restrictive environment and disabled child access to that environment that is the fundamental issue before this court this is a child that had the ability and the op the skills to be in regular education and under the basement floor property really under rally the child should have been allowed to be in regular education instead what was proposed was a two fold system where she would be in a disabled classroom during the morning and a regular education classroom in the afternoon it is inconsistent with the position and that she is so disabled the she requires more restrictive services to then put her into classes each day with two sets of students two different campuses and expect her to be able to provide progress in that environment what the evidence show is that for the year that we are appealing the two thousand two thousand and one school year the parents did placed the child in a regular school that we look at the state standards and what she's able to do with the state standards is inaccurate what we look at under the idea the goals and objectives of that particular child and whether that child is making progress towards those goals and objectives i think the question in irregular education environment with supports and services i think that is where the least restrictive environment requires us to start and in this case what has happened is the evidence showed that she could make progress in the least restrictive environment however the hearing officer did not do a complete rachel h test he stopped at the first factor and did not weigh the other two factors there were three or four factors total but the last factor of cost was not an issue in this case and when you weigh the three factors that are remaining the factor of educational benefit in a more restrictive or a less restrictive environment nonacademic benefits and whether the factor at this level for all the factors and make a new determination yes trailer that will be the most simplest way to do it it would be the least least adequate i know you may not agree with that assessment but just in terms of the theoretical question when we look at what was known effort time nothing was prepared we look backwards in time law requires that we take a look at the time that we develop the i thought is that is correct however the law also requires that there be consideration in discussion of what placement the child should go in and that is where we get into the concept of mainstreaming or at least restrictive environment and in katie's case for the ninety nine two thousand school year at the time that she started the school year w if the child is changing the law anticipates that if the child is changing that you call in a few meeting and you address that issue and in katie's case and the evidence is there that the parent repeatedly talked to the staff at the school about her going to the a b c school which was the afterschool program and how she was doing there and whether she needed support there and the school staff the teacher was aware of this placement and i believe even went out and saw the placement i know that the psychologist and speech therapist saw the placement during the school year but the issue is as the parent is reporting that my child is doing well there i would like transportation or i would like  the district should have at least called an ip meeting to consider whether they should be partial mainstreaming what stands out in this case is that the real motivation that was never done was because neither the county nor the district ran a public regular education preschool program and because they would have had to pay for a private program they did not call and i p meeting to discuss that issue of whether this child should be mainstreamed and that is what the hearing officer saw and  failed i don't know where we would be because then you'd be in a process now we have an interesting situation with regard to one because trinity evidence is no idea so i assume most going to happen is because there's been a rejection by the parents of the past for two thousand and two thousand and one because she went to trinity whatever decision we make if you can vacuum any year and say trinity was a complete success we're going to be continually doing this and that's why judge graders like you so interesting because the school district could be saved by reading everybody mainstream thinking to say we're going to integrate it and if it fails to say well i didn't work so i don't know how to i don't know how to approach this because it's very easy to say for the school district look just going to great in the losses you're going to great and if it doesn't work you never you're never going to get that balance because all are going to be doing exactly that goes to your next question how do you keep monitoring this shift you seeming to say we shift constantly how you do that and what was failed here you are the key issue with the trinity evidence was that the parents choice was correct now this issue was addressed by the supreme court in burlington when it stated that we cannot expect parents to sit by and sit there and either have the choice of the school district program or no other program and that is why we awarded him course when the parent takes that risk so to speak but when the parent says i reject this program because i don't believe it's going to work and provide the private placement and it does work that these situations it's almost as though i'm hearing you say almost where i would go say look what's the school district offering me the option and i don't feel good about it i should pay my money and do it because if i do it and it's successful i'm going to get repa what's the harm in following that because if you're interested in your child the first thing i would do would say look you're not accommodating what i know about my trouser you go on your word and the remedy is exactly what you want and that is in this case a b c gets paid according to the hearing officers trainees out at this point for this record is out and may or may not be in the same situation so it seems as though you're saying that go ahead school district which you want to do but as a parent i have a right to make my decision and i will right on that based upon whether it cost me it's going to cost you because i've got my child's interest at stake is that what you're saying that's correct your honor and that's that's what the law allows but the parent does have the choice to reject the district's offer placement and do another placement and then have the issue litigated what is what stands out about this case is that the parents you know in hindsight maybe the parent should awaited after the whole school year have two thousand two thousand and one to bring the lawsuit but we can expect you know that's that's where it gets a little bit muddy in that we can expect parents who are trying to get their placement in the public school they don't want the private placement they chose it because they want to give in the public school a smaller down the road let's assume two thousand and two thousand and one and see if they were wrong that you're not going to be prevented from getting your all commit remedy on trinity if you could or if you could have had your evidence then that you should be reimbursed for eternity are we cutting you off is that what you're saying that that's i think what has happened in this case is that the case has been cut off in the sense that it was brought at the time but you brought the case see the school district and do this if in fact the theory is that we're going to take the various interest and seek our various interests and if someone wrong someone's going to pay then you've brought a lawsuit at the wrong time because i'm going down that road with you but i'm kind of figure out what do i do about two thousand and two thousand and one because i don't have the full picture in the cycle that we've been describing on another issue i'm running into my rebuttal time but to answer your honest question we brought the case at the time because the case was ripe with respect to ninety nine two thousand and they had made an opera place before two thousand two thousand one it's our position that the evidence was there that there was evidence to support that this child should have been in regular education and that's the two ninety nine two thousand school year evidence which showed that she was making progress in a regular educational placement and the little bit of trinity evidence that we did have because there was testimony from one of the staff that worked a treat me and one of the experts would have served her in rachel case they were pulling her out for those support services in this case the district never considered such a program of what if we haven't read regular education and pull around for that time that you need academic it was all or nothing it was you're either going to go full time in this special education placement and then you can go to regular education or you can do what your parents want there wasn't a choice there wasn't any plan to have or at least restrictive environment and you have provide her the pull out or  in class service that she might need so once we look at that then we question what educational benefit could she get in regular education and then we balance the factors and what i think comes out is that given the kindergarten curriculum and what was expected of her and there was testimony on this issue as well she was already doing many of the things that you know garners did and so if she's academically able to function the way that they are that the typical students are then why should she not be in regular  mr harmon and specifically referring back to the notion about you know do we look at this with a lens that's retrospective or a school district decisions to be judged based on the information that it had after time and adams the organ has made very clear us that the appropriate analysis is in fact the information that was available to the school district at the time that it made its decision and with respect to the one thousand nine hundred ninety two thousand the school year we had an assessment that have been conducted for the child we had a teacher both a credentialed teacher and also a language but all the just who had worked with the child for a full year at that point and the team came together and looked at the program that was appropriate for this child who was functioning well below her chronological peers particularly with respect to her language functioning and we consider just theirs and was made at that time and it's testament based decision as decision by the educational team that what she required in order to ultimately access an academic program with her peers because that was clearly the goal that is always the goal was an intensive program in order to teach her the language skills that she needed in order to access curriculum and their interpretation of the data we're not asking you in the case doesn't ask you to make your own independent educational decisions where the decisions were made where their sound where they were in evidence and here we had not only educators working with  about participation with general education peers and this is gloucester herself testified that we discussed it there was a discussion along those lines there always is but it's interesting because when you're looking at a preschool year there is a bit of a difference between that and a kindergarten year where the child would fundamentally be in general education and we'd be looking to support that child and only remove the child if it could be done appropriately in a preschool year as both the hearing officer and the courts following the hearing officer analyze that issue it's not so much looking at removing a child from general as there is no general lead in preschool it's looking at whether katie required access to typically developing peers in order to  s and looking at what did occur and in the hearing officer it was characterized as an incredible leap and then the court took the same sort of intuitive leap that well looking back she progressed in at the same time through the district i'm not words that gravy was i don't know how to interpret all this because we're receiving information from it looks like at least two or three different elements first everything we can't do anything with this girl they seem to have pretty low name or affirmative things about what their program does and i would expect that would be unless it was them contrary evidence which i don't know what you're saying that because there were other services  the hearing officers decision nor the courts was based on the evidence the hearing officer made an impression leap that's what the court said and when the court said intuitively the truth is looking at it children with i think the intermission times from the notion that we believe that if children are with disabilities or with children who are not they will benefit model their behavior they'll learn language that progress but the fact is that children with disabilities are different that's why we have special education that's why we provide specialized instruction to allow children to progress they don't learn naturally and i would bring the court's attention to the burger be the knight and diana the schools places where the sixth circuit case from last year and in that case the court said when you're confronted with this kind of an issue you're looking back should that have been offered do you reimburse the court said in looking at reimbursement evidence of promise alone is not sufficient the law requires that the placement for which reimbursement is spot must be an appropriate placement within the meaning of special education law so where placement provides no special education support and no specialized instruction reimbursement is not warranted comments are you saying it's sort of a feel good situation where you're saying that the error was made because a b c said that you were seeing all these wonderful things that what they were seeing were not things that are covered by the staff you're hiding behind not hiding excuse me you're standing behind the statutory interpretation and purpose and say gee that was wonderful what you were doing in daycare but that's not what the statutes are all about relative to reimbursement so what you're saying  i guess i would go even one step backward net and say there wasn't evidence that the a b c people came to the table and testified that she was doing wonderfully in fact in the spring of two thousand they were asking for support and in fact  a cafe you've got me right where i have the problem we've heard many of these cases over the years and typically speaking there are various private institutions which offer hope to parents that are not using your term i guess educational but they're there the cares and whatever and maybe the children do feel better and maybe the parents do feel better are you trying to say even if that evidence is there that your evidence on the statutory educational slide carries the day because the other evidence does not satisfy us that you really should reverse i'm saying all of those things i'm saying if you examine the district far for at the time it was made it was appropriate to believe the child would have access to typically developing peers in the day class setting where her instruction could be intensive and facilitated second the parent gave no notice that she was placing the child there it was by all all all evidence that was in the record just a daycare placement she didn't intend it to be a mainstream placement for her child because that was the engine i see didn't raise that issue she didn't ask for a mainstream placement she never gave  relevant with respect to why i believe that the berger court said unless you can damage straight that that placement actually provided specialized instruction special education was appropriate within the meaning of i d e a law that we  provide reimbursement place much placement and this is a prime example of a placement that had nothing to do with the disagreement with the district it wasn't one voice there wasn't one of asserted there wasn't any notice it was after the fact when really what was an issue with  districts offer for two thousand two thousand and one and in that regard i will note that i believe it is certainly our opinion it had been our opinion at all the way down to the hearing office level that mr obama is said that dr patterson was certainly the expert of the district and he said not only with katie not receive academic benefit but she would regress if she were placed in that placement he was very clear and very overt about his opinion with with regard to that men here were very concerned which is indeed the only reason that this case did go forward that it would be a cruel thing to do to katie that indeed she simply did not have the skills to benefit from instruction at all in that setting and while she might benefit in other ways she would not receive educational benefits and certainly rally going way back instructed us that fundamental to faith is the ability to gain educational benefit so there was much discussion to ip meetings nan hours reviewing every goal and objective how can we implement this in the least restrictive environment which is how the district created the placement that actually operate the best of both worlds a specialized placement and in general kindergarten placement where she could work during centers and on social skills it remains our opinion that should be interpreted to say that where there is no way to benefit which we just released certainly our expert and our other witnesses testified and believes that that in that case the child's fundamental primary classroom setting can't be a full inclusion setting katie was moving along the continuum and was clearly the best legally defensible thing to do but the child in demonstrate that it won't work and go on from there but the case went forward because the educators on the team absolutely could not allow that to happen to katie that's how we got where we were because they believed they needed an advocate for katie so the case went forward and again when one is one one is i go back one more time to the day care setting and again i urge the court to consider adams  organ and what they what the district was looking at at the time they need placement i also again i believe that the testimonies it's somewhat inflated mischaracterized perhaps over the course of the briefing with respect to what a wonderful place and everybody believed that was it was not a placement it was not educational it provide no specialized support for katie the individuals who worked with her or were individuals with community college experience and they're wonderful daycare providers but they're not educators they don't understand special education needs they didn't know what katie's goals and objectives objectives were much less can there be any plausible argument that they were being match in that setting again the district asserting that the people at a b c were not educators and the truth of the matter is mr devens was a credential teacher there are some points that i want to cover very quickly in rebuttal the point is raised the katie was testing well below her peers in language skills rachel it was well below her peers and academic skills yet we put her in regular education the testing showed as your honor pointed out there were varying skill levels that is the  artistic child has very good skill levels that's how they're going to present language and social needs are their biggest needs one of the great things that the regular education and place would do for katie is meet her social needs of modeling appropriate social behavior it would also give her language typical peers in modeling language so i think it may have both of those and one of the things that i think that is happening in this case  being equated with academic benefit for the district and i respectfully disagree and educational benefits especially for a child as young as katie is a total benefit of everything learning how to play with her peers taking turns participating in projects it's not just learning the a b c s and the numbers which she was doing and the point that was made about the a b c people presenting a glowing picture of the council me that's not correct mistiness testified that when katie first started a b c she was struggling she made progress over that here and the evidence bears that out their own psychologist went and assess katie's program at a b c and wro well we could take that view and see how much of it is credit and i think what we have to look at is in the school program she didn't know how to interact with typical peers that she learned  language yes she was getting intensive language needs met and that probably did help but that's what the law says is you don't just look at intensive services you also look at what the benefits would be for mainstreaming and that was the piece missing in ninety nine two thousand and that you have the intensive services you're providing that is good that is appropriate but you also need to consider whether mainstreaming will help this child and in this case the mainstreaming would have helped and did help in that she did get to learn social skills and play skills with typical peers to model them and at the beginning she didn't know how to do that misty vince had to interfere all the time and energy and by the time the school year was over she was negotiating for herself to turn taking