the honorable the judges of the united states court of appeals for the fourth circuit or yea or young boy a all persons having any manner or form of business before the honorable united states court of appeals for the fourth circuit are i old little boy who is diagnosed with autism spectrum disorder not unlike many children with autism he has significant aramis of language he has difficulty taking care of himself and something to press him self made himself precious i think the plan as it says out is sufficient you just think that the placement has to be the parents choice of school to face weight the plan well is that right not so much the parent's choice of school i think that that has to be i'm just program that could not implement the ip as we said didn't you say in your due process complaint that that i e p did not address his need for a twelvemonth program and now you're saying that i e p required a twelvemonth program yes but what that indicated was that the cornerstone program could not provide a twelve month program run or so and i'd also said in due process complain that the cornerstone program was not able to provide a free appropriate public education to the student so what we had here and maybe it wasn't articulated in the clearest way but the pleading requirements under i d s have been described as supreme court is as minimal pleading requirements when you look at fourteen fifteen b seven all it says is that the complaint should identify or describe the nature of the problem and offer a resolution so the nature of the problem was that cornerstone cannot offer a free for be public education because it was only a thirty six week program and what our client and the school system didn't discuss that at all it meeting you you say in your brief that everyone knew that the school system knew the parents knew that foreigner stone couldn't implement the i p but it was just not discussed well the forty six weeks  times that that it wasn't discussed whether cornerstone could implement it or not i don't know that that actually came up i don't think it did but i think what happened was the parents did say we disagree with the placement of co now parents are not required to come in with a full list exhaustive list of the problems with the program is being offered because this was a complete surprise to the parents this was an annual review of the child's ip and it's you know it's  required the parent the child had been at the trellis program for just two months so this is the end of october and for the parents to walk in and hear for the first time without any thing whatsoever that the school system wanted to move their child in december to a completely different program to a program frankly that had been rejected just four months earlier because in june two thousand and twelve two thousand and thirteen june twelfth of that might be a shock to and i'm sure it probably was i want you to understand as far as i'm concerned i ask all my questions on the assumption nobody cares about where that child of those child more than its parents do that's great but that they were shot doesn't mean that the placement of the scoop opposed is improper or that i be not i'm not saying now it's forty six weeks and no well in that a fine a fact by the hearing officer that is forty six weeks now the ministry of law and judge said it was forty one weeks plus bridge services and now bridge services were never identified in terms of the length as a matter of fact the only thing that was ever said about bridge services so let me try and understand your argument the argument is is this your argument which i do not understand from the grave but your argument is it has to be forty six weeks and the public school is not offering forty six weeks in their facilities that's correct because that's what the ip says the ip is the document but i don't know and understand your argument is the ip cost of forty six weeks and the public that the information that was provided one month into the due process hearing was retrospective evidence and should not have been considered by the administrative law judge now not only that but i would also say factually she was incorrect because once again we had no evidence zero evidence that bridge services would offer really anything with regard to the ip the only thing that was ever said about bridge services with me was that it was a little something more or different between the end of e t y and the beginning if you argued to the hearing officer just that argument that the the bridge programs are not sufficient those weeks of bridge programs that period is not sufficient to come up to the forty six weeks  required to you know but or whether it's an administrative decision if you could if you could agree that the program that the school is most to put the child in which is all for the services in the public school if you i was getting exactly what the child was entitled to why would it what would that matter well an important part of the idea is parent participation so parents are equal members of that ip team now if the i allowed to offer one program consisting of say thirty six weeks one at the ip meeting but then change at a later time without another ip meeting that deprives the parents of an opportunity to participate in decision that i don't know but i said if you hypothetical as if you agreed that those services were the services that the child was entitled to use still think that would be a violation yeah because they have denied the parents an opportunity for to see even though the parents were getting exactly what they were entitled to under the i e pay for their child well i think you have to look at what the parent participation in all the know that with a parent should get in exactly what they felt they were getting in the initial i e p s my question to you trying to draw go out the i don't know if it's a technical violation but some change in the plan strikes me that what the most important thing should be is that the child gets what the child was entitle to under the law i agree your honor and i mean the child should get with the child needs that's the whole purpose of developing an ip but the parents are equal members of the team equal participants and well that's nice to say that but what little significance does that have and of it with theirs and i e v the parents are part of and because you told me to start with you said it was a place that's what you i asked that first question you said you tried to draw the sage between a placement and a substance or and you said it was the placement right what if the new placement can provide everything that the substance requires why does any lack of parental involvement matter they because it's with the law yet nobody you know nobody had parental involvement well no do you understand the question i'm asking you but i think your the way you're your hypothetical if you will changes the facts in a way that the nice the parent involvement because they're changing the program now if they had offered this forty one weeks plus brit services at the ip meeting in october two thousand and thirteen we have a completely different situation here because then the could not fulfill the substance and then the world's greatest teacher and counselor and therapist own this program comes to that public school and can now give  expert in the world would agree these are the best people to provide the substance of the i p and so the school goes we can do one better than the private school placement we have the best you agree my hypothetical everybody agrees the best in the world right we're go him with them in the public school setting you say that's still a violation of the law if the if they did not have an ip made by to make that change because that's what's required by the law and and fourteen fifteen f three specifically states that if parents participation in the decision making process is significantly impeded it's a denial of faith it's black and white in that regard your honor so i would argue that any time that there's a change in the program the placement there has to be an ip meaning even if the the suggested recommendation is far superior to what was originally being offered like in your hypothetical the law requires that parents be a part of that decision making because maybe things so so they can waive an ip meaning they can say to the school you're right you're offering a great program let's just do it we don't need an ip meeting will waive our right to that ip meaning so that would be slight change in your hypothetical but you know i think that they could do that so again you know getting back to you know this this thing with the bridge services again the bridge services is not even mentioned in the ip now this court in a k said that the determination of a free appropriate public education is limited to the terms of the ip well bridge services does not and even ident is not identified in the ip at all we have a forty page i e the bridge services is never mentioned yet the district court and the ail j relied on bridge services in making their determination that the school system had offered a free appropriate public education that is an error of law it's a you know to to include that in error an error of law to say that we're going to include something in order to terminate in determination of fa when it wasn't even in the  got a little off track here so i'm going to try and get right back on what i have a couple times here ye even if this court were to agree that this retrospective evidence that was presented at the due process hearing was admissible we still don't have a forty six week program and i guess that gets back to which judge should was saying earlier and that is that with with a out a description of what bridge services are what they would what that would provide how many weeks that would be all we have at best is a forty one week program and again i would say that information should not even being considered that was error of law to consider that because it was retrospective evidence now we also have evidence that the trouble school is a forty six week program and when we have forty six weeks duration on the ip that means that that entire ip must be implemented the entire forty six weeks let me ask you a question about that because i wasn't planning to get a court order stone be transferred to cornerstone in december there are forty six weeks between the transfer date and that and date of that i am not sure i understand your question on it was going to be transferred to cornerstone in december correct i e p the end date for that i e p was in october corr isn't it true that that span of time is forty six weeks yes but there there in lies the problem because cornerstone could not provide the forty six weeks in that span time the start date was october two thousand and thirteen and date was two thousand and fourteen october two thousand and fourteen cornerstone ended in june and followed the harvard of the howard county school system calendar and ended in june which meant that the whole summer was open now they did say that he could have e s y services and as i pointed out in my brief yes why is significantly different than a program of forty six weeks which is year round a twelve month program because the forty six weeks requires full implementation of the ip during that time the us why doesn't maryland technical assistance bulleted well let me first start with the fountain which is a maryland sister court case in which judge garbus said that there are very different forty six week program year round program is very different than and yes why program the maryland state department education this is enjoin appendix of page sixty six notes that yes why is not a continuum of the entire ip it's not a twelve month program it's not even intended to be all day or every day but when you have a forty six week program it is so there's a significant difference good morning may please the court my name is geoffrey crew i represent the howard county public schools and dr renee foose superintendent the parents of page thirty the reply brief emphasize and i quote that the central issue in this case is whether the cornerstone program at cedar lane at the time the placement was offered to s t was able to provide a forty six week twelve month program as the e p required both failed shock and judgement it's concluded that s t did not require a twelve month educational program in order to receive a free an appropriate public education the parents do not challenge as your pointed out judge said they don't challenge that substantive ruling when appeal and i heard mr stephen kind of vacillate on that but they it or not according to the unrefuted facts before this court the duration forty six week notation and the cornerstones program cornerstone programs ability to implement it was never discussed at the october twenty one two fails and thirteen i  meeting is your judge bill and pointed out it was not raised in the due process hearing request i sat through this hearing for five days i never knew that was an issue was alluded to only one time in testimony at the five day due process hearing was not mentioned by a shock in or findings of fact was not raised in the complaint in the district court and was not addressed by judge mots in his memorandum opinion the entire argument regarding the duration forty six weeks notation was not even part of the case until the parent's attorney raised in his closing argument the only evidence that suggested the cornerstone program was incapable of implementing an educational program that operated twelve months a year was the mother rebuttal testimony at page twelve sixty five of the twelve hundred seventy page evidentiary transcript that she assumed that the cornerstone program yes this is do you understand the station i draw between what i call the substance of the p and the placement i totally understand as well the other side says well the placement is critical to the services you understand that argument you understand w and there's been no i peed to determine that the new program the public school program can supply those substantive provisions that's what they say you understand that to be the argument or you know here's the point your honor i have to say as the un stand that i do are now what do you say in response to that i say in response to that that if they had a concern about it they should have raised that at the i p t meeting they should have sat back on their hands and enjoyed the luxury of playing a game of gotcha adoption that might be a term of all but if drawn was i the conference we were satisfied with the substance and we knew it was only one place where that could be done is that not about all you meant by them that now the words we knew at that point the public school could not supply what was required in the with all due respect rush ed the harris county public school system is the top performing public school system you know why not in ash if they ask for my don't ask you for an just asked you it seems to me that their position i may have it wrong but it seems to me that if they fail at the time of the conference that they agreed to the substance of the services to be provided to their child but at that point i just ask is if that actually great at that point could the public school system supply and give the services of the ip to the child absolutely absolutely  a child in place then in the other school i thought there was at one point that the school decided that they could not get it but you're on the ip provided for thirty six weeks of service plus  both judge shock and the district court found that that was sufficient to meet his needs and what the parents have come up with is this very creative argument at the last minute after not raising it anywhere  to say what the ip says forty six weeks and the cornerstone program is only thirty six weeks plus c s why it couldn't implemented so we gotta well the simple point is they were at the i p t meeting on october twenty it up because this court said in the combs case that i cited that before a school system can be held liable they have to be made aware of the yet the time get their phonology straight for me isn't it correct that at one point the public who decided they could not supply the services property for this john it's all of that was well i don't know that they ever said that they couldn't offer all the recommendation was to move him because the basement where he was in central ip team because he wasn't progressing in that and what may provide what came of that i thought that was that he had to be placed in another one then he was placed in january of two thousand and thirteen at the trellis program at the cedar lane school now the trellis program is this private program that howard county allowed to have space at cedar lane rather than have the child go twenty miles to their campus they  carry public school system gave trollish i know that but he was placed in that trial as program then because the other program in the public school wasn't sufficient right but then the point is that at some point we got a new superintendent who had the good sense to say well wait a second we're providing space for this trial a school here at cedar a well i actually thought your strong point there was the fight that the school system was willing to do something for the child if they couldn't provide fine properly with public school services well it seems to me that makes one heck of a case for the school system that the school system to watch significance it has legally but it looks factually anisette can be argued that the school system the public school officials did an analysis of what this child needed said we cannot do it at the public school system the way it is now constituted so we therefore we will let him be in a private program the best restraint this is me that's the evidence this public school system isn't trying to hurt this child in the slightest that they and they are willing to rule against themselves in the absence if the child's interests rise above it and that was the point your honor that they place them in the private school but then they want to step further and said you know we can replicate these services the question was raised about what if the greatest social a later that the school system what dr foose did when she came in she said ok we're running we're giving space here at cedar lane we can provide a better program than them right here in the same room in the same school we will call it the cornerstone program going forward it will take place right here in the same school with our educators who have twenty years of experience to go through the chronology and then when did you had you when was the i p conference well challenging what they did in june it was they with the school system did in when the school system said our cornerstone program is now up and running it can provide services better than the trial a school by this time yes he was attending the trial a school at hunt valley twenty miles away in and now they challenge that at the i e p meeting because they said it was too many trains issues the challenge the speech services that there were six different issues you say that in challenge said that the forty six duration notation was an issue they never said at the ip meeting ladies and gentlemen this program is incapable of implementing the very idea that you've just drafted i mean it raises a question but  she did ok so what do you make of that the fact that she did decide this was sufficient under forty six week program what does that do to your whole argument i think in all due respect this is a very simple case for the case you're presented with is a very different case in the case that i tried for five days in howard county maryland it's a case where they didn't raise this issue in their due process hearing requests the i d e a requires and this court said in the a k case that this court will not consider an issue even if it was decided by the district court if it wasn't raise to the a l j and it wasn't there was no testimony about forty six weeks the that forty six week program the scoop could meet that yes with bridge service so she did rule on it yes and mr stephen bristles at the concept of bridge services and that it only came up at the hearing but that's the point as judge bill pointed out it wasn't raised at the ip meeting not oh well if it came up at the ip media i think one of two things would have happened the school system would have realized that that forty six weeks really didn't apply to the program that it was discussing as your honor was trying to point out i thought that forty six weeks refers to the duration of the pig it doesn't refer to the duration that the receiving school would be in operation or in session that's not even part of the conversely if the parent said well we read this to mean forty six weeks and you can't change it and the school system said well we won't change it then the probably would have been a discussion if you make that argument to the a o day i mean it really wasn't an issue i said it in my closing argument kind of off the cuff as i'm kind of drawn away from my prepared comments today but it wasn't an issue in the case but it looks to me is that the made up for whatever reason they hear an exam of thought it was an issue in the case because she responded to the arguments against it and wrote in your favor right she did so she thought it was they are well again i think she addressed that in an abundance of caution because it was a centerpiece of mr stevens closing argument but it wasn't it is due process hearing request party what do you what does that mean what do you make of his argument that if even at the school except in his premise that it was a required length of time service forty six weeks and his argument is even if the school could later say a placement within the public school could meet that i e requirement that you still would have to have a conference with the parents even make that changed to make that placement change well you know it's a lot of hypothetical because as judge mots pointed out what you're really talking about at that point is a procedural violation that had no impact when the child  had they sent this student through the cornerstone program which they never had any intention of doing as this court said in and then vs greenville county that there could be no educational deprivation because the parents never had any intention of sending the child to the public school in the first place but if they had sent them to porn or stone which they never had any intention of doing and said some time in april ladies and gentlemen you know the site pieces forty six week the ration we expect you to be in session for forty six weeks that's where miss zimmerman's comments would have kicked in because sure this is the howard county public school system i regret having to say it but it is the top school system in the state of maryland there's no indication that it could not have marshaled its assets to implement the ip as written problem is they never had a chance to do it because the parents knew from day one that they weren't going to accept the cornerstone program they didn't send the child there everything that they're alleging is nothing but a procedural violation with no educational impact and you're to view of cases really the best case on point to say that unless there is an educational impact a procedural violation is not remedial under the i hope i've addressed all questions i don't know that there's anything more that i have to say and i don't want to bore you when your first case of the lead with regard to the forty six weeks the ip team determined that forty six weeks is what was needed in order for s t to receive a free appropriate public education there that issue was never raised before the administrative law judge or the district court so we always said that that any finding that that s t did not need forty six weeks was not a proper finding because it was never an issue the issue was always implement the forty six week program now the argument is that it should been raised during the ip meeting what i would tell you is that the cases that are cited in the a police brief all talk about cases where parents left the school system you know unknowing anything that they had any disagreement with the ip or the program or placement to ever and so they blindsided the the school system with a due process complaint here counselor even pointed out that parents brought up a number of concerns they didn't have a complete and exhaustive list of every concern that they have the parents aren't required to do that they put the school system on notice that they disagreed with that cornerstone program and that he did they didn't feel that that program would be appropriate for him if they had a whole laundry list  problems with the program but one of them was not the central part of what you're saying your argument is that's true your honor but again i wasn't there you know maybe if i had been there i could have counseled them to make sure they had a complete list but let's also keep in mind they were not they did not have any advance notice walking into this meeting about this change of placement and this placement had been considered back in june and ruled out as a matter of fact the record tells us that at that time that ip team said it would be detrimental to place s t in the cornerstone program for the two thousand and thirteen twenty fourteen school year so they were completely surprised to find that now suddenly  it's the program that they want to place them in so once again when the parents given a draft people for the meeting they were but they didn't get the placement that's that part wasn't included nor were the service hours included so it was they only got one part of that draft ip in advance and placement was not one and i don't i can only speak i can only speculate why they didn't inform the parents in advance of their intention to to move s t to another program did the measured get the hearing officer did the hearing officer decide that cornerstone could equal that travis's forty six week program by using the bridge services yes so it was in front of her and she made a finding yes so you don't you dispute that finding yes and based on why these because there was no evidence before that in the history of law judge about what bridge services could provide all we we have a thousand plus just to follow now as i understand it that there was a procedural error and the no parent conference on the change in placement correct and that the hearing over serves bindings are clearly is because there was no evidence in front of her own bridge services well that yes but my argument goes beyond that because this court said in a k that you look at the terms of the ip to determine you're limited to the terms of certainly flies in the face of what this court has said in previous rulings i just want to be clear that when we talk about the forty six weeks once again that was an a p team decision and it was agreed upon everyone agreed to that so it is not it was not properly before the ministry of law judge for the district court or even this court to challenge whether or not s t needed forty six weeks the only issue is needed  she didn't say that did she she she she said that the forty six weeks could be met and she indicated in her ruling and i was a little confused about it i'll be honest your honor but i was a little confused about it that she did say that cornerstone with the combination of forty one the additional forty one plus bridge services i'm sorry i see my time is ok i just read what you know that that it that that combined to make forty six weeks but then at the same time said that well but there's no evidence that the child really