to the most helpful thing we can do is explain why the state review officers decision is not entitled to deference and there are three main reasons there's a factual reason a legal reason and then an air of legal reasoning  the factual reason is that the state review officer actually made up a false factual narrative that c h regressed when he was at the ridge school  after the impartial hearing officers decision it was pretty clear that he had made significant progress at the ridge school the i h o found four ways that he said that c h actually regressed he said that he would leave class for ten minutes of the time he got into an altercation he stopped reading aloud and that he would stop completing work if you look at the record none of those things were actual regression from where he was in the district or the both his placement in each case he had actually left class more in the both his placement he'd gotten into numerous altar cations and the both his placement he completed  and both his placement to the point that by december of two thousand and fourteen he had simply no output whatsoever according to the both cs witness and with only is to find that there was requestion what measures do you point to to establish actual progress and i understood the theme running through the district court in the decision was that they were remarkably few measures this is a very small school it hadn't didn't have a written plan it didn't have written standards they were observations that were anecdotal that suggested he had less school version at the rich school but there was remarkably little and that was kind of concord with the commissioners failure to accredit them for special education for two years running the school i understood so could you what do you point to in the record to establish that there was a fact progress well the thing we point to our is expert testimony unrebutted expert testimony that he had made tremendous social emotional and behavioral progress at ridge and dr meyer emotional behavioral areas but there were new to progress reports that she could point too short and one of the things is that's a function of the timing of the litigation your honor so this case was filed in  july and that's necessary parent had essentially committed a lot of funds to the school and wanted to get the litigation started by the time the case began and we're only talking about october november and so there really short but he he also made progress with respect to in math she talked about very specific math skills that he was working on with her talking  about i believe she talked about different aspects of writing in other words he was able to complete sentences more although using using his i pad he was writing more complete s of found a crime asking whether it not by the time of the trial no the trial was not even an entire semester had gone by the time of the trial so the underlying factual error is what i mean i want to actually return back to the idea of progress here when you look at the the main issue for c h it was it was school based refusal that was his part of his autism that was part of his anxiety and it was very important that he was in a school that could address that directly so this isn't the case a lot of the a lot of the court's cases have to do with parents being placed in elite private schools is the way in which the private school placement was tailored to his unique needs that was one of the ways it was teller i can it was sufficiently pleasant and threatening that he would be willing to attend well it was more than that your honor they had afforded to class ratio it was a tune to his sensory needs it did provide related services this is starting to sound like the thing  that any parent would want but but respectfully under no parent of a neuro typical child would want rd child at the ridge school which is a school for four children with high functioning autism it's very different from say the oakwood school in the gagliardi case where children are mainstream were mainstreamed c h was in what we would call a special class and it was kids who all had the same needs and who were at the the classroom that the school district offered was really indeterminate and that there had been a lot of problems in the past about who exactly would be in those classes and at the time that   h had to make the decision for his son there was simply no way to know whether c h would be in a class composed of the same types of children and having just experienced what happens when he was  with children who you know caused distress where he had missed pretty much all but four days of school it was very important he had a right to know who would be in his class for the following year so yes they technically on paper offered who you mean what their what their deficits and conditions would be what their whether they would have said for example the same behavioral needs so c h responded very poorly when children with bad behaviors were in the same class at him he was a very rude following kid and so and so when other kids would would act out he would take it on himself very badly and that was one of the main things that caused him to stop going to implication she simply disregards the findings of dr monica meyer completely and i think the law says that if you're going to disregard the factual finding of and i know the state review officer is supposed to explain why give compelling reasons why and she never does that she never at all she there's there's a footnote it's either twenty or twenty two where she refers to testimony as anecdotal i think she's referring to linda contour but what she doesn't do is address the unrebutted expert testimony of dr meyer and holly allison the nurse practitioner both of which the i h o directly relied on and whether whether that's expressly saying i'm not finding them credible or simply omitting them the effect is the same in the read out of the record and that's the main factual predicate or one of the main factual predicates for finding out how much social emotional behavioral progress c h made to have written educational or behavioral plan that they gave to the parent for student  condor yet she does and the reason why is they had twenty years of experience dealing with this exact type of child children with high functioning autism who struggled with anxiety and it was a small enough class they didn't need this w and dealt with the north with school which is a posh boarding school in lake placid if you look at the website you'll see what i'm talking about you say posh that sounds like your go to the website your honor you can check out their tour  so it's w a himself was in a regular class there he was not there was no you know pretense that it was a special education class  what counsel argued in that case judge because i think you were on the panel on this oh either judge shakeups or your colleague judge hall asked well what if it's a school with four or five kids and the premise being that d every kid at northwood need its own need his or her own own program and the question was what if it's a school that were all the kids have the same needs and counsel for for the hudson school districts thing like the ten minute mark that's clearly not north with iran or north which is not a special ed school and in their brief they actually argue that northward didn't have a special class if you i don't know if you want to go to brief but it's on page forty five they said they they talk about the new york regulations and what constitutes a special class under new york law and they're arguing no new york law doesn't call what north was classes a special class talks about what a special classes as a class consisting of students with disabilities who've been grouped together because of similar individual needs for the purpose of being provided specially designed instruction as divine as defined in some  the word the word regression never appears in a state review officer decision it does appear in the district court's decision where rash regression regression i apologize so that word does not appear in the state officers decision i think it does appear in the district court's decision when the district court under took its independent review of the record the reason i bring that up i think is the thrust of the case they mention progress progress is relevant but not determinative in deciding whether a private school provides specially designed instruction tailored to meet a student's unique needs and that is really the crux of the project to said was a main source so for example grades and test scores say the student went there and got all a's but the students not getting appropriate counseling to get at those underlying issues of there's anxiety we need counseling to identify th triggers to develop a coping mechanism to have those strategies that are tailored for use so when that the situation arises they're responding in a more appropriate way so even if they're getting those easing b s here there is no report card there's no document there's no progress report or summaries but even if that was the case that there was progress that alone would not mean that the private schools appropriate and it goes back to that specially designed instruction tailored to meet the student's unique adversaries argument is that the school has just a handful of students and they all have the deficits and the characteristics that the school deals with and that therefore you had a school of one that was just tailored to the one student where you have four and they are there similar in their needs and the school addresses those needs why is that not sufficient for tailoring the u s oral went into detail as to what kind of instruction actually happens in that classroom there are four students one th grader one th grader the student here two nights graders they sit around a table they take turns reading from the same book they're all taking high school level courses this student in particular doesn't want to read into the four classes respectfully that's not differentiation of instruction that's not tailoring it to rest of education get doesn't get to do it when the kids ready to do it and on that issue of whether this type of instruction the escrow described what it was and that's an educational determination is this appropriate for this particular student with this particular student's needs the student diagnosed with asperger's syndrome still with anxiety language pragmatic difficulties a student like that from the  needs that counseling honed in on those stressed triggers needs speech language there a p to address those pragmatic language difficulties and you're saying it's not just the lack of documentation and planning and progress reports but in fact he wasn't being provided with what is required for a complete and comprehensive educational plan is that right correct and there's really two prongs to it both within the us aros e area of educational expertise one is the sufficiency of the evidence to even reach a determination and the essence of found here the record was insufficient and yes and also went on to note areas where there was not enough evidence of specially designed instruction recognising that approved improved attendances progress yes row doesn't dispute that but the core of the argument is really the specially designed instruction tailored to meet the student's unique so if she had just written down this kind or just written down what it was she was doing periodically over the st two months because clearly the judge jacobs is pointing out the class was small enough that she could respond to individual needs in  class size could be a factor but it's not just that it's what's happening in that class what kind of you know methodologies into next are you using to get out those skills in st student on the autism spectrum it's a specific and unique set of skills and strategies that have to be used and again we're going back to an educational determination these are these are difficult questions of fact analysis and for that reason the district submits that deference is appropriate to the sarong as we to ignore the possibility that a child will learn nothing in a school where the child is bullied afraid to go to school and the conditions are the findings that it was not appropriate for a portion of the school year and as the court as previously bullying can be a factor for the denial of faith but as a core pointed out in gagliardi even where the school districts program is inappropriate it's a separate analysis the private school still has to be the parent has to meet that burden proponents of the evidence to show that the private school was appropriate so it's certainly blanket be a factor but in this case the focus on prato is on the private school didn't provide the specially designed instruction acknowledging that there was some progress in attendance but that's not enough and that again was an educational issue for i take it the part of your point is that you we would require some more objective measure of progress right the more i got where  are what he's what doctrine requires that the evidence got to be objective we've got the testimony of this god or we've got the testimony of some of these other experts why isn't that enough evidence what is the matter if it's not objective for and that would be the hardest in case where the court talked about the sufficiency of the evidence in the preference for objective information objective information is frankly a lot easier for a non educational experts like attorneys to look at and say ok well they took a test and there's a particular school or it's an objective measure or something like a standardized assessment where there's a norm referenced guide and we can say ok the student is scoring at the th percentile that puts them right in the middle so those kind of measures are just there by nature objective not subject to interpretation or just their observations attendance was objective yes and again just to recognize that and you know going to school and physically being there now that's that's subjective i we don't dispute that and we don't want to quibble over the numbers but appendix two or four the student did miss one day but again progress and we don't dispute that but was that progress enough and in determination again on this educational issue the assessment of progress and educational issues within the us i was actually please would also point out that the record before the s r o was exactly the same as that which was for the district court and now this panel which again we would submit would support deference to the soros decision until just a few points your honor so i know it taken a lot of time st c h did not struggle academically in his earlier placement he did struggle with attendance and there is as much carney said objective evidence that he basically went from zero to one hundred in terms of that objective evidence the nd thing i would say is it's not it shouldn't be the same record and this is why when i started the argument i talked about the factual inaccuracy that the s r o made which then went up to the district court had the s r o not made these what i think are just false inference is about regression would have been a different it would have been a different record and then the final thing is a lot of this case was about evidence and what evidence was there of progress why didn't the s r o just remain and ask for more evidence it's a remedial statute that the dad had to pick a school sort of under the gun to find where he could send his decision he had been there long enough it would have been january or february but i'm asking you is the piece of evidence that you can point to that the completely destroyed or not not there in the record ended not after