California Special Education Law

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OAH 2009080479

September 03, 2010

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Student v. California Children's Services - Split Decision

BEFORE THE

OFFICE OF ADMINISTRATIVE HEARINGS

STATE OF CALIFORNIA

In the Matter of:

PARENTS ON BEHALF OF STUDENT,

v.

CALIFORNIA CHILDREN’S SERVICES.

OAH CASE NO. 2009080479

DECISION

Administrative Law Judge Deidre L. Johnson, Office of Administrative Hearings, State of California, heard this matter in Oakland, California, on May 25 and 26, 2010.

Student’s parents (Parents) represented Student and themselves. Father was present for all of the hearing, and Mother was present for most of it. Student did not attend the hearing.

California Children’s Services of the Alameda County Public Health Department, Division of Family Health Services (CCS), was represented by Rebecca S. Widen, Attorney at Law, Haapala, Thompson & Abern, LLP. Sue Johnson, CCS Chief Therapist, was present during the hearing.

Student filed her request for a special education due process hearing (complaint) with OAH on August 14, 2009. The complaint originally named two public entities, CCS and the Oakland Unified School District (District). Student filed her first amended complaint against both entities on November 2, 2009. On December 2, 2009, OAH granted a continuance of the hearing.

On April 5, 2010, OAH continued Student’s case against the District due to a contingent settlement agreement between them, leaving CCS as the sole remaining responding party for hearing, and on July 7, 2010, OAH dismissed the case against the District due to a final settlement agreement. At the hearing, oral and documentary evidence were received. The record remained open until June 18, 2010, for the submission of written closing arguments. The parties having submitted closing briefs, the record was closed on June 18, 2010, and the matter was submitted for decision.

On July 8, 2010, the ALJ issued an Order which reconsidered a request made by Parents during the hearing to obtain documents from the District, ordered the record to be reopened, and allowed the parties until July 23, 2010, to submit certain individualized education program (IEP) records, and until July 30, 2010, to respond to any new records submitted by the other party. On July 23, Parents filed a letter with attached IEPs from 2006, 2007, and 2009. The documents were marked as Exhibit S-2(a), (b), and (c), respectively, for identification. On the same date, CCS filed a response objecting to the Order with an attached declaration from Ms. Johnson, marked as Exhibit C-20 for identification. On July 30, 2010, the record was closed and resubmitted for decision with no further documents submitted from either party. CCS’s objections and the admissibility of the exhibits are addressed in the Procedural Matters section.

ISSUES1

1. Beginning in December 2007, was CCS a public agency obligated to provide Student with educationally related occupational therapy (OT) and physical therapy (PT) services in connection with her IEPs?

2. If so, did CCS deny Student a free appropriate public education (FAPE), procedurally and/or substantively, by failing to provide OT and PT related services in accordance with Student’s IEP(s), including direct OT and PT services, and supervision of those services, as follows:2

(a) By failing to provide any OT services from June 18, 2008, to March 24, 2009;

(b) By failing to provide sufficient OT services from March 25, 2009, to the present; and

(c) By failing to provide sufficient PT services from June 18, 2008, to the present?

3. Beginning in December 2007, did CCS deny Student a FAPE by failing to offer or provide adequate annual goals and related services to meet her unique educational needs in the areas of OT and PT?

1 The ALJ has reframed Student’s issues as to CCS for purposes of clarity and consistency with Student’s amended complaint, and in particular with paragraphs 23, 24, 25, 34, 40, and 45 of the amended complaint.

2 Student’s amended complaint uses the phrase “monitoring and supervision.” However, no evidence was presented to distinguish between monitoring and supervision in this case, and they are substantially synonymous.

3 Parents’ closing argument also requests a monetary award; however, special education law does not provide for monetary awards.

4 Parents also assert that CCS failed to provide Student with an adequate wheelchair. However, Student’s first amended complaint does not identify a problem as to CCS regarding a wheelchair and only mentions a wheelchair in connection with campus access and safety issues as to the District. Therefore, CCS was not provided notice of any claim concerning its involvement in a wheelchair problem and no such problem is at issue in this proceeding.

5 Title 5, California Code of Regulations, section 3082, subdivision (b) provides that any relevant evidence shall be admitted if it is the sort of evidence on which responsible persons are accustomed to rely in the conduct of serious affairs.

6 See Legal Conclusion 1.

7 Parents represent in their cover letter to the exhibit that there were no IEPs in 2008.

8 Ms. Johnson obtained a bachelor of science degree in human performance and development, including PT, in 1980, was a physical therapist for many years, and has been with CCS for 12 years.

9 Ms. Baumgarten obtained a bachelor’s degree in OT in 1991 and has been licensed in California since 2002, when she began working for CCS.

10 The California Education Code refers to related services as “designated instruction and services.” Here, the District’s IEP refers to the federal phrase of “related services.”

11 Parents had financial problems in the summer of 2008, after nine years during which Student attended CCS treatment sessions without cessation. Regardless of the hardship, Parents did not comply with CCS’s notification requirements to establish excusable absences from scheduled appointments.

12 CCS logs do not record any OT treatment after June 17, 2008, until April 29, 2009. Thus, Student’s claim that OT services began again on March 25, 2009, was incorrect. The records show that Student received “2 units” or 30 minutes of OT treatment weekly on and after April 29, 2009.

13 Ms. Halili obtained a bachelor’s degree in psychology in 1996 and a master’s degree in PT in 2000, and began working for CCS in April 2008.

14 Father’s recollection that Dr. Skinner ordered PT therapy three times a week after the surgery is not supported in the record.

15 Student’s complaint and amended complaint herein were filed by an attorney.

16 CCS Exhibit C-5 has 20 out of 21 marked pages, no signature page and no reports. Student Exhibit S-1(b) has 15 out of 21 pages, no signature page, and attached OT and PT reports.

17 34 C.F.R. § 300.152(a)(2006); Cal. Code Regs., tit. 5, § 4662, subd. (b).

18 Student v. Dry Creek Joint Elem. School Dist. (2010) Cal.Offc.Admin.Hrngs. Case No. 2009060940; Student v. Los Angeles Unified School Dist. (2009) Cal.Offc.Admin.Hrngs. Case No. 2009010712 (Order Granting Motion to Dismiss); Student v. Bellflower Unified School Dist. (2007) Cal.Offc.Admin.Hrngs Case No. 2005110764.

19 A prior reduction by CCS and Dr. Skinner of the PT services to once a month beginning in September 2007 was not included in Student’s amended complaint and is not at issue.

REQUESTED REMEDY

Student requests that OAH order CCS to provide her with compensatory education in the form of direct OT and PT services to remedy CCS’s alleged violations of FAPE.3

CONTENTIONS OF THE PARTIES

Student contends that CCS was obligated under her IEPs, beginning after December 2007, to provide her with direct OT and PT services, and supervision of those services. Student contends that CCS denied her a FAPE, procedurally or substantively, when it unilaterally stopped providing OT services without notifying the District and reduced her PT services beginning in June 2008, and reinstated OT services in March 2009 at a reduced duration, despite the fact that the services were required by her IEP(s). In addition, Student argues that CCS failed to offer or provide adequate annual OT and PT goals and sufficient OT and PT services to meet her unique needs during that time period and consequently denied her a FAPE.4

CCS contends that it was not a public agency that was obligated to provide Student with special education related OT and PT services and related annual goals, but was only obligated to provide medically necessary goals and services to her. CCS argues that Student’s December 19, 2007 IEP did not provide for OT and PT services from CCS as educationally related services. The agency argues that since Parents did not consent to the December 19, 2007 IEP, CCS was not obligated to provide OT or PT services pursuant to that IEP even if they were educationally related services. In addition, CCS contends that it had the right to unilaterally cease providing OT services to Student beginning in June 2008 when she violated its policies regarding late or missed OT appointments.

PROCEDURAL MATTERS

In its July 23, 2010 response to the Order of July 8, 2010, reopening the record for further evidence, CCS objected to the Order on the grounds that: (1) the ALJ was not authorized to reconsider an evidentiary ruling and reopen the record sua sponte (on her own motion); (2) the ALJ altered the applicable burden of proof; (3) CCS should not be required to provide additional evidence that could damage its case; and (4) the order was overly broad.

In the July 8, 2010 Order, the ALJ noted that a special education due process hearing is intended to be a fair and impartial hearing on the merits of the issues, and shall not be conducted according to the technical rules of evidence. (Ed. Code, § 56501, subd. (b)(4); Cal. Code Regs., tit. 5, § 3082, subd. (b).)5 The claim of CCS that there is no legal precedent for a judge to reopen the record in a case sua sponte is mistaken. Where a case is tried to the court, the trial judge has broad discretion to reopen the matter prior to a final judgment, even over the objection of the parties. (Coit Drapery Cleaners, Inc. v. Sequoia Ins. Co. (1993) 14 Cal.App. 4th, 1595, 1611 (Coit).) The Coit court stated:

“Within reasonable limits, it is not only the right but the duty of a trial judge to clearly bring out the facts so that the important functions of his office may be fairly and justly performed. [Citations.] For the same reason the trial judge is not to be unduly and unreasonably hampered in his control or conduct of the trial.” (Estate of Dupont (1943) 60 Cal.App.2d 276, 290, 140 P.2d 866; accord, People ex rel. Kottmeier v. Municipal Court (1990) 220 Cal.App.3d 602, 611, 269 Cal.Rptr. 542; see also Martin v. Martin (1947) 79 Cal.App.2d 409, 410-411, 179 P.2d 655 [Court sitting without a jury may properly request additional evidence on crucial points.] As Justice Tobriner held in Baker v. City of Palo Alto (1961) 190 Cal.App.2d 744, 755-756, 12 Cal.Rptr. 425, . . . “ ‘All that fairness requires is that the new theory, which the judge decides is the correct one, be disclosed to the opposing party so that he may have a full opportunity to meet it.’ ” ( Id. at p. 756, 12 Cal.Rptr. 425, quoting Sand v. Concrete Service Co. (1959) 176 Cal.App.2d 169, 172, 1 Cal.Rptr. 257.)

The July 8, 2010 Order determined that knowing what IEPs were in effect in this case is crucial to determining the material issues. As discussed herein, given a discrepancy in the evidence as to whether the December 2007 IEP was consented to by Parents or not, the decision to request further IEP documents was reasonable. The ALJ provided notice to both parties and an opportunity to submit additional documents in order to reach a just result on the merits.

The Order did not alter the burden of proof. Student is the party seeking relief and thus bears the burden of proof.6 In addition, the ALJ ordered both parties to submit IEPs to the extent they possessed them or could obtain them, suggesting to Parents that they could request the pertinent records from the District. CCS represents that its copy of the IEP, already in evidence as Exhibit C-5, is the only copy of the December 2007 IEP that it has. However, in her declaration, Ms. Johnson does not claim that CCS does not have copies of other IEPs for Student; rather, she states that she does not know which IEPs were “in effect” for Student from 2006 to 2010. Accordingly, CCS did not produce other IEPs that it may have in its possession, if any.

CCS’s objection that the Order for the parties to submit IEPs from 2006 to May 2010 is overly broad is also rejected. CCS claims that Student’s request for due process “only takes issue with CCS services that were allegedly required by the December 2007 IEP,” and claims that CCS was not placed on notice that any other IEPs were involved. This view of the issues is unduly narrow. If the parent does not consent to some components of an IEP, the law provides that the local educational agency (LEA) is obligated to implement those components of the program to which the parent has consented “so as not to delay providing instruction and services to the child.” (Ed. Code § 56346, subd. (e).) In addition, where there is a dispute as to placement and services, the LEA shall maintain the status quo or “stay put” in the provision of previously agreed-upon services pending the outcome of the dispute. (Ed. Code 56505, subd. (d).)

Student’s amended complaint identifies the December 2007 IEP as her last agreed-upon IEP with the District and CCS introduced evidence that indicated that the IEP had been consented to by Parents. However, Mother testified that she did not agree to the December 2007 IEP and that the last agreed-upon IEP preceded it. In addition, CCS knew that its copy of the District’s December 2007 IEP did not have a signature page. Thus, evidence suggested, and CCS argued, that the December 2007 IEP was not consented to. CCS argued, as an alternative legal theory, that it had no legal obligation to provide services under an IEP to which parental consent was withheld. However, Parents testified that Student received special education from the District and OT and PT services from CCS pursuant to IEPs on an ongoing basis since kindergarten, implicating the above laws on partial consent and status quo or stay put services. Therefore, any last agreed-upon IEP prior to December 2007 had to be considered, and both Mother’s testimony and CCS’s own defense indicated that there was an IEP in effect prior to December 2007. The ALJ’s request for any IEP in effect during 2006 and 2007 was therefore reasonable. Parents have produced an IEP dated December 19, 2006, containing Mother’s signature on the consent line.

In addition, Student’s amended complaint, at paragraph 40, described Student’s third issue, a lack of adequate OT and PT annual goals and services “year after year” to the time of the hearing in May 2010. Having stated the problem in the August and November 2009 complaints, Student is not required to file a new complaint each month thereafter in order to litigate that alleged ongoing violation. Recent IEPs have probative value in that litigation. However, any new IEP in which CCS may have been involved after November 2009, if any, is not a specific problem at issue in this case. In fact, no IEP after February 2009 was submitted by either party. Thus, even if the order requesting relevant IEPs to May 2010 is found to be overly broad, it is a harmless error because Parents only produced three IEPs for the time period requested (IEP of 12/19/06 – Exhibit S-2(a), IEP of 12/19/07 – Exhibit S-2(b), and IEP of 2/5-2/9/09 – Exhibit S-2(c)).7 Based on the foregoing, CCS’s objections to the Order of July 8, 2010, are overruled.

Finally, in its July 23, 2010 response, CCS reserved the right to submit objections, by the deadline of July 30, 2010, to any documents Parents produced pursuant to the Order. However, CCS did not file any objections to the documents marked as Exhibit S-2 and Parents did not file any objections to CCS’s documents. Accordingly, Exhibits S-2(a), (b), and (c), and C-20 are admitted into evidence.

FACTUAL FINDINGS

Jurisdiction and Background

1. Student and Parents reside within the educational boundaries of the District. Student was born in 1999 with the disabling condition of cerebral palsy, accompanied by a cortical visual impairment causing daily fluctuating vision, myopia, epilepsy or a seizure disorder, and “dropped feet” (weakness or paralysis of muscles used to lift the front part of the feet). Student has received special education and related services from the District since kindergarten.

2. As of an IEP meeting on December 19, 2007, when she was eight years old, Student was in third grade at a District elementary school with a primary eligibility category of visual impairment, with extreme nearsightedness and low visual acuity, and a secondary disability of orthopedic impairment. She attended a classroom for the visually impaired, and needed all program delivery methods to include modifications for motor and vision. Student’s complaint centers on OT and PT services from CCS after December 2007.

California Children’s Services

3. CCS is a state program operated by local county agencies, including the Alameda County Public Health Department, Division of Family Health Services, under the auspices of the California Department of Health Care Services. CCS provides “medically necessary” benefits to otherwise eligible handicapped individuals under the age of 21. The “medical therapy program” is a division of CCS that provides OT and PT services to children with disabilities as prescribed by a physician.

4. Medical eligibility for the CCS medical therapy program is limited to certain categories including cerebral palsy. Student qualified for such benefits with her disabling condition. At about eight months of age, Student became eligible for the CCS medical therapy program and has received medically necessary OT and PT services from CCS since then. Over the years, she also received medically necessary equipment from CCS, including wheelchairs, standers, lifters, and leg braces. She primarily uses a wheelchair for mobility, and can walk with a walker, or crawl.

5. CCS has joint legal responsibility with school districts to provide medically necessary OT and PT services to school-aged children in various ways. The local county agency operating the CCS program is required to administer medically necessary treatment to students with disabilities in the local public schools. The CCS OT and PT providers may attend IEP meetings in order to share information with the school district and coordinate the provision of services.

6. “Medically necessary services” are defined in the CCS Program Act as those services which are required to meet the client’s medical needs as prescribed by a CCS physician. The medical referral to CCS must be based on a written report from a licensed physician which includes the “diagnosed neuromuscular, musculoskeletal, or physical disabling condition” and treatment goals, among other information. (Gov. Code, § 7575, subd. (b); Cal. Code Regs., tit. 22, § 41452.)

7. School districts are required by law to provide a FAPE to each student with a disability by providing special education and related services. When an IEP team determines that a disabled child who needs medically necessary OT and/or PT services from CCS also needs those same services in order to obtain a FAPE in the school setting, and the school district offers the services in the pupil’s IEP, CCS has the statutory responsibility to fund and provide those services. CCS providers are then required to attend the pupil’s IEP meetings. If a student with a disability does not need medically necessary services from CCS, but otherwise requires OT and PT services in order to obtain educational benefit, then the school district is responsible to fund and provide those services. In this manner, the Legislature has determined that CCS and the local school districts have joint responsibility so that there is no unnecessary duplication of services and the services are coordinated.

Student’s OT and PT Services During 2006 and 2007

CCS OT Services in 2006 and 2007

8. The OT and PT services Student received from CCS in 2006 and 2007 are relevant both to place the issues in this case in historical context and to corroborate or contrast other evidence. CCS Chief Therapist Sue Johnson is the overall program manager for Alameda County CCS.8 She reviewed Student’s CCS records and established that Student continuously received medically necessary OT services from CCS from at least kindergarten through mid-June 2008. Student’s OT services and goals were prescribed by physicians associated with CCS and provided at a CCS medical therapy unit (MTU) in Oakland, located on the campus of a District elementary school. CCS therapists and other staff regularly entered dated notes in a note log regarding Student’s attendance or absence at therapy sessions, the therapy treatment sessions, consultations, communications with Parents, doctor prescriptions, and other matters.

9. For example, on July 17, 2007, Dr. Elaine Pico prescribed OT for Student once a week. On September 28, 2007, Dr. Stephen R. Skinner from Children’s Hospital, Oakland, prescribed that Student receive OT once a week, with a re-evaluation in six months. There were no CCS note logs for 2006 and the handwritten CCS note log entries for 2007 did not show the frequency and duration of the OT treatment sessions.

10. CCS occupational therapist Deborah Baumgarten provided OT services to Student beginning in 2002.9 She established that the OT services and related treatment goals she worked on with Student addressed Student’s medical and functional needs in the areas related to her upper body extremities and functional daily living skills, such as dressing, feeding, preparing food, brushing teeth, left-hand dexterity, buckling her wheelchair and seat belt, and toileting.

CCS Physical Therapy Services in 2006 and 2007

11. Ms. Johnson established that Student continuously received medically necessary PT services from CCS through May 2008. CCS produced PT prescriptions issued by medical doctors to show that Student’s PT services and goals were prescribed by physicians associated with CCS. The services were provided at the CCS MTU in Oakland.

12. For example, in July 2007, a doctor prescribed PT treatment once a week to address Student’s gait, transfer skills (to and from her wheelchair), functional mobility, balance, power chair training, bracing, community skills, and her “home/school program,” along with two PT goals addressing her transfer skills and one goal for independent standing. In September 2007, Dr. Skinner prescribed PT once a week for two months, to be followed by PT once a month.

Related Services and Student’s 2006 and 2007 IEPs in the District

13. Student contends that the CCS OT and PT services, while medically necessary, were also educationally related services required pursuant to her last agreed-upon IEP.

14. An IEP must contain a statement of the special education and related or supplemental services to be provided. Related services may include OT, PT, speech and language, transportation, and other services that may be necessary to assist the child in benefiting from special education.10 OT and PT services from CCS shall only be listed in a school district’s IEP if the IEP team has determined that the services are necessary for the pupil to obtain educational benefit.

15. Student entered the District in kindergarten and was found eligible for special education and related services. Mother credibly established that Student’s OT and PT services from CCS were always included as services in Student’s IEPs with the District. She believed that the CCS OT and PT progress reports were usually attached to the IEP documents. Father did not sign the IEP documents but left the IEP process to Mother, including attending IEP meetings and consenting to the IEPs. In addition, Parents believed that CCS’s OT and PT services were part of the District’s IEPs for their daughter because CCS service providers attended Student’s IEP meetings and submitted their OT and PT reports to the District consistently throughout the years. The evidence supports Parents’ contention.

The December 19, 2006 IEP

16. Student’s IEP dated December 19, 2006, during Student’s second grade year, in the District, contains preprinted IEP form pages naming the District, with added typed and handwritten entries pertaining to Student, and attachments. The document is consistent both with Parents’ testimony and with the December 19, 2007 IEP. In addition, Parents relied on this IEP in their past relations with the District and CCS. Consistent with Mother’s testimony, the December 2006 IEP contained Mother’s written signature consenting to the IEP. The IEP had three annual goals for Student, in the areas of behavior, orientation and mobility, and hand-eye coordination. There were no OT or PT goals in the District’s IEP pages. The “Services” page contained an offer of a special day class (SDC), and in a box entitled “Supplementary Aids and Service to be Provided To the Child On Behalf of the Child and Program Modifications or Supports for School Personnel,” three services were listed: orientation and mobility (O & M) once a week for 30 minutes in the community; adaptive physical education (APE) once a week for 30 minutes in class; and physical and occupational therapy once a week for 90 minutes out of class. Another “Services” page showed all of these services in the box entitled “Special Education and Related Services.” This page identified CCS as the service provider for the OT and PT services, and showed the duration as “45 min. each” to be provided at the CCS MTU in Oakland. There was no provision for CCS supervision hours.

17. Consistent with Mother’s testimony, the December 2006 IEP Meeting Comments page showed that a therapist from CCS was present at the IEP meeting and spoke with the team about Student’s PT progress and needs, including Student’s use of a wheelchair in the school setting. Also consistent with Mother’s testimony, multiple CCS Occupational Therapy Status Reports, with goals listed in the body of the reports, and a CCS Physical Therapy Status Report, with goals, were attached to the IEP. This IEP corroborated Mother’s testimony that there was an agreed-upon IEP with the District prior to December 2007 in which OT and PT services from CCS were offered and accepted.

Student’s OT and PT Services in 2008 and 2009

CCS OT Services in 2008 and 2009

18. On June 13, 2008, Dr. Skinner prescribed OT from CCS for Student once a week. The CCS note log gave no indication of whether Dr. Skinner prescribed how long each therapy session would last. However, the CCS note log, beginning in April and continuing through mid-June 2008, recorded that CCS generally provided “3 units,” or 45 minutes, of OT treatment in each session, consistent with Student’s December 2006 IEP. One unit of time is equal to 15 minutes.

19. Ms. Johnson and Ms. Baumgarten established that CCS has a “no-show” policy under which families are required to notify CCS by telephone or another form of communication if the patient is going to miss a treatment session. If a client or patient misses one session without complying with the notification requirement or otherwise establishing an excused absence, CCS sends the patient a warning letter. If the patient misses a second unexcused session, the county administrative staff of CCS notifies the patient in writing that the services are “put on hold” or suspended. The patient drops to the bottom of a waiting list, and is without the services until his or her name comes to the top of the list. CCS has a waiting list of children wanting its services and in 2008, enforced the no-show policy with Student.

20. Following an OT treatment session on June 17, 2008, Student missed or “failed” OT sessions on July 2, 9, 23, and 30, 2008 without excuse. On August 1, 2008, the CCS log showed that Ms. Baumgarten spoke to Mother following Student’s failure to appear for an OT session on that date, discontinued the OT services, and placed Student on a wait list for future OT services. There was no evidence of a prior warning letter; and the log entry indicated that Mother understood the no-show policy.11 There was no evidence that the District was notified of the cancellation of Student’s OT services or that an IEP team meeting was called at that time.

21. Student did not receive any further OT services from CCS (or the District) until April 29, 2009, when Student’s name came to the top of the CCS waiting list, the OT services were reinstated, and CCS again began providing OT treatment services once a week for 30 minutes.12 Ms. Baumgarten testified persuasively that Dr. Pico re-evaluated Student’s OT needs and wrote a new prescription for treatment once a week for 45 minutes. However, CCS records established that sessions lasted only 30 minutes. At hearing, CCS provided no explanation or justification for the reduction in OT therapy from 45 minutes to 30 minutes per weekly session.

22. CCS ceased providing any medically necessary OT services to Student in January 2010. Ms. Baumgarten testified that Mother requested services less frequently, and then the District began providing Student with OT services. The CCS records show that on January 18, 2010, Mother informed CCS that either the District or a private provider paid by the District would provide OT services to Student “on a weekly basis.” There was no evidence that Student’s CCS OT services were no longer medically necessary. However, the evidence did establish that Parents declined further weekly OT services from CCS after that date.

CCS PT Services in 2008 and 2009

23. The evidence established that CCS physical therapist Elma Halili began providing PT services to Student in May 2008.13 Ms. Halili established that the PT services and related treatment goals she worked on addressed Student’s functional PT needs, including gait training with a reverse walker, bilateral hand activities (hand-over-hand pulling on a rope), increasing trunk strength, hamstring- and calf-stretching, stand-pivot transfers, using her wheelchair, and standing.

24. On June 13, 2008, Dr. Skinner prescribed PT treatment once a month for 45 minutes per session for 12 months, along with two goals for navigating a power wheelchair. Student missed her monthly PT sessions without excuse in June and July 2008. Thus, any inconsistency with the frequency and duration of Student’s PT services pursuant to her IEP during those months did not matter. On July 30, 2008, Ms. Halili wrote Parents a letter following Student’s failure to appear for a PT session on that date, and warned that if Student missed another PT session, the PT services would be discontinued pursuant to the no-show policy. In August 2008, Student attended her PT sessions.

25. In 2007, CCS physicians and Student’s pediatrician, Dr. Patricia Chase at Children’s Hospital, Oakland, had proposed to Parents an operation on Student’s feet and legs. Student was weight-bearing only on the forefoot of each foot. The operation involved extensive rehabilitation and Parents did not consent until August 2008. CCS PT sessions helped Student prepare for the surgery in August and September 2008. Dr. Skinner performed the operation on September 29, 2008, during which many incisions were made in Student’s legs and feet to resolve the dropped foot problems and enable Student to bear weight on her feet. After surgery, Student had to wear leg casts and knee immobilizers for many hours a day and attend intensive PT therapy sessions. Student returned to school at the end of October 2008. Dr. Skinner wrote a prescription for CCS to provide medically necessary PT services twice a week for six weeks following the surgery, and directed CCS to “focus on stand-pivot transfers.”14 CCS provided from 30 to 60 minutes of treatment each session. Student was in pain, cried during the sessions and did not want anyone to touch her legs. On November 25, 2008, Student had a tantrum and initially refused to participate in therapy. Ms. Halili explained to Mother that if Student refused again, Student’s PT services would be “placed on hold” until she agreed to cooperate. Student thereafter cooperated and continued to receive PT services. At some point, the PT services were reduced to once a week. The CCS note log reported that Parents requested an increase in PT services, and on January 9, 2009, Ms. Halili informed Mother that Dr. Pico agreed to increase PT services to twice a week for two months.

26. On February 20, 2009, Ms. Halili informed Mother that she was going on maternity leave for six months, and that CCS would not have a replacement PT therapist for Student at CCS’s Oakland MTU. On March 24, 2009, Ms. Halili had a PT session with Student and recommended reducing Student’s PT services from twice a week to once a week. However, the CCS note log also showed that March 24 was Ms. Halili’s last treatment session and she thereafter left on maternity leave.

27. On February 20, 2009, Mother wrote a letter to CCS asking for both OT and PT for Student and objected to the choices Ms. Halili offered for PT while she was on leave: (1) Student could go to a CCS MTU in Pleasanton, Livermore or Burlingame; (2) Student could wait for another physical therapist at the Oakland MTU to have an opening; or (3) Student could wait until Ms. Halili returned from maternity leave. Parents rejected all three options as Student would have had to miss school in order to travel great distances to obtain therapy or receive none at all. As a result of Student’s disability and surgery, Student could only travel in the family car by lying down across the back seat of the car because she could not bend her legs. Parents were upset with CCS for presenting options unacceptable to them which they believed would jeopardize Student’s rehabilitation. Parents testified persuasively that Dr. Skinner also opposed the cessation of PT treatment.

28. CCS made arrangements with Dr. Skinner for Student’s temporary receipt of PT services at Children’s Hospital, Oakland, in April and May 2009, funded by CCS, in order to continue her post-surgery rehabilitation. On March 24, 2009, and again on May 7, 2009, Dr. Skinner signed a prescription for PT one to two times a week for two to four months, to work on Student’s stand-pivot transfers and to assess whether gait training was indicated. Since Student’s PT services through CCS thereby continued, the evidence did not establish that Student missed any PT sessions because of Ms. Halili’s departure.

29. When the temporary contract with Children’s Hospital expired, CCS made arrangements to resume providing PT services to Student at a MTU in June 2009, and assigned her a physical therapist named Sally Lovell at a CCS MTU in West Oakland. Parents rejected the offer. Parents explained at hearing that they believed that Ms. Lovell was not an appropriate therapist because she was elderly, had previously provided CCS PT services to Student when she was a baby, and would probably not be able to handle Student, who weighed 100 pounds. Parents did not allow Ms. Lovell to provide therapy even on a trial basis. Neither Parents nor CCS notified the District of this change or asked for an IEP meeting. Dr. Skinner’s prescription expired by its own terms in July 2009 and there is no evidence that CCS recommended, processed or serviced any new PT prescription for medically necessary PT services until that fall.

30. Parents filed their request for due process with OAH in August 2009. Mother testified that they were advised by an attorney not to return Student to CCS for PT services after the services through Children’s Hospital expired. In September 2009, Ms. Halili notified Parents that she had returned to CCS and scheduled a new PT evaluation. PT consultation services resumed briefly thereafter in October 2009 in order to reassess Student. However, also in October, CCS was informed that the District was going to take over providing Student with PT services and CCS helped train the District staff. (See Factual Finding 44.) In November 2009, weekly direct PT services with Ms. Halili began but Student missed the first session without excuse. On November 16, 2009, Student was late to the second PT session.

31. On November 20, 2009, at a CCS case conference, Mother agreed with Dr. Skinner’s and Ms. Halili’s recommendations to eliminate direct PT services from CCS and focus on monitoring Student’s home stretching and strengthening program because she had achieved her independent wheelchair transfer goals. On November 23, 2009, Dr. Skinner prescribed that Student’s PT services were reduced from direct services once a week to a meeting once a month to monitor her home program. Parents thereafter cancelled some appointments. CCS then directed Parents to call to make an appointment if they wanted the monthly PT monitoring meeting. As of April 2010, CCS records reported that Parents had not requested any monthly PT meetings.

32. Based on the foregoing, Student’s medically necessary PT services from CCS ended at the beginning of June 2009, and began again briefly in October and November 2009. Direct PT services were terminated by Dr. Skinner’s prescription on November 23, 2009. Parents’ reasons for withholding consent to Student’s receipt of PT services from CCS at the West Oakland MTU from June through September 2009 were insufficient and did not establish that CCS failed to offer or provide PT services during that time. CCS stood ready and willing to provide the PT therapy at the West Oakland MTU after the temporary services at Children’s Hospital terminated at the end of May, and at the Oakland MTU beginning in October 2009. Therefore, CCS did not cause Student to miss PT treatment services. There was no evidence that any of the changes to the frequency and duration of Student’s PT services from CCS were presented to an IEP team with the District for discussion or approval.

Student’s IEPs in 2008 and 2009

The December 19, 2007 IEP

33. Student contends that, beginning in June 2008, CCS failed to provide OT and PT services as set forth in “her IEP” with the District. Student’s amended complaint describes her OT and PT problems in connection with “the last agreed-upon IEP,” and “the IEP,” and identifies the last-agreed upon IEP as an IEP dated December 17, 2007.15 However, Parents did not consent to the December 2007 IEP but consented to an earlier IEP.

34. The District’s December 19, 2007 IEP contains preprinted IEP form pages naming the District, with added typed and handwritten entries pertaining to Student, and attachments. Although it is an incomplete copy, CCS withdrew its objections to the authenticity of and foundation for the document and it was admitted into evidence as the District’s December 2007 IEP. Overall, the IEP is consistent with Parents’ testimony. Student was eight years old and in the third grade in a District program for the visually impaired. On December 19, 2007, a CCS occupational therapist and CCS supervisor Baljit Johl attended Student’s IEP meeting with the District.

35. The IEP establishes the District’s offer of special education placement and services to Student in December 2007. It is also consistent with Student’s other IEPs and with Parents’ testimony. The IEP offered five annual goals for Student, one each in the areas of hand-eye coordination, toileting, math, letter recognition, and street safety. There were no OT or PT goals in the District’s IEP pages. CCS was listed as another agency providing services to Student, along with the Regional Center. The District’s “Services” page contained an offer of an SDC and two related services: O & M once a week for 30 minutes in school; and APE once a week for 30 minutes in school. In the Supplementary Aids and Services box, one service was listed: physical and occupational therapy once a week for 90 minutes “out of class.” CCS was named as the service provider. There was no provision for CCS “supervision” hours. In handwriting in parentheses is the phrase “per doctor’s orders.” There was no evidence when the handwritten phrase was added or who added it. Consistent with Mother’s testimony, the December 2007 IEP “Meeting Comments” page reported that a therapist from CCS was present at the IEP meeting and spoke with the team about Student’s OT and PT progress, and referred to a report; however, no report was attached to the IEP. The IEP page for signatures of the participants and consent of the parents is missing. CCS records established that CCS supervisor Ms. Johl attended the IEP meeting.

36. Mother testified persuasively that CCS Exhibit C-5 was an incomplete copy because no OT or PT reports were attached, and the attendance and signature page was missing. Parents were unorganized, did not prepare exhibits for the hearing, and could not find pertinent documents in their papers. Student Exhibit S-2(b) is another incomplete copy of the December 2007 IEP, and it also does not have the signature page.16 Parents’ cover letter to Exhibit S-2 does not state where they obtained the copies of the IEPs, whether from the District or from their own papers. Mother was persuasive that she did not consent to the District’s December 19, 2007 IEP. Parents indicated at hearing that they do not know why their attorney, who drafted Student’s amended complaint, named the December 19, 2007 IEP as the last agreed-upon IEP. It is unknown whether that date was a typographical error, since there is a signed IEP dated December 19, 2006, or an intentionally stated date. In addition, neither party presented evidence as to whether Mother may have partially consented to the December 2007 IEP.

37. Parents filed a compliance complaint with the California Department of Education (CDE) dated February 3, 2009, supplemented on February 4, complaining about various issues, including lack of mainstreaming in accordance with “the IEP,” CCS, and the OT and PT services. After an investigation, CDE issued a compliance complaint investigation report dated March 26, 2009, in which it determined that the District’s December 2007 IEP was consented to, and that the CCS OT services were medically necessary services that were not “directly” part of Student’s educational program. However, the information CDE relied upon to come to its conclusions is unknown. CDE conducts limited investigations, has 60 days to investigate and issue a report regarding technical compliance, and does not have jurisdiction to determine whether any violation may result in a denial of a FAPE.17 Therefore, CDE’s determinations are not binding on this tribunal and are given little weight.18 The preponderance of the evidence in this hearing established that Parents did not consent to the December 2007 IEP, at least as to the OT and PT services at issue in this case.

38. Regardless of the incompleteness of the December 19, 2007 IEP, the IEP document established, consistent with Mother’s testimony, that the CCS OT and PT services for Student were listed as related or supplemental services offered in the District’s December 2007 IEP with CCS as the service provider, just as they had been in prior years when Parents had consented to the IEPs. In the absence of a signed IEP, the December 2006 IEP controlled the services the District and CCS were obligated to deliver to Student.

Additional CCS Services with the District in 2008

39. CCS records established that on February 5, 2008, CCS OT therapist Baumgarten provided 30 minutes of consultation services with Student’s classroom teacher about her OT goals. The teacher was working with Student on arranging the letters of her name and shape puzzles, and reported a recent seizure.

40. On October 28, 2008, CCS PT therapist Halili provided 15 minutes of consultation services with Student’s teacher about Student’s post-surgery physical limitations, use of a wheelchair, and inability to walk. The teacher reported a problem that the classroom restroom was too small for a wheelchair and Halili made an appointment to visit the school.

41. On October 30, 2008, CCS PT therapist Halili visited Student’s classroom and provided training services to Student and a trained classroom aide, Jenna, on “toilet transfers, proper donning of immobilizers, and proper positioning of pt [patient] in wc [wheelchair].” Halili left a letter for the absent teacher listing Student’s limitations and abilities in the classroom and lunch settings.

The February 2009 IEP

42. Neither party submitted an IEP from December 2008, when Student’s next annual IEP with the District was due. The evidence established that the District missed Student’s annual IEP in December 2008 and did not hold it until February 2009. Student was in fourth grade in the District. Student’s IEP dated February 5, 2009, and continued to February 9, 2009, is consistent with Parents’ testimony and with the December 19, 2006 and December 19, 2007 IEPs. In addition, the document shows the information Parents continued to rely on in their relations with the District and CCS as recently as 2009. The District’s IEP contained five annual goals, none of which were OT or PT goals. On the Services page, in the Supplementary Aids and Services box, CCS was shown as the provider for physical and occupational therapy services out of class. In the spaces for frequency and duration of the services, someone wrote in “per dr. [sic] orders.” It is unknown whether the handwriting may have replaced something else or was present in the original. There was no provision for CCS supervision hours. Also in the same box, “VI Support” (vision impairment support) was listed for 30 minutes once a week in class with the District as the service provider. Parents did not consent to the IEP.

43. The Meeting Comments pages reported that Ms. Halili was present, gave a report to the IEP team, and discussed the CCS OT and PT goals for Student. CCS records established that Ms. Halili reported to CCS that she agreed to order a stander for Student for both the home and the school for her daily standing program of post-surgery exercises to address her strength, balance, standing and gait. Attached to the IEP was a PT evaluation from Pediatric Contracting Services, Inc. No report from CCS was included.

Additional CCS Services with the District in 2009

44. On October 8, 2009, CCS PT therapist Halili met with Student and District personnel at Student’s new school. District staff included a teacher, a physical therapist, and an O & M specialist. Ms. Halili reported to CCS that the District would be seeing Student once a week for PT “instead of” CCS. Halili and District staff had Student demonstrate traveling in her wheelchair from the classroom to the bathroom and back, and do wheelchair transfers with the stander and support. Student also stood in the stander for about 15 minutes. Halili “adjusted and trained OUSD PT [District physical therapist] and teacher on safe transfers and use of the stander.” Halili made recommendations to the District both for the frequency and duration of Student’s standing exercises and for her wheelchair. On October 15, 2009, Halili provided another 15 minutes of consultation services to District’s physical therapist regarding Student’s limited weight-bearing ability (using her arms on a table more than her legs). The CCS PT therapist thus engaged in training Student’s new teacher and new physical therapist, employed by or associated with the District, to take over CCS’s role as Student’s PT provider for educationally related PT services.

CCS Provided Educationally Related Services

45. CCS did not understand its joint responsibility with the District for the provision of educationally related services. Chief Therapist Johnson testified, and CCS’s attorney argued in its closing brief, that CCS only provides medically necessary therapy services and only meets with school districts and attends IEP meetings in order to provide information to the school district about the child’s medically necessary needs. However, this position is in direct conflict with the express requirements of the law where the District’s IEP provides for CCS services.

46. The evidence established that the District offered Student OT and PT services as related or supplemental services to be provided by CCS as part of the District’s offered educational program for Student for many years. Parents consented to these services for many years. CCS occupational and physical therapists attended Student’s IEP meetings and provided the IEP team with information about Student’s OT and PT services. CCS OT and PT services were listed in the District’s IEPs as related or supplemental services being offered to Student through the District. As found above, the CCS PT therapist consulted with and trained a classroom aide and teacher about Student’s PT needs in the classroom and at lunch and worked with District staff on Student’s access to the school bathroom. The CCS OT therapist consulted with Student’s teacher about her classroom OT needs. The District’s treatment of CCS and the Regional Center in the IEPs further supports this finding. The District listed the Regional Center as another public agency providing services to Student, along with CCS. However, the Regional Center’s services to Student were not identified, listed, or offered in the IEP. In contrast, the CCS services were specifically listed on the Services pages, and the 2006 and 2007 IEPs also listed the frequency and duration of the services, along with other related services from the District such as vision impairment and orientation and mobility.

47. As found above, CCS OT therapist Baumgarten worked with Student during the time period from June 2008 to January 2010 in areas related to her upper body extremities and daily living skills. In addition, CCS PT therapist Halili worked with Student on standing, transfers from her wheelchair, and increasing her balance and strength. The nature of these functional needs lends further credence to the District’s inclusion of OT and PT as educationally related services, as the school district must address both the academic and functional performance of the pupil. Based on the foregoing, the OT and PT services CCS provided to Student were not only medically necessary services but were also educationally related services in Student’s IEPs during the time period at issue in this case.

Failure to Implement OT and PT Services as Provided in Student’s IEPs

48. Having found that CCS provided educationally related OT and PT services, the next question is whether CCS failed to implement the services pursuant to Student’s IEP. As set forth in Legal Conclusions 2 through 5, and Factual Finding 7, LEAs are required by law to provide a FAPE to each student with a disability, including related services.

49. To determine whether there is a denial of FAPE, the first inquiry is whether the public agency complied with the statutory procedures. Second, a court will examine the child’s IEP to determine if it was reasonably calculated to enable the pupil to receive some educational benefit. For a procedural violation to deny the pupil a FAPE, the procedural violation must impede the pupil’s right to a FAPE, significantly impede a parent’s opportunity to participate in the educational decision-making process, or cause a deprivation of educational benefits. A failure to implement a pupil’s IEP will constitute a denial of FAPE only if the failure was material, and minor implementation failures do not give rise to a violation. The materiality standard does not require that the child suffer demonstrable educational harm.

50. Absent parental consent to the December 2007 IEP, the last agreed-upon IEP controlled the services CCS was to provide. Parents were confused about what OT and PT services were required by Student’s IEP. Student’s complaint claimed that CCS was obligated to provide 90 minutes of OT and 90 minutes of PT once a week per “the last agreed upon IEP.” As found above, the CCS OT and PT services offered in the December 2007 IEP were at the same frequency and duration as shown in the December 2006 IEP, which was 90 minutes. While the December 2007 IEP contained no clarification of whether the District meant 90 minutes each, or how the time would otherwise be allocated, the December 2006 IEP explained that the total 90-minutes-per-week time frame was divided into two equal time periods of 45 minutes a week for OT and 45 minutes a week for PT. In fact, as found above, the CCS records documented 30-to-45-minute sessions weekly for OT and 45-minute sessions weekly for PT, at least until mid-June 2008. The evidence established that, pursuant to Student’s IEP, the District was obligated to provide Student with 45 minutes of OT and 45 minutes of PT per week through CCS as the service provider.

Delivery of OT Services

51. Based on the foregoing, CCS ceased providing Student medically and educationally necessary OT services on and after June 18, 2008, based on its no-show policy, and did not reinstate Student’s OT services until April 29, 2009. Student therefore substantively lost ten and a half months of OT services. In addition, procedurally, CCS did not request an IEP meeting prior to terminating or suspending Student’s OT services, which impeded Student’s right to a FAPE and denied her educational benefit. (Factual Findings 18 through 22.) Because these services were not only medically necessary but also educationally related services pursuant to the IEP process in the District, CCS did not have the right to unilaterally cease providing the services. The denial of OT for so long constituted a substantial and material deviation from CCS’s obligations under the IEP. Accordingly, CCS’s unilateral cessation of OT services without an IEP meeting procedurally denied Student educational benefit and substantively denied her a FAPE.

52. In addition, when CCS resumed the OT services at the end of April 2009, it unilaterally reduced the duration of the weekly services from 45 minutes to 30 minutes per session, despite Ms. Baumgarten’s testimony that Dr. Pico had prescribed 45 minute sessions, and despite the fact that Student’s last agreed-upon IEP required 45 minute sessions of OT weekly. The reduction amounted to a material loss of one hour per month of OT services (15 minutes weekly) from May 2009 to January 2010, for a total of nine months. (Factual Findings 18 through 22.)

Delivery of PT Services

53. Based on the foregoing, CCS provided Student medically and educationally necessary PT services from June 2008 through May 2009. CCS paid Children’s Hospital, Oakland, to provide the PT services for CCS in April and May 2009, due to Ms. Halili’s maternity leave. By June 2009, CCS offered to provide Student PT services through its West Oakland MTU. That site was in the same city, did not require long-distance travel, and the CCS physical therapist was experienced and had worked with Student previously. Parents unilaterally declined to accept the offer on advice of counsel, and neither party requested an IEP meeting prior to suspending Student’s PT services until Ms. Halili returned. (Factual Findings 23 through 29.)

54. Upon Ms. Halili’s return in the fall of 2009, CCS was entitled to reevaluate Student to recommence services, and that time is not counted against CCS. In addition, during that time, Student missed appointments which are also not counted. In October, the District began to take over the delivery of PT services. On November 23, 2009, Dr. Skinner issued a prescription ending medically necessary direct PT services for Student. CCS still offered monthly PT monitoring or consultation meetings and Parents have not availed themselves of those meetings. (Factual Findings 30 through 32, and 44.) While Parents had the right to decline CCS’s PT services under the District’s IEP, Student may not then claim that CCS denied her a FAPE because those services were not delivered. Accordingly, CCS did not deny Student a FAPE with respect to the lack of PT services between June 2009 and September 2009.

55. In addition, with respect to CCS’s alleged reduction of Student’s PT services in deviation from that required by the IEP beginning in June 2008, the evidence established that CCS failed to request an IEP meeting when Dr. Skinner reduced Student’s PT services from 45 minutes a week to 45 minutes once a month in June 2008. (Factual Findings 11, 12, 23, and 24.)19 However, Student missed her PT sessions in June and July 2008, so CCS’s procedural failure did not cause a loss of services during that period. Beginning in September 2008, Student’s PT services focused on preparing her for surgery and post-surgical rehabilitation at home and in school and any loss of PT services at that time was with parental consent. Post-surgery, Dr. Skinner increased the PT to twice a week for six weeks and the evidence does not establish that Student lost services during that time. PT was reduced back to once a week, and in January 2009, PT was increased to twice a week for 30 minutes per session, for a total of one hour a week instead of 45 minutes. (Factual Findings 25 and 26.) CCS’s failure to notify the District’s IEP team about these changes to Student’s PT services and to seek an IEP meeting to amend the IEP constituted a procedural violation. However, it was a harmless error as CCS did not cause Student to suffer any reduced PT services. The evidence did not establish that Student lost any time from the PT services required under her IEP until Parents declined further PT from CCS in June 2009. (Factual Findings 25 through 32.) Therefore, CCS did not procedurally or substantively deny Student a FAPE with respect to any claimed cessation or reduction in PT services from June 2008 to November 2009.

Failure to Offer or Provide Adequate OT and PT Goals and Services

56. Student claims that the OT and PT annual goals and services that CCS offered or provided since December 2007 were not adequate to meet her unique educational needs related to those areas. Student did not sustain her burden of proof on this issue.

57. An LEA is required to provide instruction and related services that are designed to meet the pupil’s unique needs and are reasonably calculated to provide the pupil some educational benefit. An IEP for each child with a disability must include a statement regarding the child’s present levels of academic achievement and functional performance and measurable annual goals designed to meet the child’s educational needs, and it must enable the child to make progress. An IEP is to be evaluated in light of the information available at the time it was developed, and is not to be evaluated in hindsight. An LEA is not required to maximize a student’s potential.

58. In order to evaluate whether CCS’s annual or periodic medical OT and PT goals for Student met the legal requirements for annual goals to meet her unique educationally related OT and PT needs, it was incumbent upon Student to introduce competent evidence of CCS’s OT and PT goals for the time period at issue. Student did not do so. The CCS OT and PT goals were only generally described by the CCS witnesses and not broken down into measurable time periods. Both Ms. Baumgarten and Ms. Halili testified generally about the goal areas they focused on with Student, but the goals were not described with any particularity. New prescriptions with new goals were issued periodically, often every six months. CCS provided documentary evidence of Dr. Skinner’s medical goals for PT to the extent they were written on his prescriptions. However, there was little evidence of the correlation between those goals and Student’s classroom needs. The evidence established that CCS created medically related OT and PT goals for Student outside of the IEP process, pursuant to the CCS therapists’ recommendations and physicians’ endorsement. (Factual Findings 8 through 44.)

59. In addition to lack of evidence of the goals, there was only limited evidence of Student’s present levels of functional performance related to OT and PT skills and deficits in the school setting during the relevant time period. The District’s IEPs contained reports of her then-present levels of performance in areas of academic and functional need, but did not address her OT and PT needs. The 2006 CCS reports attached to two of the IEPs were outdated. The Children’s Hospital, Oakland, reports and Dr. Skinner’s PT prescriptions identified basic goals for Student to progress in learning to stand on her weight using a stander with support, and learning stand-pivot transfers from her wheelchair. Although the evidence showed that Student met her medically necessary PT goals by November 2009, no data were introduced into evidence to evaluate how fast or slow her progress was, or how it correlated to her functional needs in the classroom, aside from periodic consultations with District staff. Thus, it would be impossible to determine whether the CCS OT and PT goals met Student’s educationally related needs without knowing what her baseline levels of performance were before the goals were approved.

60. Moreover, it was incumbent on the District and the IEP team, not just CCS, to develop Student’s goals. The IEP team was responsible to evaluate CCS’s medically necessary goals and adopt, modify or reject them as educationally necessary goals to address Student’s OT and PT needs in the school setting. The evidence did not substantiate whether that was done, although CCS attended the IEP meetings. CCS had the opportunity to participate as a member of Student’s IEP team to develop educationally related OT and PT goals. The evidence is unclear about whether the IEP team agreed with and adopted the CCS goals as the District’s goals, or had input in their development as required by law for educationally related goals. Assuming the CCS OT and PT goals were inadequate as educationally related goals, there was nevertheless insufficient evidence to charge CCS with a denial of FAPE in light of the District’s responsibility to provide appropriate OT and PT goals.

61. Parents argued that CCS did not provide “enough” PT treatment to Student after the September 2008 surgery. Parents became upset when CCS supervisor Ms. Johl warned about terminating PT services if Student did not stop crying and start cooperating with the therapist. However, CCS delivered PT services in accordance with Dr. Skinner’s prescriptions, and in excess of that required by Student’s IEP. (Factual Findings 24 through 32.) Student did not present any independent evidence from a qualified physical therapist or physician that Student required more PT therapy.

62. Parents argued that CCS should have worked more with Student to help her walk and use the parallel bars, and believed that the PT services Student received at Children’s Hospital, Oakland, in April and May 2009 were superior to the PT services provided by CCS that spring. However, aside from expressing their opinions and preferences, Parents did not present any evidence from specialists who could provide an objective analysis to compare the services or conclude that CCS provided substandard services that did not address Student’s needs. Overall, the evidence did not substantiate Student’s claim that CCS was responsible for her educationally related OT and PT goals, what CCS’s goals were, what Student’s baselines were, or in what manner the goals and services were inadequate. Therefore, there was insufficient evidence that CCS denied Student a FAPE with respect to the adequacy of the OT and PT goals and services.

LEGAL CONCLUSIONS

1. Student, as the party requesting relief, has the burden of proof in this proceeding. (Schaffer v. Weast (2005) 546 U.S. 49 [126 S.Ct. 528].) The issues in a due process hearing are limited to those identified in the written due process complaint. (20 U.S.C. § 1415(f)(3)(B); Ed. Code, § 56502, subd. (i).)

FAPE and Related Services

2. The Individuals with Disabilities Education Improvement Act of 2004 (IDEA) provides states with federal funds to help educate children with disabilities if the state provides every qualified child with a FAPE that meets the federal statutory requirements. Congress enacted the IDEA “to assure that all children with disabilities have available to them … a free appropriate public education which emphasizes special education and related services designed to meet their unique needs ….” (20 U.S.C. § § 1400(c), 1412(a)(1)(A); Ed. Code, §§ 56000, 56026 .)

3. The congressional mandate to provide a FAPE to pupils includes both a procedural and a substantive component. In Board of Education of the Hendrick Hudson Central School District v. Rowley (1982) 458 U.S. 176 [102 S.Ct. 3034] (Rowley), the United States Supreme Court utilized a two-prong test to determine if a school district had complied with the IDEA. First, the district is required to comply with statutory procedures. Second, a court will examine the child’s IEP to determine if it was reasonably calculated to enable the student to receive some educational benefit. (Rowley; J.L. v. Mercer Island School Dist. (9th Cir. 2009) 575 F.2d 1025 (Mercer Island); see also, W.G. v. Bd. of Trustees of Target Range Sch. Dist. No. 23 (9th Cir. 1992) 960 F.2d 1479, 1483.) For a procedural violation to deny the student a FAPE, the procedural violation must either: 1) impede the student’s right to a FAPE; 2) significantly impede a parent’s opportunity to participate in the educational decision-making process; or 3) cause a deprivation of educational benefits. (20 U.S.C. § 1415(f)(3)(E)(ii); Ed Code § 56505, subds. (f)(2) and (j).)

4. A FAPE is defined as special education and related services that are available to the pupil at no cost to the parent or guardian, that meet the state educational standards, and that conform to the pupil’s IEP. (20 U.S.C. § 1401(9); Ed. Code, § 56031; Cal. Code Regs., tit. 5 § 3001, subd. (o).) “Special education” is instruction specially designed to meet the unique needs of a child with a disability. (20 U.S.C. § 1401(a)(29).) A child’s unique educational needs are to be broadly construed to include the child’s academic, social, health, emotional, communicative, physical and vocational needs. (Seattle Sch. Dist. No. 1 v. B.S. (9th Cir. 1996) 82 F.3d 1493, 1500, citing H.R. Rep. No. 410, 1983 U.S.C.C.A.N. 2088, 2106.) In addition, the educational needs include functional performance. (Ed. Code 56345, subd. (a)(1).)

5. “Related services” are transportation and other developmental, corrective and supportive services as may be required to assist the child in benefiting from special education. (20 U.S.C. § 1401(a)(26).) In California, related services are called designated instruction and services (DIS), which must be provided if they may be required to assist the child in benefiting from special education. (Ed. Code, § 56363, subd. (a).) An educational agency satisfies the FAPE standard by providing adequate related services such that the child can take advantage of educational opportunities. (Park v. Anaheim Union High School (9th Cir. 2006) 464 F.3d 1025, 1033.) The adequacy of such related services is measured by whether the disabled pupil will gain educational benefit through the assistance provided by such services. (Mercer Island, 575 F.3d at p. 1038, fn. 10.)

Issue 1: Beginning in December 2007, was CCS a public agency obligated to provide Student with educationally related OT and PT services in connection with her IEPs with the District?

Interagency Responsibility for Related Services

6. Due process hearing procedures extend to “the public agency involved in any decisions regarding a pupil.” (Ed. Code, § 56501, subd. (a).) A “public agency” is defined as a school district, county office of education, special education local plan area (SELPA), charter school in some instances, or any other public agency under the auspices of the state or any political subdivisions of the state providing special education or related services to individuals with exceptional needs. (34 C.F.R. § 300.33; Ed. Code, §§ 56026.3; 56028.5, 56500.)

CCS Program

7. The California Children’s Services Act, added in 1995, requires the Department of Health Care Services (Department) to establish and administer a program of services for “physically defective or handicapped persons under the age of 21 years,” as defined. (Health & Saf. Code, § 123805.) Services are statutorily defined to include medical treatment, OT, PT, appliances, and maintenance, transportation or care incidental to any service. (Health & Saf. Code, § 123840.) The Act assigns responsibility for the program to each county, overseen by the Department. (Health & Saf. Code, §§ 123850, 123925.) Any parent or guardian who is “wholly or partly unable to furnish for the child necessary services” may apply to his or her designated county agency to make a child eligible for the CCS program. (Health & Saf. Code, § 123865.)

8. Health and Safety Code section 123950 requires the local county agency operating CCS to “administer the medical therapy program in local public schools for physically handicapped children,” and to share in the cost of therapist salaries in the schools. The “medical therapy program” is defined as the component of the CCS program located in public schools that provides PT, OT, and physician consultation to children with eligible medical conditions. (Cal. Code Regs., tit. 22, § 41450.)

Joint Responsibility for Related Services

9. In 1984, the California Legislature determined that existing programs to provide supportive services to children with handicaps who were of school age were not sufficiently coordinated. Chapter 26.5, Division 7, Title 1, of the Government Code (Chapter 26.5) was therefore added to codify the joint responsibilities of the Superintendent of Public Instruction (CDE) and the Secretary of the Health and Human Services Agency “for ensuring maximum utilization of all state and federal resources that are available” to provide a child with a disability a FAPE. (Gov. Code, § 7570.)

10. Chapter 26.5 provides that a related service or designated instruction and service shall only be added to the child’s IEP by the IEP team if a formal assessment has been conducted and a qualified assessor “recommended the service in order for the child to benefit from special education.” (Gov. Code, § 7572, subd. (d).) Government Code section 7572, subdivision (e) provides that whenever a related service or designated instruction and service, such as OT, PT, or mental health, is to be considered for inclusion in a child’s IEP, the local educational agency shall 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.

Government Code 7575, subdivision (a) provides as follows:

(1) Notwithstanding any other provision of law, the State Department of Health Services, or any designated local agency administering the California Children’s Services, shall be responsible for the provision of medically necessary occupational therapy and physical therapy, as specified by Article 5 (commencing with Section 123800) of Chapter 3 of Part 2 of Division 106 of the Health and Safety Code, by reason of medical diagnosis and when contained in the child’s individualized education program. [Italics added.]

(2) Related services or designated instruction and services not deemed to be medically necessary by the State Department of Health Services, that the individualized education program team determines are necessary in order to assist a child to benefit from special education, shall be provided by the local education agency . . . .

11. Under subdivision (b) of Government Code section 7575, the Department of Health Services, or an individual or agency with whom it contracts, shall determine whether a pupil who is eligible for CCS, or a pupil with a private medical referral, needs “medically necessary” OT or PT. “Medically necessary benefits” are defined as those “services, equipment, tests, and drugs which are required to meet the medical needs of the client’s CCS-eligible medical condition as prescribed, ordered or requested by a CCS physician and which are approved within the scope of benefits provided by the CCS program.” (Cal. Code Regs., tit. 22, § 41452.)

12. The medical referral must be based on a written report from a licensed physician who has examined the pupil. The report must include the “diagnosed neuromuscular, musculoskeletal, or physical disabling condition prompting the referral; the physician’s treatment goals and objectives; the basis for determining the recommended treatment goals, including how they will ameliorate or improve the diagnosed condition, and “the relationship of the medical disability to the pupil’s need for special education and related services.” (Gov. Code, § 7575, subd. (b).)

13. There is no dispute in this case that Student was eligible for CCS program services, and has received OT and PT services from CCS since at least the age of three. Student was medically eligible for such medically necessary benefits with her disabling condition of cerebral palsy. (Health & Saf. Code, § 123800; Cal. Code Regs, tit. 22, § 41517.3, subd. (a)(2).)

14. As set forth in Factual Findings 8 through 47, and Legal Conclusions 2 through 13, the District offered and provided Student educationally related OT and PT services to be provided by CCS as part of the District’s offered educational program for Student on a consistent basis since kindergarten. If CCS occupational and physical therapists attended Student’s IEP meetings solely in order to provide the IEP team with information about her medically necessary services, the CCS OT and PT services would not have been listed in the District’s IEPs as related or supplemental services being offered to Student through the District. The fact that the IEPs did not contain annual OT and PT goals in the body of the IEP is somewhat troubling; however, no one from the District testified. The CCS reports had goals that the District may have adopted by attaching the reports to the IEPs, or the District itself may have been confused about its relationship with CCS. Moreover, the CCS PT and OT therapists consulted with classroom teachers about Student’s needs in the classroom and at lunch, worked with District staff on Student’s access to the school bathroom, and the PT therapist trained a classroom aide and teacher. It is evident that Student required educationally related OT and PT services, at least on a consultation basis, in order to be successful in the school setting.

15. CCS’s argument that CCS services listed as “supplemental services” in the IEP were not educational services is not supported by any testimony or legal authority. As set forth in Legal Conclusion 25, the law requires the IEP to contain a statement of the related and supplemental services offered to provide a FAPE. The District entered the CCS OT and PT services in the “related services” category in the December 19, 2006 IEP, and the entry of both the CCS services and the District’s VI support services as “supplemental services” in the February 5, 2009 IEP was a change in label. Regardless of the label, the question of whether the services constitute related services necessary to obtain educational benefit must be resolved on a substantive basis.

16. In addition, as set forth in Legal Conclusion 10, the OT and PT services shall not be listed in an IEP unless they have been determined by an IEP team to be necessary for the pupil to obtain educational benefit. The CCS witnesses who testified did not understand CCS’s statutory role of joint responsibility with the District for Student’s services. (Factual Finding 45.) The California Special Education Hearing Office (SEHO), the predecessor to OAH, addressed this matter in the special education case of Student v. Capistrano Unified School District and California Children’s Services (1997), Cal.Spec.Ed.Hrng.Offc, Case Number 305, at p. 25, as follows:

Although CCS has the power to decide whether OT services are medically necessary for a child, it does not act in a vacuum — that is, CCS does not have the power to also decide unilaterally whether OT services are educationally necessary. (California Government Code § 7575[,subdivision] (b).) The IEP team decides if services are educationally necessary. (34 C.F.R. §§ 300.343 and 300.346.) If a related service (such as OT) is not medically necessary, but is still educationally necessary, then the local educational agency must take over the provision of such services. (California Government Code § 7575 [,subdivision] (a)(2).) Therefore, when therapy services are provided by CCS and are also included on a child’s IEP as a related service, CCS is bound by that IEP to provide those services or must inform the school district of a change in service. (California Education [Cal. Ed.] Code § 56363; 34 C.F.R. § 300.504.)

17. It is presumed in the law that official duty has been regularly performed. (Evid. Code, § 664.) The District, as a public agency, is therefore presumed to have performed its official duties in conducting Student’s IEP meetings absent evidence to the contrary. Therefore, by inclusion of the CCS services in the IEPs, the District is presumed to have determined that the OT and PT services through CCS were necessary for Student to obtain educational benefit and there is no persuasive evidence to the contrary. Rather, Parents’ testimony is consistent with this presumption and is persuasive. The fact that the CCS personnel who testified did not understand why its OT and PT services were listed in the District’s IEPs does not change the result.

18. As set forth in Factual Findings 22, 31, 32, 44, and 51 through 54, and Legal Conclusions 2 through 17, CCS was the OT and PT service provider for the District so long as the services were also medically necessary. The evidence established that in October 2009, the PT services were transferred from CCS to a District physical therapist. The transfer of PT services from CCS is consistent with Dr. Skinner’s November 2009 prescription terminating CCS’s medically necessary PT services for Student. The transfer of services is also consistent with the determination herein that CCS’s PT services from June 2008 to November 2009 were both medically and educationally necessary. After the PT services were no longer medically necessary, the District was obligated to locate another provider if the services continued to be educationally necessary. As to the OT services, there is no evidence that a CCS physician prescribed the termination of OT as no longer medically necessary. However, by January 2010, Parents no longer wanted CCS to provide the services. Based on the foregoing, during the time period at issue in this case, CCS was a public agency legally responsible to provide Student’s educationally necessary OT and PT services pursuant to her IEP.

Issue 2: Did CCS deny Student a FAPE, procedurally or substantively, by failing to provide OT and PT related services in accordance with Student’s IEP(s), including direct OT and PT services, and supervision of those services, by: (a) failing to provide any OT services from June 18, 2008, to March 24, 2009; (b) failing to provide sufficient OT services from March 25, 2009, to the present; and (c) failing to provide sufficient PT services from June 18, 2008, to the present?

Failure to Implement the IEP

19. A failure to implement a student’s IEP will constitute a violation of the student’s right to a FAPE only if the failure was material. There is no statutory requirement that a district must perfectly adhere to an IEP, and, therefore, minor implementation failures will not be deemed a denial of FAPE. A material failure to implement an IEP occurs when there is more than a minor discrepancy between the services a school provides to a disasbled child and the services required by the child’s IEP. (Van Duyn, et al. v. Baker School District 5J (9th Cir. 2007) 502 F.3d 811, 815 (Van Duyn).)

20. The materiality test is not a requirement that prejudice must be shown. “[T]he materiality standard does not require that the child suffer demonstrable educational harm in order to prevail.” (Van Duyn, supra, 502 F.3d at p. 822.) The child’s educational progress, or lack thereof, may be probative of whether there was more than a minor shortfall in services. A shortfall in services and a shortfall in the child’s achievement in that area tend to show that the failure to implement the IEP was material. The Van Duyn court emphasized that IEPs are clearly binding under the IDEA, and the proper course for a school that wishes to make material changes to an IEP is to reconvene the IEP team pursuant to the statute. (Ibid, at p. 822.)

21. As a matter of law, if the parent does not consent to some components of an IEP, the school district is obligated to implement those components of the program to which the parent has consented “so as not to delay providing instruction and services to the child.” (Ed. Code, § 56346, subd. (e).) In addition, where there is a dispute as to placement and services, the school district must maintain the status quo by continuing to provide the last implemented placement and services pending the outcome of the dispute. (Ed. Code 56505, subd. (d).)

22. CCS contends that since Parents did not consent to the December 19, 2007 IEP, Student’s second issue is fatally flawed because all of her problems are tied to that one IEP. CCS’s contention is not persuasive and Student’s second issue is not dismissed due to the mistaken date of the last agreed-upon IEP. As determined in the Procedural Matters section, and in Factual Findings 8 through 47, CCS’s narrow view that all of Student’s issues must be analyzed only with respect to the December 19, 2007 IEP is not supported in the law or in the record. Since Parents did not consent to the December 2007 IEP, or only partially consented to it, the public agencies remained bound to provide services pursuant to the last agreed-upon or implemented IEP as a matter of law. (Legal Conclusion 21.)

23. As set forth in Factual Findings 8 through 22, 33 through 43, and 45 through 52, and Legal Conclusions 19 through 22, CCS unilaterally terminated or suspended Student’s medically and educationally related OT services and placed her on a wait list on and after June 18, 2008, based on the no-show policy, and did not reinstate Student’s OT services until April 29, 2009, a period of about 10 and a half months. In addition, CCS did not request an IEP meeting prior to terminating or suspending Student’s OT services. Had CCS notified the District, and had the IEP team decided that the OT services were still educationally necessary, the District could have retained another service provider to deliver the OT services while Student was on a wait list at CCS. Thus, CCS committed a procedural violation that impeded Student’s right to a FAPE and denied her educational benefit. The denial of OT services constituted a substantial and material deviation from CCS’s obligations under the last agreed-upon IEP. There was no evidence that supervision was required by the IEP or was deficient. CCS’s unilateral cessation of OT services without an IEP meeting procedurally denied Student educational benefit and substantively denied her a FAPE. In addition, when CCS resumed the OT services at the end of April 2009, it unilaterally reduced the duration of the weekly services from 45 minutes to 30 minutes per session, a material loss of one hour per month of OT services (15 minutes weekly) from May 2009 to January 2010, for a total of nine months.

24. As set forth in Factual Findings 23 through 50, and 53 through 55, CCS provided Student with medically and educationally necessary PT services from June 2008 through May 2009. CCS funded Children’s Hospital of Oakland’s provision of PT services for CCS in April and May 2009. By June 2009, CCS offered to provide Student PT services through its West Oakland MTU and Parents unilaterally declined to accept the offer. On November 23, 2009, Dr. Skinner issued a prescription ending medically necessary direct PT services for Student. Accordingly, CCS did not deny Student a FAPE with respect to the lack of PT services between June 2009 and November 2009. In addition, the evidence did not substantiate Student’s claim that CCS reduced Student’s PT services beginning in June 2008 in alleged deviation from the services required by the IEP. There was also no evidence that supervision was required by the IEP or was deficient. While CCS’s failure to notify the District’s IEP team about changes to Student’s PT services constituted a procedural violation, it was a harmless error as CCS did not cause Student to suffer reduced PT services. Therefore, CCS did not deny Student a FAPE with respect to any claimed cessation or reduction in PT services during the time period at issue in this case.

Issue 3: Beginning in December 2007, did CCS deny Student a FAPE by failing to offer or provide adequate annual goals and related services to meet her unique educational needs in the areas of OT and PT?

25. The LEA is required to establish an IEP for each child with a disability that includes a statement regarding the child’s present levels of academic achievement and functional performance; measurable annual goals, including academic and functional goals designed to meet the child’s educational needs and enable the child to make progress; a description of how the child’s progress toward meeting the annual goals will be measured; a statement of the special education and related or supplementary aids and services, based on peer-reviewed research to the extent practicable, to be provided to the child; and other information, including the anticipated frequency, location, and duration of the services. (Ed. Code, § 56345.)

26. As set forth in Factual Findings 56 through 62, and Legal Conclusions 2 through 5 and 25, Student did not sustain her burden of proof to establish what CCS’s OT and PT goals were for the time period at issue in this case; what her present levels of functional performance related to OT and PT skills and deficits were in the school setting; and whether the District, and the IEP team, who were responsible to develop Student’s educationally related OT and PT goals, acted upon or adopted the CCS medical OT and PT goals. There was no evidence, aside from Parents’ criticisms, that the CCS goals did not meet Student’s needs, and she successfully met her medically necessary PT goals by November 2009. There was insufficient evidence to charge CCS with a denial of FAPE in light of on the District’s responsibility to provide appropriate educationally related OT and PT goals if they differed from the CCS medical goals. Accordingly, the evidence did not establish any denial of FAPE by CCS on this basis.

Compensatory Education

27. When a LEA fails to provide a FAPE to a pupil with a disability, the pupil is entitled to relief that is “appropriate” in light of the purposes of the IDEA. (School Committee of Burlington v. Department of Educ. (1996) 471 U.S. 359, 369-371; 20 U.S.C. § 1415(i)(2)(C)(3).) Based on the principle set forth in Burlington, federal courts have held that compensatory education is a form of equitable relief that may be granted for the denial of appropriate special education services to help overcome lost educational opportunity. (Student W. v. Puyallup Sch. Dist. (9th Cir. 1994) 31 F.3d 1489, 1496.) Compensatory education does not, however, necessarily involve an obligation to provide day-for-day or session-for-session replacement for opportunity or time missed. (Id. at p. 1497.) The purpose of compensatory education is to “ensure that the pupil is appropriately educated within the meaning of [the] IDEA.” (Ibid.)

28. Based on Legal Conclusions 18, 23, and 27, CCS denied Student a FAPE when it discontinued providing her medically and educationally necessary OT services in mid-June 2008 for ten and a half months until the end of April 2009. Evidence established that Student was medically unable to attend school or therapy for about one month following her surgery in late September 2008, which should not be counted, leaving nine and a half months. The preponderance of the evidence established that Student was entitled under her last agreed-upon IEP to one 45-minute OT session weekly or four sessions per month, resulting in a net loss of 38 OT sessions of 45 minutes duration each. In addition, CCS unilaterally reduced Student’s OT services from 45 minutes a session to 30 minutes a session from May 2009 through January 2010, resulting in an additional loss of one hour per month for nine months, or an additional nine hours of OT. Dividing nine hours of OT into 45-minute sessions results in 12 sessions. Therefore, Student was denied the total educational benefit of 50 OT sessions of 45 minutes duration each from June 2008 through January 2010. Although session-for-session compensation is not required, it is the most logical method available in the absence of proposed formulas from the parties or equitable reasons to reduce the award. Therefore, CCS shall provide Student with 50 sessions of direct OT at 45 minutes per session as ordered below.

ORDER

1. CCS shall provide Student with 50 sessions of direct OT at 45 minutes per session, to be provided within 24 months of the effective date of this decision. Should Student miss a scheduled and agreed upon appointment for the OT sessions without reasonable notice to CCS, that missed and unexcused session shall be counted toward the total sessions provided. CCS shall not terminate, discontinue or suspend its obligations under this order prior to providing the total services ordered based on its no-show or any other policy.

2. Parents shall cooperate with CCS in scheduling the OT sessions.

3. All of Student’s other requests for relief are denied.

PREVAILING PARTY

Education Code section 56507, subdivision (d), requires that the hearing decision indicate the extent to which each party has prevailed on each issue heard and decided. Student prevailed on Issue 1 and Issues 2(a) and 2(b). CCS prevailed on Issue 2(c) and Issue 3.

NOTICE OF APPEAL RIGHTS

This is a final administrative decision, and all parties are bound by this decision. The parties are advised that they have the right to appeal this decision to a state court of competent jurisdiction. Appeals must be made within 90 days of receipt of this decision. A party may also bring a civil action in the United States District Court. (Ed. Code, § 56505 subd. (k).)

Dated: August 23, 2010

DEIDRE L. JOHNSON

Administrative Law Judge

Office of Administrative Hearings