good afternoon your honor smith please the court my name is alan yet and i'm counsel for m r with me account of here is jennifer loman who is counsel for the nici of the education law center of pennsylvania and disability association of you're the hearing officer in this case these pennsylvania special education due process hearing officer heard three days of testimony nearly five hundred pages of testimony eight hundred pages of exhibits issued a decision was sixty four paragraphs of findings of fact including footnotes and issued a twenty one page single spaced cision in that decision she carefully analyzed the issues that were presented at the due process here really appealed by filing a petition for review with the come with court which i removed to district court at that point it was no longer an appeal it was actually in new civil action pursuant to the i d e district court after the district court took the matter after receiving briefs and motions cross motions for judgment on the record there was no evidence supplementing the record submitted to the district court district court reversed the hearing officer on every ground in which he granted relief to the parents in this case we submit that the district court committed clear error  you know we review the findings of the district court under clear or that's a tough standard you it is a high standard i don't shy away from it but i do want to point out and i ask the court to perhaps reread judge greenberg's opinion in d s where the court looks at the actual findings of fact for clear error but the court also looks at those same findings in a slightly different way by determining whether the court in reaching those findings applied the proper deferential standard of review and i submit that under either of those tests in this case that the parents should have prevailed in the district court heard but the the deferential standard would apply to factual findings found by the hearing officer that's correct and we have you pointed out there are extensive factual findings here none of which pertain to what's the focus on appeal and what the district court disagreed with and that has to do this research based peer review reading program there's there's three lines in the hearing officers extensive discussion that relate at not anything in the factual findings about this program and so when it comes to the district court if you don't have finals to defer to you're free  to see what what supported this legal this conclusion if you will on you don't really have deference to that fine well i think that that that actually has a couple layers first of all the hearing officer found that the ip and  of fact and that page sixty nine yet you're you're correct that other legal that's a what was that was what's appropriate if you will it's not a finding of fact so your honor i'm not sure it's not a finding of fact that that the court had the specific paragraph findings of fact but when the court is also stating facts in support of its legal conclusions i would submit that those are also findings of fact but what's important is that the district court is looking at this decision by the hearing officer and it's determining well does this ip offer faith are there appropriate specially designed instruction in this ip and the answer is unequivocally no now the district has argued  and the district court did not address the fact that there are some things in the the nor at the notice of recommended education placement but if you look at the district court's opinion at age twenty eight of the record the district court discusses  and that it must contain i in fact i think you wrote it judge in new milford that the ip must contain a specific statement of the student's present abilities goals and services designed to meet those goals ok has to be in the ip and the reason it's important is because the ip is what educational program is based on now the district has argued oh well it's just procedural and unless we can show prejudice it's not it is the substance of the ip right exactly and and in d s the the court states that the substance of an ip is not a procedural matter it goes to the heart of what the education program is it is but when everybody knew what was proposed to be provided here well what's your argument is your argument that what was supposed proposed to be provided didn't provide a beneficial education a meaningful benefit is that your argument what specifically are you arguing that the district court got wrong in terms of bush we didn't didn't know what was being provided because all we have is the district court looking at the notice of recommend education placement and saying these things are in there there was no up come down to project read isn't that really the problem if they'd also offered wilson is that a project read we wouldn't be here if they had offered wilson  specified what at what specific specially designed structure was going to address the child's disabilities in wilson then we might not be here i mean is that really what the law requires the then looks at goals for that child based on those levels and then how we are going to achieve those goals was specially designed instruction for that child addressing those can throw a dictionary on the table and say well all the words are in there to become an astrophysicist but the fact the matter is that's not the program however even if the that this state it meant of were going to give project read was sufficient specially designed struction it did not provide be addressing that it wasn't and seems to me that the problem with your argument i understand you know where your argument is coming from the problem with your argument is if we were to accept that it's going to take away so much more of the decision making from the local districts in the parents by having having micromanagement of the actual instructional components in the ip because that's what you're really looking at here you're in you're saying your clients basically said look project read isn't going to work because it hasn't been peer reviewed enough right and we want wilson but even wilson the what works clearinghouse hadn't indorse wilson you're just saying we want wilson we don't want project read no i'm not saying we want wilson we want we don't want project reed what i'm saying is i'm not required the parents are not able to request a specific program but they are able to insist upon a program that meets the requirements of the i d f which is that it be research based and i suppose  you want but it's certainly there has been research and i think along the lines of judge fisher's question how what is sufficient and the statute says research to the extent practical in order to do certain things it's not the be all and end all it's to accomplish certain things and if the if the school you know if the school is totally wrong if there is no recent research to support that you know it works then there's a real problem but here are we are the courts and the hearing officer is supposed to second guess the the district when it least it seems arguably within those bounds well under the i d e a it is the state that is the ultimate arbiter and in this case the voice of the state is the hearing officer and the hearing officer having reviewed those five pages and i ask you to look at my reply to him at a time your honor may have been a couple more minutes on yes if if you look at my  believe i asked the special education director and the special education teacher point blank is there anything that you know about project read that tells you that it's appropriate for a child with learning disabilities like this child and that was no yeah but that's the other thing if you're going to say that every eye e p has to be so tailored that there has to have been research with respect to this specific constellation of of problems with the child it's it's just not i don't it seems to me that the statute doesn't say peer review research totally attuned to every disability that the child has it's just creates a problem the difference between totally a tune and some a tuning and as the the witnesses said point blank it's not and the district court didn't even mention that testimony in overruling it didn't even mention that project read it  review itself from from florida acknowledges that the research is inconclusive and that's the problem that the district court ignored those facts in the record in making it substituting its judgment as to appropriateness for that of the d involved a child who had needs that could be accommodated in the classroom transparently along with the other children and the district court does not dispute any of the factual findings does not speak to the facts in the record simply says i reach a different conclusion that there was no deprivation of the education activity that just recorded north the fact that every one of these programs clifford day was connected to reading clifford appleman pumpkins day was connected to reading the apple  pumpkins book earth day was connected to the earth they project everything was integrated part of the education experience and the district court completely ignores that thank you very much daryn we'll hear from  good afternoon your honor it's may please the court my name is jennifer loman and i represent the learning disability association of pennsylvania in the education law center and court of appeal in this matter the district court did two things in this case i'm going to focus on the first thing  said focus on the second thing the second thing was that the district court and that we have concerns about that we believe the district court erred was that it substituted its own judgment for the findings of the hearing officer one hearing officer found that the reading program proposed by the school district was not appropriate to meet this child's unique needs what i want to focus on is what that the first thing that the district court held was that peer reviewed research services are in no way mandated as parents urge the distri basically what the district court failed to look at was the plain language of the statute the statute says that special education and related services and supplementary aids and services have to be based on peer reviewed research to the extent practicable now there a lot of argument about what does it mean to for the extent practicable the actually the i d e a regulations which were promulgated in august of two thousand and six in response to the extensively amended statute in two thousand and four shed some light on what it means what the phrase to the extent practicable means and what the what the regulations say and i'm quoting now is that state school districts and school press personnel must select and use methods that research has shown to be effective to the extent that methods based on peer review research are available so that's what the u s department of education's comments are about what it means to the extent practicable that if there's nothing that are based on peer reviewed research that matched the child's needs because again we always have to go back to rally correct in the third circuit's circuit's decision so what it means for a program to be appropriate it has to be recently calculated to match the individual child's needs so it's not just the fact that there are reef research there's lots of reading programs out you're correct you can go on the florida center for reading research you can go on the what works very house and in about ten seconds find all kinds of research based reading programs the issue here and for every case involving an ideal case is whether or not it's individually tailored to match that child's unique needs so from that how is the district court wrong in saying that research is not mandated it's mandated in the sense that the district court basically says  it's not required but the i d f says it's required to the extent practicable meaning if it's readily available i think the whole problem with your analysis with your argument is the words themselves are in the u s or they're not should think to the extent practicable like i said the u s department of ed kind expounded on that a little bit not in the regulations themselves but i don't think they're all that and all that in big usa if it's available that's one thing that congress tried to do here when they amended the idea in two thousand and four is they focused on the fact that there had been in cheveley gap between kids with disabilities and kids without disabilities for a long time even though the i think the had been in effect since eight hundred seventy five congress found when it and i know my time is up i can stop the interesting things the provision that has peer reviewed research and practicable to be provided to the child says nothing about individual lives it says to advance appropriately to be involved or make progress to be educated and participate it doesn't say it doesn't impose the issues that you know there has to be you know has to be you have to look back at the first statement of the special education and special education is defined as specially designed instruction to meet the child's unique needs so that's what we're saying the specially designed instruction to meet the child's unique nice comma based on as a practical matters you know a lot in this area how does this project three not talks about encoding and decoding it multisensory has onyx which was a concern how what what do they have to do it doesn't have it doesn't have research to show that it's worked with kids with learning disabilities and wilson does well and has kids who are in the twenty five under under the twenty five percentile at risk students those are different research based peer reviewed and that and the here officer doesn't give us any help with that i mean you go out you go on this is another place actually where the regulations do help to the comments to the i d e a regulations they also give some help i what it needs to be writ peer reviewed it says school personnel must select and use methods that research has shown to be affective and then on the other part of the regulations they say peer reviewed research generally first to research that is reviewed by qualified independent reviewers to ensure that the quality of the information needs the standards of the field before the research is published who bears the burden of showing something are you going to tell the school district you have to show that i thought because that becomes part of the impeded by insufficient focus on applying replicable research on proven methods of teaching and learning for children with disabilities that comes right out of the purpose section of the statute twenty u s c section fourteen hundred c fo instructional methods always peer review not always and that's why that's why in the comments the idea of regulations the department of ed said we don't want to define peer reviewed research because there are going to be instances where what's appropriate for children is not peer reviewed for i'll give you an example more and more children with autism are in need of music therapy that doesn't have a peer reviewed research basis but there are plenty of people who believe that type of service is appropriate for children with autism so there are different types there that shows there are appropriate for children with learning disabilities like e r they didn't they chose a project which is a perfectly fine program i'm not saying it's not many many school districts use it what what the issue with project rate is that it didn't match up to her good afternoon may please the court john reilly on behalf of the really school district i would ask the the court to consider first there's no question that the i d e a requires peer reviewed research to be considered in determining what's appropriate education for a child however it needs to be read in power remote area with the rest of s and specifically the portion of the i d e a that requires proof of substantive harm before a parent or a child is entitle to relief that is compensatory education  or to wish him reimbursement so and that's section of i d e a says a procedural violation is a denial of faith of free appropriate public education only if it results in a loss of educational opportunity deprives the parents of their participation rights or causes a deprivation of educational benefits that was the that was the district court's point when it said that the failure of a public agency to provide services based on pure reviewed research would not automatically result in a denial of fate that's because there also has to be proof of substantive harm and that's what we're talking about payment for benchmark and we're also talking about compensatory education that's currently not dollars as as well i think three hundred sixty hours of compensatory compensatory education would be awarded in hours but typically translated into into dollars so all of that is dependent upon finding a substantial harm yes the court would have to find that the that the school district violated the p reviewed research provision and that it caused substantive harm to the to the child that's not what the what the district court found and moreover it's not what the hearing officer found if i  well then that means that the parent can't take the child out of the school until the child's been harmed no no the parent is is free to withdraw their child from school at at any time and to enroll that child in private school but then that the parent bears the burden of the financial burden of of that private placement then it's not the the the school districts responsibility but the parent can get compensated for that only if the parent sho that it would have caused stansell harm only if the parent can show that the the i pay for that the district's failure in the eye he caused the loss of educational opportunity or deprivation of educational benefits that's not what what happened here to to to begin where we started with which is with the hearing officers opinion of course that's where the district court started as it was required to do is required to give due weight to the to the hearing officers findings the district court pointed out judge randall you pointed out as well that the the hearing officers finding such as it is about the ip is that is one  sentence it lacked appropriate specially designed instruction in the form of a research based peer reviewed reading program that's the the totality of its analysis what's what's more important is footnote at page nine of the hearing officers opinion in which the hearing officer credits the document that you were referring to earlier judge randell the florida center for reading research the hearing officer actually credits that document and the hearing officer rights project read as a comprehensive language arts program designed to provide explicit instruction a structured reading curriculum that may be implemented in a regular classroom in special education classes that may be used as an intervention reading program it was designed i'm quoting from now it's designed to be research based and the students made progress in reading however but there were flaws in the research which made it impossible to attribute the reading growth the students experienced to project read alone so even the hearing officer credited that document that the district introduced concluded that project read was research based and was appropriate for special education students but then went on a venture essentially to evaluate the quality of the research not to evaluate the instruction that the that the school district was delivering that was the hearing officers error it was a legal our it was enough a factual it wasn't a factual finding that was or certainly not a credibility finding that was entitle to deference it was a legal finding that the that the hearing officer properly properly reversed the record as  as you pointed out judge randell not merely the record itself but the hearing officers own findings show that project read is peer reviewed  as as i recall and and introduced testimony as well from the special education director about the about the research that was conducted on the no one priority on this and as far as i can tell there's no shows that the school district did consider that provision in preparing the a for e r in this case the discussion over the the the appropriate the the reading program that the district intended to implement for her education was part of the discussion with the ip team with the parents of the i mean if you're if you two are sort of in agreement what about the district court the district court get it wrong how it dealt with that particular provision no i just think that it's a matter of it's a matter of expression i'm trying to to express it in what i believe is a clear way which is that that the peer reviewed research provision needs to be read in power remote area with the requirement that for an award of compensatory education or tuition reimbursement there has to be proof of substantive harm in other words that a procedural violation doesn't result in an award of combat or to issue reimbursement without proof of substantive har suggest that the failure of a public agency to provide services based on pure research would automatically result in a denial of conceding a procedural violation that oh no no not at all i'm stating as a just as a  the to get your as a way to approach this as a way to you know start with the i d f a that a procedural violation doesn't support doesn't support an award of relief unless there unless it has caused substantive harm and you're also saying the hearing officer really found that project read was exactly reviewed so it exactly right or that's that's it that's exactly my point that the the document that the the hearing officer credited that document that to which you refer the florida center for reading research credited that but the the so the sole reason that the hearing officer found the i p did not comply was because quote there were flaws in the research which made it impossible to attribute the reading growth the students experienced to project read alone that can't possibly be substantive harm it can't possibly be a basis for a comp and or a jewish and reimbursement award otherwise you wind up with hearing officers district courts courts of appeals evaluating the parents had the burden of persuasion on their claim about kindergartener garton i had the burden of persuasion on the on the claims about this week court said that at the time they were before the district court that the parents had the burden of persuasion on both facets of the case to do that because yes it did the district court said that in its in the introduction to its memorandum however the district court did not state anywhere in its memorandum that it believed that the issues were los and well how can you say they weren't close when the hearing officer in the district court came to different conclusions on on the basic issues because the burden of persuasion undersea for vs we still only comes into play in the rare cases where the evidence is in quick points so as in where there's new evidence presented wouldn't it be i mean here it just got real really is acting totally in a review from stuff that's correct so it's not really a matter of burden of persuasion it's a matter of the standard and you well that's correct and that's why i said that the district court's statement of the standard of or the burden of persuasion was harmless because it because it didn't use it would only the burden of persuasion would only come into play where the evidence was in equitable ois the supreme court in the schieffer case said these cases are going to cases applying are going to be very rare because its cases are so rarely in a quick ois and in fact if the district court of the hearing officer in shaffer concluded that the evidence was an echo poise and simply used the burden of persuasion as a you know as a way of settling the tie if the district court had used the burden of persuasion here i would have i would expect i'm sure the appeals would expect that it would have said the evidence is an echo poise and and i'm using the burden of persuasion in this case was clearly struggling at the beginning of first grade why did the ridley wait why did the school district wait until november to do the reevaluation that's because e r had been evaluated before kindergarten and found not to be not to be disabled learning disabled had been evaluated in kindergarden by ridley not once but three times and had successfully completed the kindergarden curriculum so the context of those first two months of first grade are very important the context is that the school school district was consistently willing demonstrated its willingness to  evaluate e r and that at the beginning of first grade e r was in regular education because she was not a student with a disability so it was natural for the school district to try to observe and assist her in the regular education curriculum before agreeing to the parents request for the evaluation of the family and the parents prove the original evaluation evaluations that had taken place earlier if there are no other other questions i simply ask you to affirm the judgment thank you creating for each disabled student and individualized educational plan would set tell you educational and related services designed to meet the unique needs of the disabled child quoting fair and see the fact that maybe the point that they have it has to provide a meaningful benefit which is somewhat you know it's not forward looking it's what what is happening here is there has to be some evidence that it's not it's not working or else as mr reilly said everybody's going to rush in because they don't like the program even though the program might work actually i think that's not correct that the the f at the moment it's written must be designed to provide faith and if it does if the parents conclude that it does not provide faith they may take a child in place that child in a private placement and seek to issue reimbursement and then it becomes for the hearing officer to decide whether the ip as written failed to provide faith and that's what we submit happened here so it's not substantial harm it's whether faith was provided the for this unique child with her unique needs as as your panel has previously stated as to the issue about research based i do want to note that that ridley actually in their petition for review their first filing which became the complaint in this case conceded at seventy six dependent on paragraph thirteen that the program must be research based they write it in their own initial filing so that's not really in debate from release point what's there in the record before anybody here that sits says to us chapter and verse this is exactly what is required for this student this is what was provided and these are the deficiencies i mean we're not experts were not scientists and i think we we need to now where is it in the record that says aha in order to fill this you need being bing bing bing this had being being there for these three things are totally lacking if i may steal your aha your point is exactly why the law is that the district court does not substitute its opinion of educational policy for the state and why this court also does not substitute its opinion for education policy the ite pennsylvania officer pennsylvania has declared that the hearing officer is the one who decides the hearing officer heard the testimony heard the district's own teacher and special ed director say that it doesn't have that the program is not  ultimately said that that it's not special there's no specially designed instruction in the ip to meet this child's needs and if i can just go to judge fisher's point i'm at it a matter of time right c wrap judge fisher you asked about the beginning of of this school year why it why it took so long to evaluate and mr riley has expanded to two months actually that the testimony was a month or so of kindergarten review but the fact is that the school district concealed from parents the elements that were necessary for her to exercise her rights under the i d e a namely knowing that this child had been placed on a reading watch list that this child was being reviewed