SPECIAL EDUCATION RIGHTS AND RESPONSIBILITIES
Chapter 9

Information on Inter-Agency

Responsibility for Related Services (AB 3632/882)

From a 12-Chapter Manual

Available by Chapter and in Manual Form

Seventh Edition

Written by: Community Alliance for Special Education (CASE)

and Protection and Advocacy, Inc. (PAI)

Copyright © 1992 by CASE and PAI - Revised January 1998

Written permission of the Community Alliance for Special Education (CASE) and Protection and Advocacy, Inc. (PAI) must be obtained for duplication of the materials contained in Special Education Rights and Responsibilities.

These materials are based on special education laws and court decisions in effect at the time of publication. Federal and state special education law can change at any time. If there is any question about the continued validity of any information in the handbook, contact CASE, PAI or a legal authority in your community.

Click here to go directly to the Table of Contents.


Community Alliance for Special Education (CASE), provides legal support, representation, technical assistance consultations, and training to parents throughout the greater San Francisco Bay Area whose children need appropriate special education services. Trained advocates and attorneys assist parents at IEP meetings, Mediation Conferences and Due Process Hearings. CASE also provides free consultations about special education rights and services to parents and professionals by telephone or face-to-face. CASE is a nonprofit organization serving all children with disabilities who need or may need special education services. For more information, contact:

CASE

  • 1031 Franklin Street, Suite B5, San Francisco, CA 94109, Tel. - (415) 928-2273, FAX - (415) 928-2289
  • 680 W. Tennyson Road, Room 1, Hayward, CA 94544, Tel. - (510) 783-5333, FAX - (510) 783-8822
  • CASE-South Bay Legal Aid Society of Santa Clara County, 480 North First Street, San Jose, CA 95103, Tel. - (408) 283-1535

Protection and Advocacy, Inc. (PAI), is a private, nonprofit organization that protects the legal, civil and service rights of Californians who have developmental or mental disabilities. PAI provides a variety of advocacy services, including information and referral, technical assistance, and direct representation. For information or assistance with an immediate problem, call:

PAI

Toll Free/TTY: (800) 776-5746

8:30 AM to 5:00 PM - Monday through Friday

  • Central Office, 100 Howe Ave., Suite 185-N, Sacramento, CA 95828, Legal Unit - (916) 488-9950 / Administrative - (916) 488-9955
  • Southern California Area Office, 3580 Wilshire Blvd., Suite 902, Los Angeles CA 90010, Tel. - (213) 427-8747
  • San Francisco Bay Area Office, 449 - 15th Street, Suite 401, Oakland, CA 94612, Tel. - (510) 839-0811

PAI receives funding under the Developmentally Disabled Assistance and Bill of Rights Act and the Protection and Advocacy for Mentally Ill Individuals Act. Any opinions, findings, recommendations or conclusions expressed in this publication are those of the authors and do not necessarily reflect the views of the organizations which fund PAI.


 On June 4, 1997, the Individuals with Disabilities Education Act (IDEA) was amended by Congress and signed into law by President Clinton. Most of the new provisions in IDEA became effective on that date. Community Alliance for Special Education (CASE) and Protection & Advocacy, Inc. (PAI) have incorporated these amended IDEA provisions into the Seventh Edition of the Special Education Rights and Responsibilities (SERR) manual.

Because special education services in California are funded in part with federal money, these IDEA amendments take precedence over any prior inconsistent federal law or current state law, except where state law provides more protections or at least the same level of protections. In this edition of SERR, citations of federal law refer to the section numbers where these amendments appear in federal law at Title 20 of the United States Code. Citations of federal regulations refer to current, unrevised federal regulations at Title 34 of the Code of Federal Regulations. State citations refer to current California law and regulations.

New federal regulations must now be developed to implement the new federal statutes. The new federal regulations are supposed to be issued by July 1, 1998. However, this process may take longer. In addition, California special education law and implementing regulations will also be amended once federal regulations are issued. CASE and PAI will monitor the development of these final federal regulations, and state law and regulations, so that final federal and state laws and regulations can be incorporated into later supplements and editions of SERR.

It is important for you to know that the Individual Education Program (IEP) provisions of the IDEA amendments do not become effective until July 1, 1998. Since IEPs written for the 1998099 school year must meet the new IDEA IEP requirements, CASE and PAI have chosen to include these new IEP provisions in this edition of the SERR manual (Chapter 4). We hope that this information will help as you develop IEPs for the 1998-99 school year and beyond.

For further information on the development of federal and state law and regulation, or clarification about IDEA implementation, please contact CASE or PAI.


SPECIAL EDUCATION

RIGHTS AND RESPONSIBILITIES

TABLE OF CONTENTS

Chapter 1 Information on Basic Rights and Responsibilities

Chapter 2 Information on Evaluations/Assessments

Chapter 3 Information on Eligibility Criteria

Chapter 4 Information on IEP Process

Chapter 5 Information on Related Services

Chapter 6 Information on Due Process Hearings/Compliance Complaints

Chapter 7 Information on Least Restrictive Environment

Chapter 8 Information on Discipline of Students with Disabilities

Chapter 9 Information on Inter-Agency Responsibility for Related Services (AB 3632/882)

Chapter 10 Information on Vocational Education

Chapter 11 Information on Preschool Education Services

Chapter 12 Information on Early Intervention Services

NOTE: The text in each chapter refers to specific questions in other chapters by using the titles shown above.


 SPECIAL EDUCATION

RIGHTS AND RESPONSIBILITIES

Chapter 9

Information on Inter-Agency Responsibility for

Related Services (AB 3632/882)

TABLE OF CONTENTS

Question

>> Introduction

>> Abbreviations

1. What is Assembly Bill 3632/882 and why was such legislation necessary?

2. Which students does AB 3632/882 affect?

3. When did this bill take effect?

4. How is this bill implemented?

5. What is the relationship between Public Law 94-142 (federal law) and AB 3632/882 (state law)?

6. Who is ultimately responsible for providing services under this bill?

7. Who is responsible for monitoring AB 3632/882?

8. Who is responsible for coordinating these related services once the IEP team writes them in an individualized education program (IEP)?

9. What services are school districts responsible for?

10. Under this bill, who advocates for a student who is a ward of the court or a student in foster care?

11. When the LEA appoints a surrogate parent, does it give preference to certain people in the appointment process?

12. What are the eligibility requirements and specific services available from community mental heath?

13. Is it only pupils who have already been identified as eligible for special education who can be referred to mental health for services?

14. What services does the county mental health agency provide to pupils under AB 3632?

15. My child may need a residential setting in order to be educated appropriately. Under AB 3632/882, how will this process work?

16. How long does the county mental health agency have to process a referral and conduct the necessary assessments?

17. My child is temporarily placed in a psychiatric hospital that is located in another county and may need a residential treatment setting. Who is responsible for conducting a special education assessment and/or an assessment for mental health services?

18. If my child needs residential treatment to benefit from education, must I make him a ward of the court? Do I have to pay for part of the cost of residential treatment?

19. What is the role of the Department of Social Services in the AB 3632/882 process?

20. What are the eligibility requirements and specific services available from California Children's Services?

21. If my child is not receiving OT/PT services, but needs them, who makes the initial referral and does the assessment?

22. Can a private physician write a prescription for OT/PT services? Will CCS accept this prescription? How will this process work?

23. What services is Medi-Cal responsible for under AB 3632/882?

24. What happens if my child does not meet eligibility requirements of California Children's Services (CCS), Community Mental Health (CMH) or Medi-Cal but still needs the services?

25. How does AB 3632/882 affect the IEP Process? Will CCS or CMH representatives attend the IEP meeting?

26. Should services be written in the IEP?

27. Can CCS or CMH refuse to write the frequency and duration of related services in the IEP?

28. Can CCS or CMH modify or change a service written in an IEP without calling for an IEP meeting?

29. Does this law affect state assessment and IEP time lines?

30. If I get an independent assessment for OT/PT or mental health services, how will it be considered?

31. How does AB 3632/882 affect due process hearing rights?

32. What can I do if the LEA and CCS or CMH cannot agree on which agency is responsible to provide specific services already included in my child's IEP?

33. CMH and the LEA have told me that my child will be on a waiting list for services. They say that services may be delayed because my child's emotional disturbance is not as acute as others'. Can they do this?

34. I believe my child needs residential placement, but the AB 3632 process seems too slow. I heard that a quicker response is available through a court-ordered placement under juvenile court or mental health laws. Will a court-ordered placement differ in any substantial way from an AB 3632 placement?

35. My child's case is already pending before the court, and she is temporarily placed in juvenile hall (or a children's service or mental health facility) while we wait for court placement. Can I do anything to avoid or minimize the consequences of a court placement?


SPECIAL EDUCATION

RIGHTS AND RESPONSIBILITIES

Chapter 9

Information on Inter-agency Responsibility for

Related Services (AB 3632/882)

Introduction

Assembly Bill (AB) 3632/882, codified as California Government Code (Cal. Gov. Code) Secs. 7570-7588, is legislation that moves responsibility for providing certain related services from local education agencies to other state agencies, including California Children's Services (CCS), and the Departments of Mental Health (DMH), Social Services (DSS), and Rehabilitation (DR). Such services include occupational and physical therapy, nursing services during the time the child is in school or traveling between school and home, psychotherapy or other mental health services, and residential services for children classified as seriously emotionally disturbed. The local education agency (LEA) and the California Department of Education (CDE) retain the responsibility to ensure that these services are provided. The LEA is still responsible for actually providing these services in certain circumstances.

Although AB 3632/882 became effective July 1, 1986, the implementing regulations are not yet final. There is no real schedule for issuing final regulations, although more recent legislation (Assembly Bill 2726, 1996) required that final regulations be developed by June 30, 1997. This chapter covering AB 3632/882 is based on the law itself and the emergency regulations that came into effect on January 1, 1986. The regulations are set forth in Title 2, California Code of Regulations (Cal. Code Regs.) Sections 60000 through 60610. There is a dispute over whether the emergency regulations have lapsed and become invalid after June 30, 1997. However, since many school districts may still follow the emergency regulations for lack of any other regulatory guidance until final regulations are ultimately developed, we include some important citations to those emergency regulations in these materials. However, where these regulations are not otherwise consistent with AB 3632 or AB 2726, and where application of these regulations might result in inappropriate services or inadequate protections for pupils, parents and advocates should dispute the continued effect of the emergency regulations.

Abbreviations

Abbreviations and acronyms used in this chapter include:

AB Assembly Bill

CCS California Children's Services

CDE California Department of Education (state education agency)

CMH Community Mental Health

DSS Department of Social Services

IDEA Individuals with Disabilities in Education Act

IEP Individual Education Program

LEA Local Education Agency (local school district)

OT/PT Occupational Therapy/Physical Therapy

PL Public Law

1. What is Assembly Bill 3632/882 and why was such legislation necessary?

Assembly Bill (AB) 3632/882 is a law that requires a number of state agencies, such as the California State Departments of Education, Health Services, Social Services, and Rehabilitation to provide various services to children with disabilities. It requires that these agencies coordinate and share the resources (human and fiscal) necessary to provide such children with a free appropriate public education. This "inter-agency cooperation" legislation was needed because, over the years, it has been difficult for the various state agencies to coordinate their services in order to focus on students with disabilities.

2. Which students does AB 3632/882 affect?

AB 3632/882 affects all students with disabilities who (1) may be referred to state and local public agencies for their education, and (2) may need related services such as physical therapy, occupational therapy, mental health counseling, residential placement, a home health aide, and/or rehabilitation services.

3. When did this bill take effect?

AB 3632/882 took effect on July 1, 1986. However, its current implementing regulations are emergency regulations. Their ongoing validity has been questioned. The proposed final regulations are being developed and will be distributed throughout the state for public input. There is no current schedule for such distribution, however.

4. How is this bill implemented?

The emergency regulations were intended to establish a working relationship between school districts and non-educational agencies, such as CCS, State and County Mental Health, and state/local services departments. The final regulations should establish standards and criteria for referral and eligibility determinations of students who may need the applicable related services. There has actually been a great deal of debate between the various agencies at the state and local level as to the nature and degree of their responsibility to provide services to special education students. In many instances, this has resulted in gaps in the services children should be receiving. The state education agency (California Department of Education, CDE) and the local education agency (LEA) remain responsible for ensuring that students with disabilities receive appropriate educational services. See Questions 9 and 20. In the event of inter-agency disputes that result in a child not receiving services, parents and advocates should request that the LEA provide services pending resolution through the hearing or complaint process. See Chapter 6, Information on Due Process Hearings/Compliance Complaints.

5. What is the relationship between Public Law 94-142 (federal law) and AB 3632/882 (state law)?

Public Law (PL) 94-142 is the federal Individuals with Disabilities Education Act (IDEA), which Congress passed in 1975. AB 3632/882 is a state law. State law must be consistent with federal law. If there is any conflict between state and federal law, the federal law must be followed, rather than the state law, except where the state law would provide more services or procedural protections to the pupil. AB 3632/882 cannot reduce or narrow the rights of children with disabilities or their parents as they currently exist under PL 94-142.

6. Who is ultimately responsible for providing services under this bill?

Federal regulations under PL 94-142 specifically provide that the state education agency, which is CDE, is responsible for ensuring that programs administered by other public agencies, such as CCS or Community Mental Health (CMH), comply with PL 94-142. [34 Code of Federal Regulations (34 C.F.R.) Sec. 300.341.] Further, federal law requires that there be a single line of authority to the CDE so that failure to deliver services or violations of a child's rights are squarely the responsibility of one agency. [20 United States Code (20 U.S.C.) Sec. 1412(6); 34 C.F.R. Sec. 300.600.] Therefore, the CDE, through your LEA, is ultimately responsible for ensuring that services are provided, even if another agency, such as CCS or CMH, actually delivers the service. If another agency fails or refuses to provide the specified services, the LEA or CDE must do so. [20 U.S.C. Sec. 1412(a)(12)(B).]

7. Who is responsible for monitoring AB 3632/882?

AB 3632/882 states "the Superintendent of Public Instruction shall ensure this chapter is carried out through Monitoring and Supervision." Generally, however, it will be the responsibility of parents and advocates to identify problems through the complaint and due process hearing procedures.

8. Who is responsible for coordinating these related services once the IEP team writes them in an individualized education program (IEP)?

The LEA is responsible for coordinating occupational and physical therapy (OT/PT) and mental health services. When a child labeled as seriously emotionally disturbed is placed in out-of-home care, the local mental health department shall provide case management services. These services include:

(1) Locating an appropriate placement;

(2) Completing all the paper work required to place the child;

(3) Helping the family and student in the transition from home to placement and the subsequent return home;

(4) Facilitating the child's enrollment;

(5) Conducting quarterly face-to-face contacts with the student at the residential facility;

(6) Monitoring the student's progress; and

(7) Coordinating the six-month individualized education program (IEP) team meeting.

Although these services have been delegated to the local mental health department, the ultimate responsibility still rests with the LEA.

9. What services are school districts responsible for?

AB 3632/882 delegates responsibility for providing mental health and OT/PT services for special education students to CMH and CCS when consistent with their statutory obligations. Therefore, the LEA has the responsibility to provide or contract directly for all needed services, as specified in the IEP, that fall outside the scope of services available through CMH or CCS, or those that are for students who are not eligible for CMH or CCS services.

AB 3632/882 provides that the LEA is responsible for related services determined necessary by an IEP team when the child is not eligible for CCS services or when CCS deems the services are not "medically necessary." CMH need only provide psychotherapy or other mental health services as defined in their regulations. Therefore, services not covered by CMH regulations are still the responsibility of the LEA if they are necessary to the child receiving an appropriate education.

However, the emergency regulations as currently written have caused concern in this area. They appear to limit mental health and OT/PT services available under special education to only those services available through CMH or CCS. Further, it appears that only CMH or CCS personnel are considered qualified to do assessments. Therefore, the regulations appear to limit the LEA's responsibility for those services. It is hoped that the final regulations will address this problem and clarify LEA responsibility to serve students who are not eligible for, or who need services not available through, CCS or CMH.

Until final regulations are issued, however, the LEA's ultimate responsibility has been reaffirmed and clarified, at least with respect to CCS and OT/PT, as a result of a Program Advisory published by the CDE. To obtain a copy of this Program Advisory, contact the Special Education Division at CDE, or any CASE or PAI office. The subject of the Program Advisory is: OCCUPATIONAL THERAPY AND PHYSICAL THERAPY . Be sure to ask for the November 6, 1995 Program Advisory, Number SPB:95/96-02.

Despite the Program Advisory, you should be sure your child's IEP specifically reflects that whatever OT and/or PT services CCS is to provide are "educationally necessary" related services.

The position of the authors of this manual is that services listed in an IEP are, by definition, services related to the student's education, and that they should not be part of the IEP if they are not. However, to avoid the delays of a new IEP meeting and the potential for a change in opinion by the rest of the IEP team as to the need for OT and/or PT for educational reasons, it is recommended that the IEP reflect the fact that the team has determined the therapy is necessary to the student's education, even though the IEP team anticipates that CCS will provide the therapy under CCS' medical necessity standards.

With respect to mental health related services, see Question 12.

10. Under this bill, who advocates for a student who is a ward of the court or a student in foster care?

Federal and state law require that the public educational agency (school district, LEA) appoint a surrogate parent for a special education student when: (1) no parent can be identified; (2) the public agency, after reasonable efforts, cannot locate the parent; or (3) the child is a dependent or ward of the state. [34 C.F.R. Sec. 300.514(a); Cal. Gov. Code Sec. 7579.5(b).]

The surrogate parent serves as the student's parent and has the same educational rights guaranteed to parents under federal and state laws.

The surrogate parent may represent the child in matters relating to identification, assessment, instructional planning and development, educational placement, reviewing and revising the individualized education program, and in all other matters relating to the provision of a free and appropriate public education of the child. [Cal. Gov. Code Sec. 7579(c).]

The surrogate parent and the LEA that appoints the surrogate are held harmless by the State of California when acting in their official capacity except for acts or omissions which are found to be wanton, reckless, or malicious. [Cal. Gov. Code Sec. 7579.5(g).]

The surrogate parent must have no interest that conflicts with the interest of the child, and must have knowledge and skills that insure adequate representation of the child. In addition, the surrogate may not be an employee of a public agency which is involved in the education or care of the child. [34 C.F.R. Sec. 300.514(d), Cal. Gov. Code Sec. 7579(e).]

11. When the LEA appoints a surrogate parent, does it give preference to certain people in the appointment process?

Yes. State Assembly Bill 1399 requires that:

... when appointing a surrogate parent, the local educational agency shall, as a first preference, select a relative caretaker, foster parent, or court appointed special advocate, if any of these individuals exist and is willing and able to serve. [Cal. Gov. Code 7579.5(c).]

12. What are the eligibility requirements and specific services available from community mental heath?

AB 3632/882, as amended by AB 2726, sets out eligibility criteria for the referral of a pupil to CMH for mental health services. The criteria are as follows:

(1) The pupil has been assessed by the school district and determined to be eligible for special education and must be suspected of needing mental health services;

(2) The school district has obtained parental consent for the referral to CMH and for the release of information to CMH and for the observation of the pupil by mental health professionals in an educational setting;

(3) The pupil must have emotional or behavioral characteristics that:

(A) Cannot be solved with short-term counseling and that are not merely social maladjustment or temporary adjustment problems;

(B) These problems are significant, as judged by their intensity and frequency;

(C) These problems are observed by school personnel and educational and other settings;

(D) The child has sufficient intelligence to benefit from mental health services; and

(E) The district has provided counseling, guidance, and psychological services without success or such services are obviously inappropriate.

13. Is it only pupils who have already been identified as eligible for special education who can be referred to mental health for services?

No. If, based on the preliminary results of assessments by the school district, the school district assessment staff suspect that a pupil will ultimately be found eligible for special education when the assessment and initial IEP meeting process are over, the school district can start a referral to CMH if the pupil meets all the other criteria listed in Question 12. [Cal. Gov. Code Sec. 7576(d).] Initiating such a referral will save time in getting mental health services started for a student who obviously will qualify for special education.

14. What services does the county mental health agency provide to pupils under AB 3632?

The list of potential services from CMH is somewhat unclear at the present time. The emergency regulations, at Title 2 Cal. Code of Regulations Sec. 60020(a) defines these services as all those services listed in Title 9 Cal. Code of Regulations Sections 542 and 543. Those lists include:

(1) Day care intensive services which provide a multi-disciplinary treatment program of less than 24 hours per day as an alternative to hospitalization for patients who need active psychiatric treatment for acute mental, emotional, or behavioral disorders;

(2) Day care habilitative services which provide counseling and rehabilitation to maintain or restore personal independence at the best possible functional level for the patient with chronic psychiatric impairments;

(3) Vocational services which are designed to encourage and facilitate individual motivation and focus upon realistic and obtainable vocational goals; and

(4) Socialization services which provide life enrichment and social skill development for individuals who would otherwise remain withdrawn and isolated.

Also included are the following outpatient services:

(1) Sessions with significant persons in the life of the patient;

(2) Assessment;

(3) Individual therapy;

(4) Group therapy;

(5) Medication; and

(6) Crisis intervention.

Until the final regulations are developed, it is unclear what the final list of available psychotherapy and other mental health services available to pupils under AB 3632 will be.

15. My child may need a residential setting in order to be educated appropriately. Under AB 3632/882, how will this process work?

Special education students must be assessed in all areas related to their suspected disability, including social and emotional status. [California Education Code (Cal. Ed. Code) Sec. 56320(f).] With regard to whether a child may need a residential educational placement in order to receive an appropriate special education program, the LEA must refer a child who has been identified as Seriously Emotionally Disturbed to CMH for assessment of whether a child requires residential placement in order to benefit from education if any member of the IEP team, including the child's parent, requests that such assessments be performed. [Cal. Gov. Code Sec. 7572.5(a).] Before any assessment can be performed, CMH or the LEA must develop a written assessment plan and obtain written informed consent from the parent. [Cal. Gov. Code Sec. 7572(a); Cal. Ed. Code Sec. 56321.]

The AB 3632/882 procedure for obtaining residential placement applies only to children who are seriously emotionally disturbed. The provision of necessary residential care for all other children is the responsibility of the LEA. If your child is seriously emotionally disturbed and any member of the IEP team (including the parent) recommends residential placement based on relevant assessment data, the IEP team shall be expanded to include a representative of the CMH. If CMH has not completed an assessment prior to this time, the IEP team will probably postpone the IEP meeting until this assessment is completed. If the CMH representative is not initially present, the meeting shall adjourn and reconvene within 15 calendar days with the CMH representative in attendance. After reviewing all the alternatives, this expanded IEP team shall then determine whether or not the child requires residential care in order to benefit from educational services. CMH will be responsible for case management of any seriously emotionally disturbed child who is placed in out-of-home care by an IEP team. At least every six months, the full IEP team will review the case to determine whether or not the child still needs out-of-home placement. [Cal. Gov. Code Sec. 7572.5; 2 Cal. Code Regs. Secs. 60100, 60110, 60200.] If your child is not seriously emotionally disturbed, or CMH cannot provide services, but you can prove the child still needs residential care in order to benefit from instruction, the LEA is still fully responsible for these services.

16. How long does the county mental health agency have to process a referral and conduct the necessary assessments?

Absent the parent's consent to an extension of time, assessments must be completed and an IEP team meeting held to discuss the results within 50 days of receipt of the parent's written consent. [2 Cal. Code Regs. Sec. 60040(d); Cal. Ed. Code Sec. 56344.]

Whenever an assessment has been conducted by CMH, the recommendation must be reviewed and discussed with the parent and with appropriate members of the IEP team prior to the IEP team meeting. After discussing the proposed recommendation with the parent, if there is disagreement on the recommendation concerning a related service, the parent may require that the person who conducted the assessment attend the IEP meeting to discuss the recommendation. If CMH does not attend, the LEA must have a qualified person present to discuss the recommendations. The final recommendation of the CMH personnel shall be the recommendation of the IEP team members who are attending on behalf of the LEA. [Cal. Gov. Code Sec. 7572(d)(1).] Many parents and advocates believe this undermines the authority of the IEP team to decide on necessary services, possibly in violation of federal law. See Question 24.

If the parent obtains an independent assessment that relates to CMH services, CMH personnel must review it. Again, the recommendation of CMH personnel who reviewed the independent assessment shall be discussed with the parent and appropriate members of the IEP team prior to the IEP meeting. The parent can require that CMH personnel attend the IEP meeting. [Cal. Gov. Code Sec. 7572(d)(2).]

17. My child is temporarily placed in a psychiatric hospital that is located in another county and may need a residential treatment setting. Who is responsible for conducting a special education assessment and/or an assessment for mental health services?

Individuals with exceptional needs who are placed in a public hospital, state licensed children's hospital, psychiatric hospital, proprietary hospital or a health facility for medical purposes are the educational responsibility of the district, special education local plan area, or county office of education in which the hospital or facility is located. [Cal. Ed. Code Sec. 56167.] Therefore, the community mental health agency of the county in which the facility is located is responsible for conducting an AB 3632 service evaluation.

If your child is placed in a hospital (as described above), this section indicates that the LEA does not have to assess or re-evaluate your child until she returns to her home district. Unfortunately, this could result in delays or postponement of the assessment/re-evaluation process.

The position of the authors of this manual is that your local school district has responsibility for assessment during this temporary or short-term hospitalization. A temporary or short-term stay in a hospital should not preclude or delay assessment by your school. Contact your local district to request an assessment of your child and indicate that the stay in the hospital is temporary.

18. If my child needs residential treatment to benefit from education, must I make him a ward of the court? Do I have to pay for part of the cost of residential treatment?

It is a violation of federal law to require that your child be made a ward or dependent of the court if he needs residential care in order to benefit from educational services. Further, you cannot be required to pay for any part of the cost of residential treatment if your child has been placed pursuant to an IEP. [20 U.S.C. Sec. 1415(a)(4)(B); 34 C.F.R. Sec. 300.401.]

19. What is the role of the Department of Social Services in the AB 3632/882 process?

The Department of Social Services (DSS) is responsible for establishing the rates to be paid to residential facilities that accept seriously emotionally disturbed children who are placed pursuant to an IEP. [2 Cal. Code Regs. Sec. 60200(d).] The County Welfare Department will issue the actual payments upon receiving an authorization from the County Mental Health Department. DSS will then reimburse the County Welfare Department. Payments will only be made for children who are placed in facilities licensed by DSS. This restriction can cause problems if residential placement is agreed to but an appropriate placement in a DSS licensed facility is not available. Federal law has been interpreted to require that IEPs be implemented without delay. [Comments to 34 C.F.R. Sec. 300.342.] If an appropriate residential facility is certified as a non-public school by the CDE but not licensed by DSS, you should request that the LEA pay for the cost of the placement. If this does not resolve the dispute, you should file a complaint pursuant to the process outlined in Cal. Gov. Code Sec. 7585. See Question 32.

20. What are the eligibility requirements and specific services available from California Children's Services?

AB 3632/882 [Cal. Gov. Code Sec. 7575(a)(1)] states that California Children's Services (CCS) shall be responsible for the provision of medically necessary occupational therapy and physical therapy, as specified by Section 123800 and following of the Health and Safety Code, by reason of medical diagnosis and when contained in the child's IEP.

AB 3632/882 does not change the eligibility criteria or services available from CCS. Section 123825 of the Health & Safety Code states that CCS shall provide "necessary medical services" to "physically handicapped children." Section 123830 further provides that the director of CCS shall establish the conditions which are included in the definition of physically handicapped.

CCS regulations define "medical necessity" as follows: "'Medically necessary benefits' are those services, equipment, tests, and drugs which are required to meet the medical needs of the client's CCS-eligible medical condition as prescribed, ordered, or requested by a CCS physician and which are approved within the scope of benefits provided by the CCS program." [Title 22 Cal. Code of Regulations Sec. 41518(a).] Occupational and physical therapy are within the scope of benefits of the CCS program. [Cal. Health and Safety Code Sec. 123840(e)(f).]

CCS regulations list a great number of eligible conditions. Those that are relevant to the potential need for occupational and/or physical therapy may include:

(1) Orthopedic conditions due to infection, injury, or congenital malformation;

(2) Conditions requiring plastic reconstruction, such as cleft lip, orofacial anomalies and burns;

(3) Congenital anomalies causing disabling or disfiguring handicaps;

(4) Conditions of the nervous system such as inflammatory disease of the central nervous system which produces motor disability such as paralysis, ataxia, etc., and neuromuscular disease such as cerebral palsy, muscular dystrophy;

(5) Conditions resulting from accidents or poisoning which may be potentially handicapping, such as complicated fractures, brain and spinal cord injuries, stricture of the esophagus;

(6) Other disabling or disfiguring conditions which are handicapping.

[Title 22 Cal. Code of Regulations Sec. 41800.]

However, the AB 3632 emergency regulations define "medically necessary therapy" as therapy which: "has as its purpose the improvement or amelioration of a neuromuscular or musculoskeletal condition and shall include standard habilitation and rehabilitation procedures. This therapy shall not include interventions which can be carried out by educational personnel." [Title 2 Cal. Code of Regulations Sec. 60300(h).]

The differences between CCS' "medically necessary benefits" definition under its general program regulations and CCS' "medically necessary therapy" definition under the AB 3632 emergency regulations may account for some of the difficulty pupils have in receiving occupational and physical therapy from CCS under special education in California. Whether CCS should provide "medically necessary" OT/PT is determined by the CCS Medical Therapy Conference Team, which includes the child, parent or guardian, a CCS physician, and a therapist.

This definition is different from and narrower than the federal definition of related services. Federal law states that OT/PT shall be provided when required to help a student "benefit from special education." OT is defined as therapy designed to "improve ability to perform tasks for independent functioning" and "to prevent further impairment." [34 C.F.R. 300.13.] While such educationally related services may not actually effect a total or partial cure, or "improve or ameliorate the physical condition" of the student, as required by the emergency regulations, they must still be available as required by federal law to help a student benefit from special education. Again, federal law must be followed whenever there is a conflict between federal and state law.

If these therapy services are needed in order for a child to benefit from special education but they are not within the scope of available CCS services or are needed for a non-CCS-eligible child to benefit from special education or are denied by CCS for any other reason, the important point to remember is that your LEA is ultimately responsible for providing those services.

21. If my child is not receiving OT/PT services, but needs them, who makes the initial referral and does the assessment?

A parent, teacher, or another service provider may refer a child to the LEA for special education and related services. Students must be assessed in all areas related to their suspected disability. AB 3632/882 requires that "qualified medical personnel" conduct OT/PT assessments. Under the emergency regulations, this means a licensed or registered physical or occupational therapist after a referral from a physician. [2 Cal. Code Regs. Sec. 60300(g).] The LEA may refer the student to CCS for an initial assessment. Before any assessment can be performed, CCS or the LEA must develop a written assessment plan and obtain written informed consent from the parent.

If CCS does not find the student eligible or in need of "medically necessary" services under AB 3632/882, the LEA must assess the student to determine if the student needs these services in order to benefit from special education. In addition, the parent may obtain an independent assessment which must be considered by the IEP team. The LEA must pay for the independent assessment unless the LEA takes the parents to fair hearing and demonstrates that its assessment was appropriate. If problems arise during the assessment process, such as consent and time-line violations, parents can file a compliance complaint with the CDE if informal resolution is not possible. See Chapter 2, Information on Assessments/Evaluations, and Chapter 6, Information on Due Process Hearings/Compliance Complaints .

22. Can a private physician write a prescription for OT/PT services? Will CCS accept this prescription? How will this process work?

Yes. A parent can obtain a private physician's prescription. CCS will have the opportunity to review the prescription to determine whether the student "needs medically necessary occupational or physical therapy." If CCS finds that the student is not eligible for CCS services or does not require "medically necessary" services, the law requires that the LEA provide services the IEP team determines to be necessary for the student to benefit from special education. If there is a disagreement between your private physician's recommendation and CCS or the LEA, you can use your physician's prescription as evidence in a fair hearing if that becomes necessary.

AB 3632/882, California Government Code Section 7575(b), requires that all physicians who recommend OT/PT services complete a written report. The written report shall include the following:

(1) The diagnosed neuromuscular, musculoskeletal, or physical handicapping condition prompting the referral.

(2) The referring physician's treatment goals and objectives.

(3) The basis for determining the recommended treatment goals and objectives, including how these will ameliorate or improve the student's condition.

(4) The relationship of the medical disability to the student's need for special education and related services.

AB 3632/882 does not require a report from a physical or occupational therapist documenting the child's need for therapy. However, such a report can be helpful in the IEP process and can be submitted as evidence at a due process hearing should one be necessary.

23. What services is Medi-Cal responsible for under AB 3632/882?

Medi-Cal can be responsible for providing life-supporting medical services through a home health agency while the child is in school or traveling between school and home. The child must be otherwise eligible for one of the Medi-Cal programs through which medical nursing or health aid services are normally provided in the home. [Cal. Gov. Code Sec. 7575(e); 2 Cal. Code Regs. Sec. 60400.] Children who are not Medi-Cal eligible may still be entitled to receive nursing services in the school provided by the LEA if the services are necessary for the child to attend school and receive an appropriate educational program in the least restrictive environment. [See 5 Cal. Code Regs. Sec. 3051.12; Cal. Ed. Code Sec. 49423.5; Hawaii Department of Education v. Katherine D. (9th Cir., 1983) 727 F.2d 809.]

24. What happens if my child does not meet eligibility requirements of California Children's Services (CCS), Community Mental Health (CMH) or Medi-Cal but still needs the services?

CDE is responsible for ensuring that services are provided as required by federal and state law. Federal law provides that if your child needs services, and those services are contained in his IEP, the services must be provided. The LEA can secure services through CCS, CMH, by employing personnel, or by contracting for services. If services are not in the student's IEP, and CCS or CMH state that your child is not eligible, then you must go to the LEA for assessment and provision of any services your child needs in order to benefit from special education. If there is a problem, you can obtain an outside independent assessment, request a fair hearing, or file a compliance complaint, depending on the situation. See Chapter 4, Information on IEP Process, Chapter 2, Information on Assessments/Evaluations, and Chapter 6, Information on Due Process Hearings/Compliance Complaints.

25. How does AB 3632/882 affect the IEP Process? Will CCS or CMH representatives attend the IEP meeting?

Section 7572 of AB 3632/882 sets forth the process which should be followed when OT, PT, or mental health services are to be considered for inclusion in the IEP. First, the LEA shall invite CCS or CMH to attend the IEP meeting if CCS or CMH might be responsible for providing the service. They can either participate by attending the meeting or by sending a written recommendation and participating through a conference call. If CCS or CMH is not available to participate at the IEP meeting, the LEA shall ensure that a qualified substitute is available to explain and interpret the evaluation to the student's parent or guardian.

A unique aspect of this law is contained in Sec. 7572(d)(1), which provides that when an assessment for OT, PT or mental health services has been completed, the person who conducted the assessment shall review and discuss the recommendation for services with the parent and appropriate members of the IEP team before the IEP meeting. If you disagree with the recommendation, you can require the person who conducted the assessment to attend the IEP meeting, and that person must attend.

The final decision of CCS or CMH assessment personnel is binding on the IEP members who attend on behalf of the LEA. Many parents and advocates think that this provision undermines the power of the IEP team to decide on appropriate and necessary services. The LEA is bound to go along with the assessment personnel's recommendation, even if they disagree with the recommendation or instead agree with an independent assessment. The emergency regulations further complicate this process by providing that only CCS or CMH personnel are "qualified" to conduct assessments. This would mean that CCS and CMH recommendations would be binding on the LEA. Since CCS and CMH eligibility criteria may be more restrictive than federal special education law, this has caused concern among parents, teachers, therapists, and advocates. Parents and advocates should still insist that the LEA independently consider whether or not the requested services are educationally necessary. As a practical matter, it may be necessary to pursue a due process hearing in order to obtain a resolution of the issue.

26. Should services be written in the IEP?

Current law requires that all needed services (including frequency and duration of related services) be written in the IEP. See Chapter 5, Information on Related Services, for more information on how to write services into the IEP. Emergency regulations provide that the CCS treatment plan may be used to meet this requirement and simply attached to the IEP. The emergency regulations also provide that the starting date, frequency and duration of all mental health services provided by CMH must be included in the IEP as well.

27. Can CCS or CMH refuse to write the frequency and duration of related services in the IEP?

No. CMH and CCS are bound by all federal and state special education laws under AB 3632/882. Therefore, the agencies must include frequency and duration of services in the IEP if related services are necessary for the student to benefit from special education instruction. [34 C.F.R. 300.346; 5 Cal. Code Regs. Sec. 3051(a)(2).]

Specifically writing these related services, including frequency and duration, in the IEP may be a critical protection for those students who are wards of the court and are placed in an out-of-county residential facility by DSS, those students placed in a residential facility under AB 3632/882, and those students receiving occupational or physical therapy from CCS. This legal protection ensures that special education and related services to be provided for a student are based upon the unique needs of that student and not on the availability of services from an agency or residential facility.

28. Can CCS or CMH modify or change a service written in an IEP without calling for an IEP meeting?

No. Federal law requires that the public agency (including the LEA, CCS, and CMH) must give reasonable notice before it proposes to initiate or change the identification, evaluation, or educational placement of the child or the provision of a free appropriate public education to the child (which includes related services). [20 U.S.C. Sec. 1415(b)(3).]

Any change is then subject to the IEP process and due process procedures if necessary. During the pendency of any due process procedure, the student must continue to receive the services that were currently being provided. [20 U.S.C. Sec. 1415(e)(3); 34 C.F.R. Sec. 300-513; Cal. Ed. Code Sec. 56505(d).]

29. Does this law affect state assessment and IEP time lines?

No. Section 7572(a) specifically states that all assessments required or conducted under AB 3632/822 shall comply with all special education assessment procedures. This includes assessment and IEP time lines. Again, however, the emergency regulations seem to compromise this legal requirement. Title 2, California Code of Regulations, Section 60320(a) states:

(3) CCS shall notify the LEA or the State Special School if the evaluations cannot be completed in time for the individualized education program team meeting. This notice shall include the date when the evaluations are expected to be completed and any request for extension of the 50-day time line in Section 56344 of the Education Code.

(4) The individualized education program team administrator or designee shall seek the parent's written agreement to the time extension.

A parent does not have to agree to an extension of the assessment time lines. However, the emergency regulations are unclear as to whether parental consent to the time-line extension is required before the extension can be granted. Again, state laws, including AB 3632/882, require adherence to the time-line requirements and do not provide for any extensions. These laws should control. Disputes in this area can be resolved through the compliance complaint process. See Chapter 6, Information on Due Process Hearings/Compliance Complaints.

30. If I get an independent assessment for OT/PT or mental health services, how will it be considered?

An independent assessment for provision of mental health or OT/PT services must be reviewed by either the designated mental health professional in the case of mental health services or the designated qualified medical personnel in the case of OT/PT. The recommendation of the person who reviewed the independent assessment must then be discussed with the appropriate IEP team members and the parent prior to the IEP meeting. If the parent requests the presence of the person who reviewed the independent assessment at the IEP meeting, that person must attend the meeting to discuss his recommendation. Following this review and discussion, the recommendation of the person who reviews the independent assessment shall be the recommendation of the team members who are attending on behalf of the LEA. [Cal. Gov. Code Sec. 7575(d)(2).]

31. How does AB 3632/882 affect due process hearing rights?

AB 3632/882 does not change federal due process hearing rights. If the dispute concerns several services, provided by more than one agency, then one hearing shall be conducted to address all issues. [Cal. Gov. Code Sec. 7586; 2 Cal. Code Regs. Sec. 60550.]

32. What can I do if the LEA and CCS or CMH cannot agree on which agency is responsible to provide specific services already included in my child's IEP?

If any agency responsible for providing related services under AB 3632/882 fails to comply with the procedures established under state or federal law, you can file a compliance complaint using the procedures described in Chapter 6, Information on Due Process Hearings/Compliance Complaints.

The inter-agency dispute resolution procedures apply if your child is not receiving OT/PT or mental health services as specified in the IEP. In that situation, you can file a notice of failure to provide related services with the Superintendent of Public Instruction or the Secretary of Health and Welfare. [Cal. Gov. Code Sec. 7585(a).] This procedure is a way for the agencies involved to decide who will provide the service as specified in the IEP. It is not intended to be used by parents if there is a dispute about the service itself.

Send your written complaint to:

Secretary of Health & Welfare Superintendent of Public Instruction
1600 Ninth Street, 4th Floor 721 Capitol Mall, Room 524
Sacramento, CA 95814 Sacramento, CA 95814

Before reviewing your complaint, the agencies involved will want to see a copy of your child's IEP. Send a copy of the IEP with your complaint.

The Superintendent and the Secretary shall meet to resolve the issue within 15 calendar days of receipt of the notification. A written copy of the meeting resolution shall be mailed to the parent, the LEA, and the affected departments, within 10 days of the meeting. [Cal. Gov. Code Sec. 7585(b).]

If the issue cannot be resolved within 15 days to the satisfaction of the departments involved, it can be appealed to the Office of Administrative Hearings. The Office of Administrative Hearings shall review the issue and submit findings within 30 days of receipt of the case. This decision is binding on all parties to the dispute. [Cal. Gov. Code Secs. 7585(c),(d),(e).]

When you file a complaint pursuant to Section 7585(a), the State Superintendent of Public Instruction must ensure that your child receives the service pending resolution of the dispute. [Cal. Gov. Code Sec. 7585(f); 2 Cal. Code Regs. Secs. 60600, 60610.]

33. CMH and the LEA have told me that my child will be on a waiting list for services. They say that services may be delayed because my child's emotional disturbance is not as acute as others'. Can they do this?

No. Under federal law all services specified in a student's IEP must be provided. School districts and other agencies cannot maintain waiting lists for services. Advocates for children with disabilities challenged the existence of waiting lists for mental health assessments and services in Butterfield v. Honig. The court-approved consent decree in that case prohibits waiting lists.

If mental health services are specified in your child's IEP, and CMH refuses to provide the services, state and federal law require that the LEA provide the services. Disputes between CMH and the LEA regarding responsibility for providing the service will be resolved through the procedures specified in Government Code Sec. 7585. See Question 32. [Cal. Gov. Code 7585.]

It also is not permissible to delay providing services based on the acuteness of the student's disabilities. Although when DMH provides services under the Short-Doyle program, it may make decisions to delay services based on the acuteness of the disability, such a delay is not legal under AB 3632-882. All children whose IEPs specify that they are to receive mental health services are entitled to receive those services without delay under AB 3632/882.

34. I believe my child needs residential placement, but the AB 3632 process seems too slow. I heard that a quicker response is available through a court-ordered placement under juvenile court or mental health laws. Will a court-ordered placement differ in any substantial way from an AB 3632 placement?

The placement may be identical -- but the court, not you, will make the decision about where to place your child. Your child will become a ward of the court. As part of the dependency process, you may lose your parental rights for the duration of the placement. The court, at its discretion, may allow you to retain educational rights so that you may participate in the IEP at the residential site if your child is in special education.

If your child is placed in residential treatment through AB 3632, all student and parental rights and protections guaranteed by law will be available to you, and no placement or services can be provided to your child without your approval and written consent.

Responsibility for implementing the IEP of a court-placed child is with the LEA where the child is placed. The responsibility for an AB 3632-placed child is with the LEA and CMH that made the placement.

There is a critical difference in the financial responsibility for the cost of the placement. A placement under AB 3632 is at no cost to the parent. A court placement is at the cost of the court, but the court must seek reimbursement from the parents in the form of a support order based upon the court's determination of the parents' ability to pay. This will result in a substantial financial burden to any parent, unless the family income is minimal.

A court placement has serious disadvantages to a parent when compared to an AB 3632 placement. Therefore, you should not seek court intervention unless absolutely necessary to avoid an immediate crisis.

35. My child's case is already pending before the court, and she is temporarily placed in juvenile hall (or a children's service or mental health facility) while we wait for court placement. Can I do anything to avoid or minimize the consequences of a court placement?

You may be able to convince the court to defer placement pending the AB 3632 process. Point out to the court that an AB 3632 placement will not only be in your interest, but will be in the court's interest as well -- enabling the court to avoid financial and legal responsibility for the child. You should tell the court that court placement will preclude any further AB 3632 placement procedure until the court placement is terminated. If you take this approach with the court, it is helpful to have already made the appropriate referral for residential placement to the LEA and CMH.

Since your child is currently involved in the court system, this argument is best made by a private attorney or public defender who is knowledgeable about the AB 3632 process or who has help from a special education advocate. If the court insists on placing the child, you can at least try to convince the court to allow you to retain educational rights. In this way, you can continue to participate in the educational planning for your child.


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