L. J. v. Pittsburg Unified School Dist. ( 2017 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
L. J., a minor, by and through his No. 14-16139
Guardian ad Litem; NASHIRA
HUDSON, an individual, D.C. No.
Plaintiffs-Appellants, 3:13-cv-03854-JSC
v.
ORDER AND
PITTSBURG UNIFIED SCHOOL AMENDED
DISTRICT; LINDA K. RONDEAU, in OPINION
her official capacity as
Superintendent of the Pittsburg
Unified School District,
Defendants-Appellees.
Appeal from the United States District Court
for the Northern District of California
Jacqueline Scott Corley, Magistrate Judge, Presiding
Argued and Submitted June 16, 2016
San Francisco, California
Filed September 1, 2016
Amended February 27, 2017
Before: Mary M. Schroeder, A. Wallace Tashima,
and John B. Owens, Circuit Judges.
Order;
Opinion by Judge Schroeder
2 L.J. V. PITTSBURG U.S.D.
SUMMARY*
Individuals with Disabilities Education Act
The panel filed (1) an order amending its opinion and
denying a petition for panel rehearing and a petition for
rehearing en banc, and (2) an amended opinion reversing the
district court’s summary judgment in favor of the defendant
school district in an action brought by a student and his
mother under the Individuals with Disabilities Education Act.
The panel held that the student was eligible for special
education and related services. The panel agreed with the
district court that the student was disabled under three
categories defined by the IDEA. The panel disagreed,
however, with the district court’s ruling that the student did
not need special education services because of his satisfactory
performance in general education classes. Rather, the student
exhibited a need for services because his improved
performance was due to his receipt of special services,
including mental health counseling and one-on-one assistance
not offered to general education students. In addition, the
district court did not adequately take into account the
student’s continued troubling behavioral and academic issues.
The panel held that the student’s psychiatric hospitalizations
and suicide attempts were relevant to his eligibility for
specialized instruction even though they occurred outside of
school.
*
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
L.J. V. PITTSBURG U.S.D. 3
The panel held that the school district also committed
procedural violations of the IDEA by failing to disclose
school records and failing to conduct a health assessment.
The panel reversed the district court’s decision and
remanded for it to order that the school district provide the
remedy of an individualized educational plan.
COUNSEL
Jean Adams (argued), Adams Esq. APC, Oakland, California,
for Plaintiffs-Appellants.
Kimberly Smith (argued) and Stephanie S. Baril, Tomsky
Fagen Friedman & Fulfrost LLP, Los Angeles, California;
David R. Mishook, and Jan E. Tomsky, Tomsky Fagen
Friedman & Fulfrost LLP, Oakland, California, for
Defendants-Appellees.
ORDER
The opinion filed September 1, 2016, slip op. 1, and
appearing at 835 F.3d 1168 (9th Cir. 2016), is amended. It
may not be cited as precedent by or to this court or any
district court of the Ninth Circuit. An Amended Opinion is
being filed concurrently with this order.
The panel has voted to deny Appellees-Defendants’
petition for panel rehearing. Judge Owens has voted to deny
the petition for rehearing en banc, and Judges Schroeder and
Tashima have so recommended.
4 L.J. V. PITTSBURG U.S.D.
The full court has been advised of the petition for
rehearing en banc and no judge has requested a vote on
whether to rehear the matter en banc. Fed. R. App. P. 35.
Appellees-Defendants’ petition for panel rehearing and
the petition for rehearing en banc are DENIED. Further
petitions for rehearing and rehearing en banc shall not be
entertained.
OPINION
SCHROEDER, Circuit Judge:
INTRODUCTION
This is an Individuals with Disabilities Education Act
(“IDEA”) case of an emotionally troubled young child with
suicidal tendencies beginning in the second grade, and with
attention deficit hyperactivity disorder (“ADHD”)
augmenting his disruptive behaviors. Congress created the
IDEA to bring disabled students into the public education
system by requiring states to adopt procedures to develop
individualized plans for such students. Students with
disabilities are entitled to special education services to ensure
that they receive a “free and appropriate public education”
(“FAPE”).
The Pittsburg Unified School District (“School District”)
determined that L.J. was not entitled to special education
services because he was not disabled, and its determination
was upheld on administrative review. L.J.’s mother filed this
action in federal district court to require the School District to
L.J. V. PITTSBURG U.S.D. 5
provide L.J. with an Individualized Education Plan (“IEP”) to
provide specialized services to assist with what she contends
are serious disabilities.
The district court reviewed the record and found that L.J.
was disabled under three categories defined by the IDEA. It
nevertheless concluded that an IEP for specialized services
was not necessary because of L.J.’s satisfactory performance
in general education classes. The court discounted L.J.’s
suicide attempts as not bearing on the need for educational
services because they took place outside of school.
The school records show, however, that beginning in the
second grade and continuing into the third and fourth grades,
when the parent invoked administrative remedies, the School
District had already been providing L.J. with special services,
including counseling, one-on-one assistance, and instructional
accommodations. These services resulted in L.J.’s materially
improved performance. The School District consistently
refused, however, to provide him with an IEP that would
ensure such services in the future as required by the IDEA.
The record also reflects that the School District violated
procedural protections of the IDEA by failing to provide the
parents with education records bearing on L.J.’s disabilities
and services that had been provided. We therefore reverse
and remand for consideration of appropriate remedies.
BACKGROUND
This case presents a bright child’s disturbingly troubled
history in the primary grades of two through five. L.J. was
suspended from school multiple times for disruptive behavior
that included kicking and hitting his teachers, throwing rocks,
calling teachers and students names, and endangering and
6 L.J. V. PITTSBURG U.S.D.
physically injuring classmates. L.J. has attempted to kill
himself on at least three occasions and has manifested
suicidal ideations prompting the School District’s mental
health providers to conduct at least one emergency suicide
evaluation. L.J. has been diagnosed with three serious
disorders, including Bipolar Disorder, Oppositional Defiant
Disorder (“ODD”), and ADHD. He has been prescribed a
cocktail of serious medications for these conditions.
For years, L.J.’s mother has repeatedly requested, to no
avail, that the School District find L.J. eligible for special
education. The School District has provided many services
to L.J., but has never classified L.J. as eligible for special
education under the IDEA. Without such eligibility, L.J. is
not guaranteed the services his mother believes that he needs,
such as one-on-one educational therapy, counseling services,
and behavior intervention services. Instead, the School
District has transferred him between at least three different
schools.
The history of L.J.’s difficulties began in second grade.
During this year, L.J. demonstrated inappropriate behaviors
at school, including anger, lack of self-control, and not
following rules. After being verbally disciplined by his
teacher for bullying other students, L.J. told her that he
wanted to die and that life was too hard. School staff called
L.J.’s mother, and mental health staff prepared an emergency
suicide evaluation. The School District referred L.J. to
Lincoln Child Center (“Lincoln”), the School District’s
counseling center, where mental health providers assessed
him. L.J. was diagnosed with ADHD, ODD, and Bipolar
Disorder.
L.J. V. PITTSBURG U.S.D. 7
L.J. began his third grade year at the same school, but
exhibited negative behaviors which the teacher had difficulty
controlling. The School District held a student study team
(“SST”) meeting on September 7, 2011. The purpose of an
SST is to develop interventions for students having trouble in
school, either academically or behaviorally. In many schools,
an SST is the first step in addressing a student’s needs before
initiating the IEP process.
After L.J.’s SST meeting, the School District’s behavior
specialist created a behavioral support plan (“BSP”) to
address his problematic behavior. Over the course of the
school year, the behavior specialist revised the BSP multiple
times, but L.J. continued to act inappropriately. As a result
of the failed BSP, the School District proposed moving L.J.
to a segregated trailer at a different school, but with no
special education services, with six other African-American
boys with extreme behavior problems.
L.J.’s mother disputed the move, retained counsel, and
entered mediation. The parties settled by agreeing to place
L.J., temporarily, in a different school, in a general education
class, conditioned on his having a one-to-one behavioral aide.
The School District also agreed to evaluate L.J. for special
education.
At the new school, a paraeducator was assigned to work
with L.J. one-on-one, and continued to work with him
through his third grade year. A paraeducator is a specially
trained staff member, assigned to work with special education
students. While L.J. progressed academically and
behaviorally, he continued to have issues. In April 2012, L.J.
wrapped a seatbelt around his neck, and saying he wanted to
8 L.J. V. PITTSBURG U.S.D.
die, began rolling around uncontrollably trying to rub his face
on the ground. L.J. was taken to the emergency room.
Also, pursuant to the settlement agreement, Dr. Sherry
Burke, a school psychologist, conducted psychoeducational
and functional analysis assessments of L.J. to assist the IEP
team in determining if he qualified for special education
under the categories of other health impairment, or specific
learning disability. See 34 C.F.R. §§ 300.8(c)(9), (10). Dr.
Burke reviewed available school records, conducted various
interviews of L.J.’s teachers, counselors, and family
members, and administered a series of tests. She concluded
that L.J. did not meet the eligibility criteria for special
education.
On May 29, 2012, L.J. again attempted to kill himself by
sticking his finger in a light socket and putting items down
his throat. He said that everyone hated him and he did not
want to live. He was then confined to a psychiatric hospital,
causing him to miss six school days.
The next day, May 30, 2012, while L.J. was hospitalized,
the IEP team held a meeting to review L.J.’s assessment
results and to make a special education eligibility
determination. An IEP team is composed of School District
teachers, the parent and other experts familiar with the child.
See 20 U.S.C. § 1414(d)(1)(B). Dr. Burke presented her
findings to the IEP team, including her recommendation that
L.J. did not meet eligibility requirements. The IEP team
agreed with the psychologist that L.J. had no qualifying
disabilities.
The next month, on June 25, 2012, L.J.’s mother formally
requested all of L.J.’s school records from the School District,
L.J. V. PITTSBURG U.S.D. 9
including any records from Lincoln, where L.J. had received
counseling and had been assessed. The School District
claimed there were no Lincoln records that had not already
been disclosed. L.J.’s mother submitted another request for
L.J.’s records on June 28. The School District again failed to
disclose any further records.
L.J. was admitted for psychiatric hospitalization on July
17 and again on July 26, when he was detained as a danger to
himself or others for banging his head and making threats.
Doctors placed L.J. on the psychotropic medications,
Adderall, Seroquel, and Wellbutrin, to help stabilize his mood
and sustain focus, and later Vistaril to treat his anxiety.
On July 27, 2012, L.J.’s mother filed a request for a due
process hearing with the California Office of Administrative
Hearings (“OAH”). She claimed that the School District
denied L.J. a FAPE by failing to make him eligible for special
education and related services, and that the School District
had failed to conduct assessments in areas of suspected
disability, specifically other health impairment and emotional
disturbance. L.J.’s mother also contended that the School
District had failed to make requested records available.
The parties again participated in mediation on August 23,
2012. The parties agreed to place L.J. at yet another
elementary school, pending the School District’s review of
L.J.’s psychiatric hospitalization records and Dr. Burke’s
updating her report. The School District generated a new
Assessment Plan for IEP eligibility purposes. L.J.’s mother
authorized the release of L.J.’s psychiatric records on the
condition that a school nurse would conduct a health
assessment and that L.J.’s original third grade teacher would
be included in the eligibility process.
10 L.J. V. PITTSBURG U.S.D.
For fourth grade, beginning in the fall of 2012, L.J. was
in a classroom with a teacher experienced with students with
disciplinary problems. L.J. was also provided with special
accommodations, including freedom to leave the classroom
at will. On September 25, 2012, L.J. was suspended for two
days for throwing rocks and threatening to kill the school’s
principal. The teacher’s one-on-one assistance and special
accommodations continued throughout the school year, and,
as a result, L.J.’s academic performance was satisfactory.
After Dr. Burke updated her assessments, a second IEP
team meeting was held on October 9, 2012, to reconsider
L.J.’s eligibility for special education services under the
category of emotional disturbance. See 34 C.F.R.
§ 300.8(c)(4). The requested third grade teacher was not
present at the meeting and L.J. had not been assessed by a
nurse, in violation of both conditions insisted upon by L.J.’s
mother in the agreement. The team again concluded that L.J.
was not eligible for special education, the same conclusion
reached at the first meeting the preceding May, despite
repeated intervening hospitalizations, heavy medications,
renewed suicide attempts, and individualized
accommodations in school.
On October 15, 2012, L.J. filed an amended complaint
with the California OAH. L.J.’s mother again submitted
formal requests for L.J.’s school records in October and
November 2012, and in March 2013. The mental health
records kept by the School District, including Lincoln, were
never disclosed.
During that fourth grade year, L.J. was sent to the office
multiple times for physically injuring classmates, disrupting
class, and refusing to follow directives. School staff
L.J. V. PITTSBURG U.S.D. 11
contacted L.J.’s mother to pick him up from school early on
numerous occasions. The School District conducted another
mental health assessment. He was again diagnosed with
ADHD. In this assessment, the clinician concluded his
ADHD symptoms caused clinically significant impairment in
L.J.’s social and academic functioning, that L.J. relied
extensively on medications, and further, that he evidenced
functional impairments in the areas of family relations, school
performance, and peer relations.
The following year, in the fall of 2013, the School District
nevertheless placed L.J. in a regular fifth grade classroom
without accommodations or services. In November, L.J. was
rushed to the emergency room by ambulance after attempting
to hang himself with a lanyard. That year, L.J. physically
injured children and at least one teacher. L.J. was suspended
for “kicking and hitting” his science teacher, calling another
teacher “stupid,” and brandishing a fake knife in the
classroom. L.J. was also suspended again because he
endangered a classmate by putting expandable pellets in the
classmate’s water bottle without his knowledge.
That spring, L.J.’s due process request made its way
before an Administrative Law Judge (“ALJ”). The ALJ
conducted a three-day hearing in April, and on May 23, 2013,
the ALJ issued her decision, denying all of L.J.’s requests for
relief. The ALJ found that L.J. had no disabilities that would
qualify him for special education services, and even if he had
qualifying disabilities, he had not demonstrated a need for
special services because his academic performance was
satisfactory when he was able to attend school.
12 L.J. V. PITTSBURG U.S.D.
PROCEDURAL BACKGROUND
L.J. timely appealed the ALJ’s ruling to the district court.
L.J. contended that he was eligible for special education
services and asked the district court to order the School
District to provide an IEP. The parties filed cross-motions for
summary judgment. The district court disagreed with the
ALJ’s decision that L.J. had no disabling conditions. The
district court ruled that L.J. met the qualifying criteria as a
student with three disabilities: specific learning disability,
other health impairment (due to his ADHD), and serious
emotional disturbance (due to his ODD and bipolar disorder).
The district court, nevertheless, granted the School
District’s motion for summary judgment, ruling that L.J. did
not need special education services because of his satisfactory
performance in general education. The district court adopted
the ALJ’s findings that L.J. was performing well
behaviorally, socially, and academically between May and
October 2012 with the help of services the court characterized
as general education accommodations, not individualized
special education services.
This appeal followed.
STANDARD OF REVIEW
The district court’s findings of fact are reviewed for clear
error, even when the district court based those findings on an
administrative record, and conclusions of law are reviewed de
novo. J.G. v. Douglas Cty. Sch. Dist., 552 F.3d 786, 793 (9th
Cir. 2008). This court gives “due weight” to ALJ special
education decisions. J.W. v. Fresno Unified Sch. Dist.,
626 F.3d 431, 440–41 (9th Cir. 2010). This standard is far
L.J. V. PITTSBURG U.S.D. 13
less deferential than judicial review of other agency actions,
but requires this court to refrain from substituting its own
notions of educational policy for those of the school authority
it reviews. Amanda J. v. Clark Cty. Sch. Dist., 267 F.3d 877,
887–88 (9th Cir. 2001).
I. Statutory Background and Legal Framework
Under the IDEA, 20 U.S.C. §§ 1400–1491, all states that
receive federal education funding must establish policies and
procedures to ensure that a “free appropriate public education
is available to all children with disabilities.” Id. at
§ 1412(a)(1)(A). The IDEA defines a FAPE as “special
education” that is provided at public expense. Id. at
§ 1401(9). A child receives a FAPE, for purposes of the
IDEA, if the program addresses the child’s unique needs,
provides adequate support services so that the child can take
advantage of educational opportunities, and is in accord with
the IEP. Id. A state must comply both procedurally and
substantively with the IDEA. Id. at § 1400 et seq.
In determining whether a student has received a FAPE in
compliance with the IDEA, the court conducts both a
procedural and substantive inquiry. The court considers
whether the school complied with the procedures set forth in
the IDEA. Bd. of Educ. v. Rowley, 458 U.S. 176, 206–07
(1982). The court also evaluates whether the IEP in this case,
or lack thereof, was reasonably calculated to enable the child
to receive educational benefits. Id. Where a court identifies
a procedural violation that denied a student a FAPE, the court
need not address the second substantive prong of the inquiry.
Doug C. v. Haw. Dep’t. of Educ., 720 F.3d 1038, 1043 (9th
Cir. 2013).
14 L.J. V. PITTSBURG U.S.D.
Not all procedural violations constitute a denial of a
FAPE. R.B. v. Napa Valley Unified Sch. Dist., 496 F.3d 932,
938 (9th Cir. 2007). A child is denied a FAPE when
procedural inadequacies result in the loss of an educational
opportunity, or seriously infringe on the parents’ opportunity
to participate in the IEP formulation process. Doug C.,
720 F.3d at 1043. A procedural error is harmless if the
student is substantively ineligible for IDEA benefits. R.B.,
496 F.3d at 942.
II. Eligibility for IDEA Benefits
The initial issue in this case is whether L.J. was
substantively eligible for IDEA benefits, since the ALJ held
he was not. A child is substantively eligible for special
education and related services if he is a “child with a
disability,” which is statutorily defined, in relevant part, as a
child with a serious emotional disturbance, other health
impairment, or specific learning disability and who, by reason
thereof, needs special education and related services.
20 U.S.C. § 1401(3)(A). California Education Code similarly
provides that a “student with exceptional needs” who is
eligible under § 1401(3)(A) must have an impairment that
“requires instruction and services which cannot be provided
with modification of the regular school program.” Cal. Educ.
Code §§ 56026(a), (b).
Even if a child has such a disability, he or she does not
qualify for special education services if support provided
through the regular school program is sufficient. 20 U.S.C.
§ 1401(3)(A); Cal. Educ. Code § 56026. “[S]pecial classes,
separate schooling, or other removal of children with
disabilities from the regular educational environment occurs
only when the nature or severity of the disability of a child is
L.J. V. PITTSBURG U.S.D. 15
such that education in regular classes with the use of
supplementary aids and services cannot be achieved
satisfactorily.” 20 U.S.C. § 1412(a)(5)(A).
The parties on appeal no longer dispute that L.J. should
have been categorized as a child with a disability under three
categories set forth in the statute. First, L.J. has a “specific
learning disability” because he has exhibited a severe
discrepancy between his intellectual ability and his
achievement. 34 C.F.R. § 300.8(c)(10). Second, L.J. has an
“other health impairment” because his ADHD and mood
disorders interfere with his ability to progress academically
and socially. 34 C.F.R. § 300.8(c)(9). Lastly, L.J.’s mood
disorders constitute a “serious emotional disturbance.” 34
C.F.R. § 300.8(c)(4).
The critical issue in this appeal therefore is whether L.J.
demonstrated a need for special education services. This case
differs from most IDEA cases in that L.J. never received an
IEP because the School District continually maintained he
had no qualifying disabilities. The ALJ agreed that he had no
qualifying disabilities. The district court held that the ALJ
was incorrect in this regard and that L.J. had qualifying
disabilities. The district court went on to conclude, however,
that L.J. was performing satisfactorily without the need for
special education services. We must therefore determine
whether general education was appropriate or whether L.J.
exhibited a need for special education services.
The appropriateness of a student’s eligibility should be
assessed in terms of its appropriateness at the time of the
child’s evaluation and not from the perspective of a later time
with the benefit of hindsight. Adams v. Oregon, 195 F.3d
1141, 1149 (9th Cir. 1999). When making this assessment of
16 L.J. V. PITTSBURG U.S.D.
whether an eligibility determination is “appropriate” under
the IDEA, this court looks to the time of the child’s
evaluation by the School District. We employ what is termed
the “snapshot” rule that instructs the court to judge the
appropriateness of the determination on the basis of the
information reasonably available to the parties at the time of
the IEP meeting. Id. “An IEP must take into account what
was and was not, objectively reasonable when the snapshot
was taken.” Id. (citation omitted). We judge the eligibility
decision on the basis of whether it took the relevant
information into account, not on whether or not it worked. Id.In this case, it is undisputed that the snapshot period was
the period surrounding the two IEP meetings: on May 30,
2012, in the third grade, and October 9, 2012, in the fourth
grade. That was the critical period on which the School
District based its eligibility decisions, and the district court
correctly focused on L.J.’s eligibility for special education by
looking to his behavior, academic progress, and social needs
at that time. The district court was correct when it found that
L.J. should have been categorized as a child with a disability
within the meaning of the IDEA. L.J. had multiple
disabilities, which manifested serious behavioral problems.
The district court nonetheless concluded that L.J. was not
eligible for special education because he was academically
performing satisfactorily without receiving special education
services and on the basis of the general education curriculum.
This was clear error because L.J. was receiving special
services, including mental health counseling and assistance
from a one-on-one paraeducator. These are not services
offered to general education students.
L.J. V. PITTSBURG U.S.D. 17
This distinction is important. General education is what
is provided to non-disabled children in the classroom.
Special education, on the other hand, is “specially designed
instruction” to meet the unique needs of a child with a
disability. 34 C.F.R. § 300.39(a)(1). “Specially designed
instruction” is defined under the IDEA regulations:
Specially designed instruction means
adapting, as appropriate to the needs of an
eligible child under this part, the content,
methodology, or delivery of instruction—
(i) To address the unique needs of the
child that result from the child’s disability;
and
(ii) To ensure access of the child to the
general curriculum, so that the child can meet
the educational standards within the
jurisdiction of the public agency that apply to
all children.
34 C.F.R. § 300.39(b)(3) (emphasis added).
The district court decided that L.J. did not need an IEP
because, despite his multiple disabilities, L.J. was performing
satisfactorily in general education. The problem with the
district court’s analysis is that many of the services the
district court viewed as general education services were in
fact special education services tailored to L.J.’s situation.
The district court thus classified many of the services L.J.
received as general education, when they were not.
Discussion of a few examples will make the point.
18 L.J. V. PITTSBURG U.S.D.
First, general education instruction does not provide for
one-on-one direction. L.J. received special assistance in the
third grade from a one-on-one paraeducator, pursuant to the
parties agreement that year. The School District claims that
the paraeducator “faded back considerably” by May 30, the
date of the initial IEP meeting, but this is not accurate. The
paraeducator continued to assist L.J. throughout the third
grade.
Second, general education instruction does not provide for
specially designed mental health services. The School
District’s position is that L.J. received only general education
mental health services from Lincoln that the School District
makes available to all students. The School District
distinguishes such services from services received by special
education students, which are specially designed mental
health services.
The flaw in the School District’s argument is that the
mental health services that L.J. received from second grade
through fourth grade were specially-designed for him. Such
services included services that the School District described
as follows: Assessments, Plan Development, Group and
Individual Rehabilitation, Group and Individual Therapy,
Family Therapy, and Collateral Family Group and Intensive
Home-Based Services. The School District acknowledges
that only students requiring special education receive an
educationally-related mental health assessment. L.J. received
two such mental health assessments. L.J. was referred to
Lincoln by the School District’s Director of Special
Education and Psychological Services, and the School
District acknowledged this means of referral is for special
education students only.
L.J. V. PITTSBURG U.S.D. 19
Third, general education instruction does not typically
include extensive clinical interventions by a School District
behavior specialist. While it is not unusual for a behavior
specialist to offer support to a general education teacher, here
the School District’s behavior specialist did much more.
Throughout the third grade year, he designed specific BSPs
in an attempt to meet L.J.’s needs. The plans included
adapting the method and delivery of L.J.’s instruction, and
strategies to promote a structured environment and reinforce
positive behavior. The behavior specialist also designed a
nine-hour training session for L.J.’s paraeducator. After
training L.J.’s aide, the behavior specialist closely supervised
him to ensure the interventions followed the new BSP.
The district court clearly erred by mischaracterizing all of
these individualized services as general education available
to all students, rather than as special education provided to
students with disabilities. The court went on to conclude,
erroneously, that L.J. did not require specialized assistance in
the future on the ground that he was no longer exhibiting
behaviors that interfered with his school performance.
Granted, his condition had improved during the snapshot
period, for by the time of the IEP meetings, L.J.’s
impairments had been eased with the accommodations and
services provided by the School District. With the assistance
of medication and specially designed instruction, L.J. had
periods of temporary behavioral and academic gain. L.J.’s
teachers, service providers, and mother all reported that L.J.
had made good progress in academics and improved his
social skills with his classmates during the snapshot period.
Dr. Burke opined that his average or above-average
academic testing scores showed academic achievement had
not been impacted by any of his issues. Standardized tests
20 L.J. V. PITTSBURG U.S.D.
ranked L.J.’s academic performance in an overall average
range. Although there was progress, it was no doubt in a
setting where multiple services were being provided and the
progress must at least, in substantial part, be attributed to
those services. Moreover, L.J. has shown himself to be an
intelligent child, so his academic performance could have
been even more improved with the appropriate specially
designed instruction.
Yet, L.J. continued to have troubling behavioral and
academic issues during the snapshot period. The district
court did not adequately take these into account when it
decided there was no need for future specialized services.
The information available to the IEP team during the
snapshot period was dramatic.
L.J. threatened and attempted to kill himself on numerous
occasions. On May 29, 2012, the day before his initial IEP
meeting, L.J. attempted to kill himself by sticking his finger
in a light socket and putting items down his throat. On May
30, 2012, the day of his first eligibility determination, L.J.
could not have been doing well socially, behaviorally, or
academically at school because he was in extended care at a
psychiatric hospital. He was confined to the hospital for over
a week and missed at least six school days. L.J. was again
admitted for psychiatric hospitalization on July 17 and July
26, 2012. L.J. was detained as a danger to himself or others
because he was banging his head against walls and making
threats of harm.
The district court concluded that L.J.’s psychiatric
hospitalizations and suicide attempts were not relevant to his
eligibility for specialized instruction because they occurred
outside the school environment. Yet, the issue is whether his
L.J. V. PITTSBURG U.S.D. 21
disabilities interfered with his education and necessitated
special services. It is hard to imagine how an emotional
disturbance so severe that it resulted in repeated suicide
attempts would not interfere with school performance. That
he attempted suicide outside the school environment is
immaterial. His emotional disturbance adversely affected his
attendance and his teachers all reported that L.J.’s classroom
absences, due to psychiatric hospitalizations, hurt his
academic performance. To distinguish between where a
student attempted suicide—between home and
school—misses the point. The point being that whether
having a suicidal ideation and attempting suicide interfered
with L.J.’s education.
In fourth grade, in September, L.J. was suspended for two
days after throwing rocks at and threatening to kill the school
principal. The district court did not think his suspension was
of great import, noting that it was only for two days. But this
was not L.J.’s only incident. Shortly before the October 9,
2012, IEP meeting, L.J. was unable to ride the school bus
because he refused to follow the bus driver’s directions.
L.J. also continually had needs associated with his
medication and treatment for his mood disorders and ADHD.
By fourth grade, L.J. relied on psychotropic medications in
order to attend school. His fourth grade teacher reported that
L.J.’s functioning declined in the absence of medication or
when it had no mitigating effects. School counselors
repeatedly expressed their concern regarding L.J.’s
medication management. The district court neglected to
discuss L.J.’s ongoing needs associated with his medication.
L.J. clearly exhibited behavioral and academic difficulty
during the snapshot period. He threatened and attempted to
22 L.J. V. PITTSBURG U.S.D.
kill himself on three occasions in 2012. In the fall, he
frequently acted out at school, and continued to have needs
associated with his medication regimen. The district court
should not have discounted these facts. They demonstrate
that L.J. required special education services.
Because L.J. is eligible for special education, the School
District must formulate an IEP. We reverse the district
court’s decision and remand for it to order that the School
District provide that remedy.
III. Procedural Violations of the IDEA
Procedural safeguards are built into the IDEA to ensure
that a child’s education is fair and appropriate and the parents
have an opportunity to participate in the IEP formulation
process. Doug C., 720 F.3d at 1043. The record in this case
reflects some serious violations of these safeguards by the
School District.
The School District failed to disclose assessments,
treatment plans, and progress notes from L.J.’s time at
Lincoln. The district court erred in concluding that this
failure did not interfere with L.J.’s mother’s opportunity to
participate in the IEP formulation process.
Under the IDEA, parents have the right to informed
consent. 20 U.S.C. § 1414(a)(1)(D). Consent means that the
parent has been fully informed of all information relevant to
the activity for which consent is sought. 34 C.F.R.
§ 300.9(a). To guarantee parents the ability to make informed
decisions about their child’s education, the IDEA gives them
the right to examine all pertinent education records relating
to their child. 20 U.S.C. § 1415(b)(1). The Lincoln records
L.J. V. PITTSBURG U.S.D. 23
constitute such education records and should have been
disclosed to L.J.’s mother.
Parents also have the right to invite to attend IEP
meetings individuals with knowledge or special expertise
regarding their child. 34 C.F.R. § 300.321(a)(6). L.J.’s
mother had the right to have L.J.’s mental health providers at
both the May and October IEP meetings. Id. Without
knowledge of the Lincoln records, however, L.J.’s mother
waived the attendance of his mental health clinicians at the
IEP meetings. At the very least, L.J.’s parent should have
received complete copies of the Lincoln records so that she
could provide informed consent regarding the exclusion of his
mental health providers from the IEP team. Had L.J.’s
mother been aware of the content of the Lincoln records, she
may well not have waived the mental health providers’
attendance.
The School District also failed to conduct a health
assessment for the purpose of determining how L.J.’s health,
and particularly his medications, affected his performance.
The district court held that this error did not infringe on L.J.’s
mother’s ability to participate in the IEP process because
L.J.’s medications were not administered at school. We fail
to see that the need for a health assessment should depend on
where medications are administered, and we are cited to
nothing in support of the proposition.
Under the IDEA, the School District must conduct a “full
and initial evaluation,” one which ensures the child is
assessed in “all areas of suspected disability.” 20 U.S.C.
§§ 1414(a)(1)(A), (b)(3)(B). This requirement allows the
child’s IEP team to have a complete picture of the child’s
functional, developmental, and academic needs. When a
24 L.J. V. PITTSBURG U.S.D.
student has been diagnosed as having a chronic illness, as L.J.
was, the student may be referred to the School District for a
health assessment. 5 Cal. Code Reg. § 3021.1. A health
assessment focuses on diagnoses, health history, and those
specific health needs while in school which are necessary to
assist a child with a disability. The regulations then require
that the IEP team review, among other things, the “possible
medical side effects and complications of treatment that could
affect school functioning.” Id. The district court erred when
it dismissed the School District’s failure to conduct a health
assessment, depriving L.J. of an educational benefit. See
Doug C., 720 F.3d at 1043 (a FAPE is denied where
procedural inadequacies result in loss of educational
benefits).
Here, there is reason to believe that alternative services
would have at least been more seriously considered during
the IEP process if the School District had assessed L.J.’s
health, including the effects of his medication on his health.
The record evidence showed that L.J. continually had needs
associated with his medication and treatment, which
adversely impacted his academic, behavioral, and social
performance. Because his health and the impacts of his
medication were never assessed, no matter what assistance
L.J. received, the School District would remain unable to
appropriately address those needs.
In sum, the School District clearly violated important
procedural safeguards set forth in the IDEA. The School
District failed to disclose assessments, treatment plans, and
progress notes kept by Lincoln, which deprived L.J.’s mother
of her right to informed consent. The School District also
failed to conduct a health assessment, which rendered the
L.J. V. PITTSBURG U.S.D. 25
School District and IEP team unable to evaluate and address
L.J.’s medication and treatment related needs.
When this matter returns to the School District for the
preparation of an IEP, the School District must comply with
the IDEA’s procedural safeguards. Additional procedural
violations can only result in the further protraction of
proceedings and costly financial and emotional burdens for
all those involved.
CONCLUSION
L.J. is a child with disabilities within the meaning of the
IDEA and needs special education. The judgment of the
district court is reversed and the matter remanded to the
district court with instruction to order the School District to
provide an appropriate remedy.
Costs are awarded to Plaintiffs-Appellants.
REVERSED and REMANDED.