                                                                            FILED
                            NOT FOR PUBLICATION
                                                                            MAY 13 2016
                    UNITED STATES COURT OF APPEALS                       MOLLY C. DWYER, CLERK
                                                                          U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


TOBY DOUGLAS, in his official                    No. 15-15261
capacity, as Director of the California
Department of Health Care Services,              D.C. No. 5:13-cv-05306-RMW

              Petitioner - Appellee,
                                                 MEMORANDUM*
 v.

CALIFORNIA OFFICE OF
ADMINISTRATIVE HEARINGS,
Director,

              Respondent,

  V.

PARENTS ON BEHALF OF STUDENT
J.C., by and through his Guardians ad
Litem, C.C. and R.C., and C.C. and R.C.,
individually,

              Real-party-in-interest -
Appellant.,

  And

CUPERTINO UNION SCHOOL
DISTRICT; SANTA CLARA COUNTY


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
OFFICE OF EDUCATION,

              Real-party-in-interest.


                  Appeal from the United States District Court
                     for the Northern District of California
                Ronald M. Whyte, Senior District Judge, Presiding

                     Argued and Submitted February 11, 2016
                            San Francisco, California

Before: NOONAN, W. FLETCHER, and MURGUIA, Circuit Judges.

      The parents of J.C., a child with a disability who receives occupational

therapy services as part of his individualized education program (“IEP”), appeal

the district court’s order granting the California Department of Health Care

Services’s petition for writ of ordinary and administrative mandamus and

declaratory relief. The district court also dismissed the parents’ counterclaims and

denied their motions for attorney’s fees and for a stay put order. Reviewing this

question of statutory interpretation de novo, Beeman v. TDI Managed Care Servs.,

Inc., 449 F.3d 1035, 1038 (9th Cir. 2006), we reverse.

1.    Cal. Gov’t Code § 7575(a) provides that California Children’s Services

(“CCS”) “shall be responsible for the provision of medically necessary

occupational therapy . . . by reason of medical diagnosis and when contained in

the child’s individualized education program.” By comparison, qualified personnel

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from local education agencies are to provide related services that are not deemed to

be medically necessary by the Department of Health Care Services, but that the

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

special education.” Id. § 7575(a)(2). The Department of Health Care Services

“shall determine whether a [CCS] eligible pupil, or a pupil with a private medical

referral[,] needs medically necessary occupational therapy.” Id. § 7575(b).

      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 Department of Health

Care Services argues that, because § 7575 allows only CCS to determine what

level of therapy is medically necessary, review of that decision is likewise the

prerogative of CCS, and an Administrative Law Judge (“ALJ”) presiding over a

due process hearing lacks jurisdiction to review the question. CCS has its own

appeal procedure by which a parent can choose a doctor (among three selected by

CCS) to review CCS’s initial medical necessity determination. See Cal. Code

Regs. tit. 22, § 42140.




                                          3
      While the Department of Health Care Services’s view is a reasonable one,

we are not ultimately persuaded by it. Several provisions of California law lead us

to conclude that a parent may initiate a due process hearing to seek review of

CCS’s determination of medical necessity in a child’s IEP. Cal. Gov’t Code

§ 7572(c)(3) provides that disputes over occupational therapy recommendations by

medical personnel and the IEP team are to be resolved in due process hearings.

And Cal. Gov’t Code § 7585 provides that parents may request a due process

hearing to review a department’s failure to provide a related service required

pursuant to § 7575 and specified in the child’s IEP. CCS is not therefore beyond

the jurisdiction of an ALJ.

      We are also persuaded that occupational therapy services in a child’s

IEP—whether medically or educationally necessary—are “related services” over

which an ALJ has jurisdiction in a due process hearing. Cal. Gov’t Code § 7586(a)

provides that all state departments are governed by the IDEA’s procedural

safeguards and that disputes over “related services” are to be resolved in due

process hearings. A “related service” is defined to include occupational therapy

“as may be required to assist an individual with exceptional needs to benefit from

special education.” Cal. Educ. Code § 56363(a); accord 20 U.S.C. § 1401(26)(A).

Occupational therapy services deemed to be medically necessary by CCS are


                                          4
necessary “to assist an individual with exceptional needs to benefit from special

education,” id., when they form part of the child’s IEP. The purpose of an IEP is

to set out measurable academic goals to meet the child’s educational needs and for

the child to make educational progress. 20 U.S.C. § 1414(d)(1)(A). If medically

necessary occupational therapy services were not also necessary for a child to

benefit from special education, they would need not be included in the child’s IEP.

Therefore, occupational therapy services, even those that CCS deems to be

medically necessary, constitute a “related service” when they form part of a child’s

IEP, and they are subject to due process hearing review under Cal. Gov’t Code

§ 7586.

      We also doubt that the California Legislature intended for the Department of

Health Care Services to insulate itself from review in these cases by implementing

its own appeal process to the exclusion of an ALJ’s jurisdiction. Moreover, while

ALJs are not usually medically trained, they are triers of fact capable of weighing

evidence and reaching factual conclusions. See A.I. ex rel. Iapalucci v. District of

Colmbia, 402 F. Supp. 2d 152, 170 (D.D.C. 2005).

      Because the medically necessary occupational therapy services in J.C.’s IEP

were necessary for him to benefit from special education, the ALJ also had

authority to order compensatory therapy. See R.P. ex rel. C.P. v. Prescott Unified


                                          5
Sch. Dist., 631 F.3d 1117, 1125 (9th Cir. 2011). For the same reason, the ALJ had

authority to order reimbursement for the independent assessments obtained by

J.C.’s parents. See Cal. Gov’t Code § 7572(c); Cal. Educ. Code § 56329(b).

2.       J.C.’s parents were also entitled to a stay put order. The “stay put” provision

of the IDEA provides that, during the pendency of due process proceedings,

“unless the State or local educational agency and the parents otherwise agree, the

child shall remain in the then-current educational placement of the child.” 20

U.S.C. § 1415(j); see also 34 C.F.R. § 300.518(a). If “a State review official in an

administrative appeal agrees with the child’s parents that a change of placement is

appropriate, that placement must be treated as an agreement between the State and

the parents” for purposes of the stay put provision. 34 C.F.R. § 300.518(d); see

also Sch. Comm. of Burlington v. Dep’t of Educ. of Mass., 471 U.S. 359, 370

(1985); Clovis Unified Sch. Dist. v. Cal. Office of Admin. Hearings, 903 F.2d 635,

641 (9th Cir. 1990). Here, the ALJ’s determination that J.C. was entitled to more

occupational therapy services constitutes an agreement between the State and the

parents and is subject to a stay put order. The parents’ stay put motion was

directed at the proper party because the Department of Health Care Services,

through CCS, was responsible for providing the increased services under the ALJ’s

order.


                                             6
3.    Because we agree with J.C.’s parents that the ALJ’s order must be enforced,

we hold that they are entitled to attorney’s fees under the IDEA. J.C.’s parents

sought to enforce the ALJ’s order, and they have therefore prevailed on a

significant issue that achieves some of the benefit they sought in bringing this suit.

See 20 U.S.C. § 1415(i)(3)(B)(i)(I); Meridian Joint Sch. Dist. No. 2 v. D.A., 792

F.3d 1054, 1064-65 (9th Cir. 2015). We therefore remand for the district court to

calculate and award attorney’s fees. See V.S. ex rel. A.O. v. Los Gatos-Saratoga

Joint Union High Sch. Dist., 484 F.3d 1230, 1234–35 (9th Cir. 2007).

      Finally, we acknowledge that this case presents a complex, challenging issue

of first impression under California law. A case presenting a similar issue is

currently pending before the California Court of Appeal. See Cal. Dep’t of Health

Care Servs. v. Director, Cal. Office of Admin. Hearings (“Tuolumne”), No.

F071023. Ordinarily, we might consider deferring submission or certifying the

question to the California Supreme Court. However, we decide the case in the

interest of judicial expediency and J.C.’s need for resolution.

REVERSED and REMANDED.




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