Free Brief - District Court of Colorado - Colorado

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Chief Defendant Judge Lewis T. Babcock Civil Action No. 04-B-1116 (OES) JOSHUA McQUEEN, a minor, by and through his parents, KEITH McQUEEN and SHAUNA GUYMON f/k/a SHAUNA McQUEEN, Plaintiff, v. COLORADO SPRINGS SCHOOL DISTRICT NO. 11, Defendant.

PLAINTIFF'S REPLY BRIEF

Submitted by: Michael C. Cook Attorney for Plaintiff Michael C. Cook, P.C. 509 North Tejon Street Colorado Springs, CO 80903 [email protected]

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I. INTRODUCTION Pursuant to the Scheduling Order dated October 19, 2004, Plaintiff Joshua McQueen, by and through his parents Keith McQueen and Shauna Guymon, respectfully submits this Reply Brief. Plaintiff requests the Court's Order overruling the decisions of the Impartial Hearing Officer ("IHO") and the Administrative Law Judge ("ALJ") and find that Defendant's blanket ESY policy that refuses to consider developing new skills during ESY violates Plaintiff's procedural right to have his ESY programming individualized to address his unique needs. II. LEGAL ARGUMENT A. DEFENDANT FAILS TO ADDRESS THE CENTRAL ISSUE BEFORE THIS COURT, NAMELY, WHETHER THE DISTRICT'S BLANKET ESY POLICY THAT PROHIBITS THE DEVELOPMENT OF NEW SKILLS VIOLATES A CHILD'S RIGHT TO HAVE HIS/HER EDUCATION PROGRAM INDIVIDUALIZED. Nowhere in the twenty-six page Response Brief filed by Defendant, the eighteen page Amicus Curiae filed by the Colorado Department of Education ("CDE"), or the fifteen page Amicus Curiae filed by the Colorado Association of School Boards ("CASB")1 , do legal counsel supporting the Defendant's ESY policy in question address the primary issue before this Court, namely, does a blanket policy that prohibits development of new skills during ESY violate the procedural requirement that a child's educational program be individualized. Rather than address that issue, Defendant attempts to frame this case as one that, if found in favor of Plaintiff, will effectively require Colorado school districts to provide year-round

As this brief will respond to the arguments set forth in Defendant's Response Brief and the Amicus Curiae briefs filed by both the CDE and the CASB, reference in this Reply Brief to the term "Defendant" may refer to all parties supporting Defendant's ESY policy, where appropriate. 1

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services to all students with disabilities.2 Defendant intentionally overstates the scope and impact of the limited procedural issue before this Court. Nowhere in the pleadings before this Court has Plaintiff argued that all children with disabilities should automatically receive year-round services.3 Rather, Plaintiff's position is that the decision as to whether or not new skills need to be developed during ESY must be made on a case-by-case basis after consideration of the unique needs of each eligible child. Further, Plaintiff has acknowledged that a maintenance only ESY program may indeed be appropriate for some eligible children. When asked by the IHO whether Plaintiff could ever envision a situation where maintaining learned skills would be appropriate during ESY for a child with autism (or any eligible disabled child for that matter), Plaintiff responded, "Absolutely, based on the individual

2

See Defendant's Response Brief, p. 7; Amicus Curiae Brief of CASB, p. 3.

In its Response Brief, Defendant claims that Plaintiff is attempting to recast the legal issue. In doing so, Defendant argues that there is somehow a difference between determining whether the Defendant's blanket ESY policy violates the procedural rights of all eligible children and whether the Defendant's ESY policy, on its face, violates the IDEA. See Defendant's Response Brief, P. 3. Again, under Rowley, courts are required to apply a two-pronged test to determine if a violation under the IDEA has occurred. As stated in Plaintiff's Opening Brief and as further argued herein, courts have consistently held that a procedural violation under the IDEA that results in substantive harm to the disabled child results in a denial of the free and appropriate education ("FAPE") that all eligible children are entitled to receive. As such, if this Court determines that the Defendant's blanket ESY policy constitutes a substantial procedural violation under the IDEA, there is no need to proceed to a follow-up evidentiary hearing in order to make a determination as to whether Plaintiff received a FAPE. Plaintiff's position has been clear throughout the entire process and was summarized for the IHO as follows: And our position is that the first prong [under Rowley] is violated with a blanket policy that prevents individualization. Tran. P. 116: L. 21-23. 2

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needs of the child." See Trans. P. 61: L. 2-25, and P. 62: L. 1-13. In contrast, Defendant is of the position that new skills never have to be developed during ESY, even if deemed appropriate for the child. See Trans. P. 86: L. 1-5. Defendant would like this Court to believe that defeating its ESY policy will require school districts to maximize the educational benefits for all disabled children. However, according to the unchallenged expert testimony of Dr. Joann Gerenser, application of the District's policy could actually cause certain children to lose educational benefit. Therefore, defeating the Defendant's ESY policy will simply protect the procedural right of all disabled children to have ESY programming individualized to address their unique needs. B. EVEN UNDER DEFENDANT'S LIMITED ESY STANDARD, ITS POLICY OF REFUSING TO CONSIDER DEVELOPING NEW SKILLS FOR ANY CHILD VIOLATES THE PROCEDURAL RIGHT OF EACH CHILD TO HAVE HIS/HER EDUCATION PROGRAM INDIVIDUALIZED. The majority of the arguments set forth in Defendant's brief attempt to advance Defendant's position that the sole purpose of ESY is to maintain learned skills. In his

Opening Brief, Plaintiff set forth the argument supporting the position that, by definition, ESY services must be specially designed and adapted to address the unique needs of an eligible child in order to insure access to the general curriculum, so that such child can meet the educational standards within the jurisdiction of the public agency that apply to all children. This definition affirmatively mandates that ESY services be designed to address the unique needs of each child and to provide the child with the required skills to be educated alongside his/her typical peers. As such, by definition, the purpose of ESY goes 3

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far beyond just maintaining learned skills. However, even if this Court accepts the position that the sole purpose of ESY is to maintain learned skills, Defendant's blanket ESY policy that never considers developing new skills for ANY child, under ANY circumstances, fails for two primary reasons. First, such a policy is in clear violation of the procedural requirement set forth in the IDEA that a child's educational program be individualized. Courts have consistently held that a blanket policy applied to all children, regardless of their unique needs, violates the procedural safeguard set forth in the IDEA that mandates a child's educational program be individualized. See Polk v. Central Susquehanna Intermediate Unit, 853 F. 2d 171 (3 rd Cir. 1988). Further, Courts consistently refuse to uphold any policy that predetermines services for a disabled child. In Deal v. Hamilton County Board of Education, 392 F. 3d 840 (6 th Cir. 2004), the United States Court of Appeals for the Sixth Circuit held that a school district's unofficial policy of refusing to provide one-on-one ABA programs constituted a substantial procedural violation of the IDEA that, on its own, amounted to a denial of FAPE. The Court, after citing Polk, affirmatively stated, "A `one size fits all' approach to special education will not be countenanced by the IDEA." Id. at 859. Similar to the policy invalidated in Deal, Defendant utilizes a policy that predetermines the content of ESY programming by refusing to even consider developing

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new skills during ESY.4

Such a policy makes it impossible to individualize a child's

educational program and must not be allowed to stand. Second, and more importantly, Defendant's policy relies solely on the unsupported rationale that since, under its interpretation, the sole purpose of ESY is to maintain learned skills, the Defendant never has to teach new skills. What this fundamentally flawed logic fails to recognize is that, for certain disabled children, the only way to maintain learned skills is to continue teaching new ones.5 This critical fact is the crux of the relevant and credible expert testimony provided by Dr. Joann Gerenser's 6 , testimony that none of the voluminous briefs filed in support of Defendant's policy address in any meaningful way.7 Simply stated, the uncontradicted evidence before this Court provides that a blanket ESY policy that refuses to consider developing new skills could actually cause some children to regress and lose the educational benefit that was received by the child during the regular school year. A uniform policy that could result in some children actually losing educational

Unlike Deal, Defendant's ESY policy is anything but unofficial. It is set forth in black and white in the CDE's ESY Guidelines followed by Defendant. As Dr. Gerenser explained, maintenance of learned skills for a child with autism involves imbedding that skill through the process of teaching a new skill. In other words, maintenance of learned skills actually requires the continued teaching of new skills. See Tran. P. 20: L:6-20.
6 5

4

See Plaintiff's Opening Brief, p. 11-14.

Defendant's sole argument in response to Dr. Gerenser's unchallenged testimony is that it should be discounted since she works for an organization whose goal is to maximize a child's educational potential. In light of the resources available to Defendant, one would think that Defendant could secure its own expert to challenge her testimony that Defendant's policy could actually cause regression of learned skills in certain disabled children. 5

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benefit over the summer months stands in stark opposition to Defendant's claimed ESY purpose of maintaining learned skills. As a result, such a policy cannot be allowed to stand. C. DEFEATING THE DEFENDANT'S BLANKET ESY POLICY IS WHOLLY CONSISTENT WITH THE MANDATE SET FORTH IN ROWLEY THAT A CHILD'S EDUCATIONAL PROGRAM BE INDIVIDUALIZED. In its brief, counsel for the CASB makes the preposterous claim that rejecting the decisions of the IHO and the ALJ will effectively overrule the United States Supreme Court's decision in Board of Educ. Of Hendrick Hudson Central Sch. District v. Rowley, 458 U.S. 176 (1982). See Amicus Brief of CASB, p. 9-10. In doing so, counsel again blatantly misrepresents Plaintiff's position as one demanding that all students with autism receive a year-round educational program designed to maximize educational benefit. Id. Again, Plaintiff's contention in the matter before this Court is that the decision as to whether new skills need to be developed during ESY needs to be considered by a child's IEP team on a case-by-case basis and based upon the unique and individual needs of the child. This position is wholly consistent with the Supreme Court's decision in Rowley which provides that a FAPE has been provided when children with disabilities are given "access to specialized instruction and related services which are individually designed to provide an educational benefit." Id. at 201 (emphasis added). In fact, it is Defendant's ESY policy that prevents educational programming for eligible children to be individually designed based on the unique needs of the child. Therefore, upholding the appropriateness of Defendant's policy will defeat the "individually designed" focus set forth in the IDEA and mandated by

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Rowley. D. IT IS IMPOSSIBLE TO RECONCILE THE FINDINGS OF THE IHO AND THE ALJ IN ANY MANNER THAT WOULD MAKE A FULL EVIDENTIARY HEARING MEANINGFUL. Defendant claims that Plaintiff regrets entering into the Stipulation for Bifurcation and, with these proceedings, attempts to "make an end run around the parties agreement to bifurcate." 8 See Defendant's Response Brief, p. 6. Plaintiff's only regret in agreeing to bifurcate the matter to address the claimed procedural violation by Defendant is that the inconsistent holdings of both the IHO and the ALJ essentially place Plaintiff in a no win situation if a full evidentiary hearing on the matter were to be held. On the one hand, both the IHO and the ALJ held that the Defendant's blanket ESY policy does not violate the IDEA. On the other hand, both the IHO and ALJ recognized that application of such a policy may not be appropriate for all children based upon the particular facts of the case or the particular needs of an individual child. See IHO Order, p. 2, and ALJ Decision, p. 7. In doing so, both the IHO and the ALJ claim that further substantive evidence in this case is required in order to determine whether the District's policy denied Plaintiff a

It was agreed by the parties that either party could appeal the decision of the IHO on the procedural issue prior to proceeding with an evidentiary hearing on the substantive issues in this case. This action is consistent with that agreement. 7

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FAPE.9 It is simply impossible to reconcile these findings in any way that would allow Plaintiff to prevail after a full evidentiary hearing. For example, assume that Plaintiff could prove that the refusal of the Defendant to develop new skills for Joshua during ESY would have jeopardized the educational benefits that Joshua received during the previous school year. In other words, assume that Joshua was one of those children identified by Dr. Gerenser and recognized by the IHO and the ALJ for whom such a maintenance only program would actually cause regression of learned skills. The Defendant's response to such proof would be simple and compelling --- the ESY guidelines endorsed by the CDE and followed by the Defendant DO NOT REQUIRE THAT NEW SKILLS BE DEVELOPED, EVER, REGARDLESS OF THE INDIVIDUAL NEEDS OF THE CHILD. In support of its argument, Defendant would direct the IHO to the CDE guidelines that provide: "ESY SERVICES ARE NOT TO DEVELOP NEW SKILLS." "ESY SERVICES ARE NOT TO MEET NEWLY DEVELOPED GOALS AND OBJECTIVES." Determining ESY Services, p. 3.
9

As further evidence of the flawed reasoning applied by both the IHO and the ALJ in upholding the Defendant's policy, the IHO unilaterally issued a subsequent Order that holds that the need for a full evidentiary hearing is no longer needed since such need was circumvented by the IHO's earlier ruling that held, as a matter of law, the ESY guidelines do not violate the IDEA. See Order dated July 30, 2004, copy of which is attached as Exhibit 1. This subsequent Order appears to leave Plaintiff in legal limbo. Both the IHO and the ALJ state that, in order to show that Defendant's ESY policy was not appropriate for Plaintiff, a full evidentiary hearing would need to be held. Now the IHO has held such a hearing is no longer required. Surely, this is not the due process that was envisioned by the drafters of the IDEA. 8

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Since the IHO and the ALJ have already held that such guidelines do not violate the IDEA and Defendant's position of not developing new skills during ESY is consistent with such guidelines, it would be impossible for the IHO and the ALJ to rule in favor of Plaintiff without overruling their earlier holding that the ESY policy utilized by Defendant did not violate the IDEA. The holdings of the IHO and the ALJ on the procedural issue now before this Court effectively provide that Defendant does not need to consider a child's unique needs in making a determination of whether new skills need to be developed during ESY. Rather, the IHO and the ALJ have held that it is acceptable to make the predetermination that new skills need never be developed during ESY, regardless of the individual needs of the child. Any evidentiary hearing that would show that such a policy was not appropriate for Plaintiff would therefore be meaningless. Again, the purpose of bifurcating the due process hearing was to address the procedural question of whether the Defendant's ESY policy violated Joshua's right to have his ESY program individualized. In other words, it was to address whether or not the first prong of the test set forth in Rowley had been violated. Since the Defendant admitted that its policy is to never consider teaching new skills to any child during ESY, no testimony concerning Joshua's individual situation was required.10 As far as the District is concerned, Joshua's individual needs are irrelevant in determining whether new skills need to be taught
10

This Court must ask itself why the parties would agree go to the time and expense of bifurcating the hearing that excluded evidence concerning Joshua's individual situation when both the IHO and the ALJ now claim that they need such evidence in order to rule on the stipulated procedural issue. 9

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and developed during ESY. The lack of individualization is the reason that such policy must be defeated. E. CASES RELIED ON BY DEFENDANT SUPPORT THE POSITION THAT DEVELOPMENT OF NEW SKILLS MAY BE CONSIDERED APPROPRIATE FOR ESY.

The Defendant relies on JH v. Henrico County Sch. Bd., 326 F. 3d 560 (4 th Cir. 2003) to support its position that new skills do not ever need to be developed during ESY. The Defendant's reliance on this case to support its blanket ESY policy is misplaced. In fact, upon closer examination of the facts, the findings in JH support Plaintiff's argument that new skills may be developed during ESY if deemed appropriate by a child's IEP team. JH involved a child with a high functioning form of autism.11 In June of 2001, JH took the assessment tests given to all children in the school district and scored 85% in math, 100% in science, 80% in social studies, and 85% in language arts. Id. at 563. Other tests evidenced that JH had mastered 3 of 27 goals on his Individual Education Program ("IEP"), and had made progress on all but two. Id. Of specific relevance was that, although JH had improved his skills with respect to using language appropriately in social situations, he remained seriously behind his peers in that area. Id. (Emphasis added). Despite the fact that JH was performing at or above content standards across all

Autism is a spectrum disorder meaning that you can have a very high functioning child and a very low functioning child. Additionally, two children with autism can exhibit vastly different behaviors and skill sets. As such, it is critical to structure educational programming for autistic children to meet and address their unique and individual needs. 10

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academic areas tested, the school district determined that JH was eligible for ESY services. The district proposed offering JH the following ESY services: (1) special education services four hours per day from July 9 through August 2 and ten hours per week from July 9 through September 1; (2) special education consultation for thirty minutes per week for the entire summer; (3) assistance from an instructional assistant twelve hours per week from June 18 through June 29, sixteen hours per week from July 19 through August 2; and fifteen hours per week from August 6 through August 18; (4) individual speech / language therapy conducted in four thirty-minute sessions over the course of the summer; and (5) individual occupational therapy conducted in five thirty-minute sessions over the course of the summer. Id. at 564. The parents objected based on their position that the ESY services offered to JH should be at the same level as provided to JH's during the regular school year. Specifically, the parents contended that the speech/language therapy and occupational therapy services proposed during ESY were not adequate. The parents further contended that ESY services should be maximized for autistic children in order to take advantage of the "window of opportunity" that experts in the field of autism believe closes after the age of eight or nine. Id. at 564-65.

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The hearing officer found that the levels of speech/language therapy and occupational therapy service set forth in the proposed ESY program were not adequate. The hearing officer further held that the stated goal of JH's summer IEP should be amended from `maintaining' to `making reasonable progress' toward his specified goals and objectives. On appeal, the Fourth Circuit Court of Appeals remanded the case back to the hearing officer in light of the Court's recent adoption of the eligibility standard set forth in MM v. School District of Greenville County, 303 F. 3d 523 (4 th Cir. 2002).12 In doing so, the Court noted that the goal of a disabled child making reasonable progress during the summer months on unmastered skills is higher than a goal of simply preventing the skills and benefits already gained by the child from the regular school year from being significantly jeopardized. Upon remand, the Court directed the hearing officer to evaluate the appropriateness of the offered ESY services under the significantly jeopardized standard set forth in MM. Additionally, the Court directed that the hearing officer consider the "window of opportunity" argument advanced by the parents expert to the extent that it is relevant to the question of whether the level of services provided to JH was adequate to prevent the gains that JH had made during his regular kindergarten school year from being significantly jeopardized. Id. at 569. Like the case here, the issue in JH was not eligibility for ESY services. The core issue in JH focused on a disagreement over the level of services in the summer ESY program (i.e.

The Fourth Circuit issued the MM decision while the JH appeal was pending. The MM decision merely adopts the ESY eligibility standard for the Fourth Circuit and offers little probative value to the issue before this Court. 12

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the amount of time allocated for speech/language therapy and occupational therapy). In contrast, the issue before this Court is not the level of services, but rather the refusal of the Defendant to even consider whether it would have been appropriate to develop new skills during Joshua's ESY program.13 As such, it is both relevant and instructive to look at the

content of the services offered to JH by the school district. Since the IEP team determined that JH was severely behind his peers in the area of social pragmatics, JH's ESY program was designed primarily to improve his social communication skills.

The County endorsed a peer modeling approach suggested by Smith and Stone in which JH would interact with his peers in order to improve his social language and fine motor skills. Based on Smith and Stone's experience with JH during the regular kindergarten school year, they believed that JH had difficulty generalizing social language skills taught in individual therapy sessions to other settings such as the classroom, playground, and home. Therefore, rather than focusing on one-on-one services, Smith and Stone believed that JH would best be served by receiving ESY services focused on improving JH's peer communication skills. Id. at 563-64 (Emphasis added).

Applying the Defendant's ESY policy at issue here, the issue of improving JH's social communication skills would have never even been considered. The word "improve" means "to make better" or "to make beneficial additions or changes." The word "maintain" means to "hold in place." As such, since improving JH's social communication skills would have Plaintiff's due process notice also argues that the level (i.e. amount of time) of ESY services for Joshua is grossly inadequate and not appropriate in light of Joshua's individual needs. However, the issue as to service hours is not at issue before this Court. 13
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gone beyond merely maintaining such skills, it would have been deemed by Defendant to be outside the limited scope of ESY programming. Rather, under Defendant's policy, JH's ESY program would have been designed solely to maintain the 3 goals he had mastered from his IEP and would have done nothing to address his core deficits in social communication.14 Quite simply, JH cannot be read or interpreted to support a blanket policy that limits the content of ESY services to only maintaining learned skills regardless of the unique needs of the child. Rather, the JH case should be interpreted to support Plaintiff's position that the content of ESY services must be adapted to address the unique needs of the child, even if that involves improving or developing new skills. Defendant's reliance on Association for Community Living in Colorado v. Romer, Civil Action No. 91-776 (D. Colo. 1991) in support of its ESY policy is also misplaced.15 While the Extended School Year Guidelines drafted in connection with the Romer litigation (the "Romer Guidelines") provide that "the purpose of ESY is to preserve skills learned and educational benefits accrued during the regular school year" and that "the purpose is not to

The decision made in JH to improve JH's social communication skills is consistent with the statutory definition of ESY that requires ESY special education and related services be designed to "insure access to the general curriculum, so that such child can meet the educational standards that apply to all children." See C.F.R. §300.309, 20 U.S.C. § 1401(25), and 34 C.F.R. §300.26(B)(3). Although JH was performing well on the standardized tests relating to math, science, social studies and language arts, JH's ESY program focused on improving a critical communication skill where he remained deficient and behind his typical peers. Improving this skill would assist JH in further accessing the general curriculum and meeting the educational standards that apply to all children. To the extent that the Tenth Circuit dismissed the Complaint upon appeal, Romer provides no binding authority on this Court. Additionally, Plaintiff contends that the scope of ESY set forth in the Romer Guidelines is inconsistent with the clear statutory definition of ESY under IDEA and, therefore, such guidelines are irrelevant to the issue before this Court. 14
15

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confer additional educational benefit" (See Romer Guidelines, p. 1), nowhere in such guidelines does it prohibit the teaching or development of new skills. Again, Defendant relies on the mistaken logic that preserving learned skills means never having to teach or develop new skills. As previously stated, Dr. Gerenser's expert testimony completely

exposes the flaw with this reasoning. Defendant did not, because it can not, submit any expert opinions to the contrary. With respect to the procedural issue before this Court, the Romer Guidelines provide that "the procedural safeguards available to a child's parents with respect to the IEP generally also are available in regard to ESY services." Id. at 3. As such, ESY programming, like a child's IEP for the regular school year, must be individualized to address the child's unique needs. In support of this proposition, the Romer Guidelines further provide that the

determination as to the duration of the program in terms of number of hours per day, number of days per week, and number of weeks during the summer "must be done on an individual basis to reflect the unique needs of the child as determined on the IEP." Id. at 2. Lastly, the primary argument set forth by the CASB that defeating the Defendant's ESY policy will have a devastating impact on school district's budgets and operations is irrelevant. Even the Romer Guidelines provide that "local administrative units may not use budgetary constraints as a reason not to provide ESY services or limit their duration to an eligible child." Id. at 3.

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F.

JOHNSON HAS BEEN INTERPRETED BY OTHER COURTS AS PROVIDING A MULTI ELIGIBILITY CRITERIA FOR ESY SERVICES.

Defendant goes to great length in their briefs discussing Johnson v. Independent Sch. Dist. No. 4, 921 F. 2d 1022 (10 th Cir. 1990). Plaintiff does not dispute the fact that Johnson sets forth the test in the Tenth Circuit for eligibility for ESY services, something that is not at issue in this case. However, Plaintiff strongly disagrees with Defendant's position that Johnson stands for continued use of the regression-recoupment test for eligibility for ESY services in the Tenth Circuit. In the Amicus Brief filed by the CDE, the State of Colorado argues that the absence of a single comma in the Johnson decision confirms that Johnson continues to rely on the single regression-recoupment test for ESY eligibility. See Amicus Brief of CDE, p. 13. The CDE goes on to argue that Plaintiff's novel interpretation of Johnson requiring that a myriad of factors be considered when evaluating eligibility for ESY has been rejected by "every court to consider the matter." Id. at 17. This statement is simply not correct. In Lawyer v. Chesterfield County School Board, 19 IDELR 904 (E.D. Va. 1993), the United States District Court for the Eastern District of Virginia apparently did not interpret the lack of punctuation in the same manner as argued by the CDE. Citing Johnson, the Court in Lawyer stated the following: Regression, however, is not the only factor that is considered in determining whether extended year services are required to provide the student with an appropriate education. Other factors that are considered include: the amount of time needed for recoupment in the fall, the child's rate of progress, the child's behavioral or physical 16

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problems, the availability of alternative resources, the areas of the child's curriculum that need continuous attention, and the child's vocational needs. Id. at _____. The Lawyer Court then went on to discuss each of the stated factors independently, and not as they relate to a regression-recoupment standard, in reaching its decision that the child was entitled to receive ESY services. Of particular relevance to this case, the Court, in addressing the "window of opportunity" 16 eligibility factor that the JH court ruled must be considered on remand, stated : Finally, the evidence provided by expert witnesses indicates that for children who suffer from moderate to severe childhood autism, there is a small, but vital, window of opportunity in which they can effectively learn. Such period is generally between the ages of five and eight years old. Therefore, jointly considering the area of Danny's curriculum which needs continuous attention and his vocational needs, the Court concludes that it is extremely important at this critical state of development, Danny receive uninterrupted speech language therapy. The provision of such services, or the lack thereof, will have a significant impact on Danny's vocational opportunities in the future. Thus, it is evident that to provide Daniel Lawyer with an appropriate free education, which will allow him to benefit educationally therefrom, it is necessary for Chesterfield County School to provide Danny with extended year services, including speech language therapy. Id. at ____.

Obviously, the Court in Lawyer interpreted the eligibility standard in Johnson in the same manner as argued by Plaintiff. That is, eligibility for ESY services may be based on

Defendant disputes the existence of the "window of opportunity" for children with autism supported by expert testimony and found relevant by previous courts in JH, Lawyer, and Reusch v. Fountain, 872 F. Supp. 1421 (D. Md. 1994). See Defendant's Response Brief, p. 20. Defendants dispute might be more compelling if it were supported by qualified expert testimony rather than solely by its own self-serving statements. 17

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a number of other factors other than actual or predictive regression.17 It logically follows that the content of ESY programming should be individually designed to address both the unique needs of the child and the reason why ESY services were deemed appropriate. G. DEVELOPMENT OF NEW SKILLS DURING ESY IS CONSISTENT WITH GUIDELINES FROM OTHER STATES AND THE RECOMMENDATIONS OF THE UNITED STATES DEPARTMENT OF EDUCATION. Defendant cites the ESY policies of a number of other States to support its position that new skills need not be developed during ESY. While these guidelines provide little substantive value to this Court, there are many States that provide guidelines that allow ESY service content to go beyond the simple maintenance of learned skills, if deemed appropriate in light of the unique needs of the child. Some of those States include the following: New York. Despite guidelines that provide that the key for ESY services is to maintain IEP goals and objectives mastered at the end of the previous school year, the State of New York has interpreted those regulations to require full year, uninterrupted and unmodified programing for autistic children. In other words, an ESY program for an autistic child is no different than the regular school year. (See Tran. P. 39, L 18-25; P. 40, L 1-2 and L 20-25; P. 41, L 1-14).

The Lawyer decision recognizes the approach that many forward thinking States are taking with respect to educating children with autism. That is, money is better spent in providing intense services during this "window of opportunity" in order to help autistic children acquire the necessary skills to one day live independent and productive lives. On the other hand, States such as Colorado continue to spend their financial resources defending policies that effectively insure that certain disabled children will continue to fall further and further behind their typical peers. 18

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Iowa - Establishes a series of criteria that are used to determine if a child's circumstances are such that ESY services should be awarded. These criteria are derived from case law and should be viewed as a practical elaboration of what constitutes rare and unusual circumstances within the meaning of the Iowa standard.18 Florida. Posses the following question and answer in its ESY guidelines: Q. Must separate IEP or FSP goals, including benchmarks or short term objectives, other than those from the regular school year be developed for ESY? A. Typically, the goals, including benchmarks and short term objectives, addressed through ESY services will be an extension of those on the currentyear IEP or FSP. In some instances, however, new goals may be necessary to ensure that appropriate services are provided during the ESY period.19 Arguably more relevant that what individual States have to say on the issue before this Court is what the United States Department of Education has said when it comes to providing appropriate educational programming for children with autism. At the specific request of the United States Congress and the U.S. Department of Education's Office of

The Iowa ESY standards are attached hereto as Exhibit 2. Iowa also utilizes Plaintiff's "novel" interpretation of Johnson in finding that a number of factors independent of regressionrecoupment justify ESY eligibility. See Iowa Guidelines, p. 22. Additionally, Iowa acknowledges the "window of opportunity" for children with autism that Defendant disputes. Id. at 21. See p. 8, Technical Assistance Paper Regarding ESY published by the Florida Department of Education, a copy of which is attached hereto as Exhibit 3. 19
19

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Special Education Programs, the National Research Council formed the Committee on Educational Interventions for Children with Autism and charged the committee to integrate the scientific, theoretical, and policy literature and create a framework for evaluating the scientific evidence concerning the effects and features of educational interventions for young children with autism. The Committee applied strict standards to assess the quality of the large body of information that it assembled. The Committee's findings were published in the report titled Educating Children with Autism (the "NRC Study").20 In summary, the Committee found that the following core elements were common among all research based intervention models that were shown to be effective for young children with autism: 1. 2. intervention begins at the earliest possible age. active engagement in intensive instructional programming for a minimum of the equivalent of a full school day, 5 days (at least 25 hours) a week, with full year programming. 3. repeated, planned teaching opportunities generally organized around relatively brief periods of time for the youngest children, including sufficient amounts of adult attention in one-to-one and very small group instruction to meet individualized goals; The NRC Study is cited in the Letter to Anonymous attached to Defendant's Response Brief as Exhibit 16. The NRC Study is authoritative on a number of issues relating to educating children with autism. Plaintiff would be happy to provide the Court with a complete of the NRC Study upon request. 20
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4. 5. 6.

inclusion of a family component, including parent training; staff are highly trained staff and specialized in autism; low student / teacher ratios (no more than two young children with autistic spectrum disorders per adult in the classroom); and

7.

mechanisms for ongoing program evaluation and assessments of individual children's progress, with results translated into adjustments in programming.

See p. 218-19, Lord and McGee, Educating Children with Autism, National Academy Press (2001) (Emphasis added).21 The Letter to Anonymous drafted by the Office of Special Education and attached to Defendant's Response Brief as Exhibit 16 also confirms that President Bush's No Child Left Behind legislation applies to all children, including those with disabilities. Allowing the District's ESY policy to stand will not only prevent eligible children from receiving an individualized ESY program formulated to address their unique needs, but it will also defeat the underlying purpose of the IDEA to provide disabled children the skills to meet their unique needs and prepare them for employment and independent living. III. CONCLUSION For all of the reasons set forth above, as well as those previously articulated by Plaintiff, the District's rigid ESY policy that prohibits the development of new skills for all

21

A copy of the summary of the NRC Report is attached hereto as Exhibit 4. 21

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children, regardless of individual need, constitutes a substantial procedural violation of Plaintiff's right under the IDEA to have his ESY programming be individualized to address his unique needs. Accordingly, this Court must reverse the decisions of the IHO and the ALJ, and direct that a hearing be conducted for the sole purpose of determining recovery of the damages suffered by Plaintiff as a result of Defendant's actions. Respectfully submitted this 21st day of June, 2005. MICHAEL C. COOK, P.C. Michael C. Cook, #24155 _________________________________ Attorney for Plaintiff 509 North Tejon Street Colorado Springs, Colorado 80903 Telephone: (719) 632-1222 Facsimile (719) 632-0974 E-Mail: [email protected]

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CERTIFICATE OF SERVICE

I certify that on this 21st day of June, 2005, a true and correct copy of the foregoing PLAINTIFF'S OPENING BRIEF was served on the following at the indicated address by: hand delivery

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certified U.S. mail, postage prepaid facsimile transmittal

,

first class U.S. mail, postage prepaid e-mail

9

Brent E. Rychener, Esq. Debra S. Menkins, Esq. Holme Roberts & Owen LLP 90 South Cascade Avenue, Suite 1300 Colorado Springs, CO 80903-1615 Facsimile: (719) 633-1518 Electronic Mail: [email protected]

______________________________ Michael C. Cook