Summaries of Court Decisions with Implications for Children's Mental Health Services

Cordero (court order, January 27, 1993) - The Cordero class consists of children and adolescents with disabilities whose school districts have determined that the educational placement they need is not currently available and who have been waiting at least 30 days for such a placement. Under the Cordero order, the state must expand programs and services for class members using an interagency approach. Programs must be designed to the greatest extent possible, to maintain and support students in their home community and family setting. All relevant agencies at both the local and state levels must cooperate in carrying out the order. An additional requirement of the court order was for the commonwealth to identify gaps in services that limit the ability of school districts to provide appropriate education in the least restrictive environments, followed by implementation of an action plan to address these gaps.

Kellner, et al. v. The School District of Philadelphia and the PA Department of Education (settlement agreement, June 20, 2000) - This case was brought on behalf of a class of students with emotional disabilities in the Philadelphia School District who were being denied a free appropriate public education, and in some cases, being excluded from school altogether, because the School District refused to provide them with 1:1 behavioral support. Under the settlement agreement, the District adopted a policy which makes it clear that students cannot be kept out of school because they do not have a TSS worker, and that, if the child's IEP team decides that the child needs 1:1 support to receive FAPE, then that service must be listed on the child's IEP and the District becomes obligated to make sure that the child receives the service. If a child has a TSS worker, that person can provide the necessary 1:1 support, but if that person becomes unavailable, then the District must provide the 1:1 support for the child if it is in his or her IEP. In addition, the PA Department of Education issued a policy statement to all school districts in PA informing them that they cannot exclude students from school if they do not have TSS workers, and that, if an IEP team decides the child needs 1:1 behavioral support in order to receive an appropriate special education program, that support must be included on the child's IEP, and the school district then becomes responsible for providing that support.

KirkT. v. Houstoun (Court Order on liability 2000, Settlement Agreement on remedy 2001) - Kirk T. was a class action brought on behalf of children who were waiting for months, and sometimes for more than a year, to receive wrap-around services. The Court found that DPW was violating federal Medicaid law by failing to provide these services with reasonable promptness. As a result of the settlement, DPW issued bulletins 1)telling providers and MCOs that children should not have to wait more than 60 days from the time the family first asks for help until their services are in place (including the time to conduct evaluations and interagency team meetings and to review requests for medical necessity and find staff), 2) changing the requirements to become a Therapeutic Staff Support worker in order to increase the availability of staff, and 3) adding training and supervision requirements for Therapeutic Staff Support workers to ensure no loss of quality of care. The Agreement also provides for a tracking mechanism to determine whether this new timeliness standard is being met, and allows plaintiffs to return to court to request additional remedies if the timeliness standard is not being met.

Lawrence K (settlement agreement, December 1992) - This case was brought on behalf of children with mental illness or emotional disturbances who are eligible for medical assistance and need mental health services. Under the settlement agreement, two bulletins were issued in January 1993, establishing that the medical assistance program will pay for medically necessary residential treatment and wraparound mental health services for children and adolescents under the age of 21. The bulletins also set forth the criteria to establish medical necessity and other requirements that must be met to obtain medical assistance funding for residential treatment and wrap-around services. Other bulletins, refining or amending the policies and procedures of the program, continue to be issued.

Michael H (settlement agreement, 1991) - The Michael H. settlement agreement applies to children and adolescents who need mental health and/or mental retardation services and are placed in foster care or preadoptive homes outside of the county with legal custody. The agreement, set forth in a bulletin in November 1991 ("Services for Children in Foster Family Care Who Are Placed Out-of-County") says that these children must have the same access to services as any child who is a resident of the county. The county with legal custody is responsible to make arrangements for placement and to pay for services. Intercounty coordinators were appointed to monitor compliance with the court order. Recently, the agreement has been extended, and the Office of Children, Youth and Families is conducting four additional surveys to assess the handling of the Michael H. cases.

Michael K (settlement agreement, April 25, 1990) - The Michael K. settlement agreement applies to children and adolescents needing partial hospitalization services in order to benefit from education, in which case partial hospitalization must be included in their Individualized Education Plan (IEP). An IEP developed for a student assigned to a partial hospitalization program must list all special education and related services the student needs to receive a free appropriate public education, including services in the partial hospitalization program. The new school-based mental health services pilot projects in the Western Area are a result of this lawsuit. The interagency process integral to the Cordero settlement will be used to resolve the issues in the Michael K. suit as well.

Oberti (court order, May 28, 1993) - The Oberti lawsuit was filed in New Jersey on behalf of a child with mental retardation who was not being served in the least restrictive environment by the school district. The decision of the third Circuit Court of Appeals in Philadelphia focused the issues of inclusion in education in Pennsylvania for all children and adolescents with disabilities, not just those with mental retardation. The court order says that school districts must consider placing children with disabilities in regular classroom settings, with appropriate supports, before considering other more restrictive alternatives. The court order provides the opportunity for school districts to implement programs and services which provide special education services with a regular classroom setting.

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