L.J. Ex Rel. Hudson v. Pittsburg Unified School District

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.

OPINION

PITTSBURG UNIFIED SCHOOL

DISTRICT; LINDA K. RONDEAU, in

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

Before: Mary M. Schroeder, A. Wallace Tashima,

and John B. Owens, Circuit Judges.

Opinion by Judge Schroeder

2 L.J. V. PITTSBURG U.S.D.

SUMMARY*

Individuals with Disabilities Education Act

The panel reversed 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 services. The panel agreed with the district court

that the student had three disabling conditions. The panel

disagreed, however, with the district court’s and the state

administrative law judge’s ruling that the student did not

need special education services because of his satisfactory

performance in general education. 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 assistance from a one-

on-one paraeducator, which were not services offered to

general education students. In addition, the district court did

not adequately take into account the student’s continued

troubling behavior 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 the school environment.

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.

*

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 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;

and Jan E. Tomsky, Fagen Friedman & Fulfrost, LLP,

Oakland, California, for Defendants-Appellees.

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”).

4 L.J. V. PITTSBURG U.S.D.

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

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.

L.J. V. PITTSBURG U.S.D. 5

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

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

6 L.J. V. PITTSBURG U.S.D.

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. 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

L.J. V. PITTSBURG U.S.D. 7

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

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

8 L.J. V. PITTSBURG U.S.D.

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,

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

L.J. V. PITTSBURG U.S.D. 9

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.

For fourth grade, beginning in the fall of 2012, L.J. was

in a classroom with a teacher experienced in special

education. 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

10 L.J. V. PITTSBURG U.S.D.

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

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

L.J. V. PITTSBURG U.S.D. 11

qualifying disabilities, he had not demonstrated a need for

special services because his academic performance was

satisfactory when he was able to attend school.

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

12 L.J. V. PITTSBURG U.S.D.

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

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

L.J. V. PITTSBURG U.S.D. 13

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).

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.

14 L.J. V. PITTSBURG U.S.D.

§ 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

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.

L.J. V. PITTSBURG U.S.D. 15

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

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

16 L.J. V. PITTSBURG U.S.D.

services, including mental health counseling and assistance

from a one-on-one paraeducator. These are not services

offered to general education students.

This distinction is important. General education is what

is provided to non-disabled children in the classroom.

Students in the general education setting do not receive

specialized services. 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

L.J. V. PITTSBURG U.S.D. 17

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.

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

18 L.J. V. PITTSBURG U.S.D.

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.

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.

Fourth, general education instruction does not provide

accommodations, such as persistent teacher oversight,

additional time to complete classwork or tests, shortened

assignments, discretion to leave the classroom at will, or the

option to complete classwork or tests in other rooms or with

one-on-one support. Nor does it always provide a teacher

with special education experience like L.J.’s fourth grade

teacher.

The district court clearly erred by mischaracterizing all of

these individualized accommodations and 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

L.J. V. PITTSBURG U.S.D. 19

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

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

20 L.J. V. PITTSBURG U.S.D.

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

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,

L.J. V. PITTSBURG U.S.D. 21

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

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.

22 L.J. V. PITTSBURG U.S.D.

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

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,

L.J. V. PITTSBURG U.S.D. 23

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

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

24 L.J. V. PITTSBURG U.S.D.

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

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.