case about a broken promise of nondiscriminatory access to public institutions if the school fails to provide a ramp so that it wheelchair bound individual is effectively excluded functionally denied access this is a problem under the rehabilitation act on the other hand if  parent requests a modification to an existing i e p individualized education program but is met with resistance in that request and there you have a budding claim that the student has been denied faith free appropriate public education this case requires us to apply the standard that is been given to us by the us supreme court in the in so doing we see that our case is more like the first scenario a denial of access and so we're asking this court to reverse the district court's grant summary judgment and find that our client nelsons were not required to exhaust any administrative remedies under the i d  in my time this morning i'd like to discuss two points first under fry the crux of this case is not id a relief so exhaustion is not required  it would simply be futile to even have the nelsons attempt to exhaust administrative remedies so certainly that's not required under established law now as to the first point the fry case has given us a few different standards or questions or clues that we can use to determine whether or not the case is seeking fate relief or whether it's not seeking fa relief it's seeking something else and is thereby exempted from the exhaustion requirements under the id the crucial test set out by the fry court at page seven fifty five is what is the complaint to faith there is no request in the complaint for relief that's available under feet and it's important to note that the fry court identifies the a rehabilitation act case about the denial of access to a public institution now the friday decision gives us a couple of other clues as the justice identified  one of those clues is could the plaintive have brought essentially the same claim if the alleged conduct had occurred at a public facility that was not a school and this is set out in frya page seven fifty six so when we take that standard in the consideration in this case we apply that pollute clue it instructs again that this is not a fake case you can imagine if the plaintiff here c and the child tried to obtain services from any other public institution but was denied those services because of her medical conditions in this case the medical conditions are polycystic ovarian syndrome  and depression as you can imagine at this other public institution if those conditions created access problems but nonetheless the employees at the institution at come together and worked out a plan or compromise to allow access for see an only to have the highest administrative officer reject the compromise we would have a very similar claim that could also lie were guard lists of whether it's a school or an other public institution the second clue that set out in the fry case could an adult at the school say an employee or a visitor have pressed essentially the same grievance and again that required an accommodation for her p c l asin depression you could imagine for example that the employee needed to work from home and so needed remote access to the school's computers if that access problem was solved by a compromise of the school's employees but then leader rejected with the rug pulled out from under this employee by the highest in a straight of officer and once again we're looking at a very similar case where a non  claim would lie among the other clues in the in the friday decision that lead us to this outcome they ask us to look at the history of the  did the plaintive previously invoke the i d e s i d e s formal procedures and then switch midstream in favor of something else well the simple answer to that is no the plaintiffs in this case never pursued an id claim at any point and that's sensible because the facts of the case show that neither party ever viewed this as an id a type of a framework if you  have correctly that the facts of the development of the case were that c n just had excessive absences or at least that was the principal problem and that those absences came from her physical condition but that there was never apparently any working out of an educational substitute for her regular attendance i think that's correct was there any communication between parent and school about ok if she can't come to school regularly how do we provide her education not exactly unfortunately know how the school treated this scenario was as a quasi criminal truancy issue and eventually in april they contacted the floyd county attorney and sent a sheriff out to hollerin to school they never treated this as a case where educational remedies could apply facilitate open enrollment for sian so that she could attend one of a couple different online schools and if you look at the appendix page one fifteen to one sixteen you can see that that's exactly what the school resource well she was seeking open enrollment to go all online and although they had basically worked out this deal for some reason for reasons that aren't totally clear the school district denied the open enrollment application for the family in alle j had looked at this when they appealed that denial of open enrollment and said this was basically the school district pulling the rug out from underneath the family after we'd worked so hard to come up with this solution that these are not faith solutions these are not i e p or i d e a the framework solutions this was what the l g a called bad and i think that's what we have here what about the fact that the complaint well you put it this way is the grab them and of the complaint that she missed out on important educational opportunities because of the action by the school district and if so isn't that really complaining about a fate no it's not the crux of the complaint it's true that there was an educational consequence to what happened know another way to look at it to consider that this ability to roll in is like having a wheelchair ramp i think that's a good analogy it absolutely is an access problem and if you want to get  flavor of the symptoms and the effects of these medical conditions take a look at the appendix page one hundred four to see what c n was dealing with day to day and take a look at the missed school days and you'll acknowledge this was an access problem depression heavy flow days severe crimping essentially a hormonal disorder that caused her to be taken out of activities that any normal adolescent would well the school started with the truancy referral to the county attorney and then during the media truancy mediation on my school came up i think the record shows in that internal memo that the school was processing th so for all these reasons we're seeing that this is definitely not a fit case it's a rehabilitation act case and to the second point just briefly here we also know that exhaustion would be completely futile for the certain remedies they could get obviously they cannot get compensatory damages emotional distress damages and by the time this complaint was filed the only educational remedy that the nelsons ever wanted which w enrollment let me out of this was so i can attend on line was already obtained by the l g s ruling in the department of education that's not what this case is about and i think you add on top of that if the person so unclear how was the proceeding before they o j that you just mentioned different from the exhaustion that would be required here well what i'm saying is exhaustion would done some back and forth with the administration and so the court found further proceedings would be futile so there's a hint of that as well so with that i will sit down and reserve the rest of my time for a good morning may it please the court counsel i'm beth hanson and it's michael a great pleasure to represent the charles city community school district one of three hundred plus public school districts in the state of iowa i'm here today to talk about a case that is before you that really is a case that involves a failure to exhaust administrative remedies under the a this is not a new topic for the eighth circuit court of appeals as this matter has been before the court even before the fry case which is a supreme court case and before a case j service dog that child was a kindergartner and wish to bring the dog to school because she had certain limitations in terms of mobility this service dog would pick objects up would provide stability for the child as she moved around the building the school district in that case objected to the use of the service dog in the building because they said that a one on  one aide could provide that same service for the child rendering the dogs the per fullest in other words that one on one aid was written into the individual educational plan and was provided as a part of the free appropriate public education the parents and rightly so said that the child was entitled to bring the dog to school under the rehabilitation act under a different law because what the child was being provided with that dog was different it was not an educational benefit it was a mobility issue moving from place to place so the court in that case and rightly so recognized the distinction between an educational benefit and this mobility issue in terms of that is does not make a difference that this case arises from the school taking action on truancy and then the matter proceeding through the discussion on how to  get the child educated without regular school attendance at the physical location and that the work through threw away all j and ultimately through the state board of education is all the process that would have been required in administrative review of the actual disputed question no idea each claim was made no there was never a i e p produced or discussed this case just doesn't seem to nearly fit into the distinction between rehab cases and  responsibility of the i p team to discuss the the development of the program which talks about the educational plan that is developed they first talk about the education and then they talk about the location of the education based on the unique disabilities of the child which can be both mental and physical in this case what else was there to do and what was the we don't know your honor because that team never met there's all kinds of possibilities that might have been developed there could have been due in rollman they could have modified the length of the day they could a framework we never got to that point your honor the school started with going to the home that didn't work they they brought in the guidance counselor at the school nurse they tried mediation at the county attorney's level they worked through that the school superintendent suggested using the online instruction and through the school the parents rejected that in fact within the appendix you find a letter where the school says the counselors going to contact you and to talk about setting up the online instruction by that point we were into the appeal to the administrative law judge under the open enrollment at which point in time the family went to and won the open enrollment appeal and the family never contacted the school to come back to talk about the option with the school and never went through the process to get into online and roll met with another school district i don't know what else we could have done your honor but the interactive process and the i d e a process was always available to the school the school really like that would provide for us good defense in the last  absolutely doesn't necessarily sound like a good basis for requiring some additional futile administrative step with the school district it seems as if both sides did all you could do tried your honor i respectfully disagree that i don't see the facts in this case that it was unfeasible for the family to continue to work through the system the i intended to get children into school time is of the essence that's why it's so important that family she use the id a at the first possible moment that we continue to get these children back into school we are now four years after the fact if the id a had been used and if you look at to eighty one i would ministry of code forty one it provides for informal meetings it and it provides for resolution facilitation it provides for mediation it provides for state based complaints it provides for due process complaints and i have a very dry mouth excuse  now on the question of futility when would those things have happened in the course of these events if they couldn't have had pursued exhaustion they kind of all happened with in approximately sixty  days to finish it but i mean at what point in time during this back and forth with the school and the department of education from the time the parent came in and said i need my daughter has a disability the the the the and i want my daughter to have this education i mean that the process was started when when the family came in and said my daughter needs this education will let her in the fall in the fall started that process and how long after that was it when the department of education that wasn't for the department of education hearing was in december so fall to december and that was and that was a different administrative process i understand just kind of the family the the school district started this started trying to get her back to school in the spring and keep in mind if you read the footnote in the department of education's ruling on the on the do prandial hearing on the open enrollment there's a footnote that said the school district never had any medical records at any time other than some excuses where the they said she couldn't come to school the first time medical records were provided to the school district were in that hearing in december of two thousand and fourteen we had treating this as a truancy issue we knew she wasn't in school but we can't be mind readers your honor it's the family can invoke i d e a at any time any family can invoke that all they have to say is my child has a disability i have a problem we have problems we need to get this child in school and we have to move we have we have we can identify we can evaluate we can place we can convene meetings with the appropriate personnel we work as a team that's the beauty of this law there are very strict limitations on the times for evaluations and for meeting there are very strict time limitations on making progress and developing these plans that's the beauty of this law you want to respond to the argument whether the and page on paragraph twenty nine of the original complaint the original complaint which is a starting point for the evaluation it says in the final  sentence that as a result of the actions of the school the plaintiff was missing out on important educational opportunities that cannot now be recovered that's the first clue that this really is an support not exhausting the administrative remedies and then finally in the appendix page one eighty five and answers to enter rob atory number twenty six under sub answer to the last sentence in to see and has a right to an education and again in appendix page two appropriate education because the defendant's actions resulted in c and being unable to attend either the iowa connections academy or the iowa virtual academy over and over and over again the plaintiffs as you have denied me my for my education by your actions over and over and over again the plaintiffs says that this is a rehabilitation act case and then claims that because of our actions we have denied her a free appropriate public education i see my time is almost up unless you have other questions thank you for your time attorney hanson made a statement in her argument i don't know what else we could have done from the school's position well the fact is what they could have done is honor the open enrollment application rather than pulling the rug out from under the student and so i think it's a school blowing both hot and cold on this issue to say that we need to have id a procedure for procedure sake when at the time it was happening neither party viewed this as an i and i have a little checklist of items i just of undisputed facts that establish you really have to shoehorn the facts of this case to get it under the i d e a frame one the student did not have an i repeat student two the family did not request special education services three the student did not receive in the school did not provide special age education services at any time next the school did not even history of the case shows that the parents didn't consider this a fake keep claim the plaintiffs complaint alleges a denial of access and that's what this case is and the plaintiff's complaint is not request any remedies that the i d e a could provide i don't know how you can put all of those facts into the i d e a framework what about your brief that argues they affectively deny this for free appropriate education that's true and we don't deny that but i think there's two responses the first is the fry court told us a void of magic words formula and i see my time is up man yes we thank you a void a magic word asking me what the crux of the cases and i have told you it's an access case it's a rehabilitation act case about a student with severe mental can sorry medical conditions they kept her out of school for the variable arguments you provided to the court this morning the briefing you've submitted will take the case under advisement and may be