Court of Appeals Rules that Occupational Therapy is a Related Service

GirardEdwards_image05Author: Eric Stevens, Attorney at Law 

Summary:  The Federal Ninth Circuit Court of Appeals ruled that a due process complaint may challenge California Children’s Services’ (“CCS”) determination that a child does or does not need medically necessary occupational therapy (“OT”).  The Court of Appeals also ruled that OT is a “related service,” and the Office of Administrative Hearings (“OAH”) has jurisdiction to hear due process complaints regarding OT whether OT is deemed medically or educationally necessary.  Douglas v. California Office of Administrative Hearings (9th Cir. May 13, 2016) Case No. 15-15261.

Facts:  An OAH decision in Parents’ favor was appealed to the Federal Courts.  The California Department of Health Care Services argued that CCS had the final say on what level of occupational therapy, if any, is medically necessary, and OAH did not have jurisdiction to review a decision by CCS.  OAH had disagreed, determining that OT was medically necessary and ordering compensatory therapy and an award of attorney’s fees to Parents.  The Ninth Circuit Court of Appeals ultimately upheld the OAH decision.

Discussion:  The Department of Health Care Services, acting through CCS, determines whether or not OT is “medically necessary” for a child.  Govt. Code § 7575(b).  If CCS determines that OT is medically necessary and if OT is incorporated into a child’s IEP, then CCS is responsible for providing the OT.  Govt. Code § 7575(a).  However, if OT is specified in an IEP but CCS determines it is not medically necessary, then the local educational agency (“LEA”) is responsible for providing the OT services.  Govt. Code § 7575(a)(2).

This case is the first time the Court of Appeals has considered whether CCS’s determination of “medical necessity” could be challenged with a due process complaint before OAH.  CCS argued that the Government Code gave exclusive jurisdiction to CCS to make the determination, so a third-party’s only recourse was CCS’s internal appeals procedures.  See Title 22, Cal. Code Regs. § 42140.

While the Court of Appeals thought the Department’s argument was reasonable, it disagreed.  The Court determined that OT is a “related service” under the IDEA if it is included in a child’s IEP, and OAH has jurisdiction to consider due process complaints involving related services.  See Govt. Code §§ 7572(c)(3), 7585, 7586(a); Educ. Code § 56363(a); 20 U.S.C. § 1401(26(A).  The Court reasoned that the purpose of an IEP is to set out measurable academic goals to meet a child’s educational needs and for a child to make educational progress.  20 U.S.C. § 1414(d)(1)(A).  If OT is included in an IEP, the Court held that it must be because OT is at least educationally necessary for the child to receive a FAPE.  That in turn makes OT a related service subject to due process hearing review before OAH, which gives OAH jurisdiction to examine CCS’s determination as to whether educationally necessary OT is or is not also medically necessary.

Practice Tips:  In California, the responsibility for providing occupational therapy and physical therapy-related services as part of a free appropriate public education is shared by California Children’s Services (CCS) and local educational agencies.  CCS is responsible for the provision of “medically necessary” OT and PT when the child is eligible by medical diagnosis and when the related service is specified in the child’s IEP. The child’s IEP may include one or more goals that CCS will address as medically necessary therapy.  OT and PT that are not deemed to be medically necessary by CCS but are “educationally necessary” are the responsibility of the LEA.  Thus, IEP team must determine whether such services are necessary for the child to benefit from their special education program. While “educationally necessary” is difficult to define precisely, determining the need for educationally necessary OT/PT is typically approached by the IEP team by addressing questions about developmental issues involved in the student’s progress toward IEP goals.  In addition, LEAs must ensure that a representative of CCS is invited to attend IEP meetings in which the PT or OT service level for a student is discussed in conjunction with a CCS assessment and/or when CCS notifies the LEA and parent of changes made to medically-necessary service levels.


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