In Los Angeles Unified School District v. A.O., 92 F.4th 1159, 124 LRP 5221 (9th Cir. Feb. 15, 2024), the Ninth Circuit considered how specific an individualized education program (IEP) must be, what constitutes a free appropriate public education (FAPE) for a young student who is deaf, and how the least restrictive environment (LRE) requirement applies in that context. The court affirmed in part and reversed in part the district court’s decision and, in doing so, largely upheld the administrative law judge’s (ALJ) rulings in favor of the parents.
The case involved a child turning three who had profound hearing loss and relied on cochlear implants. The parents rejected an IEP that proposed placement in a public school program in which approximately 85 percent of the student’s time would be spent with children who were deaf or hard of hearing. The remaining time consisted of limited interaction with typically hearing peers during music, recess, library, art, and occasional holiday activities. The IEP proposed speech and language therapy one to ten times per week for a total of thirty minutes per week and audiology services one to five times per month for a total of twenty minutes per month, without specifying whether speech and language therapy would be delivered individually or in a group.
The court agreed that the school district violated the Individuals with Disabilities Education Act (IDEA) by failing to specify the frequency and duration of audiology and speech and language services, citing 34 C.F.R. § 300.320(a)(7). The court relied on evidence credited by the ALJ that such a broad range of potential service frequency, particularly one to ten sessions per week, would make it impossible to target the student’s specific speech needs. Although some flexibility could be appropriate, the lack of meaningful parameters was not. The error was not harmless, because the parents were unable to understand how often services would be provided and therefore could not evaluate the proposal, and even district staff could not identify what level of services would likely be delivered.
The court also affirmed the ALJ’s conclusion that the proposed program denied FAPE under IDEA and state law because it did not provide sufficient opportunities for interaction with typically hearing peers to support meaningful progress in spoken language. The court relied on expert testimony credited by the ALJ that the limited mainstream opportunities identified in the IEP, such as recess and holiday events, were inadequate for the student’s needs. The court rejected the argument that the ALJ was required to defer to the testimony of district staff and concluded that the ALJ reasonably found the parents’ experts more persuasive.
Applying the Ninth Circuit’s LRE framework set out in Sacramento City Unified School District v. Rachel H., 14 F.3d 1398, 1404 (9th Cir. 1994), the court further agreed that the proposed placement was not the LRE. Although the student was not ready for full-time placement in a general education classroom, ninety minutes per week of interaction with typically hearing peers was insufficient given the student’s needs, and the IEP did not address what supports would allow for increased mainstreaming. The court emphasized that the size or diversity of the public school was not determinative and that the focus must remain on the individual student’s educational experience.
On cross-appeal, the court ruled that the IEP was also substantively deficient because it did not specify that speech and language therapy would be provided individually rather than in a group. The court characterized this deficiency as substantive rather than procedural, relying on expert testimony credited by the ALJ that individual therapy was necessary for the student to learn specific speech skills, including the pronunciation of final consonants.
Taken together, the decision reflects that an IEP must clearly define both the nature and amount of services offered and must be tailored to support meaningful progress in light of the student’s individual circumstances.