September 21, 2012
ASSEMBLY BILL 114: DAY TREATMENT
Assembly Bill 114 made significant changes to Chapter 26.5 of the California Government Code (GC) regarding the provision of mental health services to students with disabilities. As a result of AB 114, local educational agencies (LEAs) are responsible for ensuring the provision of related services, including some services previously provided by county mental health agencies under Chapter 26.5 of the GC. As LEAs implement this transition, and as a result of changes in state statute stemming from AB 114, the Individuals with Disabilities Education Act (IDEA) serves as the statutory framework for the provision of related services.
This document is intended to assist LEAs in facilitating the transition of certain services formerly provided by county mental health agencies under state law prior to AB 114, to providing services authorized by the IDEA and complying with the requirements therein. To the extent that service provision requirements under the IDEA differ from those formerly specified in Chapter 26.5 of the GC prior to AB 114, this document is meant to assist in making that distinction. However, it must be emphasized that a blanket restriction on any particular service would be contradictory to the IDEA. The individualized education program (IEP) team should develop the IEP based on the child’s unique needs and include supportive services that are necessary to assist the child to benefit from special education. Therefore, the IEP team decision about a specific child’s eligibility for services under the IDEA must remain the most critical factor.
The changes to Chapter 26.5 of the GC, as outlined in AB 114, resulted in the removal of statutory authority for many of the implementing regulations found in Division 9 of Title 2 of the California Code of Regulations (CCR). "Day Treatment" was a service previously provided by county mental health agencies and authorized by Section 60020(i) of Division 9 of Title 2 of the CCR, prior to AB 114:
2 CCR §60020(i):
(i) "Mental health services” means mental health assessments and the following services when delineated on an IEP in accordance with Section 7572(d) of the Government Code: psychotherapy as defined in Section 2903 of the Business and Professions Code provided to the pupil individually or in a group, collateral services, medication monitoring, intensive day treatment, day rehabilitation, and case management (emphasis added). These services shall be provided directly or by contract at the discretion of the community mental health service of the county of origin.
As LEAs assume responsibility for the provision of related services, many questions have been raised about LEAs’ responsibility for including day treatment in the array of services offered to students in special education.
What is Day Treatment?
Mental health plans (MHPs), under Medi-Cal, may offer both Day Rehabilitation programs and Day Treatment Intensive programs. A student in special education may have been served by these programs prior to AB 114 and under Chapter 26.5 of the GC if it was determined necessary, by the IEP team, for the student’s educational benefit. Additionally, students may continue to be served by these programs if indicated on the IEP.
9 CCR §1810.212:
“Day Rehabilitation” means a structured program of rehabilitation and therapy to improve, maintain or restore personal independence and functioning, consistent with requirements for learning and development, which provides services to a distinct group of individuals. Services are available at least three hours and less than 24 hours each day the program is open. Service activities may include, but are not limited to, assessment, plan development, therapy, rehabilitation and collateral.
9 CCR §1810.213:
“Day Treatment Intensive” means a structured, multi-disciplinary program of therapy which may be an alternative to hospitalization, avoid placement in a more restrictive setting, or maintain the individual in a community setting, which provides services to a distinct group of individuals. Services are available at least three hours and less than 24 hours each day the program is open. Service activities may include, but are not limited to, assessment, plan development, therapy, rehabilitation and collateral.
Under Medi-Cal regulations, Day Treatment programs have specific contact requirements, site requirements, staffing requirements, and requirements regarding minimum service components that must be included in the program. These requirements are specified in Sections 1840.328, 1840.330, 1840.350, and 1840.352 of Title 9 of the CCR and in the contract between the California Department of Mental Health (DMH) and MHPs.
Per the contract between DMH and MHPs, Day Rehabilitation programs include the following service components:
Day Treatment Intensive programs include the following service components:
On occasion, Day Treatment programs are provided in the school setting. When this occurs, mental health needs are addressed in conjunction with academic needs. For more information on Medi-Cal Day Treatment programs, you may visit the DHCS Web site at: http://www.dhcs.ca.gov/services/mh/Pages/SMART-Medi-Cal_Day-Treatment-FAQs.aspx .
LEA Requirements under the IDEA
The definition of “related services” found in Section 300.34(a) of Part 34 of the Code of Federal Regulations (CFR) and the list of related services found in Section 300.34(c) of the CFR do not mention Day Treatment. However, the list of related services is not exhaustive and should encompass those supportive services that are necessary to assist a child to benefit from special education, as determined by the IEP team. The IEP team, based on the results of a quality assessment, should consider the unique needs of the student and the various options for meeting those needs appropriately.
A LEA may choose to offer Day Treatment programs, as defined by Medi-Cal regulations (above), by contracting with a certified Day Treatment provider and/or the MHP to provide those services. If contracting for services, the LEA must ensure that the provider meets the appropriate certification requirements for providing related services (please reference the Nonpublic Agency Certification memorandum on the California Department of Education AB 114 Web page at http://www.cde.ca.gov/sp/se/ac/npacertltr.asp). If a LEA intends to establish a Day Treatment program and access Medi-Cal reimbursement for Day Treatment services, the program must comply with all Medi-Cal requirements and be certified as a Day Treatment program by the State of California and/or MHP. Any LEA planning to develop a certified, Medi-Cal compliant, Day Treatment program should become familiar with the extensive requirements associated with seeking certification and operating a Day Treatment program under Medi-Cal, in order to reasonably determine feasibility.
Alternatively, a LEA may choose to incorporate many elements of a Day Treatment program, as described above, into LEA administered programs, such as Special Day classes (EC §56364.2). This may involve hiring clinical mental health personnel to work in the classroom in order to mirror some of the staffing requirements and treatment modalities for Day Treatment programs under Medi-Cal. LEAs may consider all options for developing school based programs that offer appropriate levels of support for the emotional and behavioral needs of their students.
If you have any questions regarding this subject, please contact the California Department of Education, Special Education Division, Policy and Program Services unit by phone at 916-323-2409.
Original signed by Fred Balcom. Hard copy of the signed document is available by contacting the Special Education Division's Director's Office at 916-445-4602.Fred Balcom, Director
1 "Therapeutic milieu" means a therapeutic program structured by process groups and skill building groups that has activities performed by identified staff; takes place for the continuous scheduled hours of program operation; includes staff and activities that teach, model, and reinforce constructive interactions; and includes peer and staff feedback to clients on strategies for symptom reduction, increasing adaptive behaviors, and reducing subjective distress.