SPECIAL EDUCATION — STANDARD FOR FAPE

A.O. v. Los Angeles Unified School District – Federal Court of Appeals, Ninth Circuit (Case Nos. 22-55204, 22-55226); U.S. District Court, Central District (Case No. 2:21-cv-00757-ODW-PD)

MEMBER(S) INVOLVED: Los Angeles Unified School District

IMPORTANCE OF STATEWIDE ISSUE:

This matter involves the application of the standard for determining whether a local educational agency’s offer of services to a special education student is reasonably designed to offer the student a free appropriate public education (FAPE) to meet their individual needs in the least restrictive environment (LRE). This standard has been developed through U.S. Supreme Court precedent. In this case, regarding the placement of a 3-year-old deaf and hard-of-hearing student, both the Administrative Law Judge (ALJ) at the Office of Administrative Hearings (OAH) and the federal district court applied an incorrect standard, in which they compared Los Angeles USD’s (District) program to a program at a private nonpublic school and determined that the nonpublic school’s program was “better” than the district’s program. If this standard were to be utilized moving forward, it would place a heavy burden on LEAs to provide the best possible program for special education students, rather than a program reasonably designed to offer a FAPE.
SUMMARY OF THE CASE:
This case involves a 3-year-old deaf and hard-of-hearing student who has been fitted with cochlear implants. The student’s parents removed her to a nonpublic school with a deaf and hard of hearing program. The program provided the student with access to typical peers at all times in a deaf and hard of hearing program because the nonpublic school enrolls general education students in the same special day class as deaf and hard of hearing students. The District’s offer was a special day class on a campus with general education with mainstreaming opportunities during the day. (LEAs may not enroll general education students in a special day class. It is also not clear how the nonpublic school enrolls general education students.) The ALJ relied on the student’s expert, an employee of the nonpublic school, for the proposition that the nonpublic school program was the best possible program for a student with a cochlear implant whose parents wanted her to use spoken word communication rather than sign language. The ALJ determined that the nonpublic school program was the “least restrictive environment” because of the level of interaction with typically developing peers. The district court agreed with the ALJ on this point of the law.

The ALJ and district court also found that the District’s offer of services was not sufficiently clear because the individualized education program (IEP) offered services in a range of minutes, called a “frequency band.” The intent was to allow service providers flexibility in providing minutes of service, which would allow students to receive the most benefit. For example, if a student was unable to benefit from services because of mood or other issue on a given day, those minutes of services could be completed on a day in which the child was more apt to receive benefit. If LEA staff are not able to use this flexibility, the student may not receive the benefit of the services.

On Sept. 19, 2023, the ELA filed an amicus brief in support of the district.

CURRENT STATUS AND/OR OUTCOME:
On Feb. 15, 2024, in a 2-1 decision, the Ninth Circuit Court of Appeals (Ninth Circuit) affirmed the district court’s decision in part and reversed it in part, essentially affirming the ALJ’s decision in all respects. In its review, the court gave particular deference to findings in the ALJ’s decision, having found the decision to be “thorough and careful.” The court specifically analyzed four questions, three from district’s appeal and one from appellant’s cross appeal: 1) whether the school district violated the Individuals with Disabilities Education Act (IDEA) by failing to specify the frequency and duration of proposed speech therapy and audiology services, 2) whether the school district’s proposed program failed to offer a meaningful educational benefit to the student, 3) whether the school district’s proposed program failed to place the student in the “least restrictive environment” appropriate for her, and 4) whether the school district’s proposed program violated the IDEA by failing to provide individual speech therapy.

As to the first question, the court concluded that the District’s plan to provide speech therapy for 30 minutes per week in one to ten sessions and audiology services for 20 minutes per month in one to five sessions “fell short of the IDEA because it failed to specify clearly the frequency and duration of offered services” as required by law. In other words, the ranges given for when services would be provided were too broad and unclear. The District’s position that there was a need for flexibility in providing the services was not discredited, but the court found the flexibility could have been achieved in another way. In addition, the District’s argument that this violation of IDEA was harmless was rejected by the court because the parents could not meaningfully participate in the process with the information given by the District.

Next, the court considered whether the District’s program offered a “meaningful educational benefit” to the student and concluded that it did not. The court reasoned that the time spent by the student in interacting with typically hearing peers was insufficient to allow the student to make meaningful progress in spoken language. Similarly, the court found that the plan provided by the District, under which the student would have had to spend about 85 percent of time in school in a segregated classroom with other deaf and hard-of-hearing students, did not meet the “least restrictive environment” or mainstreaming requirement of IDEA. The opportunities for mainstreaming in the plan from the district were “limited” and did not provide for the “maximum extent appropriate,” meaning that they did not meet the required standard. Further, the size of the campus and diversity of the student body at a school did not impact the court’s analysis, because the time spent amongst typically hearing peers was the key factor in the analysis. Lastly, the court disagreed with the District court and affirmed the ALJ determination that the District’s description of the mode of delivering the proposed speech and language therapies as “direct services (collaborative)” was “opaque” and did not afford the student’s parents enough information to fully evaluate the proposal for their child. Here again, the court agreed with the ALJ that this issue was substantive rather than procedural, and that the ALJ rightly found that the student needed individual speech and language therapy.

The dissent disagreed with all the conclusions made by the majority. According to the dissent, the ranges for services given were not unclear, and if there was confusion about how the range worked in practice, the parents could have asked follow-up questions. The dissent further argued that the District’s failure to specify that the speech and language therapy services would be provided on an individual basis did not deny the student a FAPE and that the ALJ was incorrect to accept the argument that an individualized setting was necessary for FAPE to be provided.

On the question of the program offering a meaningful educational benefit, the dissent pointed out that, “The judgment required by the IDEA is thus not a comparative one — i.e., whether the proposed program is the best of the available options. Rather, the question is an absolute one — i.e., whether, considered on its own merits, the proposed program provides a meaningful educational benefit.” The analysis on this point went on to utilize the argument made by the ELA in its amicus brief and explained that the nonpublic school program that allows for more time with typically hearing peers could be characterized as “reverse mainstreaming” which does not clearly align with California law. Last, the dissent argued that the LRE was satisfied because during the times in which the student needed special education services, she received them, and she was otherwise able to interact with typically hearing peers. To require that the special education classes must include typically hearing peers again ventures into the reversing mainstreaming concept that is not feasible.

The district requested rehearing of the matter, en banc, but the request was denied. The parties are currently litigating over the student’s request for attorney’s fees.

Back to Report