Have you been told by your child’s IEP team we use an “eclectic approach to reading”?

Dyslexic Students Require a Multi-Sensory researched based methodology. When schools tell you they are using multiple reading programs for your child ask more questions. This decision shows eclectic approach can be confusing and do more hard than good.

On October 12, 2021, the District Court of Nevada found that parents were entitled to $456,990.60 for reimbursement of private schooling and other related services wherein their child was denied FAPE based on procedural and substantive violations of IDEA and for violating the Plaintiffs child’s rights under both Section 504 of the Rehabilitation Act and Title II of the ADA.

Plaintiff’s child, O.R., was diagnosed with a number of disabilities which included Executive Function Deficit, ADHD, developmental dyslexia, developmental mathematics disorder,generalized anxiety disorder, dysthymic disorder, a nonverbal language disorder, and mixed receptive-expressive language disorder. In 2007, after a multidisciplinary team (MDT) with the Clark County School District evaluation of O.R. that classified her under the category of “Other Health Impairment” and recommended she attend the ECSE self-contained preschool, O.R. waswithdrawn from District programming in April 2008 and evaluated privately in 2009 and 2013. In 2014 O.R. was reevaluated for eligibility for special education in a District program, and her. parents provided the professional evaluations they had procured for O.R.

The MDT provided an IEP that required “instruction that a ‘multisensory approach to teaching,’ was to be used throughout the day.” Plaintiff’s disagreed with the 2014 IEP and placed her in a private school with intent to seek reimbursement. O.R. received a neuro-psych evaluation in August 2015, and in 2016, another IEP was developed, which provided for “’multi-sensory instruction that will incorporate the simultaneous use of two or more sensory pathways,’ during teacher presentations and student practice in Special Education classes.”

Neither the 2014 or 2016 IEPs “identified a specific methodology or program or structured curriculum format that teachers were obligated to utilize in meeting O.R.’s unique needs.” Plaintiff subsequently notified the District, they would leave their child in her current private school and filed for a Due Process Hearing. The parties disputed whether these IEPs “included the components of the Orton-Gillingham approach,” and the Court determined that “the primary dispute at the center of this action [was] whether the IEP team was required to include the Orton-Gillingham methodology, or a similar program, in O.R.’s IEP.” The Court then held that the District violated the procedural and substantive requirements of IDEA denying O.R. FAPE, and found that:  The District did not properly incorporate the input of the child’s parents or guardians by failing to meaningfully consider their private evaluator’s determinations that O.R. required “the Orton-Gillingham methodology, or a similar program.” The District failed to include programs and methodologies in O.R.’s IEPs to meet her unique needs, wherein the District did not provide the Plaintiff’s with “information regarding any programs provided by the District that would adequately address O.R.’s unique needs” despite the Plaintiff’s compelling professional evidence that O.R. required a research based program approach and methodology with a philosophy that was implemented with “’really rigorous consistency,’” and fidelity throughout the day. “[U]sing only some of the specific methods in Orton-Gillingham and mixing them with other methods was precisely the type of mixing methodologies,” the private evaluator found “would confuse and impede O.R. in her educational development.”

The District violated the substantive requirements of IDEA for similar reasoning, noting that while Orton-Gillingham per se was not required, an equivalent program was. “[T]he District did not even have any program equivalent to Orton-Gillingham in terms of offering multimodal teaching methodology. Thus, Defendant’s alleged representation about a ‘multisensory,’ program in the IEP was illusory as the District had no such program or methodology.

The District did not even have the requisite knowledge, in terms of MDT, to properly identify or create a program.” The Court held that the District violated section 504 of the Rehabilitation Act, finding that: Despite its strict requirement of proving intentional discrimination, the Plaintiff’s showed such wherein the District demonstrated “’deliberate indifference…that a harm to a federally protected right [was] substantially likely, and a failure to act upon that…likelihood.’” O.R. was “denied ‘a reasonable accommodation that she needs in order to enjoy meaningful access to the benefit of public services;’” by its refusal to include Orton- Gillingham or similar structured literacy program, where it was on notice of O.R.’s need for such through the Plaintiff’s private evaluations. Providing Orton-Gillingham methodology training for all teachers working with O.R. was a reasonable accommodation and failure to do so amounted to deliberate indifference which denied O.R. the ability to “’enjoy meaningful access’ to a public school education.”

The District “’did not demonstrate a working knowledge of the Orton-Gillingham Method’ and therefore could not have adequately ensured that the IEPs contained components of the program;” and that “O.R. required more than mere components. She required the implementation of consistent programming throughout the day.” Wherein the Plaintiffs satisfied the more strict requirements of deliberate indifference for section 504, they also met the less strict requirement of showing that “discrimination on the basis of disability was a ‘motivating factor’” for purposes of Title II of the ADA violations.

The Court held the District responsible for reimbursement of expenses amounting to $456,990.60, finding that: O.R.’s private schooling, including her enrollment in a school in New Jersey where parents were unable to find one that met her needs within commuting distance to her home in Las Vegas were to be reimbursed. The Plaintiff’s unilateral placement in private school sufficed as the “’current educational placement,’ for purposes of reimbursement,” and that the decision by a hearing officer which found that the alternative unilateral placement in a private school was reasonable and appropriate, made O.R.’s private school the pendency placement for the purposes of a stay put placement. Under 20 U.S.C section 1401, the Plaintiff’s were entitled to reimbursement for related services including counseling services, teacher counseling and training, psychological services in the form of staff consulting for planning purposes and tutoring services.

This is a big win for parents. Most of my cases involve students with dyslexia and this decision help push back when districts refuse to answer who will provide reading services, what their training is and refuse to list methodology in the IEP.

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