the morning hours i'd like to concentrate on the b i p or the behavior intervention plan in this matter that was drafted in the two thousand and ten two thousand and eleven school year and it was intended to be used in the two thousand and eleven two thousand and twelve school year and in the two thousand and twelve two thousand and thirteen school year the question arises as to whether or not the plane the parents complaints regarding the use of this b i p a year later or two years later in the case of the second school year were retrospective and speculative complaints and the district itself the appellee itself on page forty five of their brief admits that the prior b ip took nearly an entire school year to develop and was not implemented until may of twenty eleven when the parents and asked for and i a be a newbie ip in october of two thousand and twelve the boys in the second year he was in the private school the first year he was in the public schools right it was more difficult that second david if he's now in the private school and other was consultation with a private school teacher i don't think that it's a problem to update it with the consultation the private schools and if you look at ari in particular are read to scribes although it's not the law in that case but  describes how the new york city department of education develops p i p a as well before the school year begins even though the school the student is matriculated either at work back at school or at some other school i forget the name of it the mccarton school and in those cases they were able to do it and while they while one of them was rejected in r a d other one didn't seem to be rejected so that those are not those are not necessarily those are not necessarily unable to be done without that student in the school so is your argument about the b f who just about timing or the substance of it seems to be i think i think each time i think timing and subs all the data that was available to the school district could in any way be appropriate word that there could have been an f d a done in a period of time either one of the record shows that was what in the record shows it wasn't what in the wreckage shows you records that were and that it was inappropriate were the changes that actually happened in india even in the time period that those two years went by and in avidly any child is going to change in that time and i think we see i think that's spelled out in the records and i think it's spelled out in his performance reports that came from the franklin academy for instance many of the behaviors that we're presenting when he was in a public school didn't present in a private school and that's in the record  also like to with we are also that the school district wouldn't carry through on the on the that that's part of our argument and the reason and the reason i don't believe that that speculative view is very important and in in in oregon either is a footnote on page twenty seven six ninety four after thirty twenty seven footnote three which in particular states that evidence the school district did not follow the ip is written might be relevant in a but it is opening up the possibility that in and that context that this would and in the past performance if it takes a year from october as school year i'll be more again to be fair  it takes from october when you start to be ip until april to get an f b i to be ip ready and then in may of that same school year to provide the service under the b ip that to me is problematic and it is history and it's not speculative so that the following year the parents what do they expect they expect what they already know the only places where it took too long to develop the p i p so we believe the school district is it going to perform under it is there anything reality is and the and the history is an earth and we play this out in one of the briefs that there are three times that this happened over the period of time this young man was in the chapel why schools that in those three years each time it took similar to the two thousand and ten eleven nearly eight months to modify a b idea to come up with the ip and a student should have to wait for that a parent shouldn't have to wait for that and if the if there are other questions in this appeal if well i don't think because the question in my mind wasn't a matter of fairness the question in my mind was a matter for the court dismissed if the court's admission of agencies will occasionally especially an appellate matter dismissed but they may talk about the  people is dismissed are procedural grounds then there's been no exhaustion i understand that the economy and the regulations and i don't want to belabor that point but i believe that apart from that if you have a dismissal are procedural student with five students one to a classroom and one school one classroom school but you can somehow put together a behavioral assessment and behavioral improvement plan for what is going to be honest class with twenty students in a large school thirteen was going to be a team meeting he was going to observations concerning implementation use asian to see if we have to change the plan there's no evidence by the way that we have to say it can't be that the plane would have had to have been changed because the student  tense which kind of just listen to another issue a link to the same subject the complaint about the b i p for twenty twelve twenty thirty nine is a situation where the student was never educated in our school for either twenty eleven twenty twelve what twenty twelve twenty thirteen caseless says that such procedural error issues don't result in denial of a free appropriate public education was one of three things or met one being that a finding that impeded the student's right to free appro whether eagle hill school present would provide an appropriate occasion to the student the late show render the decision saying that it would not f e i just decision would be upheld even if the sorrows decision which is more limited were not we have the same purposes of determining appropriateness of the school we have a student an autistic students whose could be placed on a bus for three hours a day and hearing officer was quite clear in saying that was highly and highly inappropriate situation for an autistic  appropriate education for the student i feel i think that's actually quite damning there's nobody from the school to explain the program or how it will benefit the student and i see partial hearing loss or also noted there were experience and was a founder of eagle hill and were one of the two founders of eagle hill and spend an inordinate amount of time on the record explaining the program of eagle hill that was ignored completely by the hearing officer and by the u certain in it and in addition and she was familiar with the students she had also visited with the student observe the student similar to the way the school district that it's also my adversary talked about calls and how the goals were appropriate because they listened to the folks at eagle hill which belies the fact that they could have easily done this very same thing is a concern to behavioral intervention plan without any question in addition in addition i i i have to go back to the b i p and the scenario what the parent was complaining about in implementation wise then it talked nearly eight months each year to develop a b ip and in that time nothing was really being done with regard to this so we were going to start with what was essentially in two thousand eleven twelve a year old b ip in september that again the district said they would modify and reef shape and do but the parent had the experience not retrospective the real experience of having waited eight months for a b i p the last time and then again in two thousand and twelve the same thing is said again the district says we know that it has to be modified it will be modified you heard mr rush we'll say that so in the context of modifying the parents waited again going back to this experience that they had eight months nearly an entire school year to have a be ip made and put into effect that just doesn't work for for a