and good morning please proceed please the court my name is gary mayer sin and i don't represent a county i don't represent a class my firm has represented however a student who was five years old at the time of this of the underlying hearing is now years old we just jumped to his severity as a child with autism we've represented over a thousand students in thirty five states if he is not the most severe he would be among the top two or three for sure made that finding the district court made that finding his to his to his severity is not in dispute at all and the s r o and the district court in this case acknowledge that this student needed additional afterschool services supplemental services on top of his education at the not for profit manhattan children center so that part was not in dispute where were the where the court went wrong was in dismissing the case saying we recognize that he has all these needs but that will be for some later court to decide the court had the obligation in the duty to make that decision at that point or order remained the case  there a factual record on which the district court could make that absolutely judge we had nine witnesses nine witnesses testified for the for the plaintiff at the underlying hearing all of which specified exactly the services that he was receiving and what he needed it was not a single witness called by the department of education they conceded problem one they conceded that they had deprived the student of a fee for free and appropriate public education so we didn't have to deal with that issue but this is what this case is only about the one and a half hours per week for additional therapy right i get patient therapy no it's actually the additional incremental cost between the a b a hours the we we were receiving payment on those abs i was a think at ninety dollars an hour and there's an actual market value of what the providers actually charge a so that's so it's the market rate for the a b a hours and hours and i  half hours per week of occupational therapy yes your honor and i think there's also a speech a small speech component and we're not talking about three quarters of a penny here we're talking about which certainly thousands of dollars are involved with this how much does  dollars an hour so would be close to three hundred dollars for the hour and a half session we're talking about three hundred dollars per week per year per yes but if i might just continue  and they all involve this is not a matter of first impression this once the school district concedes or is fine that the school district has failed the school district is subject to the following standard they only have to prove is our program reasonably calculated to produce of meaningful educational benefit if the school district proves that the parent wins nothing that is the standard on problem one here this is the problem to standard as this court has held time and again is even more relaxed entered for parents understanding that parents are just parents they're not educational professionals and it's difficult for them to cobble together these programs once there's been a fait deprivation so the standard on to is a somewhat more relaxed standard for parents they need not prove that it's perfect they need to prove that it's fully certified they get a little bit of a break but essentially what the district court did here was elevate the standard a standard higher than what this is what the school district has to prove on problem one if we follow the district court's reasoning and if there was a real man as suggested by by the department of education the remain would include an examination of where exactly does faith begin is it sixteen hours is it eighteen hours is in one thousand now hours that is not what this court held in frankly that's not what this court held in c l is not with this court held in ari which is one of our other cases once there's been a fait depravation you simply look to see whether the services are reasonably calculated understanding that yes excessiveness has a role and really any reference to any equitable solution that's your no i i wanted just i just was about to say that yes there is an unreasonable in this factor there is an excessiveness factor and that the time for that is at the hearing the school district here put on no evidence and no witnesses no testimony whatsoever in line on this summer two thousand and thirteen plan in which this extra one and a half hours a week of occupational therapy was not included isn't that correct they were relying on the i e p plan the twenty third teen services provided yes they're relying on an i p which is that was the last agreed upon i was the pendency benefit that the child gets automatically and unconditionally under hoenig versus doe but this was not if you look at the actual services that were being requested if you look at the appendix at three eighty six page three hundred sixty has the exact services that the parents were requesting by way of their demand so those those services exceeded the amount of the pendency benefit so i do agree that there is a place for excessiveness there is a place for unreasonable us but that time is past that time was at the hearing and a school district has to put on some evidence because this court held that if there's an excessive discern reasonable this aspect the burden is on the school district to prove that they prove nothing so under this record what would what would we remained in back to judge nathan for i'm the director of the federal legal appeals project for autism speaks i have it an amicus brief on that case as well but the simple answer in this case is that it will have no impact because they can see the problem won but what's children with autism and you look at the one thousand nine hundred seventy amendments in the two thousand and four amendments to the idea statute congress completely changed the idea statute and the courts have not really been following the sea change after brown versus board of education everything was access already providing access to education that and that's what the idea statute was perceived as doing in the earlier cases under rally and so forth but these new amendments in two thousand and four and two in one thousand nine hundred seven are outcome oriented their outcome or in the they they were they require students to be groomed for some measure of increased self sufficiency and greater independence that's what congress wants to see and in fact when it comes to autism which is our population you're talking about fifty thousand students per year that are going to graduate to adulthood every single year ok so you can either invest the money now and we can have a meaningful standard so that we can have greater sufficiency self sufficiency and greater independence at the time of adulthood or we can let these students graduate to a lifetime of unemployment and institutionalization so the  wait to see to answer your question where does the faith begin to think we'll have to wait for that decision i think in this case where the faith was conceded that they've deprived of faith that it's moot i think it's moot and academic in this case i don't think we have to wait and if we were bringing the court that decision and that granted to the court's attention because views that matter what happens in that case they've already conceded defeat issue right we can and i don't think we need to unscramble nor can we unscramble it going forward the whole point of this litigation is to put a pet plan in place so we don't go through this every year every school year would not be ideal that would be ideal and we in fact we have there's some there's a there's an intervening settlement that we're that we're looking at right now but we do have to fix the amount of pendency that the students receive be going forward and i think that that can be done it could either be done at page three eighty six of the record it reflects what the dependency order is i think it is in other situations it's approximate twenty hours of a b a services three or four hours of speech services a couple hours of occupational therapy a c that yes but what is the amount what is the how much is that cost i'm giving a an approximation judge i think that the cost of pendency is probably maria approximately under i think just under two hundred thousand dollars and includes the tuition at the m at the school i believe so yes church and all the services at the school are included in the tuition all the services that the school provides are in the tuition but these are these are some some of these are understand in the schools eighty three is per year which ninety nine ninety ninety nine hundred thousand dollars and just in relation to this judge i want to just point out that we're talking about a student even though he's only eight or nine years old who is this close to being in a far more restrictive and far more costly residential placement we have represented students in these residential placements that the cost of that is probably more like three hundred fifty to four hundred thousand dollars per year it's like being in a hospital and having some you know having a major event in the house this is a cost effective believe it wouldn't seem so at these kind of rates but yes two hundred thousand or three hundred thousand is a heck of a amply supports the us a row and the district court's conclusion that not all of those services require to ensure educational progress really thing in question is one and a half hours of occupational therapy so your honor that is correct that that is the difference between the current one and title meant and the services sought by the parents and that's the difference between the twenty thirty in summer that is the basis for the pendency order and the services that ok is getting reimbursement entitlements and the amount that will be spent in future litigation and ongoing litigation over future years of al case education so practically speaking it would really be much fun i think of my opponent agrees sure it is you are never right now are operating under that twenty thirteen pendency which is receding farther and farther into the future we believe that both the us are on the district court really looked at the record quite carefully and decided not all of these services were necessary for educational progress only one that is the difference not all of them were necessary it's one and a half hours of occupational therapy per week is that correct well both the us are on the district court actually we're looking at i'm not confused as to what we're fighting about it's only is it only the occupational therapy no your honor os or so so there's more more than that also the reasonable rates of reimbursement well we think that dependency from two twenty thirteen continuing to to govern this case for years into the future while we think that the us or the district court should go one step further which he was on the precipice of doing and just determine which services were necessary under the i d n which were not just a court was almost there it concluded that some of these services were necessary to provide an educational progress some of them were not and really didn't quite carefully look at the testimony future without seeing how the child develops how he is doing in the present system what he would need more or less you can settle this for the rest of his school life  well right now as the parents counsel mentioned there are settlement negotiations there have been settlements and all of that litigation or settlement discussion is based on this twenty thirteen and unseen so we really feel he was five years old exactly well that's crazy exactly so that's why the district court was almost there was almost there and looked at all the testimony and really didn't go through the testimony quite carefully as to the us their oh but just did not  kicked it down the can for a future court what exactly is it that you want from the church please list i'm going to write it down right so we would like the court to remain and to the district court to make particularize findings about which services are necessary under district court me no particularized findings about which services might be required simply simply found not all of them were and i believe under the mistaken impression that the case was minute meet is to court when it gets most of that for the state agencies to make that determination which according to the standards we apply for the review of state hearing officer or sorry individual or an officer of state hearing or reviewing i think it would be very reasonable for the district with that educational specific knowledge however do you know me does not is not looking for a do over here we don't need to put on additional evidence we believe that the record is amply been developed there was testimony heard from each of records developed i just did make the findings addressing the issue do we have adequate five exactly they got almost there but they thought the case was moot it's not so they didn't make those particular his findings which we feel like we really need at this point instead of taking it down the can for years of future let it was what else you want that's that's that's what about the reasonable rates issue well if the district court would like to consider that we don't believe it was raised here in the complaint or before the district court you have no particularized findings over which home based services and d o b needs to reimburse under the id so the question it's not just the one and a half hours of o o occupational therapy it's all the services that's and this is the most recent indication and it should be done in this litigation instead of waiting for more lawsuits to be brought for more settlements to happen it should be done here on this record that we have to bow out before us you agree that because the deal we conceded that they didn't provide a faith that andrew will not affect the outcome of this case yes we do we think that essentially this the question andrew is what is the level of educational progress to be required under the idea is it more than trivial or is it meaningful and significant right in here and what the finding that the district court in the us her own name was some of these home based services were designed for generalization of skills to the home environment and so they were not related to they were not necessary for any education of these services it only comes down to the say one and a half hour per week correct well your hon we strongly believe that the renin should cover all services because any pendency entitlement that comes out of the remained will cover future litigation over future years and one question that the district court if you get whether each service was merely for the purpose of generalizing skills to the home environment essentially to improve the student's ability to be self sufficient which the supreme court has held is not the purpose of the i or whether the services are necessary to make educational progress and do you know he understands that really that there are some circumstances under which the disability is so severe that this generalize services that are designed to enhance his generalized skills and so some areas if the services designed to enhance a generalized skills are necessary to bolster and ensure that he's making educational progress at school for example with this applied behavioral analysis and there was testimony that some of that a b a home was in fact necessary to make sure that he continues to make those gains at school as barnard and yes i believe so now with some of the other services for example and the speech language there if you supervisor at the school and said in her affidavit that the home base therapy for speech sufficient educational progress based on slightly more limited services under the summer twenty thirteen i eat he did not base his determination on a finding that okay therefore conclude that i could be does not require the district to reimburse the parents for home and community based services for the purpose of the generalization of skills in addition to the school day services and n p s for example occupational therapy that went to  you know playing with his baby sister or playing video games or gross motor skills a lot of not overlap with the occupational therapy he was receiving at school however we don't believe that the record supports that he needed all of that to m necessarily for generalization the held or found i therefore conclude that we need is not require the district to reimburse the parents for home and community based services for the purpose of generalization of skills was still talking about that one and a half hours of occupational therapy not prevents the case from being moot but we do strongly believe as the parents argued in their opening brief that there needs to be some sort of particulars findings about what services are necessary to prevent this dependency from two thousand and thirteen when you depart from the twenty thirteen summer i e you want to make a new finding and what services are you bored exactly on to the only reason the twenty thirteen simply the question here is on prong three and as courts have found there needs to be some rational relation between what deal we would have been required to pay for at the outset and what is required to actively reimburse i just want to make very clear that with the pendency wind up paying for most largely all these services that there was still no finding it went beyond just simply the one and a half hours of o t we were waiting for the district court to make a finding  that as to what services were needed we don't think that need is is precisely the test but rather this reasonably calculated test which is applied to school districts whether that be frank c l o or ari or whatever court you know whatever decision you rely upon they all say the same thing reasonably calculated provided meaningful educational benefit subject to any finding of any kind of evidence in the record which there is none in this case about an reasonable necessary excessiveness so we're saying that this  so so as i understand the argument you're saying that the s r o here for example was wrong to proceed to problem three once there was a determination about what was reasonably calculated well yes actually wrecked that's correct because there was nothing for the  rely upon in terms of adverse evidence from the department of education for which he could say oh this is little pete let's tease this out this is just for generalization this is just for learning this because we're talking about a severely autistic child we're not talking about  valedictorian we're not talking about academics and region scholarships that's not we're talking we're talking about how to tie your shoes we're talking about are you saying that that was clearly erroneous as a factual matter are you saying that it was as a legal also reference reference in our case lots of to looking at all relevant factors presumably that would include equitable factors that's true but we have the mh case in this circuit that also says that the s arose decision should be thorough and complete and just it shouldn't just be a throw away and say generalization should be some some to members or general to my question ultimately you are resting on the fact that there was no nothing in the record to support that equitable determination there was nothing in the record although given the opportunity to put something in we have gustafson as it is there burton they didn't put in anything so why should the parents have to suffer because of a tease out on speculative generalization to tease ou when there is nothing in the record to prove that it didn't put anything in the hourly rate nothing they didn't put a single witness on we had nine witnesses they had zero nine zero they had the opportunity to do so that's exactly my point when you have no record on an reasonable to no record on excessiveness how do you take off the parents how do you take all points for the parents there was and there was no showing our our witnesses said this is my rate i work in manhattan this is what i charge this is what i usually charge everybody we had market rate evidence all over the place what about the need for the one and a half hours of occupation about we had testimony about that but but again judge this is also about the twenty extra hours beyond the school of a b a we needed a finding so that we would know what our pendency benefit was going forward but for this appeal we would have no pendency benefit get twenty extra hours of a b a we got it because the case was then pending but as soon as judge nathan dismissed the case unless we took this appeal his a pendency benefit would have evaporated that was the whole point so we needed that to be fixed and even the department of education agreed that that finding some kind of finding needed to be made so this child's pendency protection would not simply evaporate which is what would have happened if we didn't take this appeal that's what i asked opposing counsel are you looking for a new i e p we're not looking for a new ip that ip when he was five years old has been has been surpassed by there have been there's been additional ip since that time of the head but but but we have cases i know judge judge lo here we had the  case that went on for eight years i'm not saying suggesting that it pendency benefit need to go on for years as it is but his knees are very severe he needs a school he needs probably about twenty hours a week of a b a he needs several hours a speech that hasn't changed since he's five years old and i mean whether it's one or two hours difference is maybe the question of why one should and maybe the answer is you do and i don't appreciate that but why wouldn't you want to remain since part of the problem seems to have rested on the mistake what is necessary and what's not and maybe you'll have the benefit of the supreme court's ok the might shed some light on that i'm in favor of a remain back to the district court to apply the rule in l and and frank on this record i am not in favor of a remain for a do over there should not be a do over it they had their chance to put in that they made the record the record is what it is they can see the problem one they should not be any redo apply the rule in c l and frank on this record why not absolutely i mean somebody has to make that decision if this court feels that it would be appropriate to remain for that purpose i mean i just think that this report was operating under a mistake mistaken understanding and so why not let it correct that understanding and proceed as as you've explained it judge it makes perfect sense on that standard but not to determine this whole issue of where does faith begin we strenuously object to creating a new standard that this court and neither this court nor any other court in the land has ever has ever adopted which is we're going to figure out that the district court is going to figure out from two thousand and thirteen where faith began that year for that child with these additional services that that's not the state right and in any event i mean i hear the word settlement i don't want to get involved in settlement discussions at all but things might proceed so judged last year we settled probably ninety five percent of our cases with the city of new york we're hoping this might be the next one we have  we i wrote a book called how to compromise with your school district without compromising your child i'm all about settlement that's not that's not never been the problem this case thank you thank you both for very