Case 2:17-cv-01541-RFB-NJK Document 85 Filed 10/12/21 Page ...

Case 2:17-cv-01541-RFB-NJK Document 85 Filed 10/12/21 Page 1 of 24

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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Rogich et al,

Case No. 2:17-cv-01541-RFB-NJK

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Plaintiffs,

ORDER

v.

Clark County School District,

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Defendant.

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I.

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Before the Court is Plaintiffs¡¯ Motion for Judgment on the Administrative Record, as

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INTRODUCTION

Supplemented (ECF No. 58) and Defendant¡¯s Motion for Summary Judgment (ECF No. 59).

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II.

PROCEDURAL BACKGROUND

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This is an appeal from the March 8, 2017, Decision on Appeal by the Nevada State

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Review Officer (¡°SRO¡±) which reversed the November 14, 2016, decision of the Independent

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Hearing Officer (¡°IHO¡±) in which the IHO determined that Plaintiffs had demonstrated

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Defendant¡¯s failure to provide a free appropriate public education (¡°FAPE¡±) to O.R. as evidenced

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by the inadequacy of the 2014 and 2016 Individualized Educational Programs (¡°IEP¡±), and that

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Plaintiffs were therefore entitled to tuition and transportation reimbursement for June 2014 and the

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2014-2015, 2015-2016, and 2016-2017 school years. ECF No. 1 at 1-2.

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Plaintiffs filed the complaint in this Court on June 6, 2017 appealing the decision of the

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SRO and additionally asserting violations of Section 504 of the Rehabilitation Act and Title II of

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the Americans with Disabilities Act. ECF No. 1. Defendant filed a Motion to Dismiss Counts II

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and III of the Complaint on June 26, 2017. ECF No. 8. Plaintiffs responded on July 10, 2017;

Case 2:17-cv-01541-RFB-NJK Document 85 Filed 10/12/21 Page 2 of 24

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Defendant replied on July 17, 2017. ECF Nos. 10, 11.

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On January 22, 2018, Plaintiffs filed a Motion for Judgment on the Administrative Record,

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moving the Court to reverse the decision of the SRO. ECF No. 19. Defendant responded and filed

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a Cross-Motion for Summary Judgment on February 26, 2018. ECF No. 31. Plaintiffs replied and

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opposed the cross-motion on March 12, 2018. ECF No. 34. Defendant filed a reply to Plaintiff¡¯s

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opposition to the cross-motion on March 26, 2018. ECF No. 38.

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Also on January 22, 2018, Plaintiffs filed a Motion for Summary Judgment on Counts II

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and III of the Complaint. Defendant responded and filed a Cross-Motion for Summary Judgment

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on Counts II and III of the Complaint on February 26, 2018. ECF No. 32. Plaintiffs replied and

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opposed the cross-motion on March 12, 2018. ECF No. 35. Defendant filed a reply to Plaintiff¡¯s

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opposition to the cross-motion on March 26, 2018. ECF No. 37.

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The Court denied the Motion to Dismiss on March 31, 2018. ECF No. 39.

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A hearing on Plaintiffs¡¯ Motions for Judgment on the Administrative Record and for

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Summary Judgment was held on August 29, 2018. ECF No. 44. At the hearing, the Court ordered

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that Defendant file a supplement to the argument raised at the hearing by August 31, 2018, while

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Plaintiffs were to file a supplement to their motions two weeks after. ECF No. 44. The Court also

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ordered expert testimony regarding the Orton-Gillingham methodology. Id. Defendant filed its

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Supplemental Response in support of its cross-motions for summary judgment and in accordance

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with the Court¡¯s order on August 31, 2018. ECF No. 45. Defendant file an Errata to its

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Supplemental Response on September 6, 2018. ECF No. 46. Plaintiffs filed a reply to the Errata

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on September 20, 2018. ECF No. 50.

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On September 23, 2018, the Court denied Plaintiff¡¯s Motions for Judgment on the

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Administrative Record and Motion for Summary Judgment on Counts II and III without prejudice,

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permitting the parties to refile the motions after the forthcoming evidentiary hearing. ECF No. 51.

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On February 12, 2019, the evidentiary hearing was held, at which Drs. Kelli Sandman-

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Hurley and Catherine M. Scott testified. ECF No. 56.

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Plaintiffs filed the instant motion on March 19, 2019. ECF No. 58. Defendant responded

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on April 2, 2019, then filed an Errata to its response on April 12, 2019. ECF Nos. 64, 65. Plaintiffs

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Case 2:17-cv-01541-RFB-NJK Document 85 Filed 10/12/21 Page 3 of 24

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replied on April 16, 2019. ECF No. 66.

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Defendant filed the instant motion on March 19, 2019. ECF No. 59. Defendant then filed

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an Errata to its motion on March 22, 2019. ECF No. 60. Plaintiffs responded on April 2, 2019.

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ECF No. 63. Defendant replied on April 16, 2019. ECF No. 67.

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III.

FACTUAL FINDINGS

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The Court finds the following factual findings based upon the record. O.R. presents with a

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history of hydrocephalus at birth and multiple developmental delays. Her diagnosed learning

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disabilities include ¡°Executive Function Deficit; Attention Deficit Hyperactivity Disorder;

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Developmental Dyslexia; Developmental Mathematics Disorder; a Nonverbal Learning Disorder;

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Generalized Anxiety Disorder; Dysthymic Disorder; and Mixed Receptive-Expressive Language

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Disorder.

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A multidisciplinary team (¡°MDT¡±) within the Clark County School District (the ¡°District¡±)

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initially evaluated O.R. on December 19, 2007 when she was five years old, classified her under

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the category of ¡°Other Health Impairment,¡± and recommended she attend the ECSE preschool self-

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contained program for the remainder of the 2007-2008 school year. Id. O.R. was withdrawn from

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District programming in April 2008.

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O.R. was evaluated by Pettigru Counseling Associates in December 2009 and 2013.

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O.R. attended Adelson Educational Campus through the spring of 2014 and the Prentice

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School in October 2013. Both are private schools.

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In January 2014, O.R.¡¯s parents requested that the District reevaluate O.R. for eligibility

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for special education in a District program. The MDT conducted an evaluation and prepared a

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report on March 11, 2014. Plaintiffs provided the two Pettigru evaluations and reports for the

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evaluation.

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The parties met for an Eligibility/IEP meeting on March 11, 2014. The MDT concluded

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that it did not have enough data from O.R.¡¯s current school to determine whether she might also

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be eligible for special education and related services under the category of ¡°Specific Learning

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Disability.¡± The MDT concluded that O.R. was eligible under the category of ¡°Other Health

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Case 2:17-cv-01541-RFB-NJK Document 85 Filed 10/12/21 Page 4 of 24

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Impairment¡± on the basis of her hydrocephalus diagnosis. With regard to the accommodations and

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modifications to be provided to O.R., the 2014 IEP included, inter alia, the instruction that a

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¡°multisensory approach to teaching¡± was to be used throughout the school day. Plaintiffs disagreed

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with the 2014 IEP and placed O.R. at Adelson Educational Campus, with intent to seek

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reimbursement.

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O.R. was evaluated by Dr. Daniel DaSilva of the Morris Psychological Group of New

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Jersey, who prepared a neuropsychological report for the District¡¯s consideration in August 2015.

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Plaintiffs contacted the District again while O.R. was at Adelson in the spring of 2016.

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There were two meetings in May 2016 to develop the 2016 IEP. On May 12, 2016, Plaintiffs

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informed the District they would continue to place O.R. at Eagle Hill, a private school, for

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Extended School Year and Adelson for the 2016-2017 school year unless the District proposed an

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appropriate program within ten business days. On May 27, 2016, Plaintiffs filed a request for a

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Due Process Hearing. The IEP was completed on June 8, 2016. With regard to accommodations

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and modifications to be provided to O.R., the 2016 IEP included, inter alia, ¡°multisensory

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instruction that will incorporate the simultaneous use of two or more sensory pathways¡± during

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teacher presentations and student practice in Special Education classes.

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Neither the 2014 nor 2016 IEP identified a specific methodology or program or structured

curriculum format that teachers were obligated to utilize in meeting O.R.¡¯s unique needs.

a. Disputed Facts

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The parties dispute whether the 2014 MDT and IEP team had sufficient information to

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classify O.R. as having a Specific Learning Disability, and not only as having ¡°Other Health

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Impairment.¡± Plaintiffs contend that the Pettigru evaluations established that O.R. exhibited ¡°an

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unusual pattern of weaknesses in performance relative to her age and her intellectual

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development.¡± ECF No. 58 at 18. The teams should have employed an alternative method available

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under the Nevada Administrative Code of determining O.R.¡¯s eligibility for Specific Learning

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Disability, rather than rely on the ¡°Response to Intervention¡± approach (¡°RTI¡±), for which the

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teams claimed they did not have enough data to complete. Defendant counters that the District has

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employed the RTI approach exclusively since 2007 and did not have the required data from O.R.¡¯s

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private school to employ that approach to determine whether O.R. had a ¡°Specific Learning

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Disability.¡±

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Relatedly, the parties also dispute whether the IEP teams reviewed the Pettigru and DaSilva

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evaluations. Plaintiffs assert that the IHO¡¯s findings that the District¡¯s witnesses were not credible

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undermines their testimony that they reviewed the evaluations. By contrast, Defendant states that

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the SRO correctly concluded that these witnesses were credible and therefore their testimony that

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they considered the evaluations establishes that they did so.

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Finally, the parties dispute whether the 2014 and 2016 IEPs included the components of

the Orton-Gillingham approach.

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IV.

LEGAL STANDARD

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A. Judicial Review under IDEA

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¡°In an action challenging an administrative decision, the IDEA provides that ¡®the court

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shall receive the records of the administrative proceedings, shall hear additional evidence at the

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request of a party, and, basing its decision on the preponderance of the evidence, shall grant such

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relief as the court determines is appropriate.¡¯¡± Ojai Unified Sch. Dist. v. Jackson, 4 F.3d 1467,

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1471 (9th Cir. 1993) (quoting 20 U.S.C.A. ¡ì 1415(e)(2)). ¡°Thus, judicial review in IDEA cases

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differs substantially from judicial review of other agency actions, in which courts generally are

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confined to the administrative record and are held to a highly deferential standard of review.¡± Id.

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(citations omitted). ¡°Nevertheless, when reviewing state administrative decisions, courts must give

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due weight to judgments of education policy.¡± Id. at 1472 (internal quotations and citation

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omitted). ¡°Therefore, the IDEA does not empower courts to substitute their own notions of sound

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educational policy for those of the school authorities which they review.¡± (internal quotations and

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citation omitted). ¡°How much deference to give state educational agencies, however, is a matter

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for the discretion of the courts.¡± Id. (quoting Gregory K. v. Longview Sch. Dist., 811 F.2d 1307,

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1311 (9th Cir.1987)). ¡°We can accord some deference to the ALJ¡¯s factual findings, but only where

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they are ¡°thorough and careful . . . .¡± M.C. by & through M.N. v. Antelope Valley Union High

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Sch. Dist., 858 F.3d 1189, 1194 (9th Cir. 2017).

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