[STATE SELPA LETTERHEAD]
DATE
TWO SEPARATE LETTERS
Jennifer Kent, Directo
Department of Health Care Services
California Department of Education
1430 N Street
Sacramento, CA 95814
Kristin Wright, Director
Special Education Division
California Department of Education
1430 N Street
Sacramento, CA 95814
Re:Interagency Agreement – Formal Request to Negotiate Expired Interagency Agreement
Dear Director______:
This letter is written to respectfully urge the Department of Health Care Services (“DHCS”), CMS Branchto meet and confertheCalifornia Department of Education (CDE), Special Education Division,regarding thestate interagencyagreement dated, July 2007.The State SELPA association is requesting that the DHCS meet with theCDE, Special Education Division, to engage in negotiations regarding the terms of anoutdatedstatewide interagency agreement consistent with the law mandating that the parties coordinate existing resources to best meet the needs of students with special needsand the requirement the state IA be reviewed by CDE, Special Education Division, and DHCS CCS at least every three years and modified as necessary, which is nine years overdue.
On May 2, 2014, CCS Information Notice: 14-05 was sent to all CCS Program Administrators, medical consultants and state systems of care division (SCD) staff which states, “ local CCS/MTPS are advised to notamend or renew local interagency agreements.” As you are aware, for many years now, school districts and other LEAs have been forced to operate under expired interagency agreements and memorandum of understandings (“MOUs”) with the DHCS. In the face of hundreds of expired MOUs and interagency agreements in California, the DHCS has notnegotiated new agreements with SELPAs and other LEAs throughout the state, resulting in a lack of coordination between CCS and LEAs statewide. The State SELPA is respectfully requesting immediate action by the DHCS with regard to the expired interagency agreements.
By way of background, the DHCS and LEAs are jointly responsible for the provision of certain related services to students with special needs. (Gov. Code § 7573.) California law requires DHCS to provide “medically-necessary services” that are set forth in a student’s IEP, and requires LEAs to provide those related services which are “educationally necessary.” (Gov. Code §§ 7573, 7575.) This is codified into law in Chapter 26.5 of the California Government Code (hereafter “Chapter 26.5”), which establishes the joint obligations among Superintendent of Public Instruction and Secretary of Health and Human Services Agency. (Gov. Code § 7570.) The respective joint responsibilities are generally set forth in the provisions of Chapter 26.5, and the specific details regarding such obligations have been worked out between the various LEAs and CCS locations throughout the state, in the form of interagency agreements or MOUs. However, a recent survey shows that out of SELPAs who responded (out of 136 SELPAs) do not have a current MOU with CCS, and some not since .
Several recent legal cases confirm the need for DHCS to negotiate a statewide current interagency agreement with regard to the provision of certain “related services.” Specifically, the United States Court of Appeals for the 9th Circuit confirms the need for coordination between CCS and LEAs, when discussing Chapter 26.5 and stating that the CCS is “responsible for the provision of medically necessary occupational therapy when contained in” the IEP of a student with a qualifying disability.Douglas v. Cal. Office of Admin.Hearings(9th Cir. 2016) 650 Fed.Appx. 312.
Similarly, the Court of Appeal for the State of California, Fifth Appellate District (“5th Appellate Court”) relied on the California Code of Regulations, at Title II, section 60310(c), citing:
Each independent county agency and each dependent county agency of CCS and the county Superintendent of Schools or SELPA director shall ensure the development and implementation of a local interagency agreement in order to facilitate the provision of medically necessary occupational therapy and physical therapy which shall include at a minimum a delineation of the process for…
Dept. of Health Care Services v. Office of Admin.Hearings (2016) 6 Cal.App.5th 120.
As discussed by the 5th Appellate Court, pursuant to these regulations, the DHCS has a mandatory obligation to meet and confer with the California Department of Education, Special Education Division, in order to develop / amenda statewide interagency agreement.
We respectfully request a response to this letter, from both agencies with an agreement to establish a stakeholder group to negotiate the terms of a statewide interagency agreement, as soon as possible, and no later than June 30, 2017.