good morning good morning your hon can advise you thank you ok thank you may please the court my name is andre lo rose and i'm here representing katie and her parents today and they have consented for us to use her first name in these proceedings today and her parents are here in the courtroom ok he's unable to be here because she's twenty years old now and attending classes at a community college her goal is to become a dental hygienist she's a capable bright young woman and she was capable of high academic achievement while she was in school but unfortunately she had some serious psychiatric disorders that interfered with that ability to learn that ability to be in school and  the most critical issues here is that the school district the missoula county public schools failed to identify her and evaluate her when there was ample basis to suspect that she had a disability i mean let me ask you to help me on this i've dealt with a lot of these cases and just kind of laying out my perspective on this it seems to me that with the exception of the child fin e issue that the school district tried very very hard to do its duty the ministry hearing officer and the district court so far out on the job five issue they probably missed the ball but this there's a timing problem is there not that is the statute of limitations can you address that for me please in other words let's assume for a moment that the school district in adequately discharge its responsibilities under the child find duty why is that claim not barred because it occurred to long before the statute ran it's not barred your honor because the parents did not know should not have known of the critical facts of the injury until until she was evaluated in two thousand and thirteen and found with respect counsel i have no doubt these parents are loving parents they love their daughter they want the best for her as does the court but the very issues that were involved here i think some of them actually friends notified the district they were concerned had asked for certain things to be done and i just i'm struggling with the idea that somehow the school district was supposed to know that or recall or katie or j katie ok katie had these issues and the parents didn't know that kind of it's hard to hard for me to understand actually your honor that's not correct the parents didn't know and the school knew what they didn't find out until she was a sophomore in high school is that she actually also had autism formerly known as  no intellectual impairment but she was diagnosed with major depression anxiety disorder a d h non verbal learning impairment the parents do this all right they knew that ok so they knew that and eventually the school district fine obligation placed it's so profound it places that responsibility on the school district as affirmative it's far reaching and counsel perhaps i'm reading the record in a different case but i thought that the parents in this case had katie in a private school beforehand or they got to the public school they were concerned all along as loving parents would be that their child had some serious problems i thought they communicated many of those problems to the school district you know there's a view about what when where all that sort of thing but they knew they were loving parents now the fact that the school district may not have known or the parents may not have known a person ice medical  definition i don't think is the issue the issue is she was having trouble trouble learning having trouble interacting with people in any way with what we used to call asperger's has but they knew that well they knew she was having problems but they didn't know that she had an educational disability in the school district is the professionals who should know that you're not serious are you want you want us to absolutely not honor that the parents didn't know that katie was having trouble in school and they knew of a learning they knew she was having trouble in school they did not know that she could qualify for special education services they thought that was for children with severe not physical and intellectual disabilities i asked her but your what what the remedy might be and what she might be entitled to is one thing when i'm talking about is the fact that the parents were aware that she was having educational difficulties right now and under the precedent in the circuit that is not enough the you have there was a decision was decided while this case was pending it adopts the pro choice by the draper court the eleventh circuit i believe that says that parents do not know should not have known until they gain information later that proves that shows that what the district did was incorrect and in those cases the draper case and others that were cited with approval by this court in avila those cases three of them involve child find violations and and those three said the parents did not knowing should not have known until there was a later evaluation that revealed that that student did have an educational disability the draper's a little bit different i believe  and i guess the diagnosis i don't know if you remember what the di was a miss diagnosis in a misplacement i believe what kind of what was the issue that i think they thought the student was intellectually impaired when actually it was a different type of disability this case seems a bit different because in this case at least from the facts that you all have percent presented katie's had issues she was in the first grade if not before her her parents had her see mental health there was when she was in the first grade she was diagnosed with a d h d her parents knew for her i saw i'm just trying to figure out but let's just even with all of that let's get to the ninth grade when she had suicidal ideation she had the suicidal i not in the ninth grade she was hospitalized in the sixth grade in the ninth grade she expressed suicidal ideation at school in the sixth grade the school officials called the parents she went to psychiatric hospitalization immediately then she was in a part time school part time psychiatric hospital program let's see let's use that date ok that was june two thousand and ten but that was two thousand and nine no two thousand and nine is when she started in the public school system at the beginning of sixth grade in june of two thousand and ten at the end of that grade she had missed two hundred twenty three classes she was it was she hospitalized she was hospitalized at the end of may beginning of june two thousand ten and then she was hospitalized again in the fall of two thousand and thirteen when she was a sophomore in high school and so why did the parents after that bring a claim against school again it's because they had no idea that educational disability definitions are very different from medical diagnoses and which says a mesh emotional disturbance is one of the issues so i mean they clearly had to know that there were some emotional disturbance how would they know the school district has the affirmative obligation to find students who are homeless who are wards of the state and who are in private schools and they i'm sorry  them have have looks like from from the statute responsibility to try to do something once once they know something and just try to figure out practically or why did the parents wait the handbook says if you have questions about your child's eligibility for special education talk to the teacher that's what these parents did that's all they knew to do the handbook gives no clue that they have a right to request an evaluation it doesn't give any idea page after page of notes here that shows interaction with the parents in the school district about this woman for years and so the school district was obligated then the provider notice of the  the parents are responsible for their child they are but they're not the education a sufficient it's a two way street and the record shows that it was a two way street what you seem to be suggesting is that the parents have to receive from the school district some kind of a psychiatric determination as specific terms saying we've identified your child has x therefore she's entitled to watch but they talked about what was to be done the parents with the child in a private school before had treatments the device actors of who's a hospital they were deeply concerned about or i just but it seems to me there's a disconnect here it seems like you're saying yes they had an obligation to notify what what they had problems again they did not know that she could be evaluated under i d e a the school district knew that she could the school district is charged with the duty a far reaching duty if i students and to valuate and that's when that would have twelve correct ok and so from two thousand and twelve assuming that there's no way to push the statute limitations beyond that because it seems like there would have been an obligation on the school in two thousand and nine or in the soup when she was in the sixth grade i think i'm confusing that exact but nothing happened nothing was filed and if something had been filed before then i think you know we might be looking at this quite differently but we have to look back now also within the last two years because i'm not quite sure how we the statue limitations acted that's why we asked for the briefing and i'm not quite sure that that has been answered here today but from two thousand and twelve to two thousand and fourteen are used maintaining that there was a violation of the child fine from that time period yes from in two thousand and twelve until february two thousand and thirteen when she was provide evaluated and provided and i doubt it was also a violation of what happened what what should the school district done in two thousand and twelve that they didn't do here that would  have in your view not made a violate the child they should have evaluated her id a mediately and when they conducted the evaluation they should've looked in their own records they didn't even ask the middle school staff for any reports about her so these brand new staff immediately did their obligation in seeking an evaluation but they didn't seek an i d a evaluation and that's very different and if a child is eligible for i isn't that all part of the identification process because it does in the district have an argument that we're trying to determine whether there should be an idea that we should during that time frame well your honor no because the school district doesn't get to choose which law wants to apply an id a offers a lot more protection than section five zero four does that the student has to be identified first to determine whether id applies and isn't this part of the identification yes the evaluation is what identifies a student and it is part of that process but you don't know if a student qualifies for id until you do the comprehensive evaluation for section five zero for a medical diagnosis is enough agree but didn't you just conflate evaluation with identification are they separate processes or  they're not if you look in the federal register the explanation from the us department of education is that's all one process you want to balance of your time is up to you but yes your honor also you know the boundary well so let's hear from good morning your honors my name is elizabeth collins and i'm here today to represent the missoula county public schools the case you have in front of you today is complicated and it goes stretches over a longer period of time what i'd like to focus on today is clearly obvious the arguments with a statute of limitations in child find and address the actions of the missoula county public schools i think it's important to understand the complications in this case though and it's going to be hard for me to actually say the students names i'm still going to say k k r because that's what i've been calling her for years a k k r came to missoula county public schools as a sixth grader after spending the first seven or six or seven years of her educational history in a private school in missoula montana this particular school is unstructured doesn't offer grades and doesn't provide special education during the time of her attendance in the school parents had her evaluated several times and those evaluations identified issues that k k are struggling with  also made recommendations for several other way to privately yes suppressing those evaluations made recommendations for k k r in a school setting nevertheless the parents kept her in the unstructured private school that did not offer special education related services in the sixth grade due to issues related to her brother and unrelated to k k r k k r and her brother were both moved to the public school system in missoula montana at that time district staff knew that k k r s father had recently and tragically been murdered and that that had profoundly affected her in that she was suffering from grief mazola county public schools testified they were unaware at the time she entered school that she had other diagnoses and the testimony on the record from the parents was they did not provide the private evaluations to the school at that time when she started sixth grade k k r struggled moving from an unstructured environment to structured environment that's not uncommon for students who don't have the experience of going through a structured public school environment nevertheless the school worked with k k r and during the course of that year work with her to identify some issues  gave her additional help all general education interventions that were available to other students as well at the end of her sixth grade year k k r wrote a note to a friend who was leaving meadow hill graduating and going on to ninth grade that express ideation that no was turned over to a school counselor who informed the parents and k k are was at that time briefly hospitalized and that was in two thousand and their was in two thousand and ten so that's the two thousand  thousand and ten school year this was at the end of the school year though keep in mind this is the end of may beginning of june school in missoula gets out in the be beginning the middle of june when k k are returned to meadow hill in the fall her grades improved her behavior had improved the district at that time and consistently the staff testified that they did not see her as a student who was in need of special education identification is that the real key issue here in order to identify a student to determine whether they're eligible for special education school staff has to have reason to suspect that she has a qualifying disability and is in need of special education and all related services due to that that the students treat when a disability is suspected when the district has noticed that the child has displayed symptoms of that disability and the idea defines disability to include serious emotional disturbance it does but your honor there is that's two parts if you look at that federal statute specifically states that you have to have the suspect the disability and believe the student needs bestial education in order to address that disability in this case the staff uniformly testified that they did not believe that kate k k r was a student in need of special education even after they were aware that she was hospitalized for suicide suicid disability that substantially limited to major life activity that's a completely separate program completely separate statute it's not the subject of this complaint the appellant in her supplemental brief raises it page five seven factors that the school district was aware of including suicidality ations hospitalization psychiatric hospitalization for five days the diagnoses chronically absent and those types of things if the school district was on notice of that isn't that sufficient to start the i process the schools you have to believe so your honor not tell you why because when that during the sixth grade she was experiencing what they would consider to be the normal struggles that a student coming from an unstructured to a structured program she improved in the seventh grade she was able to  pass her classes she did have absences but they weren't an excessive number of absences she did not have the kind of behavioral issues that would have triggered some concern about her ability to benefit from the educational program even in light of our recent evaluation was doing was eligible excuse me in that case there were very specific and very difficult behaviors that the student was was demonstrating in school those behaviors did not exist in this case and in l j the student was being provided specialized instruction that was not available to the general ed students that did not happen in k k our middle school experience she was provided with general education interventions for example she was referred to the c s c t program and coun to program in her briefing but what she didn't tell you is that under montana administrative rules specifically it is recognized that a student can be eligible for c s e t mental health services and not be a student with a with a id a qualifying disability the regulations in fact require schools to collaborate with i e p teams if the student has an i e p clearly recognizing that there are many students who qualify for c s c t but do not qualify for father's absolutely right let's just give him the benefit of the doubt here to the to the parents of to kick are so assume that what did trigger the trial fine what happens to the statue of limitations here that turns in on the issue of whether the parents knew or should have known the issues the hearing officer and going to the fifteen day hearing we had a great deal of testimony about what the parents knew or should have known he made very specific findings based on testimony maybe you be more clear let's say the the school should have known based on the hospital i know you disagree with that but  assuming that the school should have known that triggered their child find obligations did the parents need to bring the lawsuit them within two years absolutely and if they did what happens it means that they  lawsuit regarding those years and what's your authority for that because the statute of limitations specifically with the obligation specifically talks about what the statute of limitations is and it's a question of when they knew or should have known of the injuries and if they don't file something within that time period than they are barred by the statute of limitations from going forward and what about the argument the parents make regarding the love and circuit case the how could they know when the school did ok and i think you are referring to draper draper and in that case again that was not an identification case it was an evaluation case and that case looked at what kind of specialized knowledge is necessary for a picture truly require that a parent knew or should have  known in that case they were looking at whether or not the district's evaluations were appropriate whether or not the recommendations for for placement were appropriate that is absolutely not the case here the case here is whether the parents knew of the disabilities to the child and that was esta testimony that they absolutely were aware of that and second were they aware of special education the mother testified during the hearing that she was aware of special education she grew up with in the schools she'd read the school's handbook regarding special education no specialized knowledge is needed for the identification portion there is no argument there was no evaluation it was an argument over whether the district's evaluation was appropriate because we hadn't gotten that far we were still in the identification phase of the cases that were cited needed yes all from from the district perspective whether or whether the district failed to complete comply with its job fine obligations the parents are charged with knowing what's going on with the child they clearly did here and he said that's what triggers a statute of limitations not whether the district has notified them of id processes being available we look at the knew or should have known standard that's a factual determination hearing officer went through this carefully of what did the parents know when were they aware of their injury the hearing officer found and the district court affirmed that the parents were aware of these issues related to their child certainly in two thousand and nine but if you want to look at the two thousand and ten date when the first hospitalization happened even if you use that date that still gets us to the two thousand and twelve knew or should have known date you know what was happening in two thousand and twelve  two thousand and twelve transferred from eighth grade to her freshman year of high school the testimony indicated that she was moving from the middle school to what's known in missoula as a health and science academy it's a small program located within the high school that focuses on health and science programming it's academically very rigorous it's not unusual for students to struggle in that intense rigorous program immediately the staff was concerned about k k r immediately and others testimony from the mother that the issues that k k are was experience were manifesting themselves differently than they ever had before the staff immediately turman that they would see consent to evaluate to see if she had a disability that was substantially limiting a major life activity they performed their five zero four evaluation at this time saw their prior diagnoses from doctors because they were provided by the parents at that point to the school she was qualified for services under section five zero four she was immediately served under section five zero four and within that on a say four months she was also then referred for an evaluation under i d e a because school staff at that time determined that they they expressed a concern that she was in need of special education services statute doesn't wipe out the school districts knowledge so it comes with that knowledge from sixth grade seventh grade etc etc so should we be charging them in october twelve with immediately at that point putting them into an id evaluation because they've got the only if there was a reason to suspect that she needed special education related services because of her qualifying disability and again the staff testified that they did not believe that immediately when she came into in october of two thousand and twelve that wasn't their immediate concern when did they get painter parents provided to them they provided the diagnoses it around october of two thousand and twelve should that have triggered it right there no not necessarily there are multitude of cases that talk about the issue that a diagnoses alone isn't enough to trigger an id a valuation it has to be read in conjunction with there's a qualifying disability and the student is in need of special education related services the federal statute has that two part requirement i think what you're being asked to do is get rid of the second part of it which would be a time the school suspects a disability it's required to do a full blown i d s valuation and that's not what the federal statute said and that's not the way the courts have interpreted that statute and this is identification only not evaluation the bar for evaluation is much lower once a student has been identified and the school has determined that they suspect disability and the student need special educational related services many look at the cases that the discuss evaluation at that point and  be the timothy o case absolutely the bar is lower at that point any time the district suspects a disability they have an obligation to perform a comprehensive evaluation and evaluate the student in all areas of suspected disability  parents or the school stay i suspect that this student has a disability and is in need of special education due to this disability the evaluation is where the school or private individual conducts an evaluation to determine what is the disability that the student and what factors go into the identification that are different in a sense from the evaluation just simply saying i think my child has a need for this and that's enough for identification or does the school district have to do some before they get to that point simply thing i think my child has a disability does not trigger a need to evaluate under id in the cases are clear on that it has to be read in conjunction with the second half of the statement in section or title twenty that says it has to be  concern of a disability and in need of special education if it's just ability alone there's a mechanism for the ender section file for that's a that's what i guess what does it mean when that second part of need of special education what does that how does that in practical sense play out it would mean the student needed specialized instruction in order to access the district's educational programs due to their disability so what does the school have to look at and how long is a reasonable time for the school what does make that second prong determination  school usually employs a general at interventions it can be anything from student assistance teams it can be working out observing the student informally it's there a lot of interventions the different schools work with students and spending on grade level so for example and in case grade level general ed interventions at sixth grade were allowing students to turn work in late they had a saturday school program that was completely voluntary for students that want to work extra time all those are general ed interventions and then when does it flip over the valuation to the lower bar when a staff member or parent raises a concern that the student needs specialized instruction in order to access the educational program teacher or parent teacher or parent that's where yours yes right yes but that idea where they need specialized instruction or need special education related services that has to be a determination made before the student is actually referred for the evaluation and in this case school staff testified uniformly that prior to when they referred her for her specialist evaluation in the later fall of two thousand and twelve they did not believe she needed at that point specialized instruction or  some very significant home life stressors going on within the family school starts back up in september of two thousand and thirteen at the end september of two thousand and thirteen within that first month of school the student was second hospitalization in two thousand and thirteen she'd already been identified as a student was special ed sheet already been determined to be a student who required specialized instruction or question if i could get one but i still struggle with what was senate exists in general twenty thirteen four months later ok because when they became aware of the different mental health diagnoses that the student was experiencing they were also aware that she was struggling in the new placement that she was in which was the health science academy which is more rigorous  at that point they didn't have enough information to determine that she immediately needed specialized instruction at the time they were treating it as a five or four issue of does she need accommodations for her mental health conditions which if you look at five o four definition it's a physical or mental impairment that substantially limits a major life activity and then once you reach that determination accommodations for that student are are developed and proposed at that time the staff believe that what she needed were accommodations and they develop those immediately for her first of all it's incorrect to say that identification comes before evaluation the express purpose in the statute for an evaluation is to determine if the student needs special education and related services and i will get you that federal register site today that says that it's all part of the same process and the threshold for suspicion is very low just a couple points quickly the need for specialized services doesn't it was established in seventh grade the school referred her for individualized counseling that c s e t program you don't have to be a special ed student but it is individualized counseling to meet a student individual needs and the record is replete with the school's awareness is this in seventh grade she was still absent a lot more than double what the school considered chronically absent  there's extrinsic evidence in the record that contradicts the hearing author's findings in the subjective retrospectively testimony of the staff and a couple points real quick about the c services in the ip the ip is fatally flawed the one in two thousand and fourteen everyone absolutely everyone agreed that she needed psychological counseling to benefit from her education that is not part of  the school said well she can get c s c t services but then the special ed director deliberately misled the parents and did not tell them that c s c t services had a waiting list and would not be available to her and had they put the c s services in the ip then the school would have been financially responsible for those if the parents couldn't afford to pay and so the this court's precedent is is so clear union school district and others that it  has to include everything it's a formal written offer and related services specifically need to include the frequency the duration and the start date counseling services were not in their their own expert said that she needed those their own experts said it didn't have a behavior plan and a behavior plan was vital to her success the bear expert said yes there were some goals missing from but he assumed th would be addressed in therapy there was no therapy in the ip and this is a child who had just come from a residential treatment center the parents did not place her immediately after that psychiatric hospitalization she went to a  center that had a school and residential treatment that was the best that she had ever done and she actually started to achieve closer to her potential so they begged the school to please replicate provide mental health  supports does not have that it's a the parents were justified in placing her in that placement they could only afford it for a year when she was out of that placement they moved she went to a very small charter high school with the rigorous college preparation program she graduated with a three point three g p a she was down below a two point two when she was in montana county public schools efforts don't count your honor it's action that counts it's following the law that counts and that's what most of what county public schools did not do i know they professed in the hearing about how hard they were working but the i p was totally inadequate in adequate so we do request that remain and this for a remedy hearing to determine appropriate compensatory education and that you order reimbursement for the placement in the in maple lake academy  yvel a case is very supportive of our position those cases that avila the ninth circuit relied on one of them to marcus is a child fine case and they consistently say yeah the parents knew what was going on the parents knew the child wasn't progressing but it wasn't until later when they found out the actual educational disability or poor programming that they had the requisite knowledge and in that case those cases most of those parents except to marcus had received procedural safeguards they had been in the system these parents didn't receive procedural safeguards they didn't notify the school in sixth grade and seventh grade eighth grade and ninth grade of her psychiatric conditions let me ask you this you're a very effective lawyer i respect that but there was think of a hearing before an administrative law judge went  essentially telling us that we should ignore the administrative law judge and the district judge with regard to the facts and that we should interpret them in the way that you have suggested how do we do that  correct not the facts but in my brief i pointed out where there was a clear error in the facts the hearing officer found that no mary archer the counselor was never informed of her nonverbal lowering learning impairment and had never  been requested to get a five o four and yet her own notes show that she was in her notes she says five o four nonverbal learning impairment that the record this court has said you cannot give blind deference to the court or some kind of a proceeding sometimes you get diametrically opposed perspectives and what it is hopefully a neutral person works at it or a jury looks at it and makes a determination who they think is accurate in this particular case the felt that this district was accurate in these points and i know you disagree with that but i'm simply saying that to say that you know basically there's clear error i don't find anything in the record perhaps you can cite where there is clear error on the facts that go to the for example the child find issue yes your honor there's clear error in the fact that they testified she didn't request a five before the record has documentation of that there's clear error that they testified they didn't know of her psychiatric diagnoses there is a fax in their records from her psychiatry it's with those psychiatric diagnoses the same with the non verbal learning impairment the hearing officer frankly ignored extrinsic evidence and i can't say everything i think about the hearing officer but it was his first and last special education hearing and i think i think that well over time but let me ask my colleagues anyone have any additional we thank you counsel and counsel for the school district i know these are very emotional cases we were dealing with the human being here we express our empathy for k k are we hope she will do well in her the rest of her life we will do our best to apply the law as we understand it and we thank you for your argument the case just argued is submitted and the court stands adjourned for the week thank