BILL ANALYSIS Ó SB 1113 Page 1 Date of Hearing: June 21, 2016 ASSEMBLY COMMITTEE ON HEALTH Jim Wood, Chair SB 1113 (Beall) - As Amended June 8, 2016 AS PROPOSED TO BE AMENDED SENATE VOTE: 39-0 SUBJECT: Pupil health: mental health. SUMMARY: Permits local educational agencies (LEAs) and county mental health plans (MHP) to enter into partnerships for the provision of Early and Periodic Screening, Diagnosis, and Treatment (EPSDT) program mental health services, as specified. Specifically, this bill: 1)Permits a county or a qualified provider operating as part of the county MHP network and a LEA to enter into a partnership that includes all of the following: a) An agreement between the county MHP or the qualified provider and the LEA that establishes a Medi-Cal mental health provider that is county operated or county contracted for the provision of mental health services to pupils of the LEA. Allows the agreement to include provisions for the delivery of campus-based mental health services through qualified providers or qualified professionals to provide on-campus support to identify SB 1113 Page 2 pupils not in special education who a teacher believes may require those services and, with parental consent, to provide mental health services to those pupils; b) The county MHP or the qualified provider and the LEA use designated governmental funds for eligible Medi-Cal EPSDT program services provided to students enrolled in Medi-Cal, for mental health service costs for non-Medi-Cal enrolled students in special education with individualized education programs (IEPs), and for students not part of special education if the services are provided by a provider pursuant to the agreement described in a) above; c) The LEA, with permission of the pupil's parent, provides the county MHP provider with the information of the health insurance carrier for each pupil; d) The agreement between the county MHP or the qualified provider and the LEA addresses how to cover the costs of mental health provider services not covered by governmental funds, in the event that mental health service costs exceed the agreed-upon funding outlined in the partnership agreement between the county MHP or the qualified provider and the LEA following a yearend cost reconciliation process, and in the event that the LEA does not elect to provide the services through other means; e) The agreement between the county MHP, or the qualified provider, and the LEA fulfills reporting requirements under state and federal Individuals with Disabilities Education Act (IDEA) and Medi-Cal EPSDT provisions, and measures the effect of the mental health intervention and how that intervention meets the goals in a pupil's IEP or relevant plan for non-IEP pupils; f) The county MHP or the qualified provider and the LEA participate in the performance outcome system established by the California Department of Health Care Services (DHCS) to measure results of services provided under the partnership agreement between the county MHP or the SB 1113 Page 3 qualified provider and the LEA; and, g) A plan to establish a partnership in at least one school within the LEA in the first year and to expand the partnership to three additional schools within three years. 2)Defines LEA as a school district, a county office of education, a charter school, or a special education local plan area. 3)States the intent of the Legislature that a health care service plan or a health insurer be authorized to participate in the partnerships described in this part if there is mutual agreement between a school district and a plan or insurer. 4)Establishes the County and Local Educational Agency Partnership Fund (Partnership Fund) in the State Treasury and makes moneys in the fund available, upon appropriation by the Legislature, to the California Department of Education (CDE) for the purpose of funding the partnerships described in this part. Requires the CDE to fund partnerships through a competitive grant program. 5)Requires the Superintendent of Public Instruction, beginning in the 2017-18 fiscal year (FY) and each fiscal year thereafter, to the extent there is an appropriation in the annual Budget Act or another measure, to allocate funds from the Partnership Fund. SB 1113 Page 4 6)Authorizes other funds identified and appropriated by the Legislature to be deposited into the Partnership Fund and used for the purposes purpose of funding the partnerships between MHPs and LEAs, as provided for in this bill. 7)Requires that funds made available in the annual Budget Act for the purpose of providing educationally related mental health services, including out-of-home residential services for emotionally disturbed pupils, required by an IEP, to be used only for that purpose and prohibits the funds from being deposited into the Partnership Fund. 8)Requires DHCS to identify children with an IEP who have a primary mental health diagnosis as emotional disturbance, and do both of the following: a) Collect and utilize in the performance outcome system academic performance data and any other data required for the measures included within the performance outcome system for these children and requires DHCS to enter into an agreement with CDE, in order for CDE to provide to DHCS relevant academic performance data, as determined by DHCS, in consultation with CDE, for utilization in the performance outcome system; and, b) Requires DHCS, within 18 months of completing the first report on comprehensive performance outcomes, to include the data specified in a) above in its reporting. EXISTING FEDERAL LAW: SB 1113 Page 5 1)Establishes the IDEA which requires that students with disabilities have access to a free and appropriate public education based on their individual needs, and establishes procedures for implementing these requirements. 2)Establishes the Medi-Cal EPSDT program for eligible people under 21 years of age, requiring screening, vision, dental, hearing, and other necessary services to correct or ameliorate defects and physical and mental illnesses and conditions discovered by the screening services, whether or not the services are covered under the Medicaid State Plan. EXISTING STATE LAW: 1)Establishes the Medi-Cal program, administered by DHCS, under which qualified low-income persons receive health care benefits. 2)Establishes, under the terms of a federal Medicaid waiver, a managed care program providing Medi-Cal specialty mental health services for eligible low-income persons administered through local county MHPs under contract with DHCS. 3)Defines a LEA as the governing body of any school district or community college district, the county office of education, a state special school, a California State University campus, or a University of California campus and allows LEAs to provide and bill for Medi-Cal services provided to students receiving special education services on Medi-Cal (generally, special education students). 4)Defines the scope of covered services that an LEA may provide for children with an IEP or an IFSP. 5)Requires that specified services provided by a LEA are SB 1113 Page 6 Medi-Cal benefits, to the extent federal financial participation (FFP) is available, subject to utilization controls and standards adopted by DHCS, and are consistent with Medi-Cal requirements for physician prescription, order, and supervision. 6)Requires county MHPs to provide specialty mental health services to eligible Medi-Cal beneficiaries, including both adults and children. Includes EPSDT within the scope of specialty mental health services for eligible Medi-Cal beneficiaries under the age of 21 pursuant to federal Medicaid law. 7)Establishes the Mental Health Services Oversight and Accountability Commission (MHSOAC) to oversee the implementation of the Mental Health Services Act, enacted by voters in 2004 as Proposition 63, which provides funds to counties to expand services, and develop innovative programs and integrated service plans, for mentally ill children, adults, and seniors through a 1% income tax on personal income above $1 million. 8) Requires DHCS, in collaboration with the California Health and Human Services Agency, and in consultation with the MHSOAC, to create a plan for a performance outcome system for EPSDT mental health services provided to eligible Medi-Cal beneficiaries under the age of 21. FISCAL EFFECT: According to the Senate Appropriations Committee: 1)Unknown costs to implement the grant program as it would depend upon the amount of funding that is transferred into the Partnership Fund. The author's office intends for this bill to fund about 10 LEAs at $600,000 each year for three schools per LEA. Under this scenario, costs would be $18 million per year. Actual costs could be higher or lower depending upon available funding (Proposition 98). SB 1113 Page 7 2)To the extent the Partnership Fund is used for mental health services not required by an IEP, there would be a cost pressure to increase state funds by a similar amount that is transferred, to backfill the special education program to meet the federal maintenance of effort requirement (Proposition 98). 3)CDE estimates the costs to prepare and report required data and to administer the competitive grant process, to be up to $150,000 General Fund across several positions. Unknown, potentially significant costs to the DHCS and CDE to enter into a data sharing agreement. Associated cost pressures and potential significant mandate for LEAs to report the required data to CDE (Proposition 98). 4)To the extent the use of moneys from the Partnership Fund leads to increased access to federal Medi-Cal funds, LEAs would presumably be able to provide additional services to eligible students in their jurisdiction (federal funds). COMMENTS: 1)PURPOSE OF THIS BILL. According to the author this bill remedies a key problem uncovered by a Joint Legislative audit request that investigated whether school districts are meeting their legal obligations to provide the appropriate services to students with a mental health condition identified in their IEP following the transition of responsibility of services from county mental health departments to school districts. The audit was triggered by many families and advocacy organizations who expressed difficulty accessing mental health services for children with a mental health-related component in their IEP. SB 1113 Page 8 The audit found that LEAs and counties could benefit financially and improve access to mental health services by collaborating to provide services to Medi-Cal eligible students. However, these types of partnerships were rarely implemented. The author states as an example that the audit researched the records of the Mt. Diablo Unified School District and found the District receives roughly $1.3 million in federal funds per year through their partnership with Contra Costa County and Desert Mountain special education local plan area's (SELPA's) agreement with San Bernardino County has allowed it to access almost $4 million for FY 2014-15. 2)BACKGROUND. a) ESPDT. EPSDT is a Medi-Cal benefit for individuals under the age of 21 who have full-scope Medi-Cal eligibility. This benefit allows for periodic screenings to determine health care needs and based upon the identified health care need and diagnosis, treatment services are provided. EPSDT services include all services otherwise covered by Medi-Cal and EPSDT beneficiaries can receive additional medically necessary services. EPSDT mental health services are Medi-Cal services that correct or improve mental health problems that have been determined by a physician, psychologist, counselor, social worker, or other health or social services provider. EPSDT provides eligible children with access to a range of mental health services that include, but are not limited to: i) Mental health assessment; ii) Collateral contracts; SB 1113 Page 9 iii) Therapy; iv) Rehabilitation; v) Mental health services; vi) Medication support services; vii) Day rehabilitation; day treatment intensive; viii) Crisis intervention/stabilization; ix) Targeted case management; and, x) Therapeutic behavioral services. LEAs are responsible for educationally necessary mental health services that are identified in a student's IEP, but are prohibited from directly providing or billing for EPSDT services unless the county mental health department chooses to contract with the LEA for those services (EPSDT is considered specialty mental health). LEAs are required to ensure services identified in a student's IEP are provided, regardless of whether the county directly provides services, denies services, or reimburses the school for any costs if the LEA provides services (in cases where the LEA provides services covered under general Medi-Cal that SB 1113 Page 10 overlap with EPSDT services). According to CDE, LEAs may use one or more of the following options for sourcing mental health services to Medi-Cal eligible students (including EPSDT and other mental health services): i) Provide and pay for services without seeking Medi-Cal reimbursement; ii) Use the LEA Medi-Cal Billing Option Program. Through this program, the LEA employs or contracts with qualified practitioners to provide the services pursuant to the IEP, pays for the services, and submits a claim for reimbursement. In order to use this option, the LEA must meet a number of administrative conditions, including enrollment as a Medi-Cal provider; and, iii) For EPSDT services, collaborate with county mental health departments to secure the specialty mental health services through the county MHP. There are two ways an LEA can secure these services: (1) Enter into a contract or memorandum of understanding with the mental health plan for a specialty mental health service or an array of specialty mental health services. In this case, county mental health plans provide the service and incur the cost, and bill Medi-Cal for federal reimbursement; or, (2) Request to be a certified provider of Medi-Cal specialty mental health services from the county MHP. If the county MHP certifies the LEA as an organizational provider, the LEA would provide the specialty mental health service through an LEA qualified employee and submit a claim to the county mental health plan for reimbursement. SB 1113 Page 11 b) IEPs. Pursuant to the federal IDEA, children with disabilities are guaranteed the right to a free, appropriate public education, including necessary services for a child to benefit from his or her education. Between 1976 and 1984, to meet this federal mandate, California schools provided mental health services to special education students who needed the services pursuant to an IEP. An IEP is a legally binding document that determines what special education services a child will receive and why. IEPs include a child's classification, placement, specialized services, academic and behavioral goals, a behavior plan if needed, percentage of time in regular education, and progress reports from teachers and therapists. A child may require any related services in order to benefit from special education, including, but not limited to: speech-language pathology and audiology services; early identification and assessment of disabilities in children; medical services; physical and occupational therapy; orientation and mobility services; and, psychological services. According to CDE, over 700,000 (approximately 11%) California students received Special Education services in the 2013-14 academic year. c) County MHPs. In California, specialty Medi-Cal mental health services are provided under the terms of the federal Medicaid Medi-Cal Specialty Mental Health Services Consolidation 1915(b) waiver program. The waiver established a managed care program for specialty mental health services separate from the overall Medi-Cal program. Medi-Cal beneficiaries must receive specialty mental health services though county-operated MHPs. County MHPs SB 1113 Page 12 provide services directly or through contracts in the local community using a combination of county funds, realignment revenues and Mental Health Services Act funds. Counties pay for services locally, incurring Certified Public Expenditures (CPEs), which the state then uses as the state match to claim federal financial participation and the state, in turn, returns the federal funds to the county MHPs. The Medi-Cal Specialty Mental Health Services Consolidation waiver has been in place since the mid-1990s and was approved for a new five-year term, from July 1, 2015, through June 30, 2020. Prior to 2011, special education students who had a severe emotional disturbance condition documented in their IEPs were referred by their schools to county mental health agencies for treatment. In 2011, the Legislature repealed the state mandate on county mental health agencies to provide IDEA-related mental health services and shifted this financial responsibility to the CDE. LEAs and local county MHPs were required to develop new agreements defining agency responsibilities that reflected the changes in state law. MHPs remain responsible for providing EPSDT services for students who are Medi-Cal beneficiaries with IDEA-related individualized education, if they meet medical necessity criteria. d) BSA Audit. The Bureau of State Audits (BSA) released a report in January 2016, "Student Mental Health Services: Some Students' Services Were Affected by a New State Law, and the State Needs to Analyze Student Outcomes and Track Service Costs". The report noted key points: the most commonly offered types of mental health services and the providers of those services generally did not change; the number of students who received these mental health SB 1113 Page 13 services remained steady or grew; the provider of the most common mental health services generally had already been, and continues to be, the LEA, and the majority of changes to services were unrelated to AB 114. However, the audit also noted that: LEAs removed mental health services from student IEPs in the two years after AB 114 took effect, yet some IEPs did not include the rationale for such changes; LEAs and CDE do not know whether student outcomes have been affected by AB 114; LEAs could not determine their total costs to provide mental health services; and, some have not spent all the funding they received that is dedicated for mental health services. This audit made several recommendations; those that are related to provisions of this bill include: i) Require LEAs to use six performance indicators to perform analysis annually on the subset of students receiving mental health services; ii) Require CDE to analyze and report on the outcomes for students receiving mental health services, including outcomes across six performance indicators, in order to demonstrate whether those services are effective; iii) Require CDE to report annually regarding outcomes for students receiving mental health services in six key areas; iv) Require CDE to collect information about the frequency of the provision of each service contained in all students' IEPs. Require CDE to annually review the frequency of mental health services and follow up with special education local plan areas when it observes a significant reduction in the frequency of services; and, SB 1113 Page 14 v) Require CDE to develop, and require all LEAs to follow, an accounting methodology to track and report expenditures related to special education mental health services. e) DHCS Performance Outcome System. The Performance Outcome System for EPSDT mental health services is intended to improve outcomes at the individual, program, and system levels and to inform fiscal decision-making related to the purchase of services, and is part of the reporting effort for the implementation of a performance outcome system for Medi-Cal specialty mental health services for children and youth. Since 2012, DHCS has worked with several groups to create a structure for reporting, developing the Performance Measurement Paradigm, and developing indicators and measures. The Performance Outcome System will be used to evaluate the domains of access, engagement, service appropriateness to need, service effectiveness, linkages, cost effectiveness, and satisfaction. Three reports will be provided: statewide aggregate data; population-based county groups; and, county-specific data. Initial reports were released in 2015. 3)SUPPORT. The California Council of Community Behavioral Health Agencies (CCCBHA) writes that this bill will: a) ensure access to EPSDT funds for students who may need mental health care; b) provide support to teachers to identify those students as early as possible and before they become severe enough to require special education; c) address the needs of all students through incentive start-up funds that are likely to be offset by savings in special education; and, d) develop outcome measures to measure program effectiveness. CCCBHA states there are now examples of excellent partnerships between schools and counties or county funded mental health SB 1113 Page 15 providers; this bill is intended to broaden those types of partnerships throughout the state. The Community Health Partnership writes that such partnerships are mutually beneficial but seldom implemented and that only six out of 122 special education local planning areas are known to have agreements in place with a county MHP or qualified provider that operated in the county MHP and that California is leaving tens of millions of dollars on the table. 4)OPPOSITION. The California Teachers Association states that this bill suggests that resources could be diverted from special education in order to serve other students. Similarly, the SELPA Administrators Association of California argues that this bill suggests that money budgeted for schools to provide mental health services to students as a related service to special education should be used to help pay the state match for EPSDT reimbursement regardless of whether these students have special education needs. 5)OPPOSE UNLESS AMENDED. The Special Opportunities for Access & Reform (SOAR) Coalition, which includes the SELPAs of Humboldt, Napa, Solano, Sutter, Shasta, Tehama, and Yolo counties, recommends that this bill be amended to instead require DHCS to develop a mediation or appeals process when an LEA or SELPA and a county mental health agency cannot agree on delivery of service for an eligible recipient or when EPSDT funding is not accessible. SOAR argues that from the schools perspective, there have been barriers to developing these partnerships and some of the hurdles center on county mental health not willing to contract with the LEA/SELPAs to provide EPSDT services or the county mental health agency is charging the LEA/SELPAs a high indirect cost for developing this partnership. SB 1113 Page 16 6)RELATED LEGISLATION. a) SB 884 (Beall) requires LEAs and SELPAs to collect and report specific information relative to mental health services, requires CDE to monitor and compare specific information relative to mental health services, and requires LEAs to provide specified informational materials to parents. AB 884 is pending in the Assembly Education Committee. b) SB 1291 (Beall) requires each county MHP to submit an annual foster care mental health service plan to DHCS detailing the service array, from prevention to crisis services, available to Medi-Cal eligible children and youth under the jurisdiction of the juvenile court and their families, as specified. SB 1291 is pending in this Committee. c) SB 1466 (Mitchell) requires that screening services provided under the EPSDT program include screening for trauma and establishes that eligible Medi-Cal children who are found to have experienced trauma and have been abused, neglected, or removed from the home to be referred to county MHPs for assessment for specialty mental health services, as specified. SB 1466 is pending in the Assembly Human Services Committee. d) AB 1644 (Bonta) renames the School-based Early Mental Health Intervention and Prevention Services for Children Act of 1991, known as the Early Mental Health Initiative, as the Healing from Early Adversity to Level the Impact of Trauma in Schools Act and requires the Department of Public Health to administer the new program, as specified. AB SB 1113 Page 17 1644 is pending in the Senate Education Committee. e) AB 1025 (Thurmond) of 2015 would have required CDE to establish a three year pilot program to encourage inclusive practices that integrate mental health, special education, and school climate interventions following a multitiered framework. AB 1025 was held in the Senate Appropriations Committee. 7)PREVIOUS LEGISLATION. a) AB 104 (Committee on Budget), Chapter 13, Statutes of 2015, among other things, appropriates $10 million to the Superintendent of Public Instruction to be apportioned to a designated county office of education to provide technical assistance and develop statewide resources to assist LEAs establish and align systems of learning and behavioral supports. b) AB 2212 (Gray) of 2014 would have required DHCS to allow county MHPs to contract with LEAs as providers of Medi-Cal EPSDT services to eligible students and, in counties where the LEA does not have a contract with the county MHP, to allow the MHP to obtain federal funds on behalf of nonpublic agencies that contract with LEAs to provide those services. AB 2212 died in the Assembly Appropriations Committee. c) AB 114 (Committee on Budget), Chapter 43, Statutes of 2011, a companion bill to the 2011-12 Budget bill, relieved county mental health departments of the responsibility to provide mental health services to students with disabilities and transferred that responsibility to school districts. SB 1113 Page 18 8)DOUBLE REFERRED. This bill has been double referred and was heard in the Assembly Education Committee on June 15, 2016 and passed out on a 7-0 vote. 9)SUGGESTED AMENDMENTS. The Committee recommends the following clarifying and technical amendment: 5920. (a) (2) The county mental health plan, or the qualified provider, and the local educational agency to utilize designated governmental funds for eligible Medi-Cal Early and Periodic Screening, Diagnosis, and Treatment (EPSDT) services provided to pupils enrolled in Medi-Cal , for mental health service costs for non-Medi-Cal enrolled pupils in special education with individualized education programs (IEPs) pursuant to the federal Individuals with Disabilities Education Act (20 U.S.C. Sec. 1400 et seq.), and for pupils not part of special education if the services are provided by a provider specified in paragraph (1). REGISTERED SUPPORT / OPPOSITION: Support Mental Health America of California (Sponsor) California Association of Marriage and Family Therapists California Council of Community Behavioral Health Agencies SB 1113 Page 19 California Youth Empowerment Network Community Health Partnership Steinberg Institute Opposition California Teachers Association (previous version) Analysis Prepared by:Paula Villescaz / HEALTH / (916) 319-2097