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Official Memorandum Issued August 2, 2004

Letter Head: Jack O'Connell, State Superintendent of Public Instruction, Phone number 916-319-0800

Date: August 2, 2004

Dear Special Education Local Plan Areas, County Offices of Education, and Local Education Agencies:

Ensuring the Continuous Delivery of Mental Health Services to Students With Disabilities

On July 1 the Superior Court of California granted the County of San Diego’s motion for relief of its responsibility to provide mental health services to students with disabilities (also knows as "AB 3632 services"). In its ruling the Superior Court noted that the statewide budget appropriation of $1,000 for each of the last two fiscal years does not meet the State’s constitutional obligation to reimburse counties for services that the state is ultimately mandated to provide.

The Superior Court asserted that "The State is prohibited from imposing unfunded mandates on local entities. shifting [sic] its financial responsibility for carrying out governmental functions to local agencies, which are ill equipped to assume increased financial responsibilities because of the taxing and spending limitations that Articles XIII A and B impose."

The court ruled that "given the Constitutional and statutory prohibition against the State imposing unfunded mandates on local entities, specifically the requirement that mental health services be provided to students with disabilities…the plaintiff counties are not required to provide further 3632 or AB 2726 services, absent adequate, good faith funding from the State."

In light of this ruling, I am reminding all Special Education Local Plan Areas, County Offices of Education, and Local Education Agencies (LEAs) of their responsibility to provide mental health services to students with disabilities as required by Government Code sections 7570 et. seq. In particular, Government Code Section 7573 states that "The Superintendent of Public Instruction shall ensure that local education agencies provide special education and those related services and designated instruction and services contained in a child’s individualized education program that are necessary for the child to benefit educationally from his or her instructional program."

Concerning reimbursement for services by noneducational public agencies—in this case, county mental health agencies—the Individuals with Disabilities Education Act (IDEA), Section 300.142 stipulates that "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) shall provide or pay for these services to the child in a timely manner."

IDEA further states that "The LEA or State agency may then claim reimbursement for the services from the noneducational public agency that failed to provide or pay for these services and that agency shall reimburse the LEA or State agency in accordance with the terms of the interagency agreement…."

As a result of the July 1 Superior Court ruling, California’s educators must keep in mind the federal and state laws that make LEAs, rather than county mental health agencies, the providers of first resort. During this time of financial constraints and budget crises, LEAs are still ultimately responsible for maintaining continuity in the delivery of mental health services to California’s children.

If you have further questions regarding this subject, please contact James Bellotti, Education Administrator I, Special Education Division, at 916-323-6711 or by e-mail at jbellott@cde.ca.gov. [Note, the preceding contact information is no longer valid and has been replaced by Stacey Wedin, Education Programs Consultant, Special Education Division, by phone at 916-327-0844 or by e-mail at swedin@cde.ca.gov.]

Sincerely,



Alice D. Parker, Ed.D.
Assistant Superintendent
Director, Special Education

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