State of the Law Regarding Educationally Related Mental Health Services in California
Governor's Triggering ActionsOn October 8, 2010, the Governor approved the 2010-11 State Budget Act, and utilized his veto to eliminate $133 million from the budget. The Governor used his veto to eliminate a $123 million appropriation for educationally related mental health services known as AB 3632 to close a $19.1 billion deficit.
The CDE qickly condemned the Governor's action, yet the State Superintendent of Public Instruction noted that "the Governor's veto does not override federal law," and California local educational agencies (LEA) must still implement individual education programs (IEP) for eligible students with disabilities including, where appropriate, in a manner sufficient to address mental health-related needs.
History of AB 3632In 1984, the California legislature passed AB 3632, adding Chapter 26.5 to the Government Code (Gov. Code ? 7570 et seq.). AB 3632 divided responsibility for the delivery of mental health services to special education students between the Superintendent of Public Instruction and the Secretary of Health and Human Services. Under Chapter 26.5, the county mental health agency is responsible for the provision of mental health services "to the student if required by the individualized education program" of the student. (Gov. Code ?7576(a).)
As defined by the Individuals with Disabilities Education Act and AB 3632, these services include: individual/group therapy, medication monitoring, day treatment, case management, transportation, and residential placement. Under AB 3632, a school district, an IEP team, or a parent may initiate a referral to a county mental health agency. DMH then conducts a mental health assessment and implements all but educational costs of a residential treatment.
Pending AB 3632 Litigation MattersThere are currently three (3) known AB 3632-related litigation matters pending before California courts. Two of these cases involve challenges to the elimination of AB 3632 funding; one is brought by CSBA and various school districts and seeks a judicial declaration in State court that the Governor's veto is unconstitutional under California law.
The other challenge to the elimination of AB 3632 funding is brought by a class of students who assert in federal court that they are irreparably harmed and that their right to receive a FAPE is frustrated by the Governor's veto. The student plaintiffs seek a court order requiring LEAs to take over all responsibilities mandated by AB 3632 formerly borne by county mental health agencies or requiring an immediate alternative solution for carrying out the mandates of AB 3632 without the involvement of county mental health agencies. The final AB 3632-related litigation matter is brought in state court by numerous counties declaratory relief.
INDIVIDUAL DISCUSSION OF PENDING AB 3632 LITIGATION MATTERS - First Case:A.C. et al. v. Schwarzenegger et al.
United States District Court for the Central District of California
Case No. 2:10-cv-07956-GW ("First Case")
First Case is pending in federal court and was initiated on October 21, 2010 by a coalition consisting of Public Counsel, Disability Rights California, Gibson Dunn & Crutcher, and Mental Health Advocacy Services, Inc., with the filing of a statewide class action lawsuit in the United States District Court for the Central District of California naming the Governor and various state and local defendants in connection with the discontinuation of AB 3632 funding. The class in First Case seeks to preserve AB 3632 services for more than 20,000 Californians.
First Case alleges that "care and treatment has been disrupted, delayed and denied" because of the Governor's veto suspending services. Further, that the class will be irreparably harmed and that their right to receive a FAPE is frustrated.
Second Pending AB 3632 Matter:County of Sacramento et al. v. State of California et al. Superior Court of California, County of Sacramento Case No. 34-2010-00090983 ("Second Case")
Second Case was brought in state Superior Court by twenty-three counties ("County Plaintiffs") seeking a judicial declaration that the legislature deleted funding for county AB 3632 mandate-related obligations and that counties are legally discharged of all obligations required by the AB 3632 mandate pursuant to subdivision (c) of section 17612 of the Government Code. The State, State agencies, and State officials in their official capacity are the only defendants in Second Case ("State Defendants"). State Defendants are not real parties of interest with respect to Second Case because State Defendants do not have any interest in the outcome of Second Case. County Plaintiffs moved for judgment asserting entitlement to the above-discussed declaratory relief. An LEA then filed a complaint in intervention.
Other Sections of This Guide1. Discussion of status and impact of the third and final pending AB 3632 matter, California School Boards Assn. et al. v. Commission on State Mandates et al.
2. The Laws Relevant to Third Case
3. The Commission on State Mandates and
4. FINAL RECOMMENDATIONS TO THE XYZ USD with suggestions for future action and possible intervention in Second Case.