Free Reply - District Court of Colorado - Colorado

Case 1:03-cv-02582-RPM

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Senior District Judge Richard P. Matsch Civil Action No. 03-CV-02582-RPM NICHOLAS SYTSEMA, a minor, by and through his parents, JACK AND REBECCA SYTSEMA, Plaintiff, v. ACADEMY SCHOOL DISTRICT NO. 20, Defendant.

PLAINTIFF'S REPLY TO DEFENDANT'S RESPONSE TO SUPPLEMENTAL BRIEF

Respectfully submitted this 29th day of January, 2006 Michael C. Cook Michael C. Cook, P.C. 509 North Tejon Street Colorado Springs, CO 80903 (719) 632-1222 (719) 632-0974 Facsimile [email protected] Attorney for Plaintiff

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I.

REPLY TO DEFENDANT'S RESPONSE BRIEF. A. IEP MUST BE EVALUATED AS WRITTEN WITHOUT CONSIDERATION OF WHAT SERVICES MAY OR MAY NOT HAVE BEEN PROVIDED AFTER AN IEP'S IMPLEMENTATION. Defendant relies solely on the fact that Nicholas did not enroll in the District's program in

trying to distinguish the holding set forth in Thompson from the facts in this case. If doing so, Defendant again cites all of the various services and supports that would have been made available to Nicholas had the Sytsemas' simply elected to accept the IEP's as written. Since none of the services or supports outlined in Defendant's response (i.e. coordinating services between home and school, fostering close relationships with parents of autistic students, making home visits, and working with parents in their homes) were specifically set forth in either of the written IEP's offered to Nicholas, Defendant's self-serving and unsupported claims1 that these services and supports would have been made available to Nicholas must fall on deaf ears. The standard in determining the appropriateness of any IEP does not lie in the outcomes achieved, or the bald assertions of the outcomes that might of been achieved had the IEP's been implemented. Rather, the appropriate inquiry before the Court is whether the written IEP's offered by Defendant, at the time of their creation, were reasonably calculated to provide Nicholas with meaningful education benefit in light of his individual and unique needs See Adams v. State of

Although services and supports offered to other children are not relevant in determining whether the services offered to Nicholas were appropriate to address his unique and individual needs, it should be noted that the District offered no evidence in the form of parent testimony, test scores, or other objective criteria, that children with autism had made meaningful gains in their "highly developed" program or were provided any of the services they claim would have been made available to Nicholas. 1

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Oregon, 195 F3d 1141, 1149 (9th Cir. 1999). Specifically with respect to the critical skill of generalizing learned skills, Defendant and it's hired experts, have acknowledged the importance of generalizing learned skills for Nicholas. Rather than accept Defendant's unsupported claims about all the resources that "would have been available to the Systemas", the Court must review the appropriateness of each IEP based on the services and supports that were included within the written documents. Neither written IEP provides any

reference to coordination between home and school, making home visits, or working with the Sytsemas in Nicholas' home environment. In fact, the service delivery section of the 2002-03 IEP provides for "0" hours per week of "Parent Follow-up" and makes no reference to the related service of Parent Training and Counseling, a service that the evidence supports was appropriate in light of Nicholas' unique needs and Defendant's chosen Denver Model methodology. Additionally, the placement section for both IEP's provide that both the "Home" and "Multiple Setting" options were not even considered by Defendant much less selected. As Thompson illustrates, skills that can only be exhibited in the school setting but cannot be generalized to other settings are of no value. Additionally, the evidence provides that the only way to generalize a skill is to teach the skill across multiple settings in a coordinated, well planned fashion. Defendant has offered no credible evidence as to why all the wonderful services and supports that Defendant claims would have been made available to Nicholas to aide in generalizing learned skills were not set forth on either of the written IEPs. Since neither written IEP made any allowance for addressing the critical need of generalizing learned skills across multiple environments, neither IEP was reasonably calculated to provide Nicholas with meaningful educational benefit. As such, Defendant must be held accountable for its failure to provide Nicholas with a free and appropriate education ("FAPE") as mandated by IDEA. 2

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B.

ENROLLMENT

IN

DISTRICT'S

PROGRAM

IS

NOT

A

PREREQUISITE TO SEEKING RELIEF. Defendant further argues that Thompson somehow stands for the proposition that a parent with a disabled child must first give a school district the opportunity to fail prior to challenging the appropriateness of an offered IEP. The law simply does not support this position. In Burlington School Committee v. Board of Education, 471 U.S. 359 (1985), the United States Supreme Court upheld a parents right to receive reimbursement for educational services provided to their child if it is determined that the educational services offered by the school in a written IEP were not appropriate in light of the child's individual and unique needs. In its ruling, the Supreme Court acknowledged that parents, like the Sytsemas, are faced with two choices when they disagree with a proposed IEP offered by their school district. First, they can go along with the IEP to the detriment of their child if the services offered turn out to be inappropriate. Second, they can deny services offered by the school and pay for what they consider to be the appropriate placement. Id. at 370. The fact that parents chose the latter course does not diminish a school district's obligation to offer appropriate services on a written IEP or limit a parents right to subsequently recover the costs incurred in providing their child with an appropriate education. Further, in light of the overwhelming scientific and expert evidence regarding the importance of early intervention and the critical need to provide a child with autism the ability to generalize learned skills across multiple environments, it is disingenuous for Defendant to argue that the Sytsemas should be prevented from citing concerns over generalization until they actually enroll Nicholas in their program and wait for him to fail. The law simply does not support this preposterous position. 3

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While the facts in Thompson are unique, the case does illustrate the serious behaviors that can result when a child with autism is not provided appropriate educational services, services that many times must go beyond purely academic skills taught in the classroom. The record before this Court is replete with evidence that generalizing learned skills, coordinating teaching across multiple environments, and parent training and involvement were all appropriate services and supports that should have been included on the written IEP's for Nicholas. The law requires that the IEP's must be evaluated on their face, as written, without consideration of self-serving statements made after litigation has been initiated of all the non-written services that would have been provided if the IEP had been accepted.2 In this light, neither of the IEP's were reasonably calculated to provide Nicholas with meaningful educational benefit and, as such, both violated Nicholas' right to receive a FAPE. II. CONCLUSION. For each of the reasons set forth in Plaintiff's Opening Brief, the Reply Brief, the Supplemental Brief, and this Reply, Plaintiff respectfully requests that this Court reverse the decision of the IHO and the ALJ and hold that: (A) Defendant failed to provide Nicholas with FAPE for both the 2001-02 and 2002-03 school years; (B) the educational programming provided to Nicholas by the Sytsemas for the 2001-02 and 2002-03 school years was appropriate; (C) the Sytsemas are entitled to receive reimbursement from Defendant for the costs incurred in providing Nicholas with appropriate educational programming for both the 2001-02 and 2002-03 school years; and (D)

At no time during the IEP process did Defendant state to the Sytsemas that the services they now claim would have been part of Nicholas education program (i.e. home-school coordination, home visits, parent training) would be offered to Nicholas. The concept of the "draft" versus "final" IEP and Defendant's nonsensical procedure of always providing additional services outside the scope of the written IEP were first advanced at the hearing in front of the IHO. 4

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Nicholas and the Sytsemas are entitled to recover their reasonable attorneys' fees and costs. Nicholas and the Sytsemas further request such other and further relief as the Court may deem just and proper, and as may be allowable by law. Dated: January 29, 2006

Respectfully submitted, By: s/ Michael C. Cook Michael C. Cook, #24155 Michael C. Cook, P.C. 509 North Tejon Street Colorado Springs, CO 80903 (719) 632-1222 (719) 632-0974 Facsimile [email protected] Attorney for Plaintiff

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CERTIFICATE OF SERVICE I certify that on this 29th day of January, 2006, I electronically filed the foregoing PLAINTIFF'S REPLY BRIEF TO DEFENDANT'S RESPONSE with the Clerk of Court using the CM/ECF system which will send notification of such filing to the following e-mail addresses: Robert I. Cohn, Esq. [email protected]

s/ Michael C. Cook Michael C. Cook 509 North Tejon Street Colorado Springs, CO 80903 (719) 632-1222 (719) 632-0974 Facsimile [email protected]

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