Appeals court: Parents’ rights trumps agency authority

Appeals court: Parents’ rights trumps agency authority

(Calif.) In a ruling with implications for how disputes over special education services are resolved, the 9th U.S. Circuit Court of Appeals confirmed a parent’s right to a due process hearing regardless of potentially conflicting state laws.

The ruling, which was released unpublished but could have an influence throughout much of the western United States, also clarified that “related services” under the Individuals with Disabilities Education Act can include medically necessary occupational and physical therapy if it has been included as part of a student’s Individualized Education Plan.

The court finding is important to both school districts and state and county social welfare agencies that are often at odds over the need to provide related services to students with disabilities and, more to the point, who pays for it.

To some degree, prior legislative and court actions in many states have already established that occupational and physical therapy can be ordered by an IEP team for a student if deemed necessary.

In this instance, it was the California Department of Health Care Services that brought the case forward against the parents of a severely disabled 12-year-old boy enrolled in the Cupertino Union School District. One of the department’s programs, the California Children’s Services, provides physical and occupational therapy to low-income children with acute or chronic medical conditions.

For several years, the boy’s physical and occupational therapy were provided through the Children’s Services program as stipulated in his IEP. But sometime during the 2011-12 school year, the parents became convinced their son needed a higher level of service than what the state’s doctors had determined. Although the Children’s Services program had its own appeal process, the parent instead filed a special education due process complaint against the Department of Health Care Services, which triggered a hearing before an administrative law judge that the parents largely won.

The department, however, disputed the ruling and believed the administrative court didn’t have jurisdiction to decide the case. The department filed its own suit to resolve the issue, which eventually came before the 9th Circuit, whose jurisdiction covers Arizona, Nevada, California, Oregon, Idaho, Montana and Washington, as well as Alaska and Hawaii.

“While it is clear that CCS is to determine in the first instance whether a child with a disability needs medically necessary occupation therapy, what is less clear is whether parents who disagree with CCS’s determination can seek review of that decision in a due process hearing under California’s implementation of the Individuals with Disabilities Education Act (“IDEA”),” the federal three-judge panel said in its opinion.

Although the appeals court found merit in the argument that parts of state law gave the department authority to decide the level of services medically needed – they held that in a bigger picture, state code reflected federal law that gave parents the right to have the administrative judge hear the case.

In a client news brief from the education law firm, Lozano Smith, attorneys Marcy Guiterrez and Jessi Gasbarro noted that the case was not published and thus not binding. Still, they said, “it is likely that the lower California federal courts will follow the Ninth Circuit’s interpretation” while serving as “merely persuasive” for California state courts.

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