SEPTEMBER 2022 Topic

Legal case study: What is the cost of Orton-Gillingham? 

Overview 

Parallel to Dyslexia is a commonly used teaching approach, Orton-Gillingham. Orton-Gillingham is a multi-sensory method for teaching reading and phonics that emphasizes cognitive, diagnostic, and linguistic instructional components (Sayski, Earle, Davis, & Calamari, 2019). Individualized Education Plans (IEPs) may incorporate Orton-Gillingham methods or other methods when intervening students identified with a Specific Learning Disability (SLD) or more narrowly speaking, a medical diagnosis of Dyslexia. 

However, many school educators are not certified in the Orton-Gillingham approach and educators may argue that IEPs support students appropriately through individualized services regardless of the program. This issue corresponds with a recent Nevada lawsuit. The court case resulted in a hefty bill of about $500,000 for the school district to supply compensation for a family ultimately seeking methods like Orton-Gillingham in their student’s IEP. This case imposes an interesting budget question for schools to consider: What is the cost of Orton-Gillingham? 

Key Terms Related to this Case 

• Research-Based Interventions: Interventions are research-based if parts or components of the program are demonstrated to be effective through research. It is not legally defined in IDEA, but many Nevada-based educational RtI documents reference research-based interventions. 

• Evidence Based Practices: Interventions are evidence-based if all of the program or methods are determined effective through research. The idea website notes Evidence Based Practices as critical other related government documents, but it is not explicitly defined in IDEA. IDEA frequently highlights the importance of “scientifically based” interventions throughout IDEA (e.g., Section 1450, Section 1463, Section 1471). 

• Free and Appropriate Public Education (FAPE): Section 300.101 

Rogich v. Clark County School District, Nevada, 2021 

A student participated in a re-evaluation within her school district and was determined to meet criteria for Other Health Impairment (OHI) under the basis that symptoms of the following medical diagnoses negatively impact her educational experience: Executive Function Deficit; Attention Deficit Hyperactivity Disorder; Developmental Dyslexia; Developmental Mathematics Disorder; a Nonverbal Learning Disorder; Generalized Anxiety Disorder; Dysthymic Disorder; and Mixed Receptive-Expressive Language Disorder. The school team did not endorse a Specific Learning Disability (SLD), due to limited progress monitoring data to determine eligibility under the Response-to-Intervention (RtI) criteria. 

Throughout her educational experience, the student was enrolled in her local public school, a private school in the Nevada area, and a private boarding school in New Hampshire that specializes in Orton-Gillingham. She attended a local private school before entering public school at the time of the evaluation, which was cited to explain the lack of evidence for RtI eligibility determination. The student also participated in various counseling services, speech and language services, community-based evaluations, and summer tutoring sessions. 

Although two IEPs were in question, this overview highlights the overarching key disputes. The parents argued that the student’s IEP failed to incorporate components of Orton-Gillingham or any Dyslexia-specific intervention within the IEP, and the school district was not explicit in their descriptions of the interventions or services being used to support their student (e.g., research-based). Further, the parents argued that Orton-Gillingham was explicitly recommended in a community-based evaluation recommendation, and that the school professionals did not “meaningfully consider” components of this evaluation in her educational evaluation and IEP. The school district contested the parents under the pretense that the student’s IEP included components of research-based interventions, including “multi-method” teaching components. 

Court Ruling. Under the defense of FAPE, “the (court judge) found that the (community-based) evaluations plainly indicated that (student’s) unique needs mandated the inclusion of a specific methodology, and because the IEPs only included “multisensory” instruction the IEP teams could not have meaningfully considered the evaluations or (parent’s) case” (pp. 9-10). The school district is also quoted saying that the parents should have trusted them to service her needs, which was determined to insufficiently address the parent’s concern about exactly what programs were used to support the student. The school district staff was found to lack knowledge about Orton-Gillingham approaches to teaching reading. Further, teachers should be offered Orton-Gillingham training and that the costs of doing so do not result in a “fundamental or substantial alteration” to programming. Other Dyslexia specific programs would also be appropriate. Further, the case states that the case outcome would have likely significantly differed if their staff had such training (pp. 16). Financially speaking, the ruling favored the parents and resulted in reimbursement costs of $456,990.60 through the following items: 

• Private school 1: $23,150.0
• Private school 2: $267,874.42
• Summer tuition, speech and language sessions, associated travel expenses: $52,196.70
• Related services (unspecified): $50,435.20 

Costs of Orton-Gillingham 

The striking reimbursement costs and the specific statement that Orton-Gillingham training would have altered the results prompted this ethical case study’s overarching question: What is the cost of Orton-Gillingham? So, let’s consider the economic side of this intervention. Costs of Orton-Gillingham Academy training will vary depending on the course level, facilitator, and location of the training. An initial 10-hour online introductory course is only $49. However, one 50-hour training costs $1,500, while another 30-hour training costs $1,000. Another training with 120-hours of content and provides a lower-level Orton-Gillingham certification costs about $5,000. The total cost to be eligible for the Orton-Gillingham Academy Certified Level Certification (i.e., highest certification level) is $10,500, in addition to application feeds. The Rogich v. Clark County School District case reports a cost of $1,500-$2,000 for a week-long training that would have been sufficient for the school staff to have completed in the eyes of the court (pp. 15). 

Example. I think it’s interesting to consider potential training costs for a school district closer to our home state, like Billings Public Schools (BPS), for more meaningful consideration. Plus, who doesn’t lack data and math? BPS has 30 schools in total. So, training one teacher in each school with the $49 10-hour online introductory course would be $1,270, while the $2,000 week-long training would equate to $60,000. One teacher in each school to complete the full certification at $10,500 would be $315,000. How about just 2 teachers, such as a resource teacher and interventionist: $98, $4,000, and $21,000, respectively. Although budget decisions are not typically within the school psychologists realm, I wonder about the feasibility of these training costs? Further, I wonder about ongoing training or how much training is necessary to implement Orton-Gillingham with fidelity?  

For additional clarity, the MT State Dyslexia Bill does not explicitly require the implementation of Orton-Gillingham or any other specific intervention. However, the document states that school personnel need to be “prepared to identify and serve students with dyslexia,” and this statement will likely be clarified in future court case decisions. Taken together, the answer to this case study’s question seems to be relatively unclear: “maybe only $49, maybe $60,000, or maybe even $500,000.” 

• Read the MT State Dyslexia Bill here: https://leg.mt.gov/bills/2019/billpdf/SB0140.pdf 
• Note: I am not citing any specific Orton-Gillingham agencies, trainors, or tutors that I found within my research. That information feels irrelevant to the overall discussion and I wanted to keep this conversation from targeting specific agencies, trainors, or tutors.

Ethical Considerations: Questions to Practice 

“Standard II.3.9 School psychologists use intervention, counseling and therapy procedures, consultation techniques, and other direct and indirect service methods that the profession considers to be responsible, research-based practice: School psychologists use a problem-solving process to develop interventions appropriate to the presenting problems and that are consistent with data collected. Preference is given to interventions described in the peer-reviewed professional research literature and found to be efficacious.” 

• How ethically responsible are school psychologists in ensuring research-based practices and alike interventions are being used to support students with IEPs? How about to support students in a tier 2 intervention? 

References 

National Association of School Psychologists. (2010). Model for Comprehensive and Integrated School Psychological Services, NASP Practice Model Overview. [Brochure].

Rogich v. Clark County School District, Nevada. (2021). https://www.wrightslaw.com/law/caselaw/2021/rogich.v.clark.county.nv.orton.gillingham.pdf 

Sayeski, K. L., Earle, G. A., Davis, R., & Calamari, D. (2019). Orton Gillingham: Who, what and how. Teaching Exceptional Children, 51(3), 240-249. doi: org/10.1177/0040059918816996

FEBRUARY 2022 Topic

Legal case study: Can a state scholarship fund apply to religious schools?

Overview 

The Montana legislature supported a scholarship fund where stakeholders, businesses, or individuals receive tax credits in exchange for donations to a scholarship fund. The financial support was intended to help low-income families’ with school choice initiatives, such as students’ participation in private schools. Several parents challenged the wording of the scholarship. This high-profile legal case went to the US Supreme Court over a legal clause known as “Rule 1,” which prohibited direct or indirect public funds to religiously affiliated education programs. A 5-4 ruling of the US Surpeme Court determined that it was unconstitutional and discriminatory to disregard a school from the scholarship program solely on the basis of a school’s religious affiliation and in violation of the Free Exercise Clause. 

Key Legal Terms Related to this Case 

• “Rule 1:” a specific Montana state clause in the tax-credit program that prohibits scholarship recipients from using the funds to attend a private religious school.
  
• Free Exercise Clause: a Federal law that “protects religious observers against unequal treatment and against laws that impose special disabilities on the basis of religious status.” 

Background

Beginning in 2015 Montanas could apply for a tax-credit program to help fund scholarship organizations that supported low-income families with financial relief to attend private schools (see Senate Bill 410). Taxpayers could pay up to $150 and earn dollar-for-dollar tax credit. Under a no-aid provision clause in the program referred to as Rule 1, religiously affiliated schools were excluded from funds despite the majority of private schools having a religious affiliation. Note: At least 18 other states have some sort of tax-credit program, and 36 other states have similar rules to Rule 1. 

Espinoza et al. v. Montana Department of Revenue et al. (2019-2020).

Three families who participated in the scholarship program took the Montana Department of Revenue to court under the basis that Rule 1 discriminated against them due to their religious affiliation via the First Amendment of the US Constitution. Further, the families argued that the Montana Department of Revenue did not have the authority to enforce Rule 1. This case first went to the Montana Supreme Court. In a majority 5-2 ruling, the court’s justices ultimately agreed with the families and determined that the program’s laws violated Montana Constitution Article X, Section 6. Additionally, the Montana Supreme Court determined that it was impossible to discern or prevent financial aid from supporting religious schools, regardless of  Rule 1. Therefore, the entire program was terminated. 

However, this case escalated to the US Supreme Court in part from Montana’s application of the state’s constitution (via Article X, Section 6) for a no-aid provision was reviewed and determined to potentially violate the federal law, the Free Exercise Clause. Furthermore, the plaintiffs argued that the Montana Supreme Court ruling “deepened the long-standing split” on if financial aid programs, like the one in this case, violated religious and equal protection laws. In a 5-4 majority ruling, The US Supreme Court determined that the tax credit program via Article X, Section 6 was unconstitutional because of the Free Exercise Clause. Specified in the 1st Amendment of the United States Constitution, the Free Exercise Clause protects citizens’ rights about their personal religious beliefs and prohibits Congress from forming laws that disable religious freedoms. Simply stated, this case determined it was unconstitutional to exclude religious schools from tax-credited scholarship funds.  

Case Study to Practice: Questions to Consider 

• Critics of this ruling and some dissenting US Supreme Court opinions, worry that this case sets the stage to encourage public funding for religious schools and may further segregate private and public education. What are the possible repercussions to support for public schools from increased school choice funding?  How might school choice initiatives or policies impact the future special education?

DECEMBER 2021 Topic

Legal case study: How does chronic absenteeism and gifted status impact a referral to Special Education?  

Overview 

Discussions about the impact of absenteeism on academic success are common. Yet, additional conversations about special education support for a gifted and talented student adds another layer to already these challenging discussions. The Independent School District No. 283 v. E.M.D.H. case addresses all of these issues while considering eligibility for OHI, ED, and ASD. This Minnesota case ruled that a student with chronic absenteeism and gifted and talented status should qualify for Special Education. Further, this student’s needs were not appropriately addressed earlier in her education. 

Key Legal Terms Related to this Case 

• Independent Educational Evaluation (IEE): Parents are entitled to an independent educational evaluation (IEE) if they disagree with the results of the school-based evaluation and as a “public expense.” Public expense typically means that the schools pay for the IEE. A school district may ask for a rationale to explain why the parent wants an IEE and put forth a dissenting request for the IEE. However, a parent is entitled to one IEE for every school-based educational evaluation. IDEA Section 300.502.
• Free Appropriate Public Education (FAPE): FAPE means that special education and related services: (a) Are provided at public expense, under public supervision and direction, and without charge; (b) Meet the standards of the SEA, including the requirements of this part; (c) Include an appropriate preschool, elementary school, or secondary school education in the State involved; and (d) Are provided in conformity with an individualized education program (IEP) that meets the requirements of Section 300.320 through 300.324. IDEA section 300.101. 
• Gifted and Talented: According to Montana State Law (section 20.7.901), high ability or high potential students are those with capabilities that require differentiated educational programs beyond those normally offered in public schools to fully achieve their potential. See Administrative Rules of Montana (ARM) 10.55.804. 

Independent School District No. 283 v. E.M.D.H., No. 19-1269 (8th Cir. 2020)

Elementary School. Throughout elementary school a student performed well academically, but experienced some behavioral problems (e.g., meltdowns) and experienced ongoing attendance issues. The student was diagnosed by a community provider with the following: Generalized Anxiety Disorder, School Phobia, Unspecified Obsessive-Compulsive Disorder, Autism Spectrum Disorder (ASD), Panic Disorder with Agoraphobia, Attention Deficit Hyperactivity Disorder, Primarily Inattentive Type (ADHD), and Severe Recurrent Major Depressive Disorder. 

Middle School. The student participated in the Gifted and Talented program in middle school, but attendance issues grew to chronic absenteeism. Further, by March of the 8th grade, the student stopped attending school altogether. She reportedly was afraid to go to school. A school team discussed ways to better support her, but this discussion did not include a possible Special Education referral. She was dis-enrolled from the district due to attendance issues. Sometime in middle school, she was admitted to a treatment program for mental health concerns. 

High School. In high school, the student was re-enrolled and initially participated in school. However, attendance and mental health again became concerns. The student was again disenrolled for attendance issues and re-admitted to a treatment program. The student was exited and re-admitted to a treatment program multiple times throughout high school. When she returned to high school, the school staff worked with the family on a 504 plan, although several teachers later admitted to not servicing accommodations. A special education referral was discussed, but did not actualize at this time. During one hospital admission, the student was re-evaluated by a neuropsychologist. She obtained scores described as “post-graduate level” and achievement testing. 

School Based Evaluation to Independent Educational Evaluation  

When she returned to school, an evaluation was discussed. The family and school staff agreed that the recent evaluation was appropriate for school based eligibility purposes. The school staff considered eligibility for Other Health Impairment (OHI), Emotional Disturbance (ED), and ASD. Observational data provided by her teachers stated that she had a strong work ethic and great academic skills, but that chronic absenteeism was a major issue to her academic success. 

Ultimately, it was determined that the student did not qualify for any educational disability category, because the student did not demonstrate difficulties/symptoms of her related diagnoses at school (i.e., no need for special education services). The parents disagreed with the school’s findings. They hired 3 professionals to complete an IEE for costs that totaled almost $9,000. The parents filed for a due process hearing, and this issue eventually led to a full legal case. The case was based on the following 4 questions: 

1.  Did the district conduct an appropriate evaluation of the student consistent with Minnesota Law? 
2. Was the student eligible for special education and related services? 
3. Did the district identify the student as a possible child with a disability under the IDEA in a timely manner? 
4. Did the District provide the student a free appropriate public education (FAPE) because it did not timely and appropriately identify and evaluate the Student, determine her eligible, and provide her with special education and related services designed to enable her to make progress appropriately in light of her circumstances? Note: The phrasing of this bullet point in the legal documentation listed the aforementioned points. 

Decision / Ruling  

The court mostly agreed with the parents. First, the school district failed to conduct an evaluation in a timely manner. The parents were also entitled to reimbursement for their IEE. Further, the student was determined eligible for special education and related services under ED and OHI. Additional court ruling decisions are discussed next. 

1. The school district failed to timely identify the student as a possible child with a disability when the student refused to consistently attend school during eighth grade as a result of her mental health issues. 
   1. This ruling was determined despite evidence of chronic absenteeism inhibiting the district from completing an evaluation in a timely manner. 
   2. The school district was also required to pay for previously completed private tutoring completed outside of school hours. 
2. The school district denied the student of FAPE when it did not timely and appropriately identify and evaluate her, determine her eligible, and provide her with special education and related services designed to enable her to make educational progress appropriate in light of her circumstances. 
   1. The school district was also required to have quarterly IEP meetings after this ruling and until the student graduated. 

Case Study to Practice: Questions to Consider 

1. How often does poor attendance impact the referral decision when the concerns are OHI, ED, or ASD? 
2. Would you consider a gifted and talented student for a referral? How often are gifted and talented students considered for Special Education?  
3. How could mental health services provided in the school impact this ruling?