Filed 11/29/16

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

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

(Super. Ct. No. CV58418)

OPINION

APPEAL from a judgment of the Superior Court of Tuolumne County. Kate 

Powell Segerstrom, Judge.

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.
2.

Ruderman & Knox, Frank Richard Ruderman, Daniel R. Shaw and Colleen A. 

Snyder for Real Party in Interest Parents on Behalf of Student.

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 and 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.

-ooOooThe 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 

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; 
3.

(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, 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 unique needs. (20 U.S.C. § 1401(29).) “Related services[,]” called designated 

instruction and services in California, include “developmental, corrective and other 

 

1 Undesignated statutory references are to the Government Code.

2 The IDEA evolved from the Education for All Handicapped Children Act, 

Pub.L. No. 94-142, 89 Stat. 773 (1975) (EHA), which Congress passed in 1975. (C.O. v. 

Portland Public Schools (9th Cir. 2012) 679 F.3d 1162, 1164.) California elected to 

participate in the EHA and adopted its procedural safeguards in 1980. (Ed. Code, 

§§ 56500 et seq.; White v. State of California (1987) 195 Cal.App.3d 452, 461.)
4.

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 (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 

 

3 A local education agency (LEA) is “a school district or county office of 

education which provides special education and related services.” (Cal. Code Regs., 

tit. 2, § 60010, subd. (k).) 

4 CCS is established through the Robert W. Crown California Children‟s Services 

Act, Health and Safety Code section 123800 et seq. (the Crown Act), by which the 

Legislature intended to provide for “necessary medical services required by physically 

handicapped children whose parents are unable to pay for these services[,] and to

“include the necessary services rendered by the program to physically handicapped 

children treated in public schools that provide services for physically handicapped 

children.” (Health & Saf. Code, § 123825.) CCS generally is administered locally by 

each county‟s department of public health or department of social welfare. (Health & 

Saf. Code, § 123850.) We apply the term “CCS” interchangeably to both California 

Children‟s Services and its local county designee, Tuolumne County California 

Children‟s Services.
5.

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 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 

 

5 Further references to the California Code of Regulations will be to the relevant 

title and provision number.
6.

[IEP],‟ [20 U.S.C.] § 1401(9)(D).” (Winkelman ex rel. Winkelman v. Parma City School

Dist. (2007) 550 U.S. 516, 524 (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 to the satisfaction 

of the parents within 30 days,‟ [20 U.S.C.] § 1415(f)(1)(B)(ii), the parents may request an 

„impartial due process hearing‟ [20 U.S.C.] § 1415(f)(1)(A), which must be conducted 

either by the [LEA] or by the state educational agency, ibid., and where a hearing officer 

will resolve issues raised in the complaint, [20 U.S.C.] § 1415(f)(3).” (Winkelman, 

supra, 550 U.S. at p. 525.) In California, a due process hearing is an administrative 

proceeding conducted by the OAH. (See Educ. Code, § 56504.5; § 27727.) This case 

arises out of the Department‟s challenge to the outcome of a due process hearing.

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. 
7.

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 related services CCS 

medically necessary direct OT and PT twice a week for 30 minutes per session. 

Although CCS‟s prescription for services ended in November 2011, the IEP set the dates 

for services from June 3, 2011 through June 16, 2012. Parents consented to the June 

2011 IEP with the exception of the District‟s educational placement offer.

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 

 

6 Dr. Haining is a pediatrician who specializes in pediatric rehabilitation. He is 

board certified in physical medicine and rehabilitation, pediatrics and pediatric 

rehabilitation, and has approximately 30 years of experience in his field. 

7 “Monitoring” is “a regularly scheduled therapy activity in which the therapist 

reevaluates the pupil‟s physical status, reviews those activities in the therapy plan which 
8.

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 potential than her current 

 

are provided by parents, care givers or LEA staff, and updates the therapy plan as 

necessary.” (Tit. 2, § 60300, subd. (k)(3).) 

8 Dr. Corn is a licensed physical therapist who holds a Bachelor of Science, 

Masters, and Ph.D. in PT. Dr. Corn has been a physical therapist since 1965. She 
9.

therapists and doctors had determined, and she needed an opportunity to increase postural 

tone and strength through PT. In Dr. Corn‟s experience, sometimes a different approach 

to therapy was required. Dr. Corn recommended that L.M. receive PT a minimum of two 

hours per week. 

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 therapist 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. 

 

specializes in children with neurodevelopmental delays, including children with cerebral 

palsy. She has been a CCS-paneled physical therapist and provided therapy to children 

referred by various CCS agencies. 

9 A medical therapy conference is “a team meeting held in the medical therapy 

unit where medical case management for the pupil‟s medical therapy program eligible 

condition is provided by the medical therapy conference team . . .”. (Tit. 2, § 60300, 

subd. (h).) A medical therapy conference team is composed of the pupil, parent, 

physician and occupational or physical therapist, or both. With the consent of the pupil‟s 

parents, the team may include an education representative who is present for the purpose 

of coordination with medical services. (Tit. 2, § 60300, subd. (i).) 

10 Leavitt is a registered occupational therapist who practiced for approximately 

30 years before her retirement. She has a Masters of Science degree in OT. Leavitt has 
10.

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 recommended. Parents continued to disagree with CCS‟s offer of services, which 

the IEP team discussed. Parents presented both Dr. Corn‟s and Leavitt‟s independent 

assessments to the IEP team, and Dr. Corn participated via teleconference, but CCS 

ignored the assessments and failed to consider them. 

II. 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 that 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 Parents‟ 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 

 

worked in multiple settings, and has assessed 75 to 100 children. She has been a CCS 

paneled occupational therapist. 
11.

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 title 22, section 42140, subdivision (a). 

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, who then were dismissed 

from the matter. In exchange for a waiver of Parents‟ 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 

implement the assessor‟s recommendations, and contract with a nonpublic agency to 

provide educationally-based PT for two hours each week. 

Presiding Administrative Law Judge (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 
12.

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. a 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 reports, with CCS‟s recommendations becoming the District‟s 

recommendations to the extent the IEP team adopted them as medically necessary; and 

(4) provide training to its staff. The ALJ named L.M. as the prevailing party on two 

issues and the partially prevailing party on the third issue. 

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 
13.

Parents and the Educational Agencies named as real parties in interest.11 The 

Department alleged three causes of action. First, it sought a writ of administrative 

mandamus pursuant to Code of Civil Procedure section 1094.5 to set aside the OAH‟s 

decision based on allegations that the OAH exceeded its jurisdiction, abused its 

discretion, and failed to proceed in a manner required by law when it: (1) ordered the 

Department and CCS to provide services CCS had not determined were “medically 

necessary”; (2) found CCS denied L.M. a FAPE; (3) ordered the Department to provide 

compensatory OT and PT without a doctor‟s prescription, in violation of the law, and 

prescribed medical treatment in violation of the Business and Professions Code and CCS 

regulations; and (4) failed to apply and enforce California law. 

Next, the Department sought a writ of ordinary mandamus pursuant to Code of 

Civil Procedure section 1085. The Department alleged that the OAH had a clear, present 

and ministerial duty to issue decisions that comply with the statutory requirements for 

CCS services and do not require the Department to act contrary to them, and that by 

failing to correctly apply the law, the OAH denied the Department rights secured by law. 

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.12

In April 2014, the Educational Agencies moved for judgment on the pleadings on 

the following grounds: (1) the superior court did not have jurisdiction over them due to 

the Department‟s failure to exhaust its administrative remedies, as it did not initiate an 

 

11 In November 2013, Parents removed the action to the United States District 

Court for the Eastern District of California. In March 2014, the federal court granted the 

Department‟s motion to remand and remanded the case to Tuolumne County Superior 

Court. 

12 In March 2014, Parents filed a cross-complaint against the Department in which 

they sought to enforce the OAH decision and requested an award of attorney fees. 
14.

interagency dispute under section 7585, subdivision (a); and (2) the Department failed to 

allege any cause of action against them. The trial court denied the motion, finding that 

the Department exhausted its administrative remedies and had alleged a cause of action 

against the Educational Agencies.

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 Parents‟ claims as to CCS because they 

failed to exhaust their administrative remedies under Title 22, section 42140; (2) the ALJ 

abused his discretion in denying CCS‟s motion to dismiss, as CCS is not a proper party to 

a due process complaint, and erred when he allowed the matter to proceed against CCS 

alone, without the Educational Agencies as parties; (3) the ALJ erred in returning L.M.‟s 

CCS services to the level stated in her June 2011 IEP and ordering compensatory services 

as there is no valid medical prescription to support these orders; and (4) the ALJ abused 

his discretion when he determined CCS was required to utilize the IEP development 

process to obtain (a) parental consent to any changes in L.M.‟s medically-based OT and 

PT, and (b) an OAH order to override a parent‟s objection to a change in medically-based 

services. With respect to its claim for declaratory relief, the Department asserted it was 

seeking “a declaration establishing the respective responsibilities between the parties to 

guide them as they continue to service [L.M.][,]” namely a declaration establishing the 

Educational Agencies‟ duty to provide awarded OT and PT in this matter. The Parents 

and Educational Agencies filed separate oppositions to the Department‟s opening brief. 

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.13 The trial court first addressed the Department‟s 

 

13 No statement of decision was requested. 
15.

contention that the OAH did not have jurisdiction over CCS. Citing section 7586, 

subdivision (a), the trial court explained: “[I]t appears that even though CCS-provided 

medically necessary PT and OT were not intended to be provided for purposes of 

providing a FAPE under IDEA, California has determined that disputes arising about 

such services when listed in the child‟s IEP shall be heard in an IDEA due process 

hearing. Further, all hearing requests that involve multiple services that are the 

responsibility of more than one state department „shall give rise to one hearing with all 

responsible state of local agencies joined as parties.‟ (§ 7576, subd. (c), emphasis 

added.)” Since the OAH had jurisdiction to hear due process claims arising under the 

IDEA and California special education law, the trial court determined that the OAH had 

jurisdiction over CCS. 

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. 
16.

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 non-medically 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 the Educational Agencies were 

dismissed as parties to the OAH proceeding in December 2012 and “the court ordered 

CCS to reinstitute [L.M.]‟s therapies level from three years ago[,]” but the Department 

asserted it was highly likely another dispute would arise between the parties concerning 

the appropriate level of OT and PT services “at some point in the future.” The trial court 

found this statement to be “conjecture and speculative[,]” explaining that Parents had 

settled all claims regarding educationally-related services with the Educational Agencies, 

the only remaining issues for hearing concerned CCS‟s provision of medically necessary 

services, CCS participated in the hearing with counsel and had ample opportunity to 

defend itself, and the ALJ determined it was the Educational Agencies‟ responsibility to 

convene IEP meetings, not CCS‟s, and therefore CCS could not be held liable for any 
17.

failure in that regard. Accordingly, the trial court denied the Department‟s request for 

declaratory relief. 

Finally, the trial court found Parents were the prevailing party in the instant action, 

and therefore were 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 mandamus. (Code Civ. Proc., §§ 1085, 1094.5.) The 

applicable type of mandate is determined by the nature of the administrative action or 

decision. [Citation.] Usually, quasi-legislative acts are reviewed by ordinary mandate 

and quasi-judicial acts are reviewed by administrative mandate.‟ [Citation.] There are 

subtle differences between the scope of judicial review applied to ordinary mandamus 

and that used for administrative mandamus. [Citation.] Regardless of the writ involved, 

however, where the facts are undisputed, the reviewing court faces a question of law. 

„On questions of law arising in mandate proceedings, we exercise independent 

judgment.‟ ” (Santa Clara Valley Transportation Authority v. Rea (2006) 

140 Cal.App.4th 1303, 1313 (SCVTA).) In those circumstances, the trial and appellate 

courts perform the same function. (Ibid.)

Here, the Department sought both a traditional and administrative writ of 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 
18.

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 fn. 7, in 

which the appellate 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, 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 Parents acknowledge, this case requires us to interpret 

Chapter 26.5 of the Government Code in the context of both the Education Code and the 

IDEA. “ „ “[T]he interpretation and application of a statutory scheme to an undisputed 

set of facts is a question of law . . . which is subject to de novo review on appeal. . . .” ‟ ” 
19.

(M & B Construction v. Yuba County Water Agency (1999) 68 Cal.App.4th 1353, 1359 

(M & B).) While Parents assert that we are to give “due weight” to the administrative 

proceeding and should defer to the ALJ‟s expertise, citing Board of Education v. Rowley

(1982) 458 U.S. 176, 206 and Union Sch. Dist. v. Smith (9th Cir. 1994) 15 F.3d 1519, 

1524, an ALJ‟s statutory interpretation is reviewed de novo. (Arizona State Bd. for 

Charter Schools v. U.S. Dept. of Educ. (9th Cir. 2006) 464 F.3d 1003, 1006.)

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 [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. 

(SCVTA, 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.) 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.) 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.) If the 
20.

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.‟ ” (SCVTA, supra, 140 Cal.App.4th at pp. 1313-1314.)

With these principles in mind, we turn to the merits of the Department‟s claims.14

B. Jurisdiction

The Department first contends that CCS should have been dismissed from the due 

process hearing because Parents‟ failure to use another administrative forum to contest 

CCS‟s determination regarding L.M.‟s medical services divested the OAH of jurisdiction 

to hear their complaint regarding CCS‟s prescription for OT and PT. The Department 

 

14 The Department, Parents, Educational Agencies, and Amicus Curiae California 

School Board Association, have all filed requests for judicial notice. The following 

documents are subjects of the various requests: (1) an unpublished Ninth Circuit Court of 

Appeal decision, Douglas v. California Office of Administrative Hearings (9th Cir. 2016) 

650 Fed.Appx. 312, and the United States District Court decision it reversed, Douglas v. 

California Office of Administrative Hearings (N.D.Cal. 2015) 78 F.Supp.3d 942; 

(2) decisions issued by the OAH in related special education due process hearings, Parent 

on Behalf of Student v. California Children’s Services (OAH, Apr. 19, 2012, 

No. 2011060589), Parents v. California Children’s Services (OAH, Jul. 2, 2015, 

No. 2014120903, 115 LRP 30635, Los Angeles County Office of Education (OAH, 

Mar. 16, 2011, No. 2010110325, and Los Angeles County Office of Education (OAH, 

Feb. 7, 2011, No. 2010110301); (3) United States Department of Education, Office of 

Special Education Programs, letter to Ruth K. Forer, Nov. 4, 1980; (4) United States 

Department of Education, Office of Special Education and Rehabilitative Services, 

Dispute Resolution Procedures Under Part B of the Individuals with Disabilities 

Education Act (Part B) (July 23, 2013); and (5) an August 24, 2016 “Ruling on 

Submitted Matter and Order: Petition for Writ of Mandamus” issued in State of 

California, Department of Health Care Services v. Office of Administrative Hearings, 

Sacramento Superior Court Case No. 34-2013-80001557. Pursuant to Evidence Code 

sections 459, subdivision (a), and 452, subdivisions (b), (c) and (d), all requests for 

judicial notice are granted.
21.

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.15 

To address the Department‟s claim, we must first review the statutory framework. 

Under the IDEA, a state‟s educational agency is responsible for meeting the IDEA‟s 

requirements. (20 U.S.C. § 1412(a)(11)(A).) Individual states, however, may assign 

responsibility for the provision of related services to other agencies. (20 U.S.C. 

§ 1412(a)(12).) In California before 1984, state and LEAs were responsible for providing 

both special education and all related services to students with disabilities. (California 

School Bds. Assn. v. Brown (2011) 192 Cal.App.4th 1507, 1514 (California School Bds.); 

see Nevada County Office of Education v. Riles (1983) 149 Cal.App.3d 767, 775-776 

[because the IDEA‟s predecessor established the educational agency as the entity for 

ensuring the provision of educational and related services, CCS was not a necessary party 

to a special education due process hearing.].)16 

 

15 There are no published California cases that address this issue. In 2015, the 

United States District Court for the Northern District of California held that a hearing 

officer in a special education due process hearing does not have authority to determine 

what CCS services are medically necessary, as that authority is limited to the 

Department. (Douglas v. California Office of Administrative Hearings, supra, 78 

F.Supp.3d at p. 949.) In 2016, the Ninth Circuit Court of Appeals reversed the district 

court, finding that a parent may initiate a due process hearing to seek review of CCS‟s 

determination of medical necessity in a child‟s IEP, and therefore CCS was not beyond 

the jurisdiction of a hearing officer. (Douglas v. California Office of Administrative 

Hearings, supra, 650 Fed.Appx. at pp. 314-315.) In so holding, the Ninth Circuit 

acknowledged that a similar issue was pending before us in the instant action, yet it 

decided the case, rather than defer submission or certify the question to the California 

Supreme Court, in the interest of judicial expediency. (Id. at p. 316.) 

16 To satisfy their obligation to provide a FAPE, however, California state or 

LEAs entered into interagency contracts with other state agencies to provide related 

services. For example, CCS has provided medically necessary OT and PT through its 

Medical Therapy Program to students in public schools since at least 1969. (See former 

Health & Saf. Code, § 267, added by Stats. 1968, ch. 1316, § 1, pp. 2485, 2490, and 

reenacted as Health & Saf. Code, § 123950 by Stats. 1995, ch. 415, § 8, p. 3147.)
22.

This changed with the enactment of Chapter 26.5 of the Government Code, 

entitled “Interagency Responsibilities for Providing Services to Children with 

Disabilities.”17 (§ 7570 et seq.; hereafter Chapter 26.5.) (California School Bds., supra, 

192 Cal.App.4th at p. 1514.) Through Chapter 26.5, the Legislature intended to 

maximize and coordinate existing services rendered by state and local government 

agencies serving children with disabilities, and to clarify “specific state and local 

interagency responsibilities . . . in order to better serve the educational needs” of those 

children. (Stats. 1984, ch. 1747, § 1, p. 6370.)

To that end, Chapter 26.5 makes “the provision of related services, as defined in 

[the IDEA], and designated instruction and services, as defined in [the Education Code],” 

the “joint responsibility of the Superintendent of Public Instruction and the Secretary of 

Health and Human Services Agency.” (§ 7570, italics added.) Chapter 26.5 and its 

implementing regulations, contained in Title 2, section 60000 et seq. (Chapter 26.5 

regulations), delineate those joint responsibilities.

18

 The LEA and the Department, 

through CCS, are jointly responsible for the provision of OT and PT as a related 

service.19 (§ 7575.) CCS is required to provide “medically necessary” OT and PT20 “by 

 

17 Chapter 26.5 originally was added as Chapter 26, “Interagency Responsibilities 

for Providing Services to Handicapped Children,” by Stats. 1984, ch. 1747, § 2, operative 

July 1, 1986. Chapter 26 was renumbered Chapter 26.5 and amended by Stats. 1986, 

ch. 248, § 52, and later amended by Stats. 2002, ch. 1168, § 73, eff. September 30, 2002.

18 The Chapter 26.5 regulations apply to the Department and its designated local 

agencies, as well as the Department of Education and LEAs. (Tit. 2, § 60000.) The 

intent of the Chapter 26.5 regulations is to assure conformity with IDEA and its 

implementing regulations; therefore they are to “be construed as supplemental to, and in 

the context of, federal and state laws and regulations relating to interagency 

responsibilities for providing services to pupils with disabilities.” (Tit. 2, § 60000.)

19 As authorized by section 7571, the Secretary of the Health and Human Services 

Agency has designated the Department, and the Department‟s designated local agencies, 

as the entities “to assume the responsibilities described in section 7570” and “to 

coordinate the service responsibilities described in section 7572.” (Tit. 2, § 60000.) 
23.

reason of medical diagnosis and when contained in the child‟s [IEP]” (§ 7575, 

subd. (a)(1)),

21 while qualified personnel from LEAs are required to provide related 

services the Department does not deem to be medically necessary but which the child‟s 

IEP team “determines are necessary in order to assist a child to benefit from special 

education.” (§ 7575, subd. (a)(2).)22 The Department “determine[s] whether a [CCS] 

eligible pupil, or a pupil with a private medical referral[,] needs medically necessary 

[OT] or [PT].” (§ 7575, subd. (b).)

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. (§ 7572, 

subd. (a).) Qualified medical personnel are required to conduct OT and PT assessments

as specified in regulations developed by the Department in consultation with the 

Department of Education. (§ 7572, subd. (b).) 23 The IEP team “shall only” add a related 

 

20 “Medically necessary” OT and PT is defined as “those services directed at 

achieving or preventing further loss of functional skills, or reducing the incidence and 

severity of physical disability.” (Tit. 2, § 60300, subd. (n).) 

21 Section 7575, subdivision (a)(1) provides: “Notwithstanding any other 

provision of law, the State Department of Health Care Services, or any designated local 

agency administering the [CCS], shall be responsible for the provision of medically 

necessary [OT] and [PT], as specified by [the Crown Act], by reason of medical 

diagnosis and when contained in the child‟s [IEP].” 

22 Section 7575, subdivision (a)(2) provides: “Related services or designated 

instruction and services not deemed to be medically necessary by the State Department of 

Health Care Services, that the [IEP] team determines are necessary in order to assist a 

child to benefit from special education, shall be provided by the [LEA] by qualified 

personnel whose employment standards are covered by the Education Code and its 

implementing regulations.” 

23 Title 2, section 60320, states the referral and assessment procedure. If the LEA 

decides to refer the pupil to CCS for an assessment, CCS first determines if the pupil has 

a “medical therapy program eligible condition[,]” which includes, as relevant here, 

cerebral palsy. (Tit. 2, §§ 60320, subds. (a), (c) & (e), 60300, subd. (j).) If so, CCS 

proposes a therapy assessment, obtains the parents‟ consent for assessment of the need 

for medically necessary OT or PT, and sends a copy of the consent to the LEA, which 

sets a date for the IEP team meeting. (Tit. 2, § 60320, subds. (f) & (g).)
24.

service to a child‟s IEP if a “formal assessment” has been conducted by a qualified 

person who recommends the service “in order for the child to benefit from special 

education.” (§ 7572, subd. (c).) 

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. 

(§ 7572, subd. (d); see also Tit. 2, § 60325, subd. (b) [“CCS shall participate in the IEP 

team as set forth in Government Code Section 7572(d)”].)

A parent who disagrees with the OT or PT assessment may require the assessor to 

attend the IEP meeting. (§ 7572, subd. (c)(1).) A parent also may obtain an independent 

assessment, which the assessor must review, and require the assessor to attend the IEP 

meeting. (§ 7572, subd. (c)(2).) In either case, after review and discussion, the 

 

The Medical Therapy Conference (MTC) then assesses the pupil‟s need for OT 

and PT, determining medical necessity based on the pupil‟s physical and functional 

status. (Tit. 2, §§ 60323, subd. (a), 60300, subd. (a).) The MTC reviews the therapy plan 

and is responsible for approving it. Either the MTC physician writes the prescription for 

the services to be provided to the pupil under the physician‟s supervision or reviews 

prescriptions submitted by the pupil‟s private physician for compliance with the 

program‟s requirements. (Tit. 2, § 60323, subd. (c).) Medically necessary therapy 

services are provided at the level dependent on the pupil‟s physical and functional status 

as determined and prescribed by the CCS paneled physician. (Tit. 2, § 60323, subd. (d).)

If CCS determines a pupil needs medically necessary OT or PT, CCS provides the 

LEA and parents a copy of the completed assessment report for therapy or a proposed 

therapy plan before the scheduled IEP meeting. If CCS determines a pupil does not need 

medically necessary therapy, CCS provides the LEA and parents with the completed 

assessment report for therapy and a statement delineating the basis for the determination. 

(Tit. 2, §§ 60320, subds. (h) and (i), 60325, subd. (a) [“CCS shall provide a copy of the 

assessment and evaluation report and the proposed therapy plan to the IEP team”].)
25.

assessor‟s recommendation becomes the recommendation of the IEP team members who 

represent the LEA. (§ 7572, subd. (c)(1) & (2).)

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.” (Tit. 2, § 60325, subd. (c).) The LEA then is required to convene the 

IEP team to “review all assessments, request additional assessments if needed, determine 

whether fine or gross motor or physical needs exist, and consider designated instruction

and services or related services that are necessary to enable the pupil to benefit from the 

special education program.” (Tit. 2, § 60325, subds. (d) & (e).) 

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 medically 

necessary OT and PT, and it can later decide to modify or discontinue such services if the 

child‟s medical need for the services changes. The question here is whether parents who 

disagree with CCS‟s medical necessity determination may seek review of that decision in 

a due process hearing under California‟s implementation of the IDEA. The Department 

argues that because a California regulation, Title 22, section 42140, sets out a procedure a 

parent may follow when a dispute arises over CCS‟s medical necessity determination, 

that regulation “expressly divest[s] OAH of jurisdiction in a dispute over the physician‟s 

prescription.” Instead, the Department argues, parents who disagree with the provision of 

medically necessary OT and PT must engage in CCS‟s dispute resolution procedure. The 

Department contends that because Parents did not follow this procedure, the ALJ did not 

have authority to hear their dispute concerning CCS‟s medical assessment and 

prescription.

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 –
26.

whether medically or educationally necessary – are “related services[,]” since they are 

necessary “to assist an individual with exceptional needs to benefit from special 

education.” (Ed. Code, § 56363, subd. (a); accord 20 U.S.C. § 1401(26)(A).) If 

medically necessary OT and PT services were not also necessary for a child to benefit 

from special education, they would not need to be included in the child‟s IEP. Therefore, 

OT and PT services, even those CCS determines are medically necessary, constitute a 

“related service” when they are part of a child‟s IEP. Moreover, Chapter 26.5 makes it 

clear that CCS, in providing medically necessary OT and PT, is discharging its joint 

responsibility for providing related services as defined in the IDEA, which are an 

essential component of a FAPE. (See § 7570; 20 U.S.C. § 1401(9).) 

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. Section 7572, 

subdivision (c)(3) provides that disputes between parents and IEP “team members 

representing the public agencies” regarding recommendations by medical personnel and 

the IEP team concerning related services “shall be resolved” in due process hearings.24 

Although section 7585 sets out a procedure for resolving disputes between the 

Department of Education or a LEA on the one hand, and CCS or the Department on the 

 

24 Section 7572, subdivision (c)(3) provides: “Any disputes between the parent 

and team members representing the public agencies regarding a recommendation made in 

accordance with paragraphs (1) and (2) shall be resolved pursuant to Chapter 5 

(commencing with Section 56500) of Part 30 of Division 4 of Title 2 of the Education 

Code.” 

The referenced Education Code sections define the scope of special education due 

process hearings. Education Code section 56501, subdivision (a), provides that special 

education due process hearings extend to the parent or guardian, to certain pupils, and to 

“the public agency involved in any decisions regarding a pupil.” A “public agency” is 

defined as “a school district, county office of education, special education local plan area 

. . . or any other public agency . . . providing special education or related services to 

individuals with exceptional needs.” (Ed. Code, § 56028.5, emphasis added.) 
27.

other, over the provision of OT and PT when contained in an IEP, the statute also 

specifically provides that a parent or adult pupil may still file for a due process hearing 

under section 7586. (§ 7585, subd. (g); Tit. 2, § 60600 [discussing application of 

procedures specified in § 7585].) Finally, section 7586, subdivision (a), provides that all

state departments and their designated local agencies are governed by the IDEA‟s 

procedural safeguards, the “[r]esolution of all issues” shall be through a special education 

due process hearing, and the decision issued in that hearing is binding on the department 

that is responsible for the services in issue. (Emphasis added.)25

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 

 

25 Section 7586 provides in its entirety: 

“(a) All state departments, and their designated local agencies, shall be governed 

by the procedural safeguards required in Section 1415 of Title 20 of the United States 

Code. A due process hearing arising over a related service or designated instruction and 

service shall be filed with the Superintendent of Public Instruction. Resolution of all 

issues shall be through the due process hearing process established in Chapter 5 

(commencing with Section 56500) of Part 30 of Division 4 of the Education Code. The 

decision issued in the due process hearing shall be binding on the department having 

responsibility for the services in issue as prescribed by this chapter.

“(b) Upon receipt of a request for a due process hearing involving an agency other 

than an educational agency, the Superintendent of Public Instruction shall immediately 

notify the state and local agencies involved by sending a copy of the request to the 

agencies.

“(c) All hearing requests that involve multiple services that are the responsibility 

of more than one state department shall give rise to one hearing with all responsible state 

or local agencies joined as parties.

“(d) No public agency, state or local, may request a due process hearing pursuant 

to Section 56501 of the Education Code against another public agency.” 
28.

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.” (Tit. 2, § 60550.) 

Title 2, section 60550, subdivisions (b), (c) & (d), explain the procedure for such 

due process hearings: (1) upon receipt of a request for a due process hearing regarding 

the services provided or refused by another agency, the Superintendent of Public 

Instruction sends the hearing request to the state and local agencies, along with 

information concerning the mediation in accordance with Education Code section 56503; 

(2) if the mediator cannot resolve the issues, a hearing officer conducts a state level 

hearing in accordance with Education Code section 56505; and (3) each agency involved 

in a proposal or refusal to provide a service is responsible for preparing documentation 

and providing testimony for the hearing officer. 

Title 2, section 60550, subdivision (e) requires the hearing officer to be 

knowledgeable in the laws governing administrative hearings, Chapter 26.5‟s provisions, 

and the applicable laws relevant to special education and CCS. Further, for hearings 

related to the provision of OT or PT, the hearing officer is required to rule according to

section 7575, subdivision (a), which specifies that CCS is responsible for providing 

medically necessary OT and PT “by reason of medical diagnosis and when contained in 

the pupil‟s IEP[,]” and the LEA is responsible for OT and PT that it determines is 

“necessary in order to assist the pupil to benefit from special education[,]” but CCS does 

not deem to be medically necessary. (Tit. 2, § 60550, subd. (e).) The hearing decision is 

the final administrative determination regarding the provision of educational and related 

services, and is binding on all parties. (Tit. 2, § 60500, subd. (f).)

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 
29.

providing related services contained in IEPs.26 The “Dispute Resolution” section in the 

Interagency Agreement Between Tuolumne County Superintendent of Schools and 

Tuolumne County Health Department California Children Services for Fiscal Years 

2009/2010, 2010/2011, 2011/2102 (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 decision 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.”

Chapter 26.5, its implementing regulations, and the Local IA all support the 

conclusion that CCS is subject to the OAH‟s jurisdiction when, as here, a parent disputes 

CCS‟s provision of medically necessary OT and PT that are included in a child‟s IEP. 

CCS does have its own internal procedures for resolving disputes over medically 

necessary services, which it offered to Parents. Under Title 22, section 42140, 

subdivision (a), parents have the right to appeal a CCS decision except when a CCS 

physician who is responsible for the medical supervision of their child has ordered or 

terminated the service under dispute. If, as here, parents disagree with the CCS 

physician‟s decision, the parents are provided the names of three expert physicians, one 

of whom the parents choose to evaluate the child at CCS expense, and all parties are 

 

26 Title 2, section 60310, requires the development of local interagency 

agreements between CCS and LEAs to facilitate the provision of medically necessary OT 

and PT. 
30.

bound by the chosen physician‟s determination. (Tit. 22, § 42140, subd. (a).) No further 

right to appeal the physician‟s order exists.27 

The Department contends Parents were 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 (Campbell), the Department contends 

Parents were required to exhaust the CCS appeal process, since whether a service is 

medically 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 Parents did pursue the administrative remedy provided by 

statute, namely the due process hearing procedure set forth in section 7586, when they 

sought review of CCS‟s unilateral decision to reduce L.M.‟s medically necessary OT and 

PT contained in L.M.‟s IEP. If the CCS appeal process were Parents‟ sole remedy to 

address their complaints, they would have no right to a special education due process 

hearing. Such a result is contrary to the due process rights expressly conferred under 

Chapter 26.5, specifically section 7586, subdivision (a).

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) 

 

27 Appeals of all other CCS decisions are appealed first to the local CCS agency 

charged with serving the client, which internally determines its own client‟s appeal (Tit. 

22, § 42160), and if the client is still unsatisfied, the client may pursue a state level fair 

hearing. (Tit. 22, § 42180.)
31.

132 S.Ct. 2065, 2070-2071, and Shewry v. Wooten (2009) 172 Cal.App.4th 741, 747. 

The Department contends that because section 7575, subdivision (b), makes it the “sole 

arbiter of what is „medically necessary[,]‟ ” this is a specific statute which controls over 

the general statute, section 7572, which grants parents a right to a due process hearing 

when there is a dispute over related services. The Department argues the two statutes 

conflict and asserts there is no authority that specifically grants the OAH the ability to 

override a CCS physician‟s prescription for medical services.

The Department‟s argument fails. The statute it claims is the specific one, 

section 7575, is only one brick in the statutory scheme that is Chapter 26.5. Under 

section 7575, CCS determines the medical necessity of OT and PT. If a parent disagrees 

with that determination, they can request a special education due process hearing. 

(§§ 7572, 7586.) The OAH may decide the issue, ruling in accordance with section 

7575‟s mandate that CCS is only required to provide medically necessary OT and PT.28 

(Tit. 2, § 60550, subd. (e).) Thus there is no conflict between the two statutes; instead, 

they act in harmony in order to preserve a parent‟s due process rights under the IDEA. 

In enacting Chapter 26.5, the Legislature has determined that “[a]ll state 

departments” are governed by the IDEA‟s procedural safeguards, and that “[r]esolution 

of all issues” concerning a related service are to be resolved in a special education due 

process hearing. (§ 7586, subd. (a).) As we have already explained, the implementing 

regulations and Local IA support that intent. “When the statutory language is 

unambiguous, „ “we presume the Legislature meant what it said and the plain meaning of 

 

28 Here, the ALJ did not reach the issue of whether CCS denied L.M. a FAPE by 

failing to provide adequate OT and PT services, and therefore did not decide the issue of 

medical necessity of prospective services. Accordingly, we need not, and do not, 

determine the showing required to challenge CCS‟s determination of medically necessary 

OT and PT services. We hold only, as did the ALJ, that CCS‟s determination of the level 

and type of medically necessary OT and PT for an eligible pupil may be challenged 

through a special education due process hearing. 
32.

the statute governs.” ‟ ” (Bonnell v. Medical Board (2003) 31 Cal.4th 1255, 1261.) 

Since Chapter 26.5 unambiguously provides that “all issues” concerning related services, 

including medically necessary OT and PT, shall be resolved in a special education due 

process hearing, the OAH had jurisdiction over Parents‟ claims.29

C. The Order for Compensatory OT and PT, and Restoration of Services

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 education, 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. 

 

29 Amicus Curiae California State Association of Counties (CSAC) makes various 

public policy arguments in support of the Department‟s position. CSAC contends that 

allowing a parent to challenge a CCS decision in a special education due process hearing 

“would have serious repercussions on the provision of services to children with 

disabilities in California[,]” as it would: (1) “open the floodgates” to demands for CCS to 

provide non-medically necessary PT and OT services; (2) allow parents to ignore the 

requirement that a CCS-certified physician provide a second evaluation of a child when 

they are dissatisfied with the initial CCS determination; (3) place the OAH and federal 

courts in the position of resolving disputes about a child‟s medical need for therapy;

(4) upend the Legislature‟s long-standing division of agency responsibilities by forcing 

CCS to provide services that are not medically necessary; and (5) compromise CCS‟ 

ability to serve truly needy children given its limited resources and costly nature of 

services. Given that the Legislature, in enacting Chapter 26.5, clearly granted parents the 

right to request a special education due process hearing when they disagree with a CCS 

determination, CSAC‟s arguments are properly addressed to the Legislature, not to us. 

(See, e.g., Gallo Glass Co. v. Superior Court (1983) 148 Cal.App.3d 485, 489.) 
33.

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 section 7575, and 

overturn the ALJ‟s decision holding CCS responsible for providing the services.

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 section 7586 “all issues” regarding 

related services are to be resolved in that proceeding, the ALJ had the authority to 

exercise his equitable powers and order CCS to provide compensatory services and 

restoration of L.M.‟s services to the prior levels.

30

 Compensatory education is an 

equitable remedy by which hearing officers “may award „educational services . . . to be 

provided prospectively to compensate for a past deficient program.‟ ” (Reid ex rel. Reid 

v. District of Columbia (D.C. Cir. 2005) 401 F.3d 516, 522 (Reid).) This “entails a factspecific, individualized assessment of a student‟s current needs.” (Cupertino Union Sch. 

Dist. v. K.A. (N.D. Cal. 2014) 75 F.Supp.3d 1088, 1105-1106 (Cupertino); see also 

Parents of Student W. v. Puyallup Sch. Dist., No. 3 (9th Cir. 1994) 31 F.3d 1489, 1496; 

 

30 The Department relies on Natalie D. v. State Dept. of Health Care Services

(2013) 217 Cal.App.4th 1449, in support of its argument that only a CCS physician may 

decide the appropriate level of medically necessary services. That case, however, did not 

involve CCS services that were also related services in a student‟s IEP. Thus, 

Chapter 26.5 was not at issue and the procedural safeguards of the Education Code and 

IDEA did not apply. 
34.

School Comm. of Burlington v. Dep’t of Educ. (1985) 471 U.S. 359, 374.) “ „Appropriate

relief is relief designed to ensure that the student is appropriately educated within the 

meaning of the IDEA.‟ ” (Cupertino, supra, 75 F.Supp.3d at p. 1106.) The award must 

be “reasonably calculated to provide the educational benefits that likely would have 

accrued from special education services the school district should have supplied in the 

first place.” (Reid, supra, 401 F.3d at p. 524.)

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.

31

 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 

 

31 In a footnote, the Department references an OAH decision from another special 

education due process hearing, Parent on Behalf of Student v. California Children’s 

Services (Apr. 19, 2012) OAH Case No. 2011060589, for the proposition that only CCS 

has authority “to decide whether OT and PT services were „medically necessary‟ under 

the CCS standard.” The ALJ in that case: (1) found that OAH had jurisdiction over CCS; 

(2) determined that CCS denied the student a FAPE by unilaterally reducing his 

medically necessary related services outside the IEP process; and (3) ordered CCS to 

reinstate its services to the last agreed upon level in the student‟s IEP and provide 

compensatory services to address regression caused by CCS‟s denial of a FAPE. Thus, 

the ALJ‟s findings and order in that case fully support the Parents‟ position in this case.

Rather than appeal that decision or challenge it in court, CCS requested an 

interagency dispute hearing pursuant to section 7585, in which it sought reimbursement 

for part of the costs of the services it had been ordered to provide. The OAH denied 

CCS‟s request as it, in effect, asked for a reduction in the ordered services, which could 

not be changed absent a modification in the ALJ‟s decision or the IEP. The Department 

sought review of that decision through a petition for writ of mandate in State of 

California, Department of Health Care Services v. Office of Administrative Hearings, 

Sacramento Superior Court Case No. 34-2013-80001557, which was denied on 

August 24, 2016.
35.

assessments, (2) the witnesses had extensive educational and experiential backgrounds, 

and (3) the assessments were not conducted solely for educational purposes, unrelated to 

medical necessity, but instead encompassed skills that were both medically and 

educationally necessary. 

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 

IDEA, denied L.M. a FAPE. The ALJ further found that CCS was required to use the 

IEP development process to obtain parental consent to any changes in L.M.‟s related OT 

and PT services that CCS recommends, or to use the due process hearing procedures to 

obtain an order from OAH to override parental denial of consent to changes in L.M.‟s 

services. Until CCS followed these procedures, the ALJ ordered L.M.‟s medically 

necessary OT and PT services set out in her June 2011 restored. 
36.

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 same level of medically necessary OT and PT 

services L.M. was receiving prior to Parents‟ 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.

This is consistent with federal law and state regulation. Under the IDEA, both the 

non-educational agency and the LEA are responsible for the continued delivery of 

services. (20 U.S.C. § 1412(a)(12)(B)(i) [if a public agency is obligated under state law 

or assigned responsibility under state policy pursuant to an interagency agreement to 

provide or pay for a related service, “such public agency shall fulfill that obligation or 

responsibility”]; 20 U.S.C. § 1412(a)(12)(B)(ii) [if the public agency fails to provide or 

pay for a related service, the LEA is required to provide or pay for such services, and 

may claim reimbursement from the public agency that failed to provide or pay for them].) 

Thus, during a dispute between an LEA and a non-educational state agency over the 

responsibility for the provision of services, the services are continued for the student‟s 

protection and the agency providing them may later obtain reimbursement for them, if 

appropriate. (See Assistance to States for the Education of Children with Disabilities and 

Preschool Grants for Children with Disabilities, 44 Fed.Reg. 46540, 46607 (Aug. 14, 

2006) [“Disagreements about the interagency agreements should not stop or delay the 

receipt of the services described in the child‟s IEP . . . [T]he State must ensure there is no 
37.

delay in implementing a child‟s IEP, including any situation in which the source for 

providing or paying for the special education or related services to a child is being 

determined.”].)

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. 

(Tit. 2, §§ 60600, 60610.) At that time, the department or local agency determined 

responsible for the service shall pay for or provide the service, and reimburse the agency 

which provided the service. (Tit. 2, § 60610.)

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 IDEA. CCS may not unilaterally reduce or terminate OT and PT services if they are 

in an IEP, but instead must continue to provide them until the dispute is resolved. If CCS 

prevails, it may then obtain reimbursement from the LEA.

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.

II. Declaratory Relief

In its petition, CCS sought a declaration 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, 
38.

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 Government Code section 7575, and as such, whether a 

judicial declaration should issue to guide future decisions concerning the rights and 

responsibilities of the parties.” The Department asserts that a declaration is necessary 

because the attorneys for Parents and the Educational Agencies are repeatedly settling 

around the Department in other due process hearings in an effort to compel it to pay for 

services the Educational Agencies are responsible for providing, and asks us to direct the 

trial court to issue “a declaratory statement to clarify the nature of the parties‟ rights and 

obligations in light of the dictates of Government Code section 7575, subdivision (a)(2).” 

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” (Code Civ. Proc., § 1060), it is not an appropriate means to obtain 

judicial review of an administrative decision. (State of California v. Superior Court

(1974) 12 Cal.3d 237, 249; see Tri-County Special Educ. Local Plan Area v. County of 

Tuolumne (2004) 123 Cal.App.4th 563, 576 [“ „The declaratory relief provisions do not 

independently empower the courts to stop or interfere with administrative proceedings by 

declaratory decree.‟ ”].) 

The Department‟s declaratory relief action rests primarily on its contention that 

the OAH erred in its interpretation of section 7575. The remedy it seeks – that it is not 

responsible for providing the OT and PT services the ALJ ordered – is available only by 

overturning the administrative decision. The Department asserts in its reply brief that the 
39.

declaratory relief claim is proper because it seeks to resolve whether the OAH has 

jurisdiction to order CCS to provide OT and PT services in the absence of a medical 

necessity determination, as here the ALJ ordered CCS to provide services that were not 

medically necessary and therefore must be provided by the Educational Agencies. Since 

review of this claim entails a review of the OAH decision, it is not a proper subject of a 

declaratory relief action. Accordingly, the trial court did not err in denying the 

Department‟s claim for declaratory relief.

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 IDEA‟s purview, since it involves only state law claims. It also argues 

that, even if proper, the request must be filed in federal court. We review a trial court‟s 

award of attorney fees de novo where, as here, the appellant challenges the legal basis for 

an attorney fee award. (Conservatorship of Whitley (2010) 50 Cal.4th 1206, 1213–1214.)

Both state and federal law grant courts the authority to award attorney fees to a 

prevailing parent in a case involving claims under the IDEA. Education Code section 

56507, subdivision (b)(1), provides: “An award of reasonable attorney‟s fees to the 

prevailing parent, guardian, or pupil, as the case may be, may only be made either with 

the agreement of the parties following the conclusion of the administrative hearing 

process or by a court of competent jurisdiction pursuant to Section 1415(i)(3) of Title 20 

of the United States Code.” The federal statute, 20 U.S.C. § 1415(i)(3), provides, in 

pertinent part: “(A) In general [¶] The district courts of the United States shall have 

jurisdiction of actions brought under this section without regard to the amount in 

controversy. [¶] (B) Award of attorneys‟ fees [¶] (i) In general [¶] In any action or 

proceeding brought under this section, the court, in its discretion, may award reasonable 
40.

attorneys‟ fees as part of the costs – [¶] (I) to a prevailing party who is the parent of a 

child with a disability; . . .”

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 IDEA, as its claims 

were state law claims for writs of mandamus and declaratory relief.32 Even so, those 

claims were brought to overturn the OAH decision that was issued in a special education 

due process hearing in which the ALJ found that CCS committed procedural violations of 

the IDEA. In seeking writs of mandamus and declaratory relief, the Department argued it 

was not subject to the IDEA and therefore the OAH did not have jurisdiction over it. 

While resolution of the Department‟s claims required the interpretation of state law, 

namely Chapter 26.5, that law is part of California‟s implementation of the IDEA. As 

such, the Department‟s lawsuit was within the purview of the IDEA and essentially 

amounted to a review of the correctness of the ALJ‟s decision.

The Department next argues that the Parents must file their 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 IDEA. The Department asserts that 

federal courts have exclusive jurisdiction over claims for attorney fees under the IDEA. 

This assertion originates with the IDEA‟s attorney fees provision, 20 United States Code 

section 1415(i)(3), which states that “district courts of the United States shall have 

jurisdiction brought under this section without regard to the amount in controversy.” 

(20 U.S.C. § 1415(i)(3)(A).) The statute does not contain any indication of whether 

 

32 Parents who prevail at an administrative hearing by obtaining affirmative relief 

in a proceeding brought under the IDEA are entitled to attorney fees. (Miller ex rel. 

Miller v. San Mateo-Foster City Unified School Dist. (N.D.Cal. 2004) 318 F.Supp.2d 

851, 863.) Under California law, the hearing officer is required to designate the 

prevailing party for each issue on which a decision was rendered. (Ed. Code, § 56507, 

subdivision (d).) The Department does not contend that the underlying administrative 

proceeding was not brought under the IDEA or that Parents were not the prevailing party

in either the administrative or trial court proceedings. 
41.

subdivision (A) was intended to grant federal district courts exclusive jurisdiction to 

award fees or concurrent jurisdiction without regard to the minimum amount in 

controversy.

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 20 United States Code section 1415(i)(3), is a separate proceeding from a civil 

action under 20 United States Code section 1415(i)(2)(A), which provides that a party 

aggrieved by a decision made in an administrative proceeding has the right to bring a 

civil action in any state court of competent jurisdiction or a United States District Court. 

These courts have implied, or outright stated, that fees may only be awarded in a separate 

action where the original claim is brought in state court. (See Zipperer v. School Bd. of 

Seminole County (11th Cir. 1997) 111 F.3d 847, 851 & fn. 2 (Zipperer) [stating that the 

IDEA provides “two distinguishable causes of action” under 20 U.S.C. § 1415(i)(2) &

(3), and “the available forums are different under the two actions”]; B.K. v. Toms River 

Bd. of Educ. (D.N.J. 1998) 998 F.Supp. 462, 470 [stating that a fee action is a distinct 

proceeding from a civil action]; Curtis K. by Delores K. v. Sioux City Community School 

Dist. (N.D. Iowa 1995) 895 F.Supp. 1197, 1210 [“Jurisdiction over the action for 

attorneys fees lies not in either State or Federal court, but . . . in the „district courts of the 

United States.‟ ”].)

The parties do not cite us to any federal court decision that has faced the issue 

directly, and we have found none. The relevant language in Zipperer consists of dicta in 

a footnote; the remainder of the opinion does not address whether state courts are 

empowered to award fees under 20 United States Code section 1415(i)(3). Instead, 

Zipperer and the other cited federal cases analyzed the fee statute in terms of which 

analogous state statute of limitations applied to post-judgment fee claims.

In contending that state and federal courts have concurrent jurisdiction over fee 

claims, Parents cite to an appellate court case from Florida, W.R. ex rel. Doe v. School 
42.

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

(N.J.Super.Ct.App.Div. 1998) 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 IDEA actions. (W.R., supra, 726 So.2d at pp. 803-804.)

The W.R. court first noted that the language in 20 United States Code 

section 1415(i)(3)(A) – “[t]he district courts of the United States shall have jurisdiction of 

actions brought under this section without regard to the amount in controversy” – was 

simply meant to circumvent the minimum amount in controversy requirement for district 

courts, rather than divest state courts of jurisdiction to award fees under the IDEA. 

(W.R., supra, 726 So.2d at p. 803.) The court, citing to J.H.R., explained that the 

jurisdiction provision predated that attorney fees provision, which was added in 1986, 

and therefore Congress could not have intended it to apply to a not yet adopted attorney 

fees statute. (W.R., supra, 726 So.2d at p. 803, citing J.H.R., supra, 705 A.2d at pp. 776-

777.) Moreover, the W.R. court noted the absence of explicit language divesting state 

courts of jurisdiction to determine attorney fee claims under the IDEA. (W.R., supra, 726 

So.2d at p. 803.)

Finally, the W.R. court determined that the policies underlying the IDEA, along 

with the notions of judicial economy, compelled a finding of concurrent jurisdiction, as 

nothing in the statute or interpretative case law suggested that prevailing parents in IDEA 

actions initiated in state court should be required to file separate actions in federal court 

to recover attorney fees. (W.R., supra, 726 So.2d at p. 804.)

We agree with the courts in W.R. and J.H.R. that 20 United States Code 

section 1415(i)(3) grants state and federal courts concurrent jurisdiction to award attorney 

fees. Accordingly, the trial court had jurisdiction to award attorney fees to L.M., at both 

the administrative and trial court levels.
43.

DISPOSITION

The judgment is affirmed. Costs on appeal are awarded to Real Parties in Interest.

_____________________

GOMES, Acting P.J.

WE CONCUR:

_____________________

KANE, J.

_____________________

DETJEN, J.