DEPARTMENT OF HEALTH CARE SERVICES, Pеtitioner and Appellant, v. OFFICE OF ADMINISTRATIVE HEARINGS, Respondent; L.M., a Minor, etc. et al., Real Parties in Interest.
No. F071023
Court of Appeal, Fifth District, California
Nov. 29, 2016
6 Cal. App. 5th 120
COUNSEL
Kamala D. Harris, Attorney General, Julie-Weng Gutierrez, Assistant Attorney General, Ismael A. Castro, Ashante L. Norton and Renu R. George, Deputy Attorneys General, for Petitioner and Appellant.
Orry P. Korb, County Counsel (Santa Clara), Danny Y. Chou, Greta S. Hansen, Jenny S. Lam, Deputy County Counsel; and Jennifer B. Henning for California State Association of Counties as Amicus Curiae on behalf of Petitioner and Appellant.
No appearance for Respondent.
Ruderman & Knox, Frank Richard Ruderman, Daniel R. Shaw and Colleen A. Snyder for Real Parties in Interest L.M., J.M. and D.K.
Lozano Smith, Sloan R. Simmons, Marcella L. Gutierrez and Nicholas W. Smith for Real Parties in Interest Tuolumne County Office of Education and Sonora Elementary School District.
Dannis Woliver Kelley, Sue Ann Salmon Evans, Amy R. Levine, Steven Wong; Keith J. Bray and Joshua R. Daniels for California School Board Association/Education Legal Alliance as Amicus Curiae on behalf of Real Parties in Interest Tuolumne County Office of Education and Sonora Elementary School District.
GOMES, Acting P. J.—The Department of Health Care Services (Department) filed a petition for writs of administrative and traditional mandamus, and declaratory relief, seeking, among other things, an order compelling the Director of the Department of General Services, Office of Administrative Hearings, Special Education Division (OAH) to set aside the order and decision issued by one
On appeal, the Department contends the trial court erred when it (1) summarily denied the petition for writ of administrative mandamus; (2) failed to conduct an independent review on the petition for writs of administrative and traditional mandamus; (3) found that the OAH had jurisdiction over L.M.‘s claims against the Department; (4) failed to find the administrative law judge acted contrary to law in the remedies he ordered; (5) denied its request for declaratory relief; and (6) awarded attorney fees. While we agree with the Department‘s first two contentions and conduct our own independent review of its mandamus claims, we conclude that the trial court did not err in denying the requests for writs of mandamus and declaratory relief, and awarding attorney fees to the student. Accordingly, we affirm the judgment.
BACKGROUND
I. Legal Background
The State of California receives funds under the federal Individuals with Disabilities Education Act,
Under the IDEA and state law, children with disabilities have the right to a “free appropriate public education” (FAPE). (
The provision of a FAPE begins with the development of an IEP, which is a written statement that contains an educational program tailored to the unique needs of a child with a disability. (
In California, the related services of OT and PT may be provided to a child with a disability by the local education agency3 or the Department through the California Children‘s Services Program (CCS), which is a state and county program that the Department administers.4 (
Parents play a significant role in the IEP process. The team must consider their concerns for enhancing their child‘s education. (
“When a party objects to the adequacy of the education provided, the construction of the IEP, or some related matter, IDEA provides procedural recourse: It requires that a State provide ‘[a]n opportunity for any party to present a complaint... with respect to any matter relating to the identification, evaluation, or educational placement of the child, or the provision of a [FAPE] to such child.’ [
II. Factual Background
L.M., who was five years old at the time of the administrative hearing, was eligible for special education services due to multiple disabilities, specifically orthopedic and visual impairment. She has a medical diagnosis of cerebral palsy, is hypotonic, has extremely low muscle tone, and lacks isolated control over individual muscles. She must be positioned for most activities as she is unable to sit or stand on her own, and is dependent for all care and mobility. L.M. has deficits in the areas of fine, gross and oral motor functioning.
At all relevant times, L.M. qualified for both special education services from the District and medically based OT and PT services from Tuolumne County CCS, which were included in her IEPs for the 2011-2012 and 2012-2013 school years as related services.
Dr. Robert Haining,6 a consultant physician for CCS, first prescribed OT and PT for L.M. in April 2010. The prescription was for six months and provided for 30-minute sessions of direct therapy twice a week, whereby the therapist provided direct therapeutic treatment to L.M. The therapist also provided instruction to Parents and modeled activities for them to do with L.M. at home. Parents consented to these services. CCS reviewed L.M.‘s services in July 2010 and May 2011; the prescription remained the same. The May 2011 prescription was for a six-month period, which ended on November 16, 2011.
An IEP team meeting was held on June 3, 2011, to develop the IEP for the 2011-2012 school year (the June 2011 IEP). The June 2011 IEP listed as
In November 2011, CCS evaluated L.M.‘s condition, as the six-month prescription was due to expire. L.M.‘s gross motor skills had not improved. On November 28, 2011, Dr. Haining wrote a new one-year prescription which reduced L.M.‘s CCS services to monitoring sessions twice a month for 30 minutes per session.7 Under the monitoring program, the therapist used the two monthly visits to check on L.M.‘s progress in the home program, and provide help to Parents. CCS timely notified Parents and the Educational Agencies of the new prescription for services. No IEP team meeting was convened to discuss the changes, which CCS immediately and unilaterally implemented although it knew they differed from the services listed in L.M.‘s IEP. Parents did not consent to the reduction and change in services. In May 2012, L.M.‘s CCS occupational therapist retired and CCS ceased providing any OT to L.M. until approximately January 2013.
On August 23, 2012, the District convened L.M.‘s annual IEP team meeting. During the meeting, L.M.‘s physical therapist, Margaret Grolle, who was on contract with CCS and represented CCS at the meeting, discussed CCS‘s therapy plan and recommended services, which were consistent with the reduced services set out in the November 2011 therapy plan. Parents consented to the August 2012 IEP except for CCS‘s reduction in services. Because Parents disagreed with the decision to reduce L.M.‘s CCS services, CCS provided them with a copy of the CCS Medical Therapy Program Dispute Resolution Process, which sets out the procedure for Parents to appeal CCS‘s decision pursuant to title 22 of the California Code of Regulations. Parents, however, did not want to go through the dispute resolution process. Instead, they offered to set up an IEP meeting with the District, as they believed the disagreement over CCS‘s services should be discussed with the entire IEP team. CCS declined the invitation to participate in an IEP team meeting.
In September 2012, Parents had L.M. privately assessed by physical therapist Dr. Kristine N. Corn.8 Dr. Corn believed L.M. had far more
On September 24, 2012, a medical therapy conference was held.9 Dr. Haining‘s PT prescription and therapy plan further reduced L.M.‘s medically necessary PT to monitoring services of once per month for six months. With respect to medically necessary OT, Dr. Haining issued a prescription for an occupational thеrapist to assess L.M. and carry out any recommended treatment. Parents provided Dr. Haining with Dr. Corn‘s independent evaluation, but he only gave the report a cursory review and disregarded its recommendations in part because Dr. Corn was not a medical doctor or a paneled CCS doctor. Parents did not consent to the change in services. Again, CCS immediately and unilaterally implemented the changes in L.M.‘s CCS services without any changes being sought or made to L.M.‘s IEP. The District did not convene an IEP team meeting and CCS did not ask for one.
In November 2012, Parents obtained an independent OT assessment by Occupational Therapist Catherine Leavitt.10 Leavitt recommended that L.M. receive two hours of direct OT per month.
On March 11, 2013, another IEP team meeting was convened for L.M. Both Grolle and Kathleen Amos, the Public Health Nursing Director for Tuolumne County and CCS administrator, attended the meeting on CCS‘s behalf. CCS informed the team it had reduced L.M.‘s PT services on September 24, 2012, to once a month monitoring. L.M. had been assessed for medically necessary OT on CCS‘s behalf; 12 one-hour OT sessions were
III. Procedural Background
A. The Due Process Hearing and Decision
L.M. filed a special education due process complaint against CCS on October 3, 2012. L.M. alleged that CCS denied her a FAPE during the 2011-2012 and 2012-2013 school years by (1) failing to provide her with adequate PT and OT; (2) unilaterally reducing her PT and OT outside the IEP team process; and (3) failing to implement services required by her IEPs. She also alleged thаt CCS procedurally denied her a FAPE during the same school years by (1) failing to comply with the requirements of the IDEA; (2) failing to actively participate in the IEP team process; (3) unilaterally making decisions outside the IEP team process; and (4) failing to consider independent evaluations.
In November 2012, CCS moved to dismiss the case on the grounds that the OAH lacked jurisdiction over L.M.‘s due process complaint. Alternatively, CCS moved for an order to either limit the claims asserted against it or to join the Educational Agencies as parties. CCS argued the matter should be dismissed because (1) CCS is not the public education agency responsible for providing a FAPE; (2) CCS is statutorily responsible for providing only “medically necessary” OT and PT, and any additional services that are educationally necessary to provide a FAPE are the LEA‘s responsibility; and (3) the OAH did not have jurisdiction to adjudicate L.M.‘s claims against CCS because L.M. was required to seek resolution of her claims through the exclusive dispute resolution procedure set forth in
On December 4, 2012, the OAH denied the motion to dismiss, but ordered the Educational Agencies to be joined in the action. L.M., however, subsequently entered into a settlement agreement with the Educational Agencies, which then were dismissed from the matter. In exchange for a waiver of L.M.‘s claims and the resolution of all disputes related to the Educational Agencies’ provision of a FAPE and services to L.M., the Educational Agencies agreed to conduct an educationally based OT assessment and
Presiding Administrative Law Judgе (ALJ) Bob N. Varma conducted the due process hearing on May 7, 8 and 9, 2013. After the conclusion of the presentation of evidence and witnesses, the parties submitted written closing briefs. On July 15, 2013, the ALJ issued a written decision on whether CCS committed procedural violations that resulted in the denial of a FAPE to L.M. during the 2011-2012 and 2012-2013 school years.
First, the ALJ addressed CCS‘s challenge to the OAH‘s jurisdiction. It rejected CCS‘s claims that it could unilaterally change CCS services that are part of a child‘s IEP without further regard to the IEP development process and that any appeal of its decisions, even for children whose IEPs include CCS services, must be pursued through the process set forth in title 22. Instead, the ALJ found that, while CCS has the sole authority to determine if a child is eligible for medically necessary OT and PT, once that determination is made and the IEP team places those services in the child‘s IEP, the child or parents have the right to challenge any changes to those services that CCS thereafter recommends in a due process hearing.
With respect to L.M.‘s procedural challenges, the ALJ found that while CCS participated in the development of L.M.‘s IEPs to the extent required, it denied L.M. a FAPE by unilaterally reducing her medically necessary OT and PT in November 2011 and September 2012, and failing to review Dr. Corn‘s and Leavitt‘s assessments in March 2013. With respect to CCS‘s unilateral reduction of services, the ALJ determined: “CCS is required to utilize the IEP development process to obtain parental consent to any changes in [L.M.]‘s related OT and PT services that it recommends; or to use the due process hearing procedures to obtain an order from the OAH to override parental denial of consent to changes in [L.M.]‘s services.” Because the ALJ found that CCS failed to comply with the IDEA‘s procedural requirements, the ALJ did not make any findings as to whether CCS denied L.M. an FAPE by failing to provide adequate OT and PT.
As remedies for CCS‘s procedural violations of the IDEA, the ALJ ordered CCS to (1) provide L.M. with 40 hours of direct compensatory OT and 50 hours of direct compensatory PT; (2) reinstate L.M.‘s CCS services to the levels contained in the last agreed IEP of June 2011; (3) review the independent assessments, meet with Parents and the appropriate IEP team members, and cooperate with scheduling an IEP team meeting to review all
B. This Lawsuit
On October 10, 2013, the Department filed a petition for writ of mandate and complaint for declaratory relief in superior court against the Director of the OAH, with L.M.11 and the Educational Agencies named as real parties in interest.12 The Department alleged three causes of action. First, it sought a writ of administrative mandamus pursuant to
Next, the Department sought a writ of ordinary mandamus pursuant to
Finally, in its claim for declaratory relief, the Department alleged an actual controversy existed between the parties regarding their respective rights and duties, and requested a determination that the OAH‘s decision was inconsistent with the law‘s requirements.13
In April 2014, the Educational Agencies moved for judgment on the pleadings on the following grounds: (1) the superior court did not have
Pursuant to a briefing schedule, the Department submitted a memorandum of points and authorities in support of its petition. Without distinguishing between its claims for administrative and ordinary mandamus, the Department argued the following: (1) the OAH did not have jurisdiction to hear L.M.‘s claims as to CCS because she failed to exhaust her administrative remedies under
After oral argument on the petition, the trial court took the matter under submission. On January 2, 2015, the trial court issued a written order in which it denied all of the Department‘s claims.14 The trial court first addressed the Department‘s contention that the OAH did not have jurisdiction over CCS. Citing
With respect to the writ of administrative mandamus, the trial court found that while the Department‘s “opening brief” contained “a statement of parties, background and statutory/regulatory overview, CCS‘s role and responsibilities, [L.M.]‘s services and the due process hearing, citations to the administrative record are non-existent.” The trial court explained that because the Department failed to support many of its arguments by appropriate reference to the record, including exact page citations, it was unable to adequately evaluate which facts the Department believed supported its legal positions. Accordingly, the trial court denied the petition for a writ for administrative mandamus.
On the writ of ordinary mandamus, the trial court noted the two basic requirements to issue such a writ: (1) a clear, present, ministerial duty owed by the agency or official and (2) the petitioner‘s clear, present beneficial right to performance of that duty. The trial court further noted that relief is available when an agency has abused its discretion, which is established if the findings are not supported by substantial evidence, and where factual findings are not challenged, the trial court need only determine whether the agency‘s ruling was so arbitrary and capricious as to amount to an abuse of discretion. The trial court stated that the Department was not challenging the ALJ‘s factual findings; it only alleged the OAH failed to correctly apply the law.
After listing the number of witnesses, the length of the administrative record, and the number of factual findings and legal conclusions in the OAH decision, the trial court stated that “the evidence adduced in the case was more than substantial; it was overwhelming,” and found “the findings and decisions in the case were supported by substantial evidence so that there was no abuse of discretion by the ALJ.” The trial court reviewed each of the Department‘s allegations of error presented in the petition and in response to each, cited to the portion of the OAH decision that supported the ALJ‘s legal conclusions. The trial court determined that the Department failed to prove that the ALJ abused his discretion and substantial evidence supported the ALJ‘s order, and therefore denied the petition for writ of ordinary mandamus.
With respect to declaratory relief, the trial court noted that the Department specifically was seeking a determination affirming the Educational Agencies’ responsibility to provide the nonmedically necessary services the ALJ awarded, thus arguing, in effect, that the Educational Agencies were necessary parties that must be joined in the action. The trial court explained that
Finally, the trial court found L.M. was the prevailing party in the instant action, and therefore was entitled to reasonable attorney fees and costs, and because the ALJ found L.M. was the prevailing party in the due process hearing, she was entitled to reasonable attorney fees and costs incurred in that proceeding.
Judgment against the Department was entered on January 23, 2015, which ordered the Department to fully comply with the ALJ‘s order and to pay L.M. reasonable attorney fees and costs associated with both the due process hearing and the superior court action.
DISCUSSION
I. Writs of Mandate
A. Standard of Review
“Judicial review of most public agency decisions is obtained by a proceeding for a writ of ordinary or administrative mandate. (
Here, the Department sought both traditional and administrative mandate in its petition. The trial court summarily denied the petition for administrative mandamus on the ground that the Department‘s opening brief did not contain adequate citations to the administrative record. With respect to traditional mandamus, the trial court reviewed the Department‘s contentions of error that were also alleged in its cause of action for a writ of administrative mandamus, and found that the Department failed to prove the ALJ abused his discretion and substantial evidence supports the ALJ‘s order.
The Department contends the trial court erred by summarily denying the writ of administrative mandate and applying the wrong standard of review. On the first issue, the Department asserts that it was not required to include citations to the administrative record in its petition, and it provided sufficient citations in its memorandum of points and authorities in support of the petition to allow the trial court to review its claims. On the second issue, the Department argues that because the facts are undisputed, the trial court was required to apply the independent judgment standard of review, yet it failed to do so. The Department urges us not to remand for rehearing if we find error, but to undertake our own independent review of the issues presented. In support, the Department cites South Coast Newspapers, Inc. v. Superior Court (2000) 85 Cal.App.4th 866, 873, footnote 7 [102 Cal.Rptr.2d 487], in which the appellаte court did not remand the case even though the trial court failed to make express findings on the necessary elements of the applicable legal standard because its independent review of the record convinced it that the applicable standard was not satisfied, and Knight v. McMahon (1994) 26 Cal.App.4th 747, 754 [31 Cal.Rptr.2d 832], in which the appellate court stated that while the trial court should have ruled on the merits of the issue, “[b]ecause the issue is one of law, it would serve no useful purpose to remand it to the trial court. Had the trial court decided the issue, it would be before us for our independent review.”
We agree with the Department that the issues involved here are questions of law on undisputed facts. As L.M. acknowledges, this case requires us to interpret
Since the material facts are undisputed and the only question is interpretation of a statute, the distinction between traditional or administrative mandamus makes no difference in this appeal. (M & B, supra, 68 Cal.App.4th at p. 1359.) “In such a situation, we exercise independent judgment, whether the issue arises by traditional or administrative mandate.” (Ibid.) Accordingly, we need not determine whether the trial court erred in summarily denying the petition for writ of administrative mandamus because the Department‘s claim for a writ of traditional mandamus remains. (City of Fremont v. Board of Administration (1989) 214 Cal.App.3d 1026, 1030 [263 Cal.Rptr. 164] [explaining that “it is immaterial” whether the plaintiff should have proceeded by way of petition for writ of traditional instead of administrative mandamus, since “[t]he proper interpretation and application of the law is ultimately a judicial function, no matter how invoked“].) We also need not decide whether the trial court applied the incorrect standard of review, since we apply our independent judgment without reference to the trial court‘s actions. (Santa Clara, supra, 140 Cal.App.4th at p. 1313.)
“In exercising our independent judgment, we rely upon settled rules of statutory construction. ‘Statutes are to be interpreted in accordance with their apparent purpose . . . .’ (Kaiser Foundation Health Plan, Inc. v. Lifeguard, Inc. (1993) 18 Cal.App.4th 1753, 1762 [23 Cal.Rptr.2d 235].) First and foremost, we look for that purpose in the actual language of the statute. (Mercer v. Department of Motor Vehicles (1991) 53 Cal.3d 753, 763 [280 Cal.Rptr. 745, 809 P.2d 404].) If the meaning is without ambiguity, doubt, or uncertainty, then the language controls. (Security Pacific National Bank v. Wozab (1990) 51 Cal.3d 991, 998 [275 Cal.Rptr. 201, 800 P.2d 557].) If the meaning of the words is not clear, we may refer to various extrinsic aids, including the history of the statute, to determine the intent of the Legislature. (Kaiser Foundation Health Plan, Inc. v. Lifeguard, Inc., supra, 18 Cal.App.4th at p. 1762.) Finally, if neither the words of the statute nor its legislative history reveal[s] a clear meaning, we apply reason and practicality, and interpret the statute in accord with common sense and justice, and to avoid an absurd result.” (Santa Clara, supra, 140 Cal.App.4th at pp. 1313–1314.)
B. Jurisdiction
The Department first contends that CCS should have been dismissed from the due process hearing because L.M.‘s failure to use another administrative forum to contest CCS‘s determination regarding her medical services divested the OAH of jurisdiction to hear her complaint regarding CCS‘s prescription for OT and PT. The Department asserts that only CCS may determine whether OT and PT services are medically necessary, and therefore the OAH does not have authority to decide this issue.16
To address the Department‘s claim, we must first review the statutory framework. Under the
This changed with the enactment of
To that end, Chapter 26.5 makes “the provision of related services, as defined in [the
Before a child may be provided related services, including OT and PT, qualified persons must assess the child in all areas related to the suspected disability. (
When the IEP team is considering whether to include OT and PT as a “related service” in the child‘s IEP, the LEA is required to invite the “responsible public agency representative” to meet with the IEP team to determine the need for the service and participate in developing the IEP. If the representative cannot attend the meeting, he or she must provide written information concerning the need for the service, and the LEA must ensure a qualified substitute is available to explain and interpret the evaluation. (
A parent who disagrees with the OT or PT assessment may require the assessor to attend the IEP meeting. (
Once medically necessary OT or PT is included in a child‘s IEP, CCS is required to notify the IEP team and parent in writing of any decision to “increase, decrease, change the type of intervention, or discontinue services for a pupil receiving medical therapy services.” (
It is apparent from Chapter 26.5 and its implementing regulations that CCS determines in the first instance whether a child with a disability needs
CCS‘s jurisdictional argument fails because, not only is it responsible for providing medically necessary services to L.M., it is also responsible for providing related services in L.M.‘s IEP. OT and PT services that are included in a child‘s IEP—whether medically or educationally necessary—are ” ‘related services,’ ” since they are necessary “to assist an individual with exceptional needs to benefit from special education.” (
Since CCS provides a related service when its medically necessary OT and PT is included in a child‘s IEP under Chapter 26.5, any dispute concerning CCS‘s provision of such services may be resolved in special education due process hearings.
Thus, Chapter 26.5 specifically maintains a parent‘s right to a special education due process hearing over related services, including medically necessary OT and PT, when those services are part of the child‘s IEP. This conclusion also finds support in the Chapter 26.5 regulations, which specifically state that “[d]ue process hearing procedures apply to the resolution of disagreements between a parent and a public agency regarding the proposal or refusal of a public agency to initiate or change the identification, assessment, educational placement, or the provision of special education and related services to the pupil.” (
The OAH‘s jurisdiction is also confirmed by provisions of the local interagency agreement, which describes the relative duties of CCS and the Educational Agencies in providing related services contained in IEPs.27 The “Dispute Resolution” section in the interagency agreement between the Tuolumne County Superintendent of Schools and Tuolumne County Health Department CCS for fiscal years 2009–2010, 2010–2011, 2011–2012 (Local IA), provides: “When CCS is joined in a special education fair hearing, the local CCS program shall follow the CCS administrative procedures for fair hearings“; until the hearing officer makes a decision, the MTP must continue to provide the same level of CCS medically necessary OT or PT the child was receiving prior to the parent‘s request for a fair hearing; when the fair hearing decisiоn is not in CCS‘s favor, “the State CCS Program ‘will develop and implement a plan for the provision of therapy services for the duration and at the frequency stated in the fair hearing decision’ “; and when the fair hearing decision is in CCS‘s favor, the education agencies must pay CCS “for the continuation of therapy services that were provided beyond what was considered medically necessary and provided by the MTP during the pendency of the fair hearing decision.”
The Department contends L.M. was required to pursue the CCS appeals process, asserting “[i]t would be inappropriate and inefficient to allow a CCS client to thwart” that process by challenging CCS services through another legal channel. Citing to the rule of exhaustion of administrative remedies as stated in Campbell v. Regents of University of California (2005) 35 Cal.4th 311, 321 [25 Cal.Rptr.3d 320, 106 P.3d 976] (Campbell), the Department contends L.M. was required to exhaust the CCS appeal process, since whether a service is mеdically necessary is not an appropriate issue to be addressed by a judicial officer.
The rule the Department cites provides ” ‘that where an administrative remedy is provided by statute, relief must be sought from the administrative body and this remedy exhausted before the courts will act.’ ” (Campbell, supra, 35 Cal.4th at p. 321.) ” ‘Exhaustion of administrative remedies is “a jurisdictional prerequisite to resort to the courts.” ’ ” (Ibid.) But here L.M. did pursue the administrative remedy provided by statute, namely the due process hearing procedure set forth in
In an attempt to avoid this result, the Department urges us to apply the principle of statutory construction that a specific statute controls over a general statute covering the same subject, citing RadLAX Gateway Hotel, LLC v. Amalgamated Bank (2012) 566 U.S. 639, 645 [182 L.Ed.2d 967, 132 S.Ct. 2065, 2070–2071], and Shewry v. Wooten (2009) 172 Cal.App.4th 741, 747 [91 Cal.Rptr.3d 199].
The Department contends that because
The Department‘s argument fails. The statute it claims is the specific one,
In enacting Chapter 26.5, the Legislature has determined that “[a]ll state departments” are governed by the
The ALJ found that CCS committed procedural violations that denied L.M. a FAPE by (1) unilaterally reducing L.M.‘s medically necessary OT and PT services in November 2011 and September 2012 outside of the IEP team meeting process, and (2) failing to consider independent assessments. Other than arguing that the OAH did not have jurisdiction over CCS, the Department does not challenge these findings on the merits in its appellate briefs. Instead, the Department contends the ALJ acted in excess of his authority when he awarded compensatory educatiоn, which required CCS to provide 40 hours of direct compensatory OT and 50 hours of direct compensatory PT services, and restoration of L.M.‘s medically necessary OT and PT to the level provided for in her last agreed-upon IEP of June 2011.
Specifically, the Department argues that because only CCS may determine whether OT and PT are medically necessary and the “uncontested evidence” demonstrated that increased services were not medically necessary, the ALJ did not have authority to award OT and PT as compensatory services or to restore services. The Department further argues the ALJ abused his discretion when he ordered CCS, not the Educational Agencies, to provide the awarded services, as the Educational Agencies are responsible for ensuring the provision of a FAPE and financially responsible for providing related services. The Department asks us to affirm that the Educational Agencies are responsible for the awarded services as dictated by
We disagree with the Department. Since CCS is subject to special education due process hearings when there is a dispute regarding medically necessary OT and PT that is included in an IEP as a related service, and under
The Department complains that the ALJ‘s decision usurped its authority to determine medical necessity and contravened CCS‘s evidence that showed L.M.‘s services were not medically necessary. There was other evidence, however, to support the ALJ‘s order, specifically the assessment reports and testimony of Dr. Corn and Leavitt.32 The ALJ rejected CCS‘s contest of these assessments on the grounds that neither therapist was a physician or conducted the assessment pursuant to CCS guidelines, as (1) Chapter 26.5 did not place any such parameters on independent assessments,
The ALJ found persuasive occupational therapist Leavitt‘s opinion that L.M. was capable of making progress and needed OT, particularly for oral motor development and hand functioning, and L.M.‘s mother‘s testimony that L.M.‘s functioning decreased when OT services were reduced and eventually eliminated. With respect to PT, the ALJ found persuasive Dr. Corn‘s opinion that direct therapy should not have been terminated and her description of L.M.‘s positive response to direct therapy Dr. Corn provided on three occasions. The ALJ expressly did not consider this evidence to determine what L.M.‘s prospective FAPE would be with respect to medically necessary OT and PT. The ALJ further found that L.M.‘s mother‘s testimony established L.M. suffered some regression in her fine motor skills. The ALJ awarded the compensatory OT and PT based on the loss of approximately 80 hours of OT and PT, taking into account the restoration of services and based on the needs identified in the independent assessments. These findings were well within the ALJ‘s discretion.
With respect to restoration of services, the ALJ found that CCS‘s unilateral reduction of L.M.‘s medically necessary OT and PT outside of, and with disregard to, the IEP development process, and in disregard of L.M.‘s procedural safeguards under the
In restoring L.M.‘s CCS services to their prior levels, the ALJ did not decide whether the services were medically necessary. Rather, the ALJ was acting in accordance with the Local IA, which provides that during the course of a due process hearing, CCS must continue to provide the samе level of medically necessary OT and PT services L.M. was receiving prior to her request for a due process hearing until the hearing officer makes a decision. At that time, either CCS will be required to continue to provide medically necessary OT and PT if the hearing officer decides against CCS, or it will be entitled to reimbursement from the Educational Agencies for the services it provided if the hearing officer decides in CCS‘s favor. As the ALJ pointed out, if CCS believes its services are not medically necessary, it may follow the procedures set for due process hearings, but it is required to maintain the same level of services until the due process hearing is completed.
The Chapter 26.5 regulations also provide that when there is a dispute between an LEA and CCS over the provision of related services that are contained in a child‘s IEP, the department or local agency that provided the service before the dispute is required to pay for or provide the service until the dispute resolution proceedings are completed. (
The provisions of federal law, the Local IA, and Chapter 26.5 and its implementing regulations, considered together, support the ALJ‘s decision to require CCS to provide the same level of services it provided before its procedural violations of the
In sum, we find no error in the ALJ‘s award of compensatory services and restoration of services to prior levels. Moreover, since the ALJ‘s decision was not erroneous, we reject the Department‘s request for issuance of a writ of traditional mandamus.
In its petition, CCS sought a declаration that the OAH‘s decision was “inconsistent with the requirements of the law.” In its briefing before the trial court, CCS explained that, in its claim for declaratory relief it was seeking a “declaration establishing the respective responsibilities between the parties to guide them as they continue to service” L.M., as well as the Educational Agencies’ “duty to provide any awarded OT and PT services in this matter.” The Department argued that the Educational Agencies, as well as the OAH, ignored the statutory authority that only obligates CCS to provide medically necessary services, and requested an affirmation that the Educational Agencies are required to provide OT and PT services in the absence of a current prescription by a CCS-paneled physician.
On appeal, the Department contends the trial court erred in denying the request for declaratory relief. It argues the trial court failed to address the “critical inquiry: whether the ALJ‘s decision conflicts with
The issue the Department raises, however, is the same issue it raised in its traditional and administrative mandamus claims. As the Educational Agencies argue, while declaratory relief is appropriate to establish rights between parties “in cases of actual controversy” (
The Department‘s declaratory relief action rests primarily on its contention that the OAH erred in its interpretation of
III. Attorney Fees
Finally, the Department contends the trial court erred in awarding L.M. her attorney fees and costs in both this action and the underlying administrative hearing. It asserts that there is no statutory basis to support such an award because this action does not fall under the
Both state and federal law grant courts the authority to award attorney fees to a prevailing parent in a case involving claims under the
The Department contends there is no statutory basis for the attorney fee award because its lawsuit is not an action or proceeding brought under the
The Department next argues that L.M. must file her request for attorney fees in federal court. The issue here is whether state courts have concurrent jurisdiction with federal courts to award attorney fees under the
The Department maintains that only federal district courts have jurisdiction to consider fee questions. Federal courts generally have ruled that an attorney fee claim under
In contending that state and federal courts have concurrent jurisdiction over fee claims, L.M. cites to an appellate court case from Florida, W.R. ex rel. Doe v. School Bd. of Osceola County (Fla.Dist.Ct.App. 1999) 726 So.2d 801 (W.R.). There, agreeing with a New Jersey appellate court case, J.H.R. v. East Brunswick Board of Education (1998) 308 N.J. Super. 100 [705 A.2d 766] (J.H.R.), which directly addressed the jurisdictional issue and concluded there was concurrent jurisdiction, the Florida court held that state and federal courts have concurrent jurisdiction to award fees to prevailing parents in
The W.R. court first noted that the language in
Finally, the W.R. court determined that the policies underlying the
We agree with the courts in W.R. and J.H.R. that
The judgment is affirmed. Costs on appeal are awarded to real parties in interest.
Kane, J., and Detjen, J., concurred.