mourning may please the court i'm richard gagnon we reserve five minutes for a bottle but i first started representing the minor child four years ago it's been two thirds of his life that we've been seeking a just outcome for him and if i might create just a little context when i leave here today i'm going to be helping an eighteen year old with autism who for lack of any other choice has to attend a full time residential specialized boarding school for individuals with severe autism who is supposed to go to a school near cleveland called monarch cost two hundred eighty thousand dollars a year is school district has to pay for that two hundred eighty thousand dollars a year because he was never educated properly at any point in his life and that are those payments at issue here that's the context within which  that he's been deprived access to tesco on a don't want to spend the time i had i raise that because this child in this case i'm not suggesting he's going to have to go to a residential school at some point but this child in this case is never going to have the opportunity to for instance serve as a judge on the united states court of appeals for the six circuit without the benefit of the services that he's been deprived of for four years now so we've been playing chess with the state of ohio and it's helped me grow a system for four years trying to get the services that were due to this minor child and apparently were bad chess players because he still has received nothing the court knows that the background for being here today is that the state of ohio for many years throughout the state of ohio deprived all young children with autism of an essential early intervention services mandated under idea part c and that's the therapy called applied behavior analysis therapy which is a scientifically based peer reviewed method that allows children with autism to potentially outgrow unfold earn part the disability that autism imposes on their brain eventually the state of ohio did provide to the children in this is age group up to age three correct beginning in december of two thousand and thirteen this child was the first child that the state of ohio without a court order began to provide state funded therapy in the child's plan so it's not he's received nothing that relates to the claim in this case which precedes in time december two thousand and thirteen and the family had been seeking for the prior year to december subsequent  amount as for the other case right so we have two cases before the court arguing both of them now i'm confused you're you have twenty minute star you both of them is that yes yes so my understood you know i think we should get right to the heart of this case in terms of what do you need to do in order to prevail your claim has to do with the failure to provide any benefits up until that december declared that the claim for the prior for the deprivation prior to december two thousand and thirteen could only run back to september of two thousand and thirteen so what and that issue is in front of us right that issue is in front of you there are not number of different paths around that statute of limitations assertion by the state of ohio one is that congress did not include a statute of limitations in idea part c unlike idea part b for children aged three to twenty one which has a statute of limitations idea part c does not so the united regulation there is the united states department of education promulgated but without authority from congress they lack the authority to problem yes they lack the authority to promulgated a statute of limitations is enough that did you argue that in the yes yes through throughout there's not nothing in idea part see that authorizes the united states department of education to promulgated a statute of limitations for the early the state of ohio statute of limitations and all the principles that accompany that even if this court and powers the us deal we need to create a statute of limitations where congress itself did not authorize it unstable has a savings statute we asked the department health hearing officer go apply that savings statute to ignored it without comment if this if the reg is valid would the ohio saving statute apply yes there is no no reason why it would not apply because uniformity but the us deal we in creating it statute of limitations expressly delegated to each state the right to develop its own each state statute  sorry in september of two thousand and fourteen and it took one year but after one year the federal district court dismissed that claim for failure to exhaust that claim was a claim that the high department of health had for years so why systemically deprived all children in the state of ohio of their entitlement to applied behavior analysis therapy and thereby injured the plaintiff the minor child i asked you a question about that it's right to make sure i'm clear on the date prior to december third twenty thirteen nobody was  january of two thousand and thirteen at the beginning of that year on behalf of another young three year old child with autism who live down here who followed a federal court lawsuit the federal district judge issued a temporary restraining order against the ohio's help me grow system for violating federal law and order it to immediately commence this is in january of two thousand and thirteen immediately can commence providing behavior analysis or therapy that child once that occurred then  united states department of education within weeks issued a cease and desist this is in january two thousand and thirteen issued a cease and desist order against the ohio department of health telling the ohio department of health to stop violating idea part c and begin providing applied behavior analysis therapy as a mandated early intervention service to young children with autism in the state of ohio ohio department of health and it's in the record responded in january two thousand and thirteen we will do as directed so this is the same year that that mom is in the courtroom now on behalf of the child was asking for assistance for her son and the ohio department of health  richmond county board of developmental disabilities is here as well together they constitute the idea part c program for richmond county that's when they begin to give the mom the runaround they never gave her what's called a prior written notice which is instrumental in both a deal part b and idea part c we cite the record about seven times establishing no prior written notice and so they did not get a they did not timely yet applied behavior analysis therapy for the child in this proceeding until december till the end of the year so all those months that whole year two thousand and thirteen passed with   really a long response to judge guy's question about what was this child the first and began in december there was one court ordered child who received a b a prior to this child in december of two thousand and thirteen was the first child to have a plan to help me grow idea ports he created a plan that provided for state funded applied behavior  but he has a remedy a compensatory remedy for the time that it was not provided your red light is on but i know judge rogers that's a question or two there is an argument that your client is not entitled to the reimbursements from september from september to november even if or and i'm one and i'm wondering if if if i'm not saying we would be but if we agreed with them that you weren't entitled to those three months would that also preclude would that make moot the  d the statute of limitations issue well there these are two separate what you're describing as i understand your question the time before september and there's a time from september to december yes i do this out to these steps limitations doesn't affect the from september to december correct correct list it just deals with times before that that's correct just wondering whether the arguments that are made for and against the period from september to december if you were to lose those which obviously you say you shouldn't and there's a good argument that you should butt out but if you were to lose those to get into the statue limitations issue because the same reason for losing those would apply to the period before september if you understand my question and i do understand your question and answer yes or no probably yes ok thank you very much thank you not getting the payments for the time that he was diagnosed as autistic and intitled to the benefits corrected it was in there's a couple different reasons s decision should be affirmed regarding the his appeal there the two your statue of limitations applies here it was properly promulgated under twenty u s c fourteen zero two creates the office of special education programs in the part of education and twenty did they promulgated regulations that said that they would use the state statute of limitations they did not this was a federal statute limitations that contains language in it that suggests that states could adopt a potentially different time period but the most important thing to remember is that there are the exceptions to apply here so apart from those two exceptions did the regulation that was adopted say there shall be a national two year starts and of limitations it says that parents when they're filing  process complaint shall file it within two years of when they knew or should have known of the alleged a d a violation ok so wouldn't be three years in florida and five years in alaska or something i know it has to be two years from when they knew or should known that's what the such limitations of filming it's authorized and you're finding authorization from just a general authorization to to pass implementing regulations that right that's that's twenty u s c fourteen zero six that's correct is there any litigation or law that says that that very general statute permits the permits regulatory imposition of a statute of limitations i don't know if there's anything specific to the idea or see your honor but the this statute and also in the idea that there's a statue of limitations in the in the idea a statute itself that just applies to be  to a general statute which gives the agency power to write pass implementing regulations that's correct i'm sorry my bill you're not relying on some other statute of limitations that is explicit statute no you so with respect to a general grant of reg regulation passing power is are there cases which say that that includes the power to create a statute of limitations or on the alternative other cases which s you don't have such power seems to be what he's saying is head on here so we might as well figure out what the law is in that regard but you know any case one way or the other just seems like this you see what i'm asking yes and at the state level they've they've they've adopted the same language in the state regulation regarding the timeline for filing a due process complaint  in the section does not apply to a pair of the parent was prevented from following a due process complaint due to one specific method misrepresentations by the lead agency or your provider that had result the problem forming the basis of the due process complaint and here there was there were there weren't any representations to that effect but there were communications informing the mother via e mail and be a letter in june of two thousand and thirteen that that the a b a therapy wasn't being provided and if that in giving her information about how to file the due process complaint then doesn't this seem really problematic for the state of ohio to say we are not as a policy we are not going to pay for that and then in january of twenty thirteen and correct me if i'm right in january twenty third team because of another lawsuit and because the department of education of the us says you've got to pay ohio changes its position and decides it will pay why shouldn't the two years run from that point in time because that's when a parent should know that they had a right to have ohio pay for from january twenty thirty no i'm making an argument now it seems logical based on what we've heard in this oral argument that that's when or should have known that they had a right to be paid by have had their children's services paid by the state of ohio and so ohio has been saying all along we will not pay then to say well you should have brought suit a long time ago seems to me to be unfair at least if not well  saying that they should have brought suit a long time ago we're saying we should brought it with so so if it was in general twenty thirty that they knew they would have until january of two thousand and fifteen to bring the administrative complaint ok and when when did they they first filed a case in twenty fourteen in september of two thousand and fourteen right but that was the one that was thrown out for failure to exhaust correct and at that time they didn't they had filed in the ministry of complaints they they they could have at the same time filed their ministry of complaint asked the federal court to stay proceedings while they exhausted their ministers and then they found a lawsuit in twenty september of two thousand and fifteen and that's why we're going back two years to september of twenty thirteen the well the two years for them yet what will the two years will be the two years of all the administrative complaints so they filed the administrative complaint in september of two thousand and fifteen that's correct your honor and that would be the date so so the due to the new or the new or should have known date for them to comply with the such a low taishan it would be two years prior to september of twenty fifteen so september of two thousand and thirteen and an argument is that they were that they knew or should have known in and your gut was the knew or should have known in january but we say may or june of two thousand and thirteen when the mom was having the interactions with the original county in the part of health regarding the provision of of the therapy the the a b a therapy and that was when mom wrote the e mail that the judge when cited to his decision saying i know i have to file a complaint and you know they the information was given to or about how to go about doing that and you know how would you like to proceed with your complaint  from the from the part c ordinator and in the early intervention services coordinator at the county speaking with mall about that and then there was never anything done about that in the ministry of complaint comes in september of twenty fift that's a question about i want to ask a question about the period from september to december what what year are we talking about thirteen thousand and thirteen because if you win on those three months you're posing counsel is basically agreed that we don't need to get into all this statute of limitations issue correct because if it doesn't do those three months it's not going to do the months before that and the argument is that they didn't show until december of that year that they were financially qualified to get anything right that's the argument right yes and they would like to challenge that and they want to submit financial eligibility determination work that was denied that's correct the dish it was their proffer of it so that we know what's in that worksheet i don't believe there was a proffer at the district court and it wasn't anything that was brought up during the due process proceedings and that kind of goes back to the the way that this is set up is that the is that the person saying there's been this this this violation of the ideas the burden of proving the violation and bound up in that is the  meet their burden of proof by providing this thing and everybody report says they can't provide the they can't they can't be admitted right well the district court sitting is an appellate court on review and obviously if they had presented it below to the administrative hearing officer then the district court was hearing the hearing officer wouldn't look at it is that what it was no the hearing officer was it was it was never presented to the hearing officer any information about financial qualifications prior to december of twenty fifteen where was this where she submitted first i don't mean what city i mean at what level of the right and i'm and i'm trying to listen now i'm confused it was pretty it was submitted to the agency or having lost before the agency it was submitted to the district court those are the two possibilities i think the first wasn't submitted but they tried to submit my dismay at the district court as the first as here i'm looking at it page id three fifty six as plaintiff's seek to provide that help me grow system financial eligibility determination worksheet showing their gross income and their cost shared adoptable that's what i want to ask you about but can't is that is that the only language that refers to it anywhere or is it was it submitted before we just don't have any idea in the record i don't believe it was submitted before because they were allowed to submit because they just did not submit it the ministry here they said that they were seeking to provide it and then you can look on the page id and i believe that is that is that the plaintiff appellant's motion submit additional evidence yeah ok i think if you look to the administrative decision in the ministry of record i don't i don't believe that was part of their exhibits at the administrative hearing which it was part of their motion as to what they want to submit on appeal at the district court all right at the district court so they want to show it at the district court but they didn't submit it to the administrative hearing with administrative hearing officer in the district court said no or why why shouldn't the district court of said yes the the destroyed your case they might have been able to prove what they were thrown out of court for not prove it proving that's my question assume you have an answer like know what it is yes so at the administrative hearing level it review all right they're not there they're not the initial decision maker here that was the administrative hearing so when was the full financial information actually given to the hearing officer that was given in given to the department even to the department yeah there's an application process for the early intervention system of payment because there's a whole host of regulations and that was given because in september because the september submissions september twenty third teen submission was deemed to be in the adequate is that right well the september there's a there's a spend down so it's a twelve month look back so if they were eligible in december by their november december application in two thousand and thirteen that necessary that would necessarily apply to may or june of one but i want to get that right how do we know when the spend down occurred the spend down would have occurred in in in november after they were initially denied because they they filed a have papers before them indicate that the agency or the ministry of people had the papers before him indicating that that's when the spend down occurred and that's why in december they started to get our november they start to get the benefits of the idea correct  and their argument that they were entitled before just one and presented as of the argument that's the argument yes and and in the attempt at the court to demonstrate that the spend down had occurred earlier just wasn't wasn't presented or they didn't it was too late for them to show it up at the court of a court level because they should have showed it earlier to the to the  honour's my name is franklin hickman i represent the richmond county board of developmental disabilities which is called richmond new hope mostly in the pleadings i think it's telling that in all of the discussions that were presented by both mr game june and in the department of health that there was only a passing reference to the d d board ritu new hope why we are in this case is a mystery and if you look at the pleadings the original lawsuit didn't not only did not mention the board as a party but used affidavits from the superintendent as a major source of information to support their claims against the department of health the original due process complaint attached that federal lawsuit in its entirety and had a phrase in the cover to cover letter saying that the only reason ritually new hope was being included is because the department of health said that they were and that we were in a support necessary party in a prior case if you look at the second due process case ritu a new hope isn't even mentioned there's mention of the eight early intervention system but there's no mention of the board  having failed in any specific regard to make any difference whether you're a party or not i mean if they lose if your co counsels party which is which is already a tripod yes they lose money will have to go out will extra money have to come out from you i think we have been found to have violated nothing so i would assume not but work we're standing in here our men standing along it just serving as an additional party for formal purposes you're not going to have to pay extra money that the already ages i'm going to pay are you i would expect not but there is a great deal of taxpayer money being spent on me standing here before you today both litigation expenses of you having to defend as well and in the other reason why this is really important to the board system and i represent boards similar boards around the state the reason it's important is because if there is the finding that richland new hope had a duty to provide a a b a services even though it wasn't ever offered even though they had no no staff or it what board in their right mind would continue to be part of the early intervention program that's that's why this is important to the boards there is a precedent here which could kill the participation by the d d boards around the state in this program or human service provider in the terms of this litigation we are a provider of services that were specifically agreed to by richland new hope period and the argument that the plaintiffs are making which is so disturbing to the system is that if you agree to do the limited service coordination developmental evaluations and assessments that makes you responsible to provide all the services that are in plan part b school districts are responsible for providing all of the services in the i e p in the individual education plan that's radically different from the system in early intervention where private entities public entities say ok i'll do x y or z but thats it and what the plaintiffs are attempting to do is to say if you agreed to do x you also have to do everything else it's in the plan and that's an untenable position if the o t age loses on all of the plausible issues that it could lose today and it gets sent back an appropriate relief is centered on the basis of all of having lost all of those issues how are you affected differently other than having some kind of court decision that goes against you and having to defend by an attorney which is substantial but other than that how are you affected if if the issues about the department's failure to provide regulations that supported a b a services are sustained in favor of the plaintiff it would have no impact on the board's so why is that going to deter them from participating if if they occasionally get named along with the already agent litigation like this if losing that litigation doesn't affect them well it depends on what the court decides if the court decides i prefer to call was we decide all these issues in favor of them if you decide all the issues in favor of the plaintiffs is that w you we would if we had a duty and failed in the duty we would be responsible for paying for a company to tory education and there is no question from the state that would come from you well if if we had an independent feel your to follow a rule yes but your position i thought at least in reading one or another of the briefs was that you didn't have funding dollars that you got all the money from the state we got money from a variety of sources reading get a dime from the department of health but in in a proper functioning of the  system for early childhood the state would pay for the provision of services that you and other service providers would provide correct in a proper  functioning of the system you would look at a variety of sources and if all else failed then the department would jump in right the parents have to pay a certain amount in the beginning if they have enough money right  there are entities that do provide a b a services schools for example preschools so there might be in some rare instances there were no providers that were certified during the course of this litigation who could have provided it but we were not among that group that had any competence or funding to provide or fund those services i would like to make one clarification with the court's permission on the statute of limitations issue if i may or the statute of limitations is defined in  thirty four c f r three zero three point four forty and it says that the due process complaint has to be brought within two years or if the state has an explicit time limitation for filing the due process then the time allowed by state law so it incorporates an alternative state and this is the critical phrase that in three zero three four forty eight t except that the exceptions in to the timeline described in three zero three four forty three f applied to the time line in this section that's why the ohio saving statute doesn't come into play because the federal rule which it allows states to come up with a different timeline or a different statute of limitations explicitly says that the only it says the exceptions that are listed in four forty three apply to the time line in my making sense thank you yes i think you have clarified you've also done well over the time that you had and so we appreciate your clarification and we will allow your opponent to have a few extra minutes to respond to that first counsel for their higher department of health referenced june two thousand and thirteen with the cold notice to the family about their rights you have this in your exhibit books it's referenced this is not an idea apart see prior written nudist stocks about medicaid this talks about school districts this talks it's listen to mention i can you give us the page idea of that  other argument it is part of the limitations are going to be because the statute of limitations an idea should not run cannot run we are a family has not received prior written notice to tell them  called if they're not qualified for financially is that correct this is that's a yes or no question they need to be qualified for it in order to be entitled to they were qualified for that they need to be entitled to it in order to qualify financially qualified every child with a disability is entitled to early intervention services for families who are particularly well to do even this is a modest family there's a cost share which is what this about which is a deductible so depending on they don't reefed the cost share then they're not entitled to that correct know the club if question no the child is intitled to full services regardless the family has to contribute depending on their income they can't sue themselves so if their income is too high they're not entitled to anything from these defendants is that correct i suppose it's a hypothetical question if they let's i pod the size they're millionaires and they haven't paid up to whatever the cost share to the trouble is for millionaires do they get and they lose the for those three months  all right so then the argument if it's ok if complicated they don't even know how to explain it so it's not i mean i went and looked at is not that complicated you have to make a few multiplications and divisions and things but basically if you have a certain level if you can figure out what one hundred eighty five percent of the poverty level is which i assume you can and that so many thousand and if you are rich income is below that you're not get anything if your income is above it you have to pay certain amounts and  once you've paid those then you may get something over those amounts that's crap yes not that yes but mike my first question is if you fail that then you don't then then the disston the agency want to call it the agency then the  ministrative hearing officer properly denied relief if it's an if question if you fail that monetary test you don't get anything is that right or wrong at the time  ey had shown financial case eligibility until december that's what we call it a red herring this family was and this family was never give the whole time during two thousand and thirteen when this family was seeking services for their son they were never once told by the help me grow system you don't qualify for financial reasons they never got up prior to notice that would have allowed them to challenge that this was nothing but a post ho surprise instruction to their hearing examiner to a deprive this family because they didn't show what their cost share would be during the hearing that had already been determined by december two thousand and thirteen by the help me grow system red herring if it's required which is the question you answer my question is is it required is it required or not required it's required and it was done or was done they had information which there were no was it when was this is not a situation where they were prop they were denied because ohio didn't offer a b a services to young children with autism prior to december two thousand and thirteen as of december of two thousand and thirteen they had finally evaluated the family's financial information and placed higher paid a b a services in the child's plan the family was financially approved as of december two thousand and thirteen by their own as they were qualified before that time it wasn't an issue it was never an issue or not that was identified for litigation it was they were notice i thought there was a determination that they were not qualified from september thirteenth birth thirteen this is the surprise what we call ambush surprise yes the hearing examiner wrote that but there was no reason for the family to present to know that it had to present information they didn't ask they could have asked the hearing examiner could have asked anybody could have asked the trial court could have allowed us to rectify that if there really was a substantive issue the family never had prior written notice that they were have been talking about prior written notice what you wanted prior written notice was the disqualification the reasons for the disqualification we don't have that they never provided that when did you first apply for  benefits to be paid by the state the the child was admitted to the help me grow system when he was six months old back in november two thousand and eleven so he was in the system as time passed and he began to regress and the mother began to tell the help me grew officials with richmond county and the state of ohio i think he has autism we go down the path where eventually he's diagnosed with autism earlier in two thousand thirteen prior to that there was some confusion about whether he had autism or not but my question is when did the family first apply for benefits paid but the y were asking for benefits beginning as early as two thousand and twelve there was no official autism diagnosis then but but he he was regressing and they would ask they would get the nih worldly good talk to if they have alive at that point it was that they were being denied for financial reasons they were being denied because the state of ohio said we will not pay for anybody yes absolutely they were and then we were given notice and then very excuse me in january of two thousand and thirteen according to your earlier argument this state finally is told by the department federal department of education you must for benefits for these children under the age of three yes right ok so then at that point when you knew about that because i believe you were involved in that case did your client file an actual application i  me october of two thousand had she applied for benefits through it now i mean by the state throughout yes the record ok so the record has this kind of things that ok the crate thank you very much any one a federal court lawsuit on the ground among other grounds on the ground that we failed to end the necessary party and they have throughout said that richmond county which is near early intervention service provider for richmond county the two together con to help the grid system for richmond county the state of ohio has been insistent on that and i have to let you know in that first case i had not before the court now state of ohio had its hand selected private were hearing examiner ruled against that family because the case was clear my county right next to us here the claremont county board developmental disabilities was not named as a party we only named the ohio department of health so what the ohio department health did then because they're always welcomed as they played this just match they're always looking to make a move against us they had their hearing examiner rule against us because we had not included the claremont county board of developmental disabilities so that's the same year there they were in the boards of developmental disabilities are so called service provider early intervention services and so the question then is whether one question could be whether the ohio department of health is being consistent in its insistence on service providers being named as her and i then there's the legal question beyond the the timeframe yes you know it's late in the morning and i guess i'm fixated on this financial stability determination worksheet you sought to provide it right we can't find it in the record and you didn't attach it then the the what is judge court says something like he said we already have information that's what he said that's right that's what he said but it was hard for us to evaluate that unless we can see what it is other than your characterization of it which is pretty brief understandably but i do recall but but i have to say if i may this is they happened they had they used this is what they used in the first  for them it was like two thousand two hundred dollars so of the cost of the applied behavior analysis everything they paid two thousand two hundred dollars once it was finally in his plan and then the state of ohio paid the rest they would have paid their deductible at any point it wasn't an issue it three in the state of ohio for discriminatory treatment by removing the essential service all those children needed in order to break out to the extent they can of the constraints of autism we thank all of you for your argument