California Children's Services Ordered to Increase OT and Fund Independent Assessments

What Happened

Student is a 12-year-old boy with severe cerebral palsy and visual impairment who lives in Santa Clara County and attends a special day class. He is non-verbal, uses a wheelchair, and requires support in nearly all daily activities. Since he was six months old, California Children's Services (CCS) — a state medical program — has provided him with physical therapy (PT) and occupational therapy (OT) as part of his special education IEP. At the start of the 2011–2012 school year, CCS was providing OT only once a month and PT twice a month, each in 45-minute sessions.

Parents became increasingly concerned that these service levels were too low to allow Student to make meaningful progress in school. They hired private evaluators — a physical therapist and an occupational therapist — who recommended significantly higher service levels. When Parents brought these private assessments to CCS and IEP team meetings, CCS flatly refused to consider them, claiming the reports didn't meet CCS's own internal documentation requirements. CCS also refused to either fund independent evaluations at public expense or file a due process hearing to defend its own assessments — as the law requires. Parents filed for due process, arguing CCS was denying Student a free appropriate public education (FAPE).

What the ALJ Found

The ALJ issued a mixed ruling. Parents won on two important issues and lost on the rest.

CCS provided inadequate OT services. The ALJ found that CCS set Student's OT level — once a month — without adequately considering how his medical needs overlapped with his educational needs. The private evaluator, Ms. Baumgarten, credibly demonstrated that monthly OT was not enough for Student to make meaningful progress. The ALJ concluded Student required OT once a week, individually for 45 minutes, to receive a FAPE. By contrast, the ALJ found the PT level of once a week (after CCS increased it in March 2012) was adequate, and that Student had waived his right to challenge the earlier, lower PT level by not raising it in his original complaint.

CCS violated Parents' procedural rights by refusing to follow independent evaluation rules. Under California law (Government Code Section 7572), the same Education Code rules that govern school district assessments — including the right to an Independent Educational Evaluation (IEE) at public expense — apply to CCS's PT and OT assessments. When Parents disagreed with CCS's assessments and requested independent evaluations, CCS was legally required to either fund those evaluations or promptly file a due process hearing to defend its own assessments. CCS did neither. Instead, it told Parents to use CCS's own internal process and then flatly dismissed the private reports Parents obtained. The ALJ found this significantly impeded Parents' ability to participate in decision-making and constituted a denial of FAPE.

The ALJ dismissed most of the other claims. CCS was not required to convene IEP meetings (that duty belongs to the school district). CCS's attendance at IEP meetings, while imperfect, did not significantly impede parental participation. The ALJ also ruled that OAH had no jurisdiction over CCS's wheelchair (durable medical equipment) program or CCS's internal therapy plan goals.

What Was Ordered

1. Within 30 days, CCS must begin providing Student with OT once a week, individually, for 45 minutes per session, and must notify the school district and county office of the increase.
2. As compensatory education, CCS must provide an additional weekly individual OT session (45 minutes) for 26 weeks — on top of the regular weekly session.
3. Within 180 days, CCS must provide three make-up OT sessions to compensate for sessions Student missed when his OT therapist was on medical leave.
4. Within 45 days, CCS must reimburse Parents $250 for the private PT assessment and $650 for the private OT assessment — a total of $900.
5. All other requests for relief, including the motorized wheelchair and higher PT services, were denied.

Why This Matters for Parents

1. CCS is subject to special education due process, not just its own internal rules. California law explicitly requires CCS to follow IDEA and Education Code procedures when it provides PT and OT under an IEP. Parents can challenge CCS's service level decisions at OAH — CCS cannot hide behind its own medical regulations to avoid accountability.

2. When you disagree with a CCS assessment, you have the right to an IEE at CCS's expense. If CCS believes its assessment is correct, it must file a due process hearing promptly to defend it. If it doesn't, it loses the right to contest your independent evaluation and must pay for it. CCS cannot simply refuse and redirect you to its own process.

3. Private evaluations matter — agencies cannot dismiss them without explanation. CCS's blanket refusal to consider the private PT and OT reports, solely because they didn't follow CCS's internal format, was found to be a procedural violation. Agencies must genuinely consider independent assessments and explain substantive disagreements — not just reject them on a technicality.

4. Document what you ask for and when. The ALJ denied the PT claim in part because Parents had not formally challenged the lower PT service level in their original complaint. Raising concerns at IEP meetings is important, but to preserve your legal rights, those concerns must be clearly included when you file for due process.