for which the child needed and then failed to pay for refused to pay for the parents appropriate private placement where respect fully asking the court to uphold the administrative hearings officers re mandated order and from december twentieth two thousand and twelve which held that the november fourth two thousand and ten individual education plan did not need a free appropriate public education as it did not offer  one to one services for this child when those services were required to make the decision that the last point you made who makes the decisions that they were required isn't that what the problem is with this but all in all i mean ultimately it's up to the individual education plan team to determine that and the allegation is that one to one that required but where do you find the finding that one well it was the administrative hearings officer when it was a judge as a remanded that question to the administrative hearings officer who said yes one to one services were required and that was based on the evidence the testimony all of that was presented in front of the hearings officer at the due process hearing so based on all of that evidence on  hearings officer who was richard young said yes this child required one to one services and then it was the district court after the  overturned that and you're running asli or misinterpreted in my opinion what judge as was reminding back to the hearings officer of the district court in two thousand and fourteen i believe it was judge watson said th have determined the evidence was insufficient to determine whether one to one services were required that wasn't the question that went back to the hearings officer it was whether what those were found was that the evidence was insufficient to determine whether one or one services were provided the question is where they were required and the hearings officer said yes they were and it's and the reason why the district court order remains should be reversed is because the law says that you have to defer to the expertise of the administrative hearings officer they're in the best position to analyze the evidence evaluate the phrases but it's like thorough rowing careful right and why looking at the hearing officers decision i guess i had some pause there because i was expecting more and didn't see i don't know do you tell you tell us why you think that here the hearing officer findings were thrown careful well i think he does do an analysis of why he's he's making the decision that he's making why those were required i mean he does go through the evidence that was presented the testimony the school psychologist i mean he goes through that just give us the boy points summary of what are the the time but had the speech capabilities of a two year old right about that's fact number one just kind of tick down that's what i'm asking you to do because at the end of the day regardless of the level of deference or are the question is still whether the needed or that he had two aides at the time and hearings officer use that to determine that well he doesn't meet need to aids but he certainly because of the issues that he had that he needed a one to one with him if this school staff is interpreting close adult supervision to mean that he's going to need two people with him at all times so based on that that he's officer said no  that one to one was appropriate not it to no one so there was that there was also the fact that he required a behavior intervention plan which the district court later said that well just because a child requires a behavior intervention plan doesn't mean that that child needs a one to one aide but the hearings officer based on all of the evidence and testimony that was presented said yes because he needs because he does need a behavior intervention  them so i'm not sure maybe you can tell me why we should have jurisdiction of that because it occurred after the notice of appeal i don't know that's before us well this issue of stay put when it is probably for the court it was attorney of record at the time was asked to file separate briefing or separate motion on the issue of stay put that was not done i assume and then the appeal was filed  and as soon as the appeal i came on the case as the attorney of record after the fact and immediately filed the motion in district court and the relief really pending appeal and asked for the court to decide the issue of stay put  and but i put all of the issues were raised in the record i mean the state was on notice that this is an issue in this case and that issue is extremely important and i understand but i'm i'm not sure we have jurisdiction to get to it i mean do you have any case in which a separate order following separate briefing all of which occurred after the first notice of appeal was filed was nonetheless deemed to be part of the case without a new notice of appeal being filed i'm not aware of a single case that's in that posture in which jurisdiction was determined to be proper in the court of appeals your honor i'm not aware of that but i but regardless the issue w raised throughout the proceedings below and i understand the motion was not filed as requested by the district court but it was part of the the arguments that were made and so i would but just the posture here t ell me if i'm wrong on this and remembering that the order from which the notice of appeal was taken said at the very end the plaintiff is also of the the child was also raised the stay put issue i don't know i'm not going to decide it in this order it needs to be the subject of a separate motion and then as i understand it you filed us a separate motion after the notice of appeal have been filed and additional court issued a separate order resolving that issue and then you never filed a new notice  i don't think there's anything in the body of precedent we have that allows you know that they had to interject this issue without having found a separate notice of appeal as i i guess i understand that that well maybe you can tell the issue of the current placement you know it's going to be an issue for that for this child and it completely contrary to id a law that you know this child would where's the child but wh private program and is that untrue or ok so is this thousand and two is this end up being in the state is no longer pain from two thousand and fourteen march of two thousand and fourteen the department of education agreed that that is the appropriate placement for the child so in two thousand and fourteen agreed to the placement and my understanding is began to again reimburse for that for the child to be at the school they were all period of from two thousand and twelve until that time where the department of education was private's what i remember but so is that the only consequence is that the parents won't be able to get reimbursed or because it doesn't sound like if we don't have jurisdiction that some harm is going to occur to the child the child is in the appropriate placement and the state is paying for that now right that's correct but it's you know it does harm the child it does harm the school and it sets presidents for you know the department of education to you know huge and that kind of you know you just need to precedent for idea cases going forward i'm just trying to figure out in this case right what would be the consequence to this child and the parents that would be the child is in the car private placement and that the department of education has agreed in some separate agreement i believe sometime twenty fourteen wasn't a party to that but this is my understanding that  your judges raise for mishap which is what are the facts the federal district judge was reviewing after the rebound the decision and here are the facts these are cited by the hearings officer in his remand a decision one that the child was diagnosed with autism when he was two years old he was seven and a half years old at the time of the ip in question which was november twenty  significance of that because that sounds extremely problematic and that might well lend support for a finding that this child is in a position where one to one instruction yes your honor yes there was testimony is the only services in the ip were appropriate for that child and the initial decision by the industry did officer was that with respect to the program on autism addressing autism and behavioral needs the family had not proved their claim when i went up to the first federal district court judge judge judge jester as your honor there were affirmed all that the only mother went back on remembers this singular question about was there actually a need for this one to one and there's some confusion about whether this went to one instruction or one to one services and i've reviewed judge as was order i was of the attorney of record that time and i must concede the judge as or did not say that those findings to him did not prove that the child did want to you know i have to say that that's the main problem the district judge when i got it back i thought it was a quote law the case close quote but judges are clearly left that issue open the judge was wrong yes i was i mean we don't have to reverse it and go back and tell him don't read it if you  relied on for him to reach his conclusion that it want to want service or instruction was required you know i have i was a district judge once upon a time and  i can see the he does want to say judge as a road was wrong but he once he gets this long the case idea and he's made a decision and then he's backing it up but if he made the decision for the wrong reason because he thought it was a law the case isn't that doesn't that indicate that he needs to look at it again to make sure if he's if he's made a mistake at the beginning george is remade this is the law of the case he made one to say other things to see judges are right when judge was never made that decision it sort of taints things so tell me why there's analysis just with best statement that this is the law of the case i don't need to decide anything further he went on i understand where you are saying that maybe this tainted his analysis but he went on to analyze the facts cited by the federal security the administrative hearing officer and this reviewing court can also review his analysis after the law of the case discussion and say whoa based on the record based on how we analyze these facts is there still you know sufficient evidence to support his conclusion of the first i don't know deference to the hearing this officer and to those factual findings do not support the need for one to one services or instruction and the reason why those  findings were in their original decision all those findings were the basis for that hearing also to conclude that other claims such as the claim that i did not address as autism were not provable all those  insufficient to prove that the behavior claims were not t here we don't have one with the same this one when the saying that what we have is the department of education's school psycho psychologist the only expert that opine on the connection between these findings and whether that prove the need for one  maybe oversights and whatnot i think the reason i cut you off is because it seems to me that's a very important overstatement that you just made because here i am struggling to find a reason why judge watson was justified in not granting deference here  i mean i'm serious why wouldn't we why is judge watson in a better position than this hearing officer to make the kind of assessment that's required here because the point i made about what the hearing  needed besides having his expertise in dealing with these idea cases at the administrative level he needed to have some expert make these connections of showing these facts because absent that basically he's making a legal conclusion not some administrative the legal conclusion that a federal judge could also make and your honour's can make also that there was not sufficient there is this missing predicate which i'm claiming it is you need to have someone  expertise in the school setting saying you know based on these findings that these are indications these facts support a need for one to one and then the hearing officer could weigh all this and in their administrative expertise determine which one of those experts merit you know credibility on this record if you're where do we find that even with one to one see whether one two one works on a doesn't work as i understand this record the conduct from tenure in a negative way period didn't it  placement because that's where he's been all of and some safety issues as well know there are safety issues alleged but there are no findings that there are safety issues proving that the it's incumbent upon the family that has the burden of proof to just show up with more than just well my child is autistic yes we know he's autistic my child has behaviors we know autistic child have behaviors the question is and has some expert o pined that based on the undeniable fact that there are certain services required you need to have some experts say yes these are the type of sources you need and we had experts to say you know he had the appropriate program for  so he had the appropriate programs addresses autistic needs and we had an expert that said he did not need a one to one and i have to know for the record i'm the johnny come lately hondas but i want the record to be clear apparently there's some vagueness about whether it's whether the father of the family understood the discussion i was about one to one but the record is clear because when the father testified during direct testimony he testified that he understood very clearly that the discussion was not about one to one and i'll just say you know because you have your clerks are but when he testified on the first day is the beginning pages page thirty nine and the question is but i just want to know what you recollect of the discussion so they said we're going to have somebody whatever they used to call that work with that is the father's own admission that he understood during that discussion in the ip meeting that this discussion about the close adult supervision was never about once on i thought the numbers  yelling into the microphone i thought the number of minutes of instruction that the i did require basically ended up amounting to one to one yes your honor except if you look at the clarification of services grazing ip is described in the parent all that it's either a paraprofessional or a special education teacher and that is the discussion that was testified to by the school psychologist who was part of the id testified yes there was discussion about there would either be a special education teacher teaching on the self to think classroom or times when the teacher was not teaching would be a paraprofessional or educationally so what we have here has some of these but they come to eventually to a hearing officer and then a hearing officer makes a determination and then that comes to the district court so the district court had the hearing was inadequate because it did not provide one to one services the hearing officer made a decision that it was inadequate because of that now the hearing officer royal light upon actual evidence there was testimony from the speech pathologist the b s p plan the peace provision for consistent close supervision the public schools acting principals disbelief and then  hearing officer concluded from this evidence the student suffers from behavior problems social and safety concerns that cannot be left alone and a lack of independence and this requires one to one services so the the district judges posts show deference to the hearing officer if those facts are fine he's a thorough and careful and i believe what i try to argue today is the show you want he cites these factual findings that's might be you support for an opinion but i think the opinion that's needed is some expert to say like our school psychologist said that is not sufficient unless they had an expert to say that was i believe contrary then we have issues that you know they are not so good of you and sadly this person over that we don't have it so the hearing officer did not accept your evidence and used some other evidence no no your honor on remand the parties it stipulated there would be no new evidence it was just based on whatever submitted during their initial hearing and so he took whatever evidence was presented and he basically repeated all this factual findings from his first decision what i'm saying today is he uses factual findings which basically supported everything in favor the deal he and somehow construe that into an argument or conclusion that one to one was  it is confusing initially also confusing because of the beginning of the district course saying that it's the law of the case and he went on to make his own findings but it certainly way over your way over thank you for your argument let's hear from electronic and get a response to the arguments you made thank you first of all i think that the hearings officers reliance on the same set of facts is not an issue the way that judge wants and needed an issue because the facts supported the conclusion that one to once has he was in a lot lies in whether one to one services were offered and so that they were offered they were appropriate based on what was in the record the close adult supervision for one thousand seven hundred forty minutes if you can use that those same facts so under the new question a different question of whether those were required whether one to one service is were required and you use the same set of facts to determine that question it's a separate question so it's appropriate to rely on those on the same set of facts that were and actually presented the evidence very very there was a question about whether to increase his word vocabulary the child was no longer having meltdowns was no longer falling on the floor and having tantrums and i want to point out that also on that page it does state that the father testified that he understood that the november fourth two thousand and ten i p meeting at that meeting that the deal we would have somebody assigned to students so i did understand that they wanted a one to one in fact they wanted to do one but he did understand that somebody based on what they talked about the e p that somebody would be assigned full time to his child let me just jump in with a question what's your response to your opponent's argument that they actually had a school psychologist who gave an expert opinion of the person i said question that's before us and didn't present any expert to counter that well actually there was the testimony of the expert w witness on behalf of the family it was the private program expert hard director that testified and that those findings are located at page one thirty one  excerpts of record in volume two who testified that the student receives direct one to one services which included st traveled discrete trial training natural environment training  talked about the problems that the child had when the child first started with the private program including self interest behaviors aggression tantrum behavior and so they didn't have an expert to testify on the issue of whether the child needed a one to one and based on all of the no evidence that was presented at the hearings officer found that a one to one was required so they did have an expert that testified and who is  better expert than the parent the father who is testifying that this child needs a one to one and in fact you testified that the child needed to professionals but thought that at least he was getting one professional and so the findings of fact i mean so the decision is definitely deserves a deference it does go  over facts very very thoroughly and carefully and there's really no definition of exactly what that is supposed to look like but if you're looking at the evidence of the views analyzing it and coming to a conclusion there is no reason for the district court to substitute its own judgment for the judgment of the hearings officer who has the expertise and the last point you want to  ok thank you very much for your argument because just argued will stand submitted and we are in recess for this session