K.M. v. California Office of Administrative Hearings CA2/5 ( 2024 )

Filed 2/13/24 K.M. v. California Office of Administrative Hearings CA2/5
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FIVE
K.M., etc., et al., B316970
Plaintiffs and Appellants, Los Angeles County
Super. Ct. No. 20STCP04127
v.
CALIFORNIA OFFICE OF
ADMINISTRATIVE HEARINGS,
Defendant;
LOS ANGELES COUNTY DEPARTMENT
OF CHILDREN AND FAMILY
SERVICES,
Respondent and Real Party in Interest.
APPEAL from a judgment of the Superior Court of Los
Angeles County, James C. Chalfant, Judge. Affirmed.
Disability Rights Legal Center, Christopher H. Knauf,
Alexandra M. Robertson; Gibson, Dunn & Crutcher, Julian W.
Poon, Samuel E. Eckman and Hannah Yim for Plaintiffs and
Appellants.
Office of the County Counsel, Dawyn R. Harrison, County
Counsel, Kim Nemoy, Assistant County Counsel, and Navid
Nakhjavani, Deputy County Counsel, for Respondent and Real
Party in Interest.
____________________________
INTRODUCTION
We are presented in this case with troubling allegations of
repeated failures to educate a child in government care.
Appellant K.M. became a dependent of the court when she was
an infant. When she was eight, the juvenile court concluded she
was not adoptable and ordered respondent Los Angeles
Department of Children and Family Services (DCFS) to
permanently place her into foster care. Between 2017 and 2020,
DCFS shuttled appellant among more than a dozen schools in
nine school districts, without notifying any of them that appellant
had special educational needs. She is now 20—but she reads at a
first-grade level.
Appellant commenced formal legal proceedings against
several governmental entities by filing an administrative
complaint under the Individuals with Disabilities Education Act’s
administrative hearing process. Proceedings then moved to the
trial court by way of a petition for administrative mandamus.
Now the matter is before this court.
Although the harm to K.M. is grievous, the legal issue
before us is narrow: Putting aside obligations the law imposes on
other governmental entities—obligations not presently before
us—does DCFS’s failure to notify the schools of appellant’s
special needs fall within the jurisdiction of the federal
2
Individuals with Disabilities Education Act’s administrative
hearing process? We agree with the trial court that under the
circumstances of this case, DCFS is not subject to the Act’s
administrative process. Therefore, we affirm.1
BACKGROUND
The record before us contains scant information about
appellant’s educational and dependency experiences before 2017,
and only limited information about what occurred afterwards,
but we have been able to garner the following.
1. Dependency Proceedings
Appellant is the fifth of eight siblings. The juvenile court
first assumed jurisdiction over appellant and removed her from
the care of her parents in February 2004, when she was five
months old.2 Over the next six years, the court repeatedly
assumed jurisdiction over appellant and her seven siblings, often
removing them from their home.3 In 2010, a month before
1 Our holding is narrow. We conclude DCFS is not subject to
the administrative hearing process over the present claim that it
failed to provide statutory notice. We do not address whether
jurisdiction may exist in other contexts.
2 Appellant’s parents are not parties to this appeal and were
not involved in the underlying administrative hearing. The 2004
dependency petition was based on domestic violence,
inappropriate physical discipline, and the father’s criminal
history, which included convictions for rape, child abuse, sexual
assault, and sexual abuse.
3 After appellant was first taken from her parents, she
returned home in March 2006, but was removed again three
months later, when the court assumed jurisdiction over the
3
appellant’s seventh birthday, DCFS filed a supplemental
dependency petition on her behalf. The petition alleged that
appellant had mental and emotional problems; her mother had a
limited ability to provide her with ongoing care and supervision;
and her mother had requested appellant’s removal. The juvenile
court removed appellant from her parents for the third and final
time. The court sustained the dependency petition, leading to
termination of the mother’s parental rights in 2011, when
appellant was eight years old.
In January 2012, the court found that appellant was not
likely to be adopted and that no one was willing to become her
legal guardian. The court ordered a permanent plan of foster
care with the goal of emancipation. Throughout the dependency
proceedings, appellant has been represented by appointed
counsel.4 It appears that she is still under the juvenile court’s
jurisdiction in extended foster care.5
children for the second time. The 2006 petition involved
allegations of physical abuse. Appellant was returned to her
mother in March 2007. In 2008, the court assumed jurisdiction
over the children for the third time, but did not remove them
from their mother. The 2008 petition alleged neglect and failure
to supervise.
4 Appellant was not represented by her dependency attorney
in either the administrative proceedings or this appeal. Nor is
the current appeal from any order made by the juvenile court.
The appeal is from the denial of administrative mandate by the
trial court, sitting in a writs and receivers department.
5 The California Fostering Connections to Success Act, often
referred to as A.B. 12, allows non-minor dependents to remain
4
Cumulatively, appellant spent approximately four years of
her life at home. She has otherwise been in the care of various
governmental entities. During her long passage through the
dependency system, appellant has had more than 20 out-of-home
placements—most of them in group homes or temporary shelter
care, not with individual foster families.
2. The Individuals with Disabilities Education Act
Appellant has special educational needs that bring her
within the purview of the federal Individuals with Disabilities
Education Act (IDEA or Act), 20 United States Code section 1400
et seq.
“Under the IDEA and state law, children with disabilities
have the right to a ‘free appropriate public education’ (FAPE).
(20 U.S.C., § 1400(d); Ed. Code, § 56000.) A FAPE consists of
‘special education and related services’ that are provided to the
child at no charge to the parent or guardian, meet state
educational standards, and conform to the child’s individualized
education program (IEP). (20 U.S.C. §§ 1401(9) & (14)[, ]
1412(a)(4), 1414(d).)” (Department of Health Care Services v.
Office of Administrative Hearings (2016) 6 Cal.App.5th 120, 129
(Health Care Services).)
As we discuss in greater detail below, “a FAPE begins with
the development of an [individualized education program], which
is a written statement that contains an educational program
under the juvenile court’s dependency jurisdiction and receive
financial assistance until age 21 if they comply with certain
statutory requirements. (Assem. Bill No. 12 (2009–2010 Reg.
Sess); Assem. Bill No. 212 (2011–2012 Reg. Sess); In re
Shannon M. (2013) 221 Cal.App.4th 282, 285.)
5
tailored to the unique needs of a child with a disability.” (Health
Care Services, supra, 6 Cal.App.5th at p. 130.) Every child’s
individualized program is developed by the student’s
individualized education program team, which includes parents,
teachers, school district representatives, and service providers.
(20 U.S.C. § 1414(d); Ed. Code, §§ 56341, 56341.1, 56341.5.) The
individualized program describes the child’s needs and academic
and functional goals and includes a “statement of special
education and related services and supplementary aids and
services . . . to be provided to the child, or on behalf of the
child . . . .” (20 U.S.C. §§ 1412(a)(4), 1414(d)(1)(A)(IV); Ed. Code,
§§ 56032, 56345, subd. (a).)
By law, all “special education and related services”
provided under the Act flow through the child’s individualized
program. Thus, a student may not receive any service under the
Act until that service is added to his or her individualized
program. (Gov. Code, § 7572, subds. (a), (c) [student must be
professionally assessed before service may be added to
individualized education program].)
“California law determines which local educational agency
. . . is responsible for the provision of a FAPE and preparation of
an IEP.” (B.H. v. Manhattan Beach Unified School Dist. (2019)
35 Cal.App.5th 563, 571 (B.H.).)6 The determination of the
6 “Local educational agency or LEA means a public board of
education or other public authority legally constituted within a
State for either administrative control or direction of, or to
perform a service function for, public elementary schools or
secondary schools in a city, county, township, school district, or
other political subdivision of a State, or for a combination of
6
responsible local agency is usually a function of the child’s
residence. (Id., at p. 571; Ed. Code, § 57156.4, subd. (a) [SELPAs
“shall be responsible for providing appropriate education to
individuals with exceptional needs residing in licensed children’s
institutions and foster family homes located in the geographical
area covered by the local plan”].)
3. Appellant’s Administrative Complaint
In June 2020, through her guardian ad litem, appellant
filed her operative pleading with the Office of Administrative
Hearings (OAH), naming as respondents seven school districts
and schools, the Los Angeles County Office of Education, and
DCFS. The pleading is entitled “Corrected First Amended
Request for Due Process,” but for ease of reference, we refer to
the document as appellant’s administrative complaint. The
administrative complaint alleged that appellant first qualified for
special education services in 2009, when she was five or six,
school districts or counties as are recognized in a State as an
administrative agency for its public elementary schools or
secondary schools.” (34 C.F.R. § 303.23(a).)
In California, “school districts and county school offices have
formed consorti[a] to provide special education services to
children residing within their boundaries. The consortium for
each region is called a Special Education Local Plan Area,” or
SELPA. (B.H., supra, 35 Cal.App.5th at p. 571.) Each SELPA,
which must be of sufficient size and scope to provide for the
special education service needs of all children residing within the
region boundaries, develops a local plan describing how it will
provide special education services. (Ed. Code, § 56195.7.)
7
based on emotional disturbance and intellectual disability.7
From that time, she was periodically subject to evaluations under
the IDEA, the most recent of which appears to have occurred in
connection with her 2020 individualized education program.
Appellant alleged that at various times, she has been
diagnosed with post-traumatic stress disorder, oppositional
defiant disorder, attention deficit hyperactivity disorder, and
bipolar disorder. She also has an extensive history of mental
health hospitalizations.
Among other relief, appellant sought a finding that
respondents denied her a free appropriate public education and
other benefits and services, a finding that respondents interfered
with the ability of her educational rights holder to participate in
the educational process, and compensation to fund “evaluations
and compensatory education in an amount and type according to
proof.”
4. Factual Allegations in the Administrative Complaint
The bulk of appellant’s allegations in the administrative
complaint deal with her educational history and the severe
impediments to that education.
She chronicles a four year odyssey from school to school to
other facilities from 2017 through 2020. The allegations begin in
7 It is unclear whether appellant contends that she was first
granted individualized education program services in 2009 or
that she would have qualified for such services if she had been
properly assessed. It appears the Pasadena Unified School
District established an individualized education program for
appellant in May 2012, when she was in second grade, but the
record does not reveal whether that was her first individualized
program.
8
August 2017, when she was 12 and enrolled in the Antelope
Valley Union High School District. A month later, the district, as
the local educational agency under the Act, held an
individualized program meeting and offered appellant various
services, including a behavioral support plan. Over the next
several months, she was transferred to a school in the Pasadena
Unified School District, went missing, was found, and was
returned to Antelope Valley Union High School District. In
February 2018, she was removed from her foster home, and
DCFS transferred her to a temporary shelter facility where she
attended two different schools, for one week each.
In July and August 2018, appellant was enrolled at Central
Juvenile Hall High School, operated by the Los Angeles County
Office of Education. At age 15, she still could not read and was
living in a group home in the Kern High School District—but
before an individualized education program could be adopted, she
was expelled from the group home. In October 2018, appellant
was taken into custody and re-enrolled at Central Juvenile Hall
High School. She was then returned to temporary shelter care,
and by mid-February 2019, was enrolled at Joan Macy Nonpublic
School. Between April and August 2019, appellant shuttled
between transitional housing and the Central Juvenile Hall High
School.
In 2019, at the request of her dependency attorney,
appellant spent three weeks at UCLA Resnick Neuropsychiatric
Hospital. In October and November 2019, she was placed in
temporary shelter care, absconded, returned to the shelter care,
and was placed first within Los Angeles Unified School District
(LAUSD), and then within the Compton Unified School District.
9
On December 23, 2019, appellant was finally placed with a
foster family in Los Angeles. Her foster parents were given
conflicting information from LAUSD about whether she should
enroll in one of two public schools or, instead, a nonpublic school.
After enrollment in still another school and a transfer to a
residential therapeutic center, a dispute arose over which local
educational agency was responsible for educating appellant. The
State Department of Education ultimately determined LAUSD
was responsible.
As we discuss post, the central issue in this case is
appellant’s claim that for each of these moves, DCFS failed to
notify local educational agencies and other entities of her special
educational needs, as required by State law. (Gov. Code, §§ 7579,
7579.1; Ed. Code, § 56156.) DCFS does not dispute that it was
obligated to provide such notice or that it failed to do so. The
issue before us is whether OAH is the proper forum to adjudicate
the claims against DCFS.
5. Proceedings in the Office of Administrative Hearings
Appellant’s operative amended administrative complaint,
filed August 31, 2020 (after appellant had turned 17), asserts
that respondents denied appellant a free appropriate public
education by failing to adhere to school stability requirements,
impeding appellant’s educational rights holder’s opportunity to
participate in the IEP process, and depriving appellant of
educational benefits and related services.
As to DCFS specifically, appellant alleged that, when she
was moved from one school to another to another, DCFS failed to
provide the various schools and local educational agencies with
the required notice of her special educational needs. She argued
that when a change in residential placement results in a change
10
of which local educational agency is charged with responding to a
foster child’s special needs, DCFS must notify both the child’s
school of origin and the receiving special education local plan
area 10 days prior to placement. Appellant asserted that
between 2018 and 2019, as she was transferred among the many
schools, DCFS failed in its obligation to timely notify the schools
of her special educational needs.
Among other things, the administrative complaint asked
the OAH to order respondents, including DCFS, to fund
evaluations and compensatory education.
DCFS moved to dismiss the administrative complaint,
arguing that it was not a public agency subject to OAH
jurisdiction. The OAH granted the motion. It reasoned that
“[n]one of the code sections or court rules identified in the
amended complaint impose an obligation on DCFS to provide
special education and related services to a student, or involved
DCFS in any decisions regarding a student’s educational
program.” Specifically, the OAH held that Education Code
section 56156, subdivision (a)—which obligates California courts,
regional centers for the disabled, and public agencies placing
children in licensed children’s institutions to report a child
eligible for special education to the director of the special
education local plan area in which the child is placed—does not
obligate the placement entities to participate in educational
program decisions sufficient to subject them to OAH jurisdiction.
Accordingly, the OAH dismissed DCFS.
6. Trial Court Proceedings
On December 15, 2020, appellant, through her guardian ad
litem, appellant Kathryn Fagerquist, filed a verified petition for
writ of mandate under Code of Civil Procedure section 1094.5, in
11
which she sought an order compelling the OAH to set aside its
order dismissing DCFS from the due process proceeding. The
other respondents remained in the administrative proceedings.8
Appellant alleged DCFS’s failure to adhere to its statutory notice
obligations deprived her of a free appropriate public education;
that had DCFS met its obligations, she would have received the
special education and related services to which she was entitled;
and that without DCFS’s involvement in the administrative
action, she would be deprived of a complete remedy.
The trial court denied the petition and entered judgment in
favor of DCFS. The court agreed the OAH lacked jurisdiction
over DCFS. First, the court held DCFS is not obligated to comply
with the IDEA and California special education law because it is
not a “designated local agency” within the meaning of the
legislative scheme. It reasoned that DCFS’s responsibility is to
keep children safe from abuse and neglect. Although it must
perform acts that affect a dependent child’s education, it would be
“unreasonable to expand these duties” to encompass the special
education regulatory framework.
Next, the court held DCFS is not a “public agency” that
provides “special education and related services” within the
meaning of the IDEA and State law. The department’s general
responsibilities do not qualify as “social work services” under the
Education Code, and its obligation to transfer certain information
to local educational agencies is a ministerial duty. Accordingly,
the court held, the OAH had properly concluded it lacked
jurisdiction over DCFS, and any “violation of DCFS’s duties with
8 The record does not reveal how or if the administrative
hearing process proceeded as to the remaining respondents.
12
respect to a special education foster child is addressed before the
juvenile court.”
Appellant appealed.
DISCUSSION
On appeal, appellant contends the OAH has jurisdiction
over DCFS either because DCFS is a “designated local agency”
under Government Code section 7586 or because it is a “public
agency” that provides “related services” under Education Code
sections 56028.5 and 56501.9 Accordingly, the trial court erred in
denying appellant’s administrative mandamus petition and
entering judgment in favor of DCFS.
1. Standard of Review
This is an appeal from the denial of a mandamus petition
filed by appellant and the ensuing judgment against her. In
California, depending on the nature of mandamus relief sought, a
petition is governed by one of two statutes: Code of Civil
Procedure section 1085 (ordinary mandamus) or section 1904.5
(administrative mandamus).
Here, the trial court treated the petition as one for
administrative mandamus that sought review of a decision of an
administrative body, the Office of Administrative Hearings. The
parties do not discuss the difference between the two writs, and
our standard of review in this case would be the same regardless
of the writ’s form. “Regardless of the writ involved . . . where the
facts are undisputed, the reviewing court faces a question of law.
‘On questions of law arising in mandate proceedings, we exercise
independent judgment.’ ” (Santa Clara Valley Transportation
9 We set out the statutes and discuss their relevance in the
text below.
13
Authority v. Rea (2006) 140 Cal.App.4th 1303, 1313; see also
Health Care Services, supra, 6 Cal.App.5th at p. 140.)
The scope of the OAH’s jurisdiction is an issue of “statutory
interpretation that we must consider de novo.” (People v. Prunty
(2015) 62 Cal.4th 59, 71.) As with any case involving statutory
interpretation, our primary goal is to ascertain and effectuate the
lawmakers’ intent. (Mays v. City of Los Angeles (2008) 43 Cal.4th
313, 321.) To determine intent, we first examine the statutory
language and give the words their ordinary meaning. (Ibid.)
“Words and phrases are construed according to the context and
the approved usage of the language; but technical words and
phrases, and such others as may have acquired a peculiar and
appropriate meaning in law, or are defined in the succeeding
section, are to be construed according to such peculiar and
appropriate meaning or definition.” (Civ. Code, § 13.) If the
statutory language is unambiguous, its plain meaning controls; if
the statutory language is ambiguous, “ ‘ “we may resort to
extrinsic sources, including the ostensible objects to be achieved
and the legislative history.” [Citation.] Ultimately, we choose
the construction that comports most closely with the apparent
intent of the lawmakers, with a view to promoting rather than
defeating the general purpose of the statute.’ ” (Mays, at p. 321.)
A statute’s plain meaning encompasses not only its words
but also its grammar and structure. (People v. Valenti (2016)
243 Cal.App.4th 1140, 1170.) Thus, to determine meaning, we
“consider[ ] the statute’s language and structure, bearing in mind
that our fundamental task in statutory interpretation is to
ascertain and effectuate the law’s intended purpose. [Citation.]
We examine the ordinary meaning of the statutory language, the
text of related provisions, and the overarching structure of the
14
statutory scheme.” (Weatherford v. City of San Rafael (2017)
2 Cal.5th 1241, 1246, citing Poole v. Orange County Fire
Authority (2015) 61 Cal.4th 1378, 1391 (conc. opn. of Cuéllar, J.)
[“ ‘The statute’s structure and its surrounding provisions can
reveal the semantic relationships that give more precise meaning
to the specific text being interpreted’ ”].)
Where statutes possibly conflict, we “ ‘must, where
reasonably possible, harmonize [them], reconcile seeming
inconsistencies in them, and construe them to give force and
effect to all of their provisions. [Citations.] This rule applies
although one of the statutes involved deals generally with a
subject and another relates specifically to particular aspects of
the subject.’ [Citation.] Thus, when “ ‘two codes are to be
construed, they “must be regarded as blending into each other
and forming a single statute.” [Citation.] Accordingly, they
“must be read together and so construed as to give effect, when
possible, to all the provisions thereof.” ’ ” ’ ” (State Dept. of Public
Health v. Superior Court (2015) 60 Cal.4th 940, 955.)
2. The Statutory Scheme to Deliver a Free Appropriate
Public Education
In California, the Legislature exercises the discretion
afforded by the Individuals with Disabilities Education Act
(IDEA) by dividing responsibilities between the Superintendent
of Public Instruction and the Secretary of Health and Human
Services. (Gov. Code, §§ 7570, 7571, 7573.)10 The
10 The Superintendent of Public Instruction is an elected
constitutional officer. (Cal. Const., art. IX, sec. 2; see State Bd. of
Education v. Honig (1993) 13 Cal.App.4th 720, 754–755.) The
15
Superintendent fulfills his or her responsibilities through
geographic consortia called special education local plan areas.
(Ed. Code, §§ 56345, subd. (c), 56120 et seq.) The Secretary of
Health and Human Services, in turn, may “designate a
department of the state government to assume [his or her]
responsibilities.” (Gov. Code, § 7571.) The Secretary has
delegated FAPE responsibilities to the Department of Health
Care Services. (Health Care Services, supra, 6 Cal.App.5th at
p. 144, fn. 20.)
Government Code section 7571 also requires the Secretary
to “designate a single agency in each county to coordinate the
service responsibilities described in Section 7572,” namely the
provision of medical services to, and assessments of, disabled
students. The Secretary has designated California Children’s
Services (CCS) to perform those functions. (Health Care Services,
supra, 6 Cal.App.5th at p. 144; Gov. Code, § 7575, subd. (a)(1).)
CCS is administered locally by each county. (Health & Saf. Code,
§ 123850.)11
Under the statutory scheme, the Superintendent and the
Secretary must “develop regulations . . . for the department or
designated local agency to implement this act.” (Gov. Code,
§ 7587.) The regulations are found in titles 2 and 5 of the
California Code of Regulations. (Cal. Code Regs., tit. 2, § 60000
et seq.; Cal. Code Regs., tit. 5, § 3000 et seq.)
Secretary of Health and Human Services is appointed by the
Governor. (Gov. Code, §§ 12800, 12801.)
11 We use “CCS” to refer, interchangeably, to both California
Children’s Services and its local county designee, County of Los
Angeles Public Health.
16
A “FAPE begins with the development of an [individualized
education program], which is a written statement that contains
an educational program tailored to the unique needs of a child
with a disability. (20 U.S.C. §§ 1401(14), 1412(a)(4), 1414(d).)”
(Health Care Services, supra, 6 Cal.App.5th at p. 130; Honig v.
Doe (1988) 484 U.S. 305, 311 [a FAPE is implemented through
the child’s IEP].) The IEP includes a “statement of special
education and related services and supplementary aids and
services . . . to be provided to the child, or on behalf of the child
. . . .” (20 U.S.C. §§ 1412(a)(4), 1414(d)(1)(A)(IV); Gov. Code,
§ 7575; Ed. Code, §§ 56341, 56341.1, 56345, 56345.2; Cal. Code
Regs., tit. 2, § 60010, subd. (i).)12 An individualized program
team, consisting of parents, teachers, school district
representatives, and service providers participates in the
development of the IEP. (20 U.S.C. § 1414(d); Ed. Code,
§§ 56341, 56341.1, 56341.5.)
12 An individualized education program must contain: “A
statement of the special education and related services and
supplementary aids and services, based on peer-reviewed
research to the extent practicable, to be provided to the pupil, or
on behalf of the pupil, and a statement of the program
modifications or supports for school personnel that will be
provided to enable the pupil to do all of the following: (A) To
advance appropriately toward attaining the annual goals. (B) To
be involved in and make progress in the general education
curriculum . . . and to participate in extracurricular and other
nonacademic activities. (C) To be educated and participate with
other individuals with exceptional needs and nondisabled pupils
in the activities described in this subdivision.” (Ed. Code,
§ 56345, subd. (a)(4).)
17
The “related services” included in an IEP are “those
services that are necessary for a pupil with disability to benefit
from his or her special education program . . . .” (Cal. Code Regs.,
tit. 2, § 60010, subd. (s); Ed. Code, § 56363, subd. (a) [defining
related services as necessary “to assist an individual with
exceptional needs to benefit from special education”].) A service
is “necessary for a pupil with a disability to benefit from . . .
special education” if it “assists the pupil with a disability in
progressing toward the goals and objectives listed in the IEP in
accordance with” Government Code sections 7572 and 7575.
(Cal. Code Regs., tit. 2, § 60010, subd. (m).) Such services include
transportation, developmental, corrective, and other supportive
services. (20 U.S.C. § 1401(26)(A); Ed. Code, § 56363.)
The need for related services is “determined by the” IEP.
(Cal. Code Regs., tit. 5, § 3051, subd. (a)(2).) No related service
may be provided until the service is added to the student’s IEP—
and no service may be added to an IEP until the student is
professionally assessed. (Gov. Code, § 7572, subds. (a), (c)
[“before any action is taken with respect to the provision of
related services,” the child must be assessed and the service must
be added to the individualized education program].) Only once an
assessment has occurred and the IEP team has determined a
related service is “necessary in order to assist a child to benefit
from special education,” is the service is added to the pupil’s IEP.
(Gov. Code, § 7572, subd. (c).)
In accordance with the Legislature’s division of
responsibility, the Department of Health Care Services’
designated local agency, CCS, provides all related services that
are medical in nature. (Gov. Code, § 7575, subd. (a)(1).) Medical
related services may include, for example, occupational and
18
physical therapy for a student with cerebral palsy. (Health Care
Services, supra, 6 Cal.App.5th at p. 132.) All nonmedical related
services are provided by the local education agency. (Gov. Code,
§ 7575, subd. (a)(2); Ed. Code, § 56345, subd. (c) [“It is the intent
of the Legislature in requiring [IEPs], that the local educational
agency is responsible for providing the services delineated in the
[IEP]”].) A nonmedical related service may include, for instance,
specialized driver’s training for a student unable to walk. (Ed.
Code, § 56363, subd. (b)(8).)
In sum: Local educational agencies provide a free
appropriate public education via a child’s IEP. The IEP directs
the provision of educational services, medically necessary related
services, and non-medically necessary related services.
Educational services and non-medically necessary related
services are typically provided by the local education agency;
medically necessary related services are provided by CCS.
3. Duty to Notify
The Legislature has also imposed requirements on entities
that, though not directly charged with providing students with a
free appropriate public education, can make the process run more
smoothly. Among appellant’s claims against the various
government respondents is the one directed at DCFS—the
department’s failure to notify transferee schools and facilities
that a child being placed in the service area of those schools or
facilities has special educational needs.
Statutes in the Government Code and Education Code
require such notice. Under Government Code section 7579, to
“encourage communication between the courts and other public
agencies that engage in referring children to, or placing children
in, residential facilities” such as foster care (for dependent
19
children) or juvenile detention (for juvenile wards), courts and
placement agencies must “notify the administrator of the special
education local plan area in which the residential facility is
located” before placing a pupil with special needs in that district.
(Gov. Code, § 7579, subds. (a), (c).) Under Education Code section
56156, a “public agency that engages in referring children to, or
placing children in, licensed children’s institutions shall report to
the special education administrator of the special education local
plan area in which the children’s institution is located any
referral or admission of a child who is potentially eligible for
special education.”
DCFS does not dispute that it repeatedly failed to
discharge its notification duties as it moved appellant from school
to school. The question we must answer is whether these failures
give rise to an administrative remedy under the Individuals with
Disabilities Education Act through the Office of Administrative
Hearings process.
4. The OAH Lacks Jurisdiction Over DCFS Because
Provision of Notice is not a “Related Service” as
Defined by State Law
When a student or her parent “objects to the adequacy of
the education provided, the construction of the IEP, or some
related matter, the IDEA provides a procedural recourse: It
requires that a State provide ‘[a]n opportunity for any party to
present a complaint . . . with respect to any matter relating to the
identification, evaluation, or educational placement of the child,
or the provision of a free appropriate public education to such
child.’ [20 U.S.C.] § 1415(b)(6).” (Winkelman ex rel. Winkelman
v. Parma City Sch. Dist. (2007) 550 U.S. 516, 525.) In California,
the complaint-resolution procedure is through a due process
20
hearing—an administrative proceeding conducted by the Office of
Administrative Hearings. (Ed. Code, § 56504.5; Gov. Code,
§ 27727.) All “state departments, and their designated local
agencies” are subject to this process. (Gov. Code, § 7586,
subd. (a).) So is any “public agency involved in any decisions
regarding a pupil.” (Ed. Code, § 56501, subd. (a).)
Appellant argues DCFS is subject to the administrative
hearing process because the agency is both a “designated local
agency” and a “public agency,” under the Government and
Education Codes, respectively. Appellant believes DCFS is a
designated local agency because the Secretary of Health and
Human Services has delegated notice responsibilities to child
placement agencies in its implementing regulations.13 Appellant
believes DCFS is also a public agency because it provides “special
education or related services to individuals with exceptional
needs.” (Ed. Code, § 56028.5 [defining “public agency”].) In
particular, appellant contends DCFS falls within this public
agency definition because social work services constitute related
services within the meaning of this provision. (Ed. Code, § 56363,
subd. (a) [defining related services].) Based on these designations
alone—i.e., DCFS’s asserted status as a designated local agency
13 California Code of Regulations, title 2, section 60510
requires the “court, regional center for the developmentally
disabled, or public agency other than an educational agency” to
notify the special education local plan area director before placing
a student with a disability in a residential facility in their
district. (Cal. Code Regs., tit. 2, § 60510, italics added.) This
regulation applies to DCFS, and appellant argues DCFS is
therefore a “designated local agency.”
21
and a public agency—appellant contends the OAH had
jurisdiction over DCFS in her due process hearing.
Ultimately, we need not—and do not—decide whether
DCFS is a designated local agency or a public agency under the
statutes. The question before us is narrower. As we discuss
below, even if DCFS is, or may be, a designated local agency, a
public agency, or both, it is not subject to the administrative
hearing process unless it is also “involved in any decisions”
concerning the proposal or refusal to initiate or change special
education and related services for a pupil. (Ed. Code, § 56501;
Cal. Code Regs., tit. 2, § 60550, subd. (a).) We conclude that
providing adequate notice to transferee schools of an incoming
dependent child’s special educational needs, although
indisputably important and referenced in the legislative scheme,
is not a “related service” to which the administrative hearing
process extends. Accordingly, the OAH lacked jurisdiction over
appellant’s dispute with DCFS about the department’s failure to
provide notice.14
4.1. OAH Jurisdiction is Limited to Entities Involved
in a Disputed Decision Concerning a Pupil
To determine whether the OAH has jurisdiction over DCFS
in this case, we begin by examining the general requirements for
establishing jurisdiction in an IDEA proceeding. We then
consider whether the DCFS notice requirement at issue here
constitutes “a related service” sufficient to subject it to OAH
jurisdiction.
14 We do not decide whether there is any other redress that
appellant may seek from DCFS outside the OAH process.
22
The IDEA provides: “Any State educational agency, State
agency, or local educational agency that receives assistance
under this subchapter shall establish and maintain procedures in
accordance with this section to ensure that children with
disabilities and their parents are guaranteed procedural
safeguards with respect to the provision of a free appropriate
public education by such agencies.” (20 U.S.C. § 1415(a).)
In accordance with that mandate, the Legislature has
enacted Government Code section 7586, which states: “All state
departments, and their designated local agencies, shall be
governed by the procedural safeguards required in Section 1415
of Title 20 of the United States Code. A due process hearing
arising over a related service or designated instruction and
service shall be filed with the Superintendent of Public
Instruction. Resolution of all issues shall be through the due
process hearing process established in Chapter 5 (commencing
with Section 56500) of Part 30 of Division 4 of the Education
Code. The decision issued in the due process hearing shall be
binding on the department having responsibility for the services
in issue as prescribed by this chapter.” (Italics added; see Cal.
Code Regs., tit. 3, § 3082, subd. (a) [“A parent or public education
agency may initiate a hearing pursuant to Education Code
sections 56500 through 56507 and 34 C.F.R Sections 300.507
through 300.512 on any of the matters described in Education
Code section 56501”].) The statutory requirements of
Government Code section 7586 must, therefore, be viewed in the
context of the referenced portions of the Education Code.
The relevant chapter of the Education Code begins by
laying out the government’s due process obligations. Section
56500 defines “public agency.” Section 56500.1 provides that the
23
procedural safeguards under the IDEA must “be established and
maintained by each noneducational and educational agency that
provides education, related services, or both, to children who are
individuals with exceptional needs.” (Ed. Code, § 56500.1,
subd. (a).) Section 56500.2 describes how such noneducational
and educational agencies must handle complaints. Section
56500.3 establishes a procedure for prehearing mediation and
dispute resolution. Section 56500.4 requires public agencies to
give parents written notice “a reasonable time before the public
agency proposes to initiate or change, or refuses to initiate or
change, the identification, assessment, or educational placement
of the child, or the provision of a free appropriate public
education to the child.” (Ed. Code, § 56500.4, subd. (a).)
A due process hearing is an administrative proceeding
conducted by the OAH. (Ed. Code, § 56504.5; Gov. Code,
§ 27727.) Beginning with section 56501, the Education Code
addresses the initiation of and procedures for such hearings.
First, the statute explains who may initiate a due process
hearing and under what circumstances. As relevant here, the
“due process hearing procedures . . . extend to the parent or
guardian, as defined in Section 56028, . . . a pupil who is a ward
or dependent of the court . . . , and the public agency involved in
any decisions regarding a pupil.” (Ed. Code, § 56501, subd. (a).)
“The parent or guardian and the public agency involved may
initiate the due process hearing procedures prescribed by” the
Education Code if there is a proposal or refusal “to initiate or
change the identification, assessment, or educational placement
of the child or the provision of a free appropriate public education
to the child”; or “the parent . . . refuses to consent to an
assessment of the child”; or the parent and local educational
24
agency disagree about the “availability of a program appropriate
for the child, including the question of financial responsibility
. . . .” (Ed. Code, § 56501, subds. (a), (a)(1)–(4).) Second, the
statute establishes rights attendant to such a hearing. (Ed. Code,
§ 56501, subds. (b), (c).)15
Appellant’s argument that DCFS is subject to OAH due
process hearings because it is both a “designated local agency”
and a “public agency” focuses on only part of the inquiry.
Regardless of whether DCFS is a designated local agency, a
public agency, or both, the statutory scheme excludes it from a
due process hearing unless it is involved in some disputed
decision concerning “identification, assessment, educational
placement, or the provision of special education and related
services to the pupil.” (Ed. Code, § 56501, italics added.)16
15 Education Code section 56506 establishes additional rights
for parents and students.
16 The meaning of that term is both subtle and confusing
because related services arises in two different contexts in this
case. First, it is used to define public agency as providing “special
education or related services to individuals with exceptional
needs.” (Ed. Code, § 56028.5.) Second, to subject a public agency
to OAH jurisdiction in a given case, there must be a dispute
regarding a related service that the agency is (or should be)
providing to a particular student. (Ed. Code, § 56501.) So, even
if an organization provides related services in the first sense,
thereby making it a public agency, the OAH only has jurisdiction
if the agency provides related services in the second sense—that
is, if one of those related services is at dispute in the case. As we
will explain, although appellant argues DCFS provides related
services in the former context, this case turns on whether
provision of notice is a related service in the latter context.
25
4.2. DCFS is not Subject to OAH Jurisdiction in this
Case Because DCFS Statutory Notice is not a
“Related Service”
Related services include “social work services.” (20 USC
§ 1401(26)(A); Ed. Code, § 56363, subd. (a).) Appellant argues
that DCFS provides a wide array of “social work services” to
dependent children with special needs, making it a public agency
for purposes of OAH jurisdiction.
In our view, appellant has misframed the issue. The
question before us is not whether DCFS social work services
could, in the abstract, constitute related services sufficient to
deem DCFS a public agency and bring it within the purview of
the IDEA and the Office of Administrative Hearings Even if
there are circumstances under which OAH can properly assume
jurisdiction over DCFS, it is not true that OAH always has
jurisdiction over DCFS when adjudicating matters concerning
dependent children with special educational needs. To compel
DCFS to participate in a due process hearing, DCFS must have
also done or failed to do some act protected by the IDEA. Put in
statutory terms, an agency may be haled into the administrative
process only if “the public agency [is] involved in any decisions
regarding a pupil” under one of four designated circumstances.
(Ed. Code, § 56501, subds. (a), (a)(1)–(4).)17 Thus, here, appellant
17 “The parent or guardian and the public agency involved
may initiate the due process hearing procedures prescribed by
this chapter under any of the following circumstances: [¶]
(1) There is a proposal to initiate or change the identification,
assessment, or educational placement of the child or the
provision of a free appropriate public education to the child. [¶]
26
must establish that there is a disagreement concerning “refusal
of [the] public agency to initiate or change . . . the provision of . . .
related services to the pupil.” (Cal. Code Regs., tit. 2, § 60550,
subd. (a); see Ed. Code, § 56501, subd. (a)(2); 20 U.S.C.
§1414(b)(6)(A) [requiring states to provide an “opportunity for
any party to present a complaint” “with respect to any matter
relating to the identification, evaluation, or educational
placement of the child, or the provision of a [FAPE] to such
child”].)
Appellant contends DCFS did not comply with its
notification duties under Government Code section 7579 and
California Code of Regulations, title 2, section 60510. Because
the claim against DCFS deals with its duty (and failure) to
notify—not with DCFS’s social work or provision of related
services in general—it is the notification responsibilities that
must constitute a related service to bring DCFS before the OAH.
(2) There is a refusal to initiate or change the identification,
assessment, or educational placement of the child or the
provision of a free appropriate public education to the child. [¶]
(3) The parent or guardian refuses to consent to an assessment of
the child. [¶] (4) There is a disagreement between a parent or
guardian and a local educational agency regarding the
availability of a program appropriate for the child, including the
question of financial responsibility, as specified in Section
300.148 of Title 34 of the Code of Federal Regulations.” (Ed.
Code, § 56501, subd. (a).) Although appellant does not identify
which category applies to DCFS’s failure to provide notice, we
analyze the question as a claim that DCFS “refus[ed] to initiate
or change . . . the provision of a free appropriate public education
to the child” under subdivision (a)(2).
27
We conclude the duty to notify is not a related service under
IDEA and state law.
DCFS’s failure here was not a failure to supply a related
service that was or could have been required by appellant’s IEP;
it was a neglect of its statutory notice duty. California Code of
Regulations, title 2, section 60510 implements the notice
requirements of Government Code sections 7579 and 7579.1.
Under the regulation, within 10 days of placement (or three days
for an emergency placement), the “court, regional center for the
developmentally disabled, or public agency other than an
educational agency” must provide the special education local plan
area director with various information including the name of the
last school attended, the contact person at the school, the
available educational records, including the current
individualized education program and the most recent
psychological and medical records related to educational planning
that are maintained by the agency. (Cal. Code Regs., tit. 2,
§ 60510, subds. (b), (b)(1)–(3), (7)-(8).) Juvenile courts are
required to monitor placement agencies’ compliance with these
requirements. (Cal. Rules of Court, rule 5.651(e)(1)(B).)
The notice provisions are not the exclusive method of
communicating important information to placement schools and
facilities. For example, schools themselves have an independent
duty to transfer the educational records of students in foster care
within four business days. (Ed. Code, § 48853.5, subd. (f)(8)(C).)
And the originating school is specifically required to provide the
new school with any applicable individualized education
program. (Ed. Code, § 49069.5, subd. (e) [“As part of the transfer
process . . . the local educational agency shall compile the
complete educational record of the pupil, including . . . if
28
applicable, a copy of the pupil’s . . . individualized education
program adopted pursuant to” the IDEA].)
Rather than informing schools that a student has special
needs in the first instance, the notice regulation calls upon
agencies, like DCFS, to assemble existing records, not to assess a
child’s needs, participate in decisions, or provide individualized
program services comparable to educational services, medical
services, or tangible nonmedical services.
These notices are indisputably important to the child’s
overall special education needs and programs. But the actual
services a student receives flow from and through the pupil’s
IEP—and the statutes make clear that child welfare agencies like
DCFS are not responsible for crafting IEPs or determining what
special education and related services should be provided
thereunder. (Cal. Code Regs., tit. 5, § 3051, subd. (a)(2); Gov.
Code, § 7572, subds. (a), (c).) DCFS social workers are not a
regular part of the individualized education program team. (Ed.
Code, §§ 56341, 56341.1, 56341.5.) Nor are they educational
rights holders. (Ed. Code, § 56028, subd. (c); Welf. & Inst. Code,
§§ 361, subd. (a), 366.1, subd. (e); Cal. Rules of Court, rule 5.650.)
Local education agencies, not child welfare departments, are
responsible for providing all nonmedical related services. (Ed.
Code, § 56345, subd. (c); Gov. Code, § 7575, subd. (a)(2); Cal. Code
Regs., tit. 5, § 3051.)
Under the supervision of the juvenile court, DCFS is
charged with keeping Los Angeles children safe from abuse and
neglect. Its social workers often rely on information from other
government agencies, including educational agencies, to do so.
Such reports help DCFS’s social workers do their jobs—but they
do not transform teachers into social workers. By the same
29
token, DCFS is required by law to send records of dependent
children’s special needs to other government agencies to help
those agencies do their job: assuring California students are
afforded a free appropriate public education. No doubt, in some
instances, such as this one, DCFS may be vital to the special
education process under state and federal law, but its role does
not transform DCFS workers into educators, medical providers,
or other service providers under the Act.
We conclude that the statutory duty to notify is not a
related service as that term is used in the IDEA and California
law. Because appellant cannot establish that DCFS refused “to
initiate or change . . . the provision of . . . related services to the
pupil,” the OAH properly dismissed DCFS from the due process
hearing. (Cal. Code Regs., tit. 2, § 60550, subd. (a).)
DISPOSITION
The judgment is affirmed. In the interest of justice, each
party shall bear its own costs on appeal.
RUBIN, P. J.
WE CONCUR:
BAKER, J.
KIM J.
30