we are ready to hear arguments in the case of our earth versus harrison school district good morning good morning may it please the court my name is john static i am with anderson doodle a bell and i represent harrison school district two seated near me next to me is my partner mr kelly do i if i controversy and it is also capable of repetition is repeating itself in reality well do we look at the allegations raised by the mother in this case and that is the specific allegations that she raise and whether that should guide is in determining mood yes has they are very specific complaints yes your honor and those are specifically able to be repeated and are being repeated want to be doe it does a good job of laying out the reasoning for that that the student is a student of the disability they are of school age they are still residents of harrison school district and they can  that meeting yes your honor that is also capable of repetition this is a life case and controversy the only reason that the student remains at the alpine center is under district expense is because of the state provision that was put in place or initiated when the district asserted that its ip offer to think that there's a new i see every year that's correct that as a that's the repetition is each year it must be review it may not need to be reviewed but if they come you come up with the same plan she's got the same squawks she files complaint right correct she files the complaint and she can exercise her procedural protection terminology in the i e pm whether or not there is an offer of free appropriate public education a fake and those that are capable of repetition yet evading review if the name of the the name of the program what's the centerpiece in this question is whether the name of the program is the it is required in either the i e p or the prior written notice that's required of idea if that is a requirement of the i u p that significant changes the understanding of the idea and the requirements of the u p a and the prior written notice that would be a significant need for that is evading the brief you here for purposes of faith but she's locked into that specific and the procedures that were followed the than failure to have a neutral facilitator for instance at that meeting correct the failure of anyone in these new placements to look at aspen to see how he's doing there and potentially how he would do in the new all of those things are very focused on what was happening then that was happening then but is capable of repetition your honor because those orders came from a state complaint and that state complaint is derived from a different statute is not right from idea it is a regulatory provision and idea had a hearing and you made a placement at that time at that hearing that was procedurally unsound that is the assertion to clarify your honor it wasn't a hearing it's an ip meeting in the meeting was held procedurally sound the there is no the only question that was procedurally question was whether or not the name of the program in the offered placement  placement the parent was involved in the placement decisions throughout the i p process including that the recommended placement and the location of those services as demonstrated in the service record though all those decisions were appropriate and were fully involved with the parent was fully involved including the decision to place the student at the school of accidents excellent oh i understand the placement of the school of excellence but we have read the briefs and maybe i misunderstood the breeze but i thought the squawk was that she was not allowed to participate in the particular program placement at the school of excellence or her child was pla this specific issue is whether it was or perceived jewel deficiencies she was bringing us that that is the argument that she has your honor however the name of that program is the two programs were discussed during  that would be a discussion between three options and those options were of school facilities round up alpine and the school of excellence in the chose school of excellence what the concern is is that the program within the school of excellence was not decided upon and that's what i'm asking you a cracked whether she was present at the discussion at which those programs alternatives were considered those alternatives are both of those alternatives can deliver the i e p or i keep it simple for me my by mind doesn't work like  instance the neutral facilitator after their shed what's left what is it that is the wrong capable of repetition of the i e p placement itself here on the i p placement in the naming of the program is capable of repetition in fact it just happened in december there was a reevaluation meeting and at that reevaluation meeting another placement was offered and that placement that was offered was in the student's neighborhood high school in the top program autism program and the parent expressed that she would not want anything other than alpine and she could x exercise her procedural protections if this case if the stay put in this case is vitiated but presumably the land or the cent has shifted by then within a year there's been some progress made whether on behavior or other on academic ability and so it's just a redo is meant yes i mean the reviews the i must review it at least annually and offer a new placement at least enya link and that has been done in a reevaluation at least for a needle and then what would we decide in this case that would be necessary to know the next time around the key issue in this case your honor is whether or not the ip needs to list and the name of a program and the name of the rather arbitrary name of a program versus the location of the services that's imbedded with the ip the location of the service is appropriately listed in the ip the parent participated in that discussion those are specific to services in the ip a good case and that is rachel h out of the th circuit that look back at the purpose of that term location in the e p and so that's about the services and where those services are to be listed in the since the i e p is the individualized program that follows the student not the arbitrary name of a program outside of  moot then in many cases in the idea the case would become moot because the i p word is required to be emulated reviewed and there's nothing in federal law that says that requirement is right and that's and that's what gets us back to the specific complaints raised by the mother in this case if she were saying as i think the mother was saying whatever parent in hoenig was in that home is where you have a very disruptive child and the district says we are not taking this child anywhere in our schools in this district end of story go away now that is a dispute that is ongoing will continue correct and that is much different than the issues that the mother has presented to us well my understanding than we have here your honor then what would happen is that the dispute would become moot at the point in time following the expiration of that i p in that i e p would have expired before this well thank you please the court a michael cook appearing on behalf of the steven r f and his mother carrie fernandez in at its core this case is about protecting in affirming a longstanding requirement set forth  a that an individual ised education program includes a clear offer of educational placement and that parents have the right to be members of the group that will decide the appropriate educational placement for their child now the on the matter what the district court said was that because the i e p a to things because the ip did not include a clear offer of educational placement that it violated the mother proceed your rights that significantly in heated her ability to participate in that critical decision regarding her son and therefore denied him a fate the district or the district court also went into some dicta and talked about in this case procedurally we had a state complaint process and protections in place through that process that were also violated and the court determined that those violations also relish to the level of depriving stephen  s thereby that is correct well nobody contests that the mother was the meeting right and that is correct and no one contests at some point she became dissatisfied and voluntarily left she wasn't kicked out of the meeting or anything chose not to participate anymore doesn't that it would if that was true the benefit that we have in this case is there was a tape recording of the meeting and what happened at the conclusion of the meeting and what the district stated in their in their opening or in their argument is not factually correct saying that the the differences between the cole and liberty which they call is just acronyms for programs there are different actually distinct educational placements they were not discussed at all in depth during the ip meeting in fact the differences between those two programs was st testified to by district witnesses at the due process hearing so at the conclusion of the ip meeting as with with all i can he's the team went through the placement determination meaning that it starts with the general education class special education finally goes to the most restrictive placement which is a separate school everybody on stephen's i e p team agreed that a step or school was appropriate from that standpoint they discussed three different placements stevens current placement alpine a prior placement at what was called the round up school and what the district  are at this point that you're describing the three possibilities are being discussed as mother their mother was there right now with respect to the s o e the s o e is actually a physical building that houses five different programs that are specifically tailored in gear to serve different populations of students with disabilities or students on i p s so when it came time to make a determination stevens i could be instead waisting one of those specific educational placements in his eye e p based simply stated that they were changing his placement from el pyne to the school of excellence which is the building of itself so the critical issue in this case that was decided by judge jackson at the district court level was our call in liberty distinct and different educational placements and what judge jackson found was yes that was they were well known they were institutionalized between the two it's a stablished on the record that testimony from the district witnesses talked about how they target different populations they had different  student to teacher ratios they focused whether on small group learning or larger group learning so there were some material differences to your question as to whether mother was ultimately involved in the decision and she decided not to spit on the advice of counsel and that ended it if she had said i'm confused i don't understand because we've got these two different program placements and what is going to happen w stephen on the behavioral on an academic front someone please sit down and visit with me about that would be different and they said too bad for you we're not we're finished well she loved on terror and it seems like that should matter i think it's important to look at the timing st of all if you listen to the tape she left the meeting because the meeting had concluded her attorney was not present at the meeting after it there's a series of e mails that starts and in the appendix at page five hundred and fifty six dollars that really talks about what happens post do you have i have a student i would like to transition there i'm checking to see if you have room which shows the district at the time they made the placement didn't know if they had room most importantly that email said that placement for steven would need to be either colo or liberty mother was not copied on any of these emails april th there is an email back from the s o s saying by the way send me a copy of stephen's final i p so we can quote determine placement on may th having heard nothing for a month from the district mother of veiled her right to file a nd state complaint and the nd state complaint alleges exactly the same things that were decided in the  complaint namely that the procedural protections that mother obtained through the st a complaint that the district did not challenge back in two thousand and fourteen were not followed most importantly that she did not receive in ip with a clear offer of placement that people from that proposed placement had not reviewed or met stephen or observed him prior to the change of placement on may th someone from went out in observe stephen at alpine mother did not object to that but it was the st time that anybody from both she's had observed or even met stephen i'm a th there was an email  from any lloyd back to the people from both c's the observes stephen inquiring about the observation and asking whether or not they thought that the s so we could support stephen and if so steven's educational placement should be kolo because they had concerns with his behaviors and they didn't know if he had the skills to work independently or participate in the larger group settings that were  affiliated with the liberty placement or program this e mail shows when the decision regarding steven's final educational placement was made and it's clear that it was made without the input from mother or without her involvement it's procedurally and substantively st of all procedurally she above answer my question st and then explaining it is about the manner in which the district changed or attempted to change stephen's placement out what she wants what the mother would like the opportunity to understand what is being proposed in this case so back to the issue of when the mother disengaged it was on her on may th after the  state complaint had been filed the mother receives the st communication back from the district not saying come in let's set another ip meeting let's talk about which of these two placements is appropriate the e mail says we want to set up a meeting to discuss transitioning stephen from alpine to the s oing and at that point in time she said we have a state complaint pending because we think that the manner in which you proposed this change of placement in initiated that violated my rights and we are going to wait until the pin see of that action in till we make any determination on meeting for transition so subsequent to that on june th the state complaints officer now issued their nd state complaint decision which was wholly consistent with the st decision that says the district didn't follow a b c and d in fact they did exactly what they did in two thousand and fourteen that resulted in the decision that they had by a lady his right to a fake in says at that point time the district could have simply said let's convene another ip meeting and let us now correct the deficiencies that we have found twice investigator don't matter under the they're not compelled by the federal law what then i think you make a complaint process a sham i think is judge jackson said you preferred the intention of states setting up this this ability for parents to resolve state complaints short of going into federal court so it's implied and the idea i believe it's absolutely implied in fact if you look at the st state complaint decision there were three red three essential remedies that were imposed or conditions imposed on the district one was to complete a corrective action plan that they had to file with the state the nd was to reimburse the parents of four kids because it was a complaint brought on behalf of four children the cost of them paying for education during the period and the rd was these placement procedures and as judge jackson said those were that was the order that was most important to mother because it was specifically geared to stephen and it was giving the mother the idea to say the next time they'd look to change my son's placement and remember this is a child before the age of ten they've had his educational it's fairly clear through his questions that the mother was present at the time of the discussion as to what particular child should be pleased the process she was present was she correct but as so we by definition if you look at the colorado rules and with respect to how it's been interpreted under federal law education placement does not mean the building it means the special education services and supports it means those things uniquely different and distinct between color and whatever grammar rather than the school the program rather is and washing about this school as well as the program well it was difficult to squat about the program specifically because she didn't know when she left the ip meeting the record is clear that she did not now do you concede that there that it might be that the school of excellence through those furnished the services that would be required to satisfy the e p it depends i would have concerns with both of those from a substantive standpoint for example the liberty the student to teacher ratio in the liberty program was not one on one this specific accommodations that were required in steven's ip said that he needed one on one so no on time say two on one so no i don't ask a question the end of sorry kerry and the other person's time thank you i see my time is up thank you thank you the disagreement was about the school and the parent was very clear in the record would establish that she did not want her child placed at the school of excellence regardless of the program well did anybody explain to her  the two programs we have colo we have liberty and right now stephen is receiving services x y and z at his present school we can match that up take a look this is the same thing yes the i e p is the program is the individualized program that all those that student understood end up my question as did anybody explain to or to do an overlay and say here's what he's got alpine and now we're going to pick that up and we're going to go over to these that the parent then didn't decline to do just that which is by the e p these are the programs that would work for him and there was no need to call an ip meeting because the i placements are different my right and there is terminology that shifts if you will on placement location and program but the location of the service was at is specific to the services in the ip and it's the discretion of the district to assure that that i e p is delivered in a location and that be the school of excellence in whatever program that they have there that is that is in accordance with the ip we developed with the parent and developer the program is important it's important that the mother know what the program is because that is in fact the educational placement the educational placement is the i e p your honor and the  are available for all students to assure that those i p's are developed this program the school of excellence and its programs within it are part of that continuum of education placements that then are shaped by the i e pay they're not rigid yes the student has been recommended placement in his neighborhood high school called the autism program tap and it is a constellation of services available at his high school yard so if we get into the parsing of the coal and the liberty and whether they're good or bad under the old i p what's the point in that activity well the the the problem becomes the name of the programs in the part in the top program does not inform much about the colon the liberty and so on that's why the ip is individualized and the ip drives the programming for the student as well as if i made your honor your question about whom to be doe the the the facts are or are applicable but just the opposite in this case the parent wants nothing but alpine in that in the end that is the driving issue here that is repeating itself thank you you up here thank you both for your arguments this morning  both very well informed in this area thank you