psychologists? Have school psychologists been trained to provide these specialized services?

A. School psychologists have been trained and are authorized to provide some related services including Behavior Intervention (both program design and implementation); Counseling and Guidance; Parent Counseling and Training; and Psychological Services. For definitions of each of these services, see Title 5, Section 3065. The PPS: School Psychology Credential authorizes the holder to conduct psychosocial assessments to identify special needs, and coordinate and provide other services that enhance academic performance. For the complete authorization statement for the PPS: School Psychology Credential, consult theCommission on Teacher Credentialing Administrator’s Assignment Manual (PDF; Outside Source).

Q. Some charter schools do not have personnel employed who hold an administrative services credential. Who would be responsible for evaluation/supervision in that case?

A. The person who serves as the charter school’s administrator would be responsible for supervision and evaluation of staff. Supervision of community-based service providers could either be provided by this administrator or by a pupil personnel services credential holder on staff.

Q. For an individual working to complete the practicum (fieldwork hours) requirement for an MFT degree, what type of certification would the person assigned to supervise my practicum requirement need?

A. This Webinar addressed the issue of supervision specifically concerning employer requirements for supervision of community-based mental health professionals. Questions related to supervision requirements for practicum hours for certification or licensure should be addressed either to the program through which the licensure is being earned, or the state agency that issues the licensure or certification being pursued. In the case of MFT licensure, the responsible agency is the Board of Behavioral Sciences (Outside Source), an agency within the Department of Consumer Affairs.

Q. Will there be assurances that clinicians who are bilingual will be available to students as needed, both for evaluation and for clinical therapeutic services?

A. On assessment, please see 34 CFR 300.304 (c)(1)(ii), which states that assessments and evaluations must be provided in the child’s native language or other mode of communication and in the form most likely to yield accurate information, “unless it is clearly not feasible to so provide and administer.” Also, the IEP is to be written to provide a reasonable expectation that the student will gain educational benefit from the goals and related services contained in the IEP.

Q. Can supervision of mental health providers be provided by a qualified county mental health clinician contracted by the LEA, or must the clinical supervisor be directly employed by the LEA?

A. In the case of community-based mental health providers, it is likely that the “clinical supervisor” will be a qualified county mental health clinician. However, California law (Title 5, Section 80049.1) also requires that community-based mental health providers who work in school districts must be supervised in their school-based activities by the holder of a Pupil Personnel Services (PPS) Credential. The types of supervision expected by these individuals differ, as the PPS Credential holder’s role is primarily to ensure that the LEA’s array of mental health services provided to students are coordinated, and that services provided by the community-based provider are appropriate given the student’s needs and the provider’s role, not to provide clinical oversight of the provider’s practices.

Monitoring and Reporting

Q. When will the CDE provide guidance on specific reporting requirements regarding AB 114 and IDEA funds?

A. We will begin with reporting requirements for AB 114 in CDE’s CASEMIS system in December 2011. At this point in time there are no major changes in CASEMIS. We will, however, be eliminating the “eligibility for Chapter 26.5” and the “language related to Chapter 26.5” items in the IEP fields. We will be able to capture from prior years matches for students who had been Chapter 26.5-eligible so we can follow them and determine whether services are continued. In terms of IDEA funds, the provisions and requirements on the use of IDEA funds are anticipated to be available by the end of October, 2011. We are gathering additional information on allowable uses of state general funds, but note that all of these funds are targeted to support the provision of related services, and not instruction per se. While we will provide additional information as available, we suggest that LEAs focus the use of these funds on delivering related services.

Q. Can AB 114 funds be used for pre-referral mental health services?

A. Services previously referred to as “Pre-referral mental health services” were eliminated through the recent legislative changes. These funds were combined with other funds provided under Proposition 98 to provide services to students with disabilities identified in the students’ IEPs.

Q. Where can one find the definitions for the services provided under the prior structure that are included in the list of related services in CASEMIS?

A. The definitions of services formerly provided under AB 3632 can be found in California Code of Regulations, Title 2, Section 60020. The required services to be reported through CASEMIS differ from the terms for the services in Title 2. For a definition of the mental health services reported through CASEMIS please see the CASEMIS manual located on the Data Collection and Reporting Web page.

Service Determinations and Provision

Q. Did children identified as Emotionally Disturbed receive services through the Department of Mental Health under the structure that existed under AB 3632?

A. Our data from CASEMIS indicate that there have been children identified as Emotionally Disturbed receiving services through mental health agencies, and others with an ED designation that were not served by mental health agencies. Other students with other designated disabilities were reported as served by mental health agencies. In short, there is not a 1-to-1 correspondence between identification as emotionally disturbed and being served by mental health.

Q. Regarding annual IEPs, are services that were offered under the prior structure still required to be provided until the IEP is updated?

A. Yes. IEPs remain in effect until there is an IEP that modifies the services and goals for the student.

Q. Will service models be discussed today?

A. No. However, the CDE intends to develop additional guidance in the near future to include examples of models currently used to provide related services.

Q. If an LEA is responsible for administration of medication as prescribed by a physician, does that mean we would be responsible for administration of all other medical treatments prescribed by a physician?

A. An LEA is specifically responsible for special education and related services authorized by an IEP, which may include medical services for diagnostic or evaluation purposes. Medical services is defined in Section 300.34 (c)(5) of Title 34 of the Code of Federal Regulations as “…services provided by a licensed physician to determine a child’s medically related disability that results in the child’s need for special education and related services.

Q. Does assessment by a psychiatrist for the need of medication fall into the “medical exclusion”, or is this an included service since it is “assessment”? (Assessment being distinguished from writing a prescription)

Q. Will there be more written guidance developed for IEP teams on when psychiatric services are necessary for FAPE and when they are strictly non-educational/medical?

A. The IEP team is the only entity that may determine when a service is necessary for FAPE and when a service is strictly non-educational. For more information on requirements for medical services under the IDEA, please see CDE guidance titled, “AB 114: Medication Monitoring”.

Q. Is it appropriate for an LEA that receives Proposition 63 funding and contracts with CMH for assessments to reject recommendations from CMH (specifically for residential placements) at an IEP meeting?

A. The IEP team is empowered with the decision as to the appropriate services to be provided to the student. Assessment results form the basis for a determination of appropriate services. Recommendations resulting from assessment results should be carefully considered as an IEP Team determines appropriate goals and services. In cases in which the IEP team elects not to accept a recommendation, the rationale for that decision should be clear to the team. The LEA is the authority that provides the offer of FAPE. See CFR Title 34 Sections 300.101, 300.320, and 300.324 for more guidance on FAPE, IEP contents, and IEP development and revision, respectively. Electronic Code of Federal Regulations (Outside Source).

Q. Is it appropriate to determine whether a student qualifies for Medi-Cal prior to completing the student’s assessment for services so that the LEA can be assured that some of its service costs can be offset by Medi-Cal funding?

A. No. It is not appropriate for an IEP team’s determination of a student’s needs to be influenced by potential costs of services or availability of service providers. Both federal and state law clarify that all students are to be provided a free and appropriate education in the least restrictive environment. Any services needed by a student with special needs to access such educational opportunity must be provided without regard to expense or difficulty in securing those services.

Q. Regarding foster youth and Medi-Cal billing, what happens if one person holding the student’s educational rights gives “blanket” consent for the service provider to access Medi-Cal, then the student’s situation changes and a new person is made the holder of the student’s educational rights and has a different view concerning consent? How are differences resolved and how are the student and guardian(s) protected?

A. Once the student’s educational rights have been transferred to another individual (through a court order, or establishment of surrogate parent, or other such process) the new holder of the educational rights must provide informed consent as it applies to provision of services and billing of services through Medi-Cal. For a definition of “parent”, see 34 CFR 300.30(2) and EC Section 56028. For rights of foster parents please see EC Section 56055. For informed consent please see 34 CFR 300.9. For information on Medi-Cal please see CDE guidance documents on Medi-Cal options available to LEAs on the AB 114 Special Education Transition Web page.

Insurance

Q. Insurance companies are now required to cover mental health treatment at the same level as physical mental health treatment (parity). How does this impact case law described earlier?

A. For more information regarding “parity” please refer to the Mental Health Parity and Addiction Equity Act of 2008 (H.R. 1424 -117), which went into effect on January 1, 2010. Also see, H.R. 3590, the Patient Protection and Affordable Care Act (Section 1302 [b]) signed into law on March 23, 2010; which will go into effect in 2014. Case law discussed during the webinar did not address the “parity” requirement, as the specific cases discussed represented statutory conditions present at the time that those cases were heard. Note that LEAs must still seek informed consent from parents/guardians prior to securing related services either though private insurance or public insurance. Please see 34 CFR 300.154.

Q. If an LEA contracts with a local provider for related services, can the provider request consent to bill the private insurance company and contract with the LEA to pick up related costs (e.g., deductibles and copayments)?

A. A review of state statutes and regulations related to this question indicates that they refer to LEAs specifically, and do not address other related services providers. Federal law refers to “public agencies” which would of course include LEAs. Therefore, based on our review of applicable law, it appears that private entities may not request consent from parents to access private insurance. Federal regulations (34 CFR 300.9) provide specific language concerning how “consent” is defined. LEAs are encouraged to review those regulations before determining whether a private provider should seek parental consent to use private insurance to pay for any services.

Q. How will LEAs/SELPAs/CDE ensure that a parent is fully aware that lifetime caps will or will not be impacted when providing consent to access insurance? How, if insurance is billed, will the parent understand the impact of that billing? Will the LEA provide billing information to the parent each time?

A. Under current statutes LEAs must seek informed consent from parents/guardians prior to accessing their public or private insurance. Please see 34 CFR 300.154 for methods of ensuring services, and 34 CFR 300.9 for the definition of “consent”.

Friday, November 18, 2011