Dep't of Health Care Servs. v. Office of Admin. Hearings, F071023

CourtCalifornia Court of Appeals
Writing for the CourtGOMES, Acting P.J.
Docket NumberF071023
Parties DEPARTMENT OF HEALTH CARE SERVICES, Petitioner and Appellant, v. OFFICE OF ADMINISTRATIVE HEARINGS, Respondent; Parents on behalf of Student, et al., Real Parties in Interest.
Decision Date29 November 2016

6 Cal.App.5th 120
210 Cal.Rptr.3d 790

DEPARTMENT OF HEALTH CARE SERVICES, Petitioner and Appellant,
v.
OFFICE OF ADMINISTRATIVE HEARINGS, Respondent;

Parents on behalf of Student, et al., Real Parties in Interest.

F071023

Court of Appeal, Fifth District, California.

Filed November 29, 2016


Kamala D. Harris, Attorney General, Julie-Weng Gutierrez, Assistant Attorney General, Ismael A. Castro, Supervising Attorney General, 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, and Jenny S. Lam, Deputy County Counsel; 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, Sacramento, for Real Party in Interest Parents on Behalf of Student.

Lozano Smith, Sloan R. Simmons, Marcella L. Gutierrez, Sacramento, and Nicholas W. Smith, Monterey, for Real Parties in Interest Tuolumne County Office of Education and Sonora Elementary School District.

Dannis Woliver Kelley, Sue Ann Salmon Evans, Long Beach, Amy R. Levine, San Francisco, and Steven Wong ; Keith J. Bray, Long Beach, 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.

OPINION

GOMES, Acting P.J.

6 Cal.App.5th 128

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 of its administrative law judges in the matter of Parents on Behalf of Student v. Tuolumne County California Children's Services , OAH Case No. 2012100238. The Sonora Elementary School District (District) and the Tuolumne County Office of Education (County) (collectively the Educational Agencies), as well as the student's parents (Parents), all of whom the Department named as real parties in

6 Cal.App.5th 129

interest, joined in the opposition to the Department's petition. The trial court denied all of the Department's requests, thereby affirming the administrative law judge's order and decision, and ordered the Department to pay the student's reasonable attorney fees and costs associated with both the instant and underlying cases.

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 Parents' 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

210 Cal.Rptr.3d 795

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, 20 United States Code § 1400 et seq. (IDEA). As a result, it must comply with the act's requirements. (See 20 U.S.C. § 1412(a).) In order to do so, California adopted legislation contained in both the Education and Government Codes, as well as implementing regulations. (See Ed. Code, § 56000 et seq. ; Gov. Code, § 7570, et seq. ;1 Cal. Code Regs., tit. 5, § 3000 et seq. ; Cal. Code Regs., tit. 2, § 60000 et seq. )

Under the IDEA and state law, children with disabilities have the right to a "free appropriate public education" (FAPE). (20 U.S.C. § 1400(d) ; Ed. Code, § 56000.)2 A FAPE consists of "special education and related services" that are provided to the child at no charge to the parent or guardian, meet state educational standards, and conform to the child's individualized education program (IEP). (20 U.S.C. §§ 1401(9) & (14), 1412(a)(4), 1414(d).) "Special education" is instruction specially designed to meet the child's

6 Cal.App.5th 130

unique needs. (20 U.S.C. § 1401(29).) "Related services[,]" called designated instruction and services in California, include "developmental, corrective and other supportive services[,]" such as physical therapy (PT) and occupational therapy (OT), "as may be required to assist a child with a disability to benefit from special education." (20 U.S.C. § 1401(26)(A) ; Ed. Code, § 56363.)

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. (20 U.S.C. §§ 1401(14), 1412(a)(4), 1414(d).) The IEP includes, among other things, a "statement of special education and related services and supplementary aids and services ... to be provided to the child, or on behalf of the child, ..." (20 U.S.C. §§ 1412(a)(4), 1414(d)(1)(A)(IV).) An IEP team, consisting of parents, teachers and school district representatives, participates in the development of the IEP. (20 U.S.C. § 1414(d).)

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 (

210 Cal.Rptr.3d 796

Health & Saf. Code, §§ 123805, 123845, 123850.) CCS provides medically necessary benefits to persons under 21 years of age who have physically disabling conditions and meet its medical, financial and residential eligibility requirements. (Health & Saf. Code, §§ 123805, 123825, 123840, 123870, 123875, 123895.) CCS's Medical Therapy Program (MTP) provides PT, OT and physician consultations to eligible students in schools. (Health & Saf. Code, § 123950 ; Cal. Code Regs., tit. 2, § 60323.)5 Pursuant to state law, CCS provides "medically necessary" OT and PT to special education students "by reason of medical diagnosis and when contained in the child's [IEP][,]" (§ 7575, subd. (a)(1)), while the [LEA] provides "related services" that CCS does not

6 Cal.App.5th 131

deem to be medically necessary, but which the IEP team determines are needed "to assist a child to benefit from special education." (§ 7575, subd. (a)(2).)

Parents play a significant role in the IEP process. The team must consider their concerns for enhancing their child's education. (20 U.S.C. § 1414(d)(3)(A)(ii).) "IDEA accords parents additional protections that apply throughout the IEP process. See, e.g. , [20 U.S.C.] § 1414(d)(4)(A) (requiring the IEP Team to revise the IEP when appropriate to address certain information provided by the parents); [20 U.S.C.] § 1414(e) (requiring States to ‘ensure that the parents of [a child with a disability] are members of any group that makes decisions on the educational placement of their child’). The statute also sets up general procedural safeguards that protect the informed involvement of parents in the development of an education for their child. See, e.g. , [20 U.S.C.] § 1415(a) (requiring States to ‘establish and maintain procedures ... to ensure that children with disabilities and their parents are guaranteed procedural safeguards with respect to the provision of a [FAPE]’); [20 U.S.C.] § 1415(b)(1) (mandating that States provide an opportunity for parents to examine all relevant records). See generally [20 U.S.C.] §§ 1414, 1415. A central purpose of the parental protections is to facilitate the provision of a ‘ "[FAPE]," ’ [20 U.S.C.] § 1401(9), which must be made available to the child ‘in conformity with the [IEP],’ [20 U.S.C.] § 1401(9)(D)." (Winkelman ex rel. Winkelman v. Parma City School Dist. (2007) 550 U.S. 516, 524, 127 S.Ct. 1994, 167 L.Ed.2d 904 (Winkelman ).)

"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.’ [20 U.S.C.] § 1415(b)(6). By presenting a complaint a party is able to pursue a process of review that, as relevant, begins with a preliminary meeting ‘where the parents of the child discuss their complaint’ and the [LEA] ‘is provided the opportunity to [reach a resolution].’ [20 U.S.C.] § 1415(f)(1)(B)(i)(IV). If the agency ‘has not resolved the complaint

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