MEMORANDUM

TO: Interested Advocates

FROM: Michael Stortz, Staff Attorney

RE: County Mental Health Responsibility to Provide Community Services

DATE: May 2, 2000 - PAI Publication #5105.01

Protection and Advocacy, Inc. (PAI) has received a number of calls from families, advocates, and service providers about the lack of appropriate services for adolescents who have both psychiatric and developmental disabilities. Many of these youth are placed at psychiatric hospitals for short-term commitments. When they are ready to be discharged, neither the regional center, the school district, nor county mental health have placements or appropriate services and supports for them. They often remain hospitalized for much longer periods than necessary, or are discharged to inappropriate living arrangements from which they cycle back to the hospital. Many adolescents are released to unsupportive or even unsafe situations which may harm them physically and emotionally.

While county mental health, regional centers and the local school district all have obligations to children who qualify for their services, this memorandum addresses only the legal obligation of county mental health programs to provide community support services appropriate to individual need. An accompanying memorandum explains regional centers' responsibility to secure or develop appropriate services and supports for children. (PAI pub. No. 5106.01). Below is an outline of county mental health program obligations under the Medi-Cal program.

All Medi-Cal eligible individuals are entitled to receive medically necessary mental health services through the county mental health program. As defined under state regulations, medical necessity means that a person meets three criteria, as follows:

s/he has a covered mental health diagnosis;

s/he has one of the following three impairments as a result of the mental health diagnosis: (1) a significant impairment in an important area of life functioning, (2) a probability of significant deterioration in an important area of life functioning, or (3) if the person is under age 21, that s/he will not progress developmentally as individually appropriate; and

the proposed intervention must meet each of the following criteria: (1) it addresses the psychiatric impairment, (2) it will significantly diminish the impairment, prevent significant deterioration in an important area of life functioning, or allow the person under age 21 to progress developmentally as individually appropriate, and (3) the condition would not be responsive to physical health based treatment.For individuals with dual diagnoses, county mental health programs must provide services to address impairments related to the covered diagnosis. See Cal. Code Regs., tit 9 § 1830.205.

The eligibility criteria is broader for people under age 21. People under age 21 are eligible for a program known as EPSDT, which stands for Early and Periodic Screening, Diagnosis, and Treatment. Under the EPSDT program, the state must give people under age 21 diagnostic and treatment services "to correct or ameliorate defects and physical and mental illnesses and conditions covered by the screening service, whether or not such services are covered under the State plan." 42 U.S.C. § 1396d(r)(5).

County mental health programs must serve all people who meet the state medical necessity criteria. County medical necessity criteria more narrow than the above statewide criteria are illegal. For example, it is illegal for counties to ration case management services based on criteria such as annual cost to the county. Individuals who are denied access to services under such county criteria may appeal such denial through the Medi-Cal fair hearing process, and may contact PAI for assistance.

The key to accessing county mental health services is a determination that the service is medically necessary. In other words, if a service provider, including psychiatric hospital staff, determines that a specific service is necessary to diminish an impairment or prevent deterioration, then the county has an obligation to provide it.

County mental health programs must provide rehabilitative mental health services to people in the least restrictive environment. California adopted the rehabilitation option to provide for services at home or other community-based sites. Welf. & Inst. Code § 14684. Covered services include, but are not limited to, the following:

Mental Health Services: individual or group therapies or interventions that are designed to provide reduction of mental disability and improvement or maintenance of functioning consistent with the goals of learning, development, independent living and enhanced self-sufficiency and that are not provided as a component of adult residential services, crisis residential services, crisis intervention, crisis stabilization, day rehabilitation, or day treatment intensive. Service activities may include but are not limited to assessment, plan development, therapy, rehabilitation and collateral.

Rehabilitation: a service activity which includes assistance in improving, maintaining, or restoring a beneficiary's functional skills, daily living skills, social and leisure skills, grooming and personal hygiene skills, meal preparation skills, support resources, and/or medication education. Rehabilitation may be provided to an individual on a 24-hour, 7 day-a-week basis if medically necessary.

Crisis Intervention: a quick response service enabling the person to cope with a crisis while maintaining her/his status in the community to the greatest extent possible.

Crisis Residential Treatment Services: a therapeutic or rehabilitative service provided in a non-institutional residential setting providing a structured program as an alternative to hospitalization for persons experiencing an acute psychiatric episode or crisis who does not present medical complications requiring nursing care.

Targeted Case Management/Brokerage: activities to assist a person to access needed medical, educational, social, vocational, rehabilitative, or other needed community service. The service includes communication, coordination, and monitoring service delivery to ensure the person's access to the service; monitoring progress; and plan development.

EPSDT Supplemental Services: services provided to correct or ameliorate the conditions of people under age 21, including "wrap around services" such as one-on-one behavioral aides, family counseling, transportation to needed services and other case management services. ** As part of court order in the lawsuit Emily Q. v. Belshé, counties must assess Medi-Cal eligible children under 21 who meet certain criteria for eligibility for therapeutic behavior services. The attached flyer entitled "New Home and Community Based Mental Health Services for Children and Youth Under Age 21" explains the services and how to apply. PAI has a special hotline for questions about TBS (888-313-4555).

See Cal. Code Regs., tit 9 §§ 1810.201-254.

These services must be offered to a person as an alternative to involuntary and/or inpatient treatment. Even if a person meets the criteria for a mental health conservatorship, the county must make every effort to provide services in his or her home or a relative's home, or to secure a living arrangement as close as possible to his or her home or a relative's home. Welf. & Inst. Code § 5358(c)(1).

While county mental health programs often claim that services or supports needed to meet the needs of persons with complicated needs are not available, this does not relieve the county of its obligation to serve its clients. Medi-Cal covered mental health services must be made available to all persons for whom such services are medically necessary without regard to county funding limitations. Sobky v. Smoley, 855 F.Supp. 1123 (E.D. Cal. 1994).

Facilities, such as psychiatric hospitals, which are designated to provide short-term involuntary psychiatric evaluation and treatment must consider whether the person's needs could be appropriately met with the home and community-based mental health services discussed above. The Lanterman-Petris-Short (LPS) Act provides for the following:

All persons must be advised of available precare services which prevent initial recourse to hospital treatment. Welf. & Inst. Code § 5008(d).

Prior to hospital admission, staff must determine whether the person can be properly served with evaluation, crisis intervention or other inpatient or outpatient services on a voluntary basis. Welf. & Inst. Code § 5151; see also Welf. & Inst. Code § 5150.3.

Prior to a 14-day hold under section 5250, hospital staff must list the specific services offered to the person as an alternative to involuntary treatment. Welf. & Inst. Code § 5252.

All persons must be advised of available aftercare services which could support adjustment to the community following hospital treatment. Welf. & Inst. Code § 5008(d).Each of these provisions requires the hospital to arrange for the provision of voluntary, outpatient services as an alternative to or following inpatient hospitalization.

There are also separate federal discharge planning duties for hospitals receiving Medicaid and/or Medicare funds. The Medicare discharge planning requirements apply to all patients, whether or not they are Medicare or Medi-Cal eligible. 42 U.S.C. § 1395x(ee); 42 C.F.R. §§ 482.21(b), 482.43. Under the Medicare regulations, discharge planning should begin the day of admission. 42 C.F.R.§ 482.43(a). "Patients, along with necessary medical information, must be transferred or referred to appropriate facilities, agencies, or outpatient services, as needed, for follow-up or ancillary care." 42 C.F.R. § 482.21(b)(2). "The hospital must arrange for the initial implementation of the patient's discharge plan." 42 C.F.R. § 482.43(c)(3).

Psychiatric hospitals have a duty to comply with both the general discharge planning obligations and requirements specific to psychiatric hospitals. Under federal law, aftercare plans for patients in psychiatric hospitals must address personal preferences, family relationships, physical and psychiatric needs, financial needs, housing needs, educational/vocational needs, social needs, accessibility to community resources, and indication of anticipated problems and how to deal with them. 42 C.F.R. §§ 482.61(e), 482.62(a)(4), 482.62(f)(2). The aftercare plan must also state who is responsible for seeing that discharge and aftercare plans are followed.

Pursuant to the above-referenced provisions, aftercare planning begins prior to or upon admission. This is significant because agencies such as regional centers, county mental health programs, and school districts will be on notice of the services that they must provide. Further, hospital referral to another agency is only complete "when the agency or individual to whom the person has been referred accepts responsibility for providing the necessary services." Welf. & Inst. Code § 5008(d). Thus, the sooner a hospital makes recommendations for the provision of specific services through another entity such as a regional center, county mental health program, or school district, the sooner it will be relieved of its obligations to provide for continuity of care.

People with psychiatric disabilities, including adolescents who also have developmental disabilities, are entitled to receive a broad array of home and community-based mental health services under the state Medi-Cal program. County mental health programs must provide services in accordance with statewide requirements. County mental health programs do not relieve themselves from their legal responsibility to provide medically necessary mental health services by failing to make covered services available. Such a position would violate the entitlement to services under the Medicaid Act.

For more information on related issues, see PAI publications entitled Discharge and Aftercare Planning Rights for People with Mental Disabilities, PAI Pub. No. 5277.01 and Medi-Cal Mental Health Managed Care: Questions and Answers, PAI Pub. No. 5307.01. These and other publications can be downloaded from PAI's website at www.pai-ca.org or call PAI for copies at 1-800-776-5746.

OAKLAND LEGAL OFFICE, 449 15th Street, Suite 401, Oakland, CA 94612-2821. Telephone: (510) 839-0811 Fax: (510) 839-5780 Toll Free/TTY/TDD: (800) 776-5746.

As part of a lawsuit called Emily Q. v. Belshé, a federal court in Los Angeles has ordered that the California Medi-Cal program provide a new mental health service called "therapeutic behavior service." It involves having a trained behavior aide available on a one-on-one basis to work with a child with mental health needs to provide individualized behavioral interventions as needed at home, school or other community-based setting. This has also been called having a "shadow mentor."

COUNTIES MUST BEGIN PROVIDING THIS SERVICE NOW, based on instructions from the California Department of Mental Health (DMH) in an information notice issued on July 23, 1999. In August, 1999, DMH will begin training the counties how to provide therapeutic behavior services, but counties can get advice right away on individual cases by calling DMH staff.

STEP 1: If a child meets the requirements below, ask for an assessment NOW from the county mental health plan.

To be considered for this new service, a child must be under age 21 and eligible for Medi-Cal. In addition under the terms of the court order in Emily Q, children MUST be considered (given an assessment) if they

are placed in a group home level 12 or 14 or the state mental hospital,

are being considered for placement in these facilities; or

have had at least one emergency psychiatric hospitalization within the past 24 months for a condition related to their current need for services. If the child meets one or more criteria, mail a written request for therapeutic behavior services to your county mental health director, or give a written request to the child's county mental health worker. Fax or mail a copy of the request to Nancy Mengebier, DMH, 1600 9th St., Room 100, Sacramento CA 95814, Fax (916) 653-9194.

Who should do the assessment? Since this is a new service, the counties may not know anyone qualified to do an assessment for therapeutic behavior services. One resource should be the local school districts, since the assessment will be very similar to the "functional analysis" and behavior intervention plans required for special education students with discipline problems under California's "Hughes Bill" procedures and the state education code.

Other resources are the consultants and providers who have worked with the state Department of Social Services (DSS) in developing county "wraparound services" pilot programs, since therapeutic behavior services can be provided as part of a wraparound program. For more information about wraparound, see DSS All County Information Notice, I-28-99 (April 7, 1999) and the SB 163 Wraparound Services Pilot Questions and Answers: DSS website, www.childsworld.org (search "SB 163"), or contact Sharron Goldstein, (916) 323-2677, sgoldstein@dss.ca.gov or Lisa Foster, (916)324-3040, lfoster@dss.ca.gov.

STEP 2: If a child is denied an assessment or is denied eligibility for therapeutic behavior services, you can appeal.

The county may refuse to do an assessment or the assessment may conclude that a child does not need therapeutic behavior services. If you think that the child does need the service, APPEAL THE DENIAL. (Contact PAI for more information about Medi-Cal mental health appeal rights.)

STEP 3: If the child is eligible, develop a behavior intervention plan.

The assessment may decide that the child is appropriate for therapeutic behavior services. If so, the mental health providers working with the child will develop a treatment plan which targets specific behaviors. The treatment plan will explain how the aide will intervene and will identify the person who will oversee the implementation of the plan. As with the assessment, if the county does not know anyone local to develop a plan, the county must hire an expert from out of town. Many wraparound consultants will travel here to assess individual children and develop plans for them.

STEP 4: Find a home or community placement which will accept the child if therapeutic behavior services are provided.

This could be the child's own home or the home of a relative, a foster family home or a group home. The placement can be funded through special education/AB 3632, or through foster care. With a therapeutic behavior aide, a child may be able to stay in a less restrictive placement than would otherwise be possible.

Submit completed form to your County Mental Health Plan

Send a copy to PAI, c/o Melinda Bird;

3580 Wilshire Blvd. #902; L.A. CA 90010

I. BASIC IDENTIFYING INFORMATION

1a. Child's or Young Adult's Name:___________________________

1b. Where is the child or young adult currently staying?_____________

___________________________________________________

1c. Date of Birth:_______________

1d. Social Security No.:_________________________

2a. Medi-Cal No.:_________________

2b. County which issued Medi-Cal card:___________

3. Parent/guardian/representative payee/conservator (Name, Address, County):

______________________________________________________

______________________________________________________.

II. ELIGIBILITY FOR TBS

4. Children and young adults who need TBS to transition to a less restrictive placement:

o Is the child seriously emotionally disabled or does he/she have a mental disability?

o Is the current residence a (check only those which apply):

_____ State Hospital

_____ Group Home, RCL 6-10

_____ Group Home RCL 12

_____ Group Home RCL 14

_____ IMD

5. Children and young adults who need TBS to prevent a more restrictive placement or rehospitalization:

o Is the child at risk of placement in an RCL 12 group home a more restrictive residential setting? Yes _____ No _____

a. o Child is currently in RCL 12

b. o Child is currently in RCL 14

c. o Child has had at least one psychiatric hospitalization within the last 24 months and is in:

o an RCL 10

o a group home

o a foster home

o a family home

6. Please describe problem behaviors to be addressed:_____________

________________________________________________________

________________________________________________________

________________________________________________________

________________________________________________________

________________________________________________________

III. ASSESSMENT

7. o We have an assessment -- see attached.

8. o We need an assessment and would like the following person to do the assessment:_________________________________________.

9. o We need an assessment and want the County to find someone to do it.

IV. PROVIDER

10. o We have a provider who wants to provide TBS:____________

_____________________________________________________.

11. o We need the County to find a provider.

12. Signature of person submitting request:________________________

Print Name:_______________________________________________

Relation to Child or Young Adult:_______________________________

V. RELEASE OF INFORMATION

I hereby give permission for release of information to the County Mental Health Plan, to the entity(ies) or person(s) conducting the TBS assessment if not employees of the County Mental Health Plan, and to providers or potential providers of TBS and related services.

Signature:________________________________________________

Print name:_______________________________________________

Michael Stortz

433 Hegenberger Road, Suite 220, Oakland, CA 94621

Telephone: (510) 430-8033 - Fax: (510) 430-8246

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