School districts should be careful characterizing educational services and supports as "general education" interventions when they may actually constitute services, accommodations and modifications which are individualized to a child’s particular needs. A child’s progress utilizing such services and supports could indicate that he or she qualifies for special education and related services under the Individuals with Disabilities Education Act ("IDEA").

The U.S. Court of Appeals for the Ninth Circuit recently ruled in L.J. v. Pittsburg Unified Sch. Dist., No. 14-16139, 2016 WL 4547360 (9th Cir. Sept. 1, 2016) that a general education fifth grade student should have been found eligible for special education despite an adverse finding by the Pittsburg Unified School District ("District"). The supports and services the District provided L.J., which the District and lower court decisions characterized as general education interventions, were interpreted by the Ninth Circuit as mischaracterized special education services. It was therefore inappropriate for the District to assert that L.J.’s progress utilizing such supports and interventions could serve as evidence that he did not qualify for special education eligibility.

Analysis
L.J.’s clinical diagnoses included bipolar disorder, oppositional defiant disorder, and attention deficit hyperactivity disorder. L.J. exhibited maladaptive behaviors and made multiple suicide attempts resulting in psychiatric hospitalizations. The District provided a host of services and supports allowing L.J. to progress academically and, to a measurable extent, behaviorally.

The Individualized Education Program ("IEP") team found that L.J. was ineligible for special education because he made progress with supports and accommodations in the general education setting. At the due process hearing initiated by L.J.’s parent, the administrative law judge ruled in favor of the District. On appeal, the district court ruled that while he met eligibility criteria for multiple qualifying disabilities, L.J. did not require special education services since his performance and progress was satisfactory utilizing only general education supports and interventions. Parent, in disagreement, then appealed to the federal appellate court.

The Ninth Circuit’s analysis fell squarely on the distinction between special education and related services versus general education supports and interventions. "Special education means specially designed instruction…to meet the unique needs of a child with a disability." 34 C.F.R. § 300.39(a)(1).

The Ninth Circuit provided four examples of services or supports provided to L.J. for the time period at issue that equated to specially designed instruction rather than general education interventions:

1. L.J. received special assistance from a one-on-one behavioral paraeducator aide (this service was provided pursuant to a settlement agreement between the parents and the District).

2. L.J. received mental health services that were specially designed for him. He received two educationally-related mental health services ("ERMHS") assessments, plan development, group and individual rehabilitation, group and individual therapy, family therapy, collateral family group and intensive home-based services.

3. L.J. received extensive clinical interventions by a behavior specialist. For example, the behavior specialist designed behavior support plans ("BSP") which included adapting the method and delivery of his instruction. The behavior specialist also "designed a nine-hour training session for L.J.’s paraeducator" and closely supervised the paraeducator to ensure compliance with the new BSP.

4. L.J. received a host of accommodations, some of which were interpreted by the Court as not available to all general education students, including "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."

The Court opined that because these supports and services were not available to the general education student body at large, were tailored to L.J.’s unique needs resulting from his disabilities, or were adaptations to the regular education instruction meant to ensure L.J.’s access to the curriculum, they constituted "specially designed instruction" - the very crux of the legal definition of "special education." Accordingly, it was inappropriate for the IEP team to conclude that L.J. did not qualify for, and did not need, special education because he was progressing appropriately with what the Court deemed to be mischaracterized general education interventions.

Despite L.J.’s academic progress, the Court found L.J. continued to struggle with behavior and social emotional issues. He threatened and attempted to kill himself on three occasions resulting in psychiatric hospitalizations, frequently acted out, and relied on medications to attend school. The District argued that the hospitalizations and suicide attempts were not relevant to IEP team discussions since they occurred outside the school setting. Not persuaded by such assertions, the Court countered, "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."

What this means for school districts
The Ninth Circuit has made clear it does not want to see students receiving services, supports and interventions which are, for all intents and purposes, "specially designed instruction" without the auspices of the IDEA protections attached to an IEP.

When ascertaining whether a support or service has a general education or special education function for a child, ask the following questions: are these services/supports specially-designed for the student, or otherwise uniquely tailored to a student’s needs in such a way that would not normally occur in the general education setting? If the answer is "yes", then these services are most likely specially designed instruction which must be recorded, delivered and monitored through an IEP. Dismissing a child’s potential eligibility for special education by mischaracterizing the nature of his or her individually tailored services and supports as strictly general education accommodations and interventions will likely run afoul of the IDEA’s requirement to properly identify, assess and serve all eligible special education students.