Nevada County office of Education v. Riles

• Decision Date: 12 December 1983
• Citation: 197 Cal.Rptr. 152,149 Cal.App.3d 767
• Court: California Court of Appeals Court of Appeals
• Parties: , 14 Ed. Law Rep. 736 NEVADA COUNTY OFFICE OF EDUCATION, Plaintiff and Appellant, v. SUPERINTENDENT OF PUBLIC INSTRUCTION, Defendant and Respondent, Christine McCall, Timothy McCall, and California Children's Services, Real Parties in Interest and Respondents. Civ. 21997.

Page 152

197 Cal.Rptr. 152

149 Cal.App.3d 767, 14 Ed. Law Rep. 736

NEVADA COUNTY OFFICE OF EDUCATION, Plaintiff and Appellant, v. SUPERINTENDENT OF PUBLIC INSTRUCTION, Defendant and Respondent Christine McCall, Timothy McCall, and California Children's Services, Real Parties in Interest and Respondents.

Civ. 21997.

Court of Appeal, Third District, California.

Dec. 12, 1983.

Rehearing Denied Jan. 11, 1984.

Brian A. Bishop, County Counsel, James A. Curtis, Asst. County Counsel, and Larry G. Sage and Steven Craig Tarpenning, Deputy County Counsels, Nevada City, for plaintiff and appellant.

George Deukmejian, Atty. Gen., Thomas E. Warriner, Asst. Atty. Gen., Joseph O. Egan, Jr., Deputy Atty. Gen., Thomas M. Griffin, Gail Imobersteg, William Faulwetter, Roger D. Wolfertz, Barry A. Zolotar, Sacramento, and David W. Girard, Pleasant Hill, for defendant and respondent.

Catherine J. Blakemore, Protection and Advocacy, Inc., Los Angeles, for real parties in interest and respondents, Christine McCall and Timothy McCall.

Richard H. Koppes, Chief Counsel, and Sheila C. Nolan and Susan Bertken, Staff Attys., Sacramento, for real party in interest and respondent, California Children's Services.

EVANS, Associate Justice.

The Nevada County Office of Education (County) appeals from a judgment denying In September 1980, the parents of Jason McCall, a developmentally-disabled eight-year-old male, applied to County for medical services for Jason as part of a special or "individualized education program." ¹ The application included a request for occupational therapy (therapy). County referred Jason to California Children's Services (Services), a division of the State Department of Health Services. The referral was made pursuant to an interagency agreement between the State Department of Education (State) and the Department of Health Services. Services advised County that Jason was not eligible for therapy under their criteria because he did not have "a physically handicapping condition." Thereafter County refused to provide Jason with therapy. In January 1981, the McCalls filed a request with the Superintendent of Public Instruction (Superintendent) for a due process hearing under Education Code section 56502 on the ground that therapy had been wrongly excluded from Jason's special education.

its petition for writ of mandate (Code Civ.Proc., § 1094.5). We affirm.

At the due process hearing held in March 1981, County requested that Services be joined as a party; the motion was taken under submission and subsequently denied. County also requested a continuance in order to serve subpoenas on five employees of Services and State.

On May 11, 1981, the hearing officer ruled in favor of the McCalls, finding that Jason "exhibits developmental lags in motor skills and require[s] the related services of OT [therapy] in order to benefit from special education." The decision required County to provide therapy "as prescribed by [Jason's] private physician."

On June 3, 1981, County filed a petition for writ of mandate ² in superior court challenging the administrative decision, which petition was denied; this appeal by County followed.

The appeal essentially comes to us on the clerk's transcript; the appellate record was augmented to include certain documentary evidence, but there is no transcript of the due process hearing. "On such an appeal, the findings are not subject to challenge, and it must be presumed that the evidence supports the findings. [Citations.] We are thus limited to a review of the judgment, the findings of fact and conclusions of law, and the pleadings. [Citation.]" (Dixon Mobile Homes, Inc. v. Walters (1975) 48 Cal.App.3d 964, 967, 122 Cal.Rptr. 202.)

In 1975 Congress passed the Education for All Handicapped Children Act (the EAHCA). (20 U.S.C. § 1401 et seq.; 34 C.F.R. § 300.1 et seq. (1982).) ³ The EAHCA is a funding statute pursuant to which federal grants are made available to the states to assist them in educating the handicapped. Grants are conditioned, inter alia, on the state's establishing "a policy that assures all handicapped children the right to a free appropriate public education." (20 U.S.C. § 1412(1).) A "free appropriate public education" includes special education and related services provided at public expense. (20 U.S.C. § 1414(a)(5).) These services must include appropriate education, and be provided in conformity with a properly developed program. One of the "related services" is occupational therapy. (20 U.S.C. § 1401(17); 34 C.F.R. § 300.13 (1982).)

California elected to participate in the federal program and has enacted a comprehensive In addition to the obligation that local education agencies provide therapy services as part of special education, California law requires Services to provide therapy to physically handicapped persons who meet their specific disability criteria. (Health & Saf.Code, §§ 249, 250, 251.)

                set of laws governing special education.  (Ed.Code, § 56000 et seq.;  Cal.Admin.Code, tit. 5, § 3000 et seq.)   In accordance with federal law, state statutory and regulatory provisions require that local education agencies insure the provision of occupational therapy services.  (Former Ed.Code, § 56363, subd.  (b)(6) [in effect at the time of the proceedings below];  Cal.Admin.Code, tit. 5, §§ 3040, 3051.6.)
                

Both federal and state law permit the Superintendent to enter into agreements with other state agencies to provide the services mandated by participation in the EAHCA. (Ed.Code, § 56475.) In 1978 the Superintendent (representing State) and the Department of Health Services entered into an interagency agreement (which was amended in Dec. 1979 and Jan. 1980) regarding, inter alia, the provision of occupational therapy.

I

County first argues that the due process hearing was improperly conducted by a single hearing officer. ⁴ The administrative regulation in effect at the time of the due process hearing (Mar. 1981) provided for a panel of three persons. (Former Cal.Admin.Code, tit. 5, § 3308, subd. (e).) However, that regulation conflicted with Education Code section 56505, subdivision (c), which was effective in 1980; that section provides the due process hearing is to be "conducted by a person knowledgeable in the laws governing special education and administrative hearings ...." (Emphasis added.)

Because the language of a statute controls over an inconsistent administrative regulation promulgated to implement the statute, we reject County's argument the hearing was improperly conducted. (See Gov.Code, § 11342.2; Cooper v. Swoap (1974) 11 Cal.3d 856, 864, 115 Cal.Rptr. 1, 524 P.2d 97.) ⁵

II

County contends the hearing officer improperly denied it the right to compel the attendance of witnesses at the administrative hearing (Ed.Code, § 56505, subd. (e)(3); 20 U.S.C. § 1415(d)), thereby denying due process. The record indicates that on March 5, 1981, at County's request, the hearing officer issued subpoenas for five individuals associated with State and Services, but only two were actually served, and apparently neither of them testified. On March 12, 1981, the hearing officer informed County by letter that it was "not necessary to subpoena [three of the witnesses] if they agree to provide ... a [written] memo." County subsequently introduced written responses from the witnesses at the administrative hearing and in the trial court.

The trial court made no express finding on the question of whether the hearing officer denied County its right to compel the attendance of witnesses. Although the March 12, 1981, correspondence from the hearing officer may suggest County did not have full opportunity to exercise its right to compel attendance of witnesses, the record also reflects the County did not do all it could have done to compel the attendance of witnesses. ⁶ Under such circumstances Moreover, the trial court made a finding that County was not denied a fair hearing, relying on the fact that the anticipated testimony of the witnesses it sought "would [have] relate[d] primarily to the issue as between the state agencies, ... and would not [therefore] have resulted in a different decision ... as to the issue with which he was primarily concerned." The pleadings support the court's conclusion that County sought the witnesses to testify on the issue of whether Services should be required to fund therapy services under the interagency agreement. That issue was not a proper subject of dispute at the due process hearing (see Part III, infra ). We agree with the trial court that any denial of County's right to compel witnesses in any event was not prejudicial. (See Code Civ.Proc., § 475.) ⁷

we cannot conclude the hearing officer denied County due process.

III

In denying County's motion to join Services as a party, the hearing officer stated that "joinder of CCS [Services] is not necessary to resolve the issues in this case. Respondent's concerns and attempts to resolve IAA [interagency agreement] policy differences can be more appropriately handled through other administrative procedures. The special education fair hearing process is not the proper forum to resolve these important issues."

The trial court affirmed the hearing officer's ruling: "... while the Federal Law does not envision a multiplicity of State agencies implementing the mandates of the law, it appears to place primary responsibility upon the 'State Educational Agency'. Hearings may be had as they specifically relate to any chargeable State agency but it is not necessary to join related State agencies in an action involving an agency of primary responsibility as defined by the Federal Law." (Emphasis in original.)

The question of who may or must be a party, ⁸ to an administrative proceeding is dependent upon the purpose and effect of the proceeding and the particular statute under which it is brought. (See Whitehouse v. Illinois C.R. Co. (1955) 349 U.S. 366, 370, 75 S.Ct. 845, 848, 99...