yes essentially this means he has trouble paying attention and he would prefer not to be paid to consult he also has developmental cord nation disorder which is also known as i have a question about the relationship because he was getting five before accommodations and i don't quite understand the difference in what's available to a student with five or four vs being eligible under id i mean for example i know some students are able to get extra time on task sti even state standardized tests do you have to be idea eligible for them to can you get that even under five or so you don't have to be idea eligible to get that and the regulations for id a defined specially designed instruction or special education as specially designed instruction and that definition is adapting to the needs of the child as appropriate the content methodology or delivery of instruction to meet the unique needs and ensure access to the general education curriculum to ensure the methodology of instruction or your modifying the current just providing a student with an accommodation such as your example about giving them extra time on tests or perhaps they need prep until cd we could go on and on with a get under five zero for no you would not get specially designed instruction you would not get direct inclusion under five zero four and the point that the district is making here is that while it was included in a draft i e p the p was never implemented this case and the student went on to finish fourth grade with a's and b s on grade level doing so when you are accessing your education in that manner and you are making  there's points both sides can make about whether the second requirement was met between the january and february meeting there was just a stark change in teachers and other individuals assessment of  child what explanation do you have for why that change was so stark in just a month time period well we don't actually believe that the child was actually that stark but what happened was after the january our committee ended and on consensus under the texas administrative code the parties were supposed to or at least the school district members of the art committee or supposed to go back and look at information gather data and there was about approximately two weeks between that our committee second our committee meeting that took place in middle of february and one of the of the disagreements that mom and dad had with the i e p that the district proposed was the goals and because mom and dad were focusing on the goals when the art committee member or the school district members of the art committee got together to look at the goals and to redraft the goals in order to make amenable or acceptable to mom and dad they realized that they were drafting goals that were a grade level already and specially designed instruction under the idea is not meant to maximize a student's potential it's not meant to take a student above grade level specially designed instruction in the definition under the id a is simply to ensure that the student has access to meet the school district's standards but this seemed like disagreement about what the i e p would provide which is really a different question to agreed than whether you're you're eligible no because if the only goals they could come up with because he was already performing on grade level was him above grade level then he wasn't evidencing in under the idea under the second so there was no specially designed instruction in the court actually has in the about his writing you can be on grade level generally but you have this this writing problem with handwriting right but handwriting under the idea and in texas is a dealt with under occupational therapy and that's a related services so you actually have to have a different need and to make you eligible and early id a before you're entitled to a related service to deal with handwriting handwriting could be dealt with and was being dealt with through accommodations under section five zero four because he had the ability to use a tablet or other electronic devices in order to complete his work and in classes where he wasn't able to use that for instance math officer did have two days of hearing sixteen witnesses and ultimately credits the school district's january eleventh determination of need than the i p determination of need than the february eleventh to denton determination of need over this recess where the school district decided in fact he didn't have any and then he was a judge parks parks he looked at it did no go right that's his standard view and he comes to the same factual conclusion that the child that the school district is right originally to have determined three times the child needed special lead how would we overturn that so i think the courts can overturn that's when you look at the special education hearing officers to say we don't believe that it deference because we believe that the special education hearing officer completely misunderstood the law with respect to eligibility in need and misunderstood in misapplied the law and made of iranians conclusions for instance when you look at the special education hearing officers decision he found eligibility in order to remediate james disabilities he actually said in his decision it's not too late to assist in overcoming his special needs but as this court determined  the hearing officer also said that james educational needed is learning how to better process his ideas to provide him with a greater ability to do so in the eighty vs alvin i as steve case at the district court level this court affirmed it of interest the district court said that achieving a student's maximum potential is wholly lofty but school districts are not and cannot be required to maximize the potential of every site but whether or not the hearing officer made remarks about that were aspirational it also alternately simply said the school district three times said he needed special it right he absolutely did but the hearing officer also misunderstood and implied in maine and erroneous conclusion of law with respect to what need means in the in his decision or i apologize during the underlying due process hearing he specifically said let's talk about the first prong if there's a determination if there's a disabling condition is the first prong and the second prong is that it adversely affects educates the adversely affects educational performance is not what you look to when you determine whether a student has a need maybe start just basically for me to understand better because the statute doesn't define need in the regs don't so can you point to are our courts best authority on because the word deed you wouldn't think is that confusing i would say what's the what's the best circuit case that says this is what need the parent requested to due process hearing after the school district a term in that he was not eligible the student had behavior problems including hitting throwing obscene language disruptive and disrespectful behavior but he nevertheless passed eighth grade with grades between seventy three and ninety five and he met the tax test the tax was the predecessor to the state of texas assessment reading this test also known as the star which is the only lets the school districts know whether their students are mastering race essential knowledge and and the district court again said that the passing grades and his tax house were critical indicators that he was receiving a free appropriate public education and this the students passing grades and his success on the test so that's what we have here well but i'm not asking for factual similarity what what do you what's the rule of law you draw from a d list to need equals what so there aren't very many cases i'm not sure that there actually any fifth circuit cases that look at the difference what a student needs and how that's defined when you look at the difference between five of four accommodations and specially designed instruction and if there is no clear statement it looks like a d n d l r two cases about eligibility essentially defer to the professionals yes to need and as i read the record that's exactly what this hearing officer did and then judge sparks did he said you used the school district three times said the student needed it and then you had this fourth meeting and you reversed yourself and i don't credit that to me that's just a fact implemented and j m went on to pass fourth grade with a's and b s he met the district's diagnostic rating assessment level he was on level with respect to words per minute in reading he was on level with respect to his writing so that is the emphasis i drew from your brief that in hindsight an argument can be made that he did well and therefore he couldn't have needed it at the time that it was determined that's absolutely right what's your best case that i thought d l had some dick during language that we don't assess need using hindsight because it's perfectly possible that the parents just therefore had to pour compensating lee time into this child and therefore wonderfully he do well however at the initial process hearing plaintiffs for the burden to establish that he had a need for specially designed instruction and they had three expert witnesses and not a single expert witness could identify for the due process or for the special education hearing officer what specially designed instruction j m needed in order to access his occasion and you came up with one and then the i e peeper son actually called and said let's go right but again know what the ip was and again the i e about grade level for instance one of the goals that was written for him there were two goals in the original i the first goal was to take him to reading at one hundred thirty words perms that was an end of the year fourth grade and early at the time the i eat he was written he was reading at ninety three words per minute which was within the middle of the year standard set by lee and her eyes state so when you look at the definition of specially designed instruction under the regulations he was already meeting district standard and as such he did not need specially designed instruction the second goal in his eye e p was to take him to getting a three on the district's rubric for writing he was already making it too which again was the district's standard at the middle of the year and so both of the goals the only two goals in fact that were in the proposed a e p that was never implemented took him above grade level and so we direct a court back to the federal regulations implementing the id a which says it's for students to ensure that they need the modified instruction or adapt the content methodology in order for them to strict standards if the students are already meeting first of all district court reviewed the very thorough report from the hearing officer and the district court correctly applied the statutory requirement statutory requirements under the i d e a do not include what is would be called a significance green or in other words whether needed a substantial or mild use not precisely in the statu regarding need secondly in today's classrooms we have to look at very carefully at what specially designed instruction means and i'll address that and finally i think it's important to note that the district court correctly addressed the feeling officers credibility determine with respect to the statute itself the court is correct that the statute at twenty us c fourteen zero one three uses the word need there is no additives there is no modifier to that term elsewhere in the statute and regulations there indicators however in twenty u s c fourteen twelve eighty three is the statute that explains the responsibility of school districts to identify children with special education  states that all children with disabilities regardless of the severity of their disabilities are to be identified so that gives us some indication that congress was not making a distinction such as we have to have a child who is really really severe or that children with mild or moderate disabilities are to be ex this child was evaluated by the school clearly school district found three times that this child had disabilities and wrote an ip for him one of the areas that they identified was a specific learning disability th statute gives us again a little guidance about what is meant by need because the definition of specific learning disability is that a child with a specific learning disability which the district concedes is one of the as simply as possible say are the three strongest facts showing that the child had a need for special education yes child's needs of course identified in the well i'm asking you to do for the three strongest tracks yes or the biggest need was with respect to the writing the child's writing skills as measured by a test called the visual motor integration test his writing skills were at the first percentile across the across all evaluated school district occupational therapists holly cardo testified to that as did private evaluat where the child had a need in terms of reading reading fluency his reading fluency was identified in the r at record on appeal seventeen twenty seven as a seventy seven his reading rate and eighty one at the record of appeals seventeen forty eight he failed the district benchmarks in reading as he did in writing and math his reading according to sharon holmes test him or comments at the january twenty fifth meeting at the tape for that meeting minute one fifty one and two zero two reading fluency needs to be looked at  and he had math fluency in the record record on appeal seven hundred twenty seven of us seventy nine and this child had average i q there's no debate he had average i q or a little bit above and finally there was a concern about behavior sixteen tape part three twenty two minute twenty two forty those are needs your honor needs that needed to be not going to confuse it that the benchmark scores are so low i've seen that and yet the grades are so good are the benchmark tests not part of the grades is that where there can be that difference well there's i don't see how you get that low scores and if it counted and still get an a or yeah i missed them it's not counted it's kind of confusing part of the reason is that v the  what he was trying to give honest again is something that we might not have seen in regular classrooms years ago but this leads us into the discussion i wanted to mention about the specially designed instruction so what happens team all agreed the child was eligible there was no dispute that had he very clearly says he was not just that he met first prong but that he needed an ip that's why they wrote one and that i pay for the record is at seven hundred forty seven and the very first page it says it qualifies under the categories and he needs special education so that team of teachers they knew what they were doing in the classroom they made that decision to qualify him with that knowledge and they've read with a parent that he needed more he needed twenty minutes a day of direct help he needed the occupational therapy service he needed help in math he needed to work on the reading fluency and he needed to work on the writing with respect to the issue of how he did the rest of the year number one we were in litigation number two the child's needs have to be measured as this court decided in d l at the time that we're looking at the evaluation and  that is that so eligibility case law is different than appropriate in this case law in that regard i think so yes so so when you're looking at eligibility you're looking at you're always looking at it a point in time because in this case as this case shows the child's needs were determined and he was deemed eligible then other events happen but you're still going back to his eligibility point in but in cases that assess that or challenges to the content it does seem like courts begin to look at what happened during the use of that fair to say right because you're looking at what is called implementation of the i e p so for example so how it go how it's going are people doing what they're supposed to is the child getting the sufficient services those are implementation cases  strong case circuit level that says eligibility and need is a fact the germination i mean i guess i'm wondering about who's got the burden of production and standards a review from the hearing officer is there a case that sort of clarifies that and gets up to a circuit court in what i would say is this in terms of cases that assist would assist this court this is an unusual fact pattern but judge sparks correctly analyzed it and secluded evidence or something he reviewed the fact that the the hearing officer considered the teacher's testimony and their comments so you look at what you would look at in an implementation case you look at what the teachers say and he did and then he said what they said in january at the meeting what they wrote in the p and the individual evaluations those are consistent the second evaluation with the first evaluation three things one is you cannot exclude a child because the child in this trial was brought and in terms of the eligibility this court has has examined that in turn in d l those cases are a little bit different because there was a disagreement from the get go the teachers didn't think the child was eligible right here we have the teachers three times saying he was each of those cases we upheld the determination of non eligibility that the school district had always had right you're saying this is different because the school district three times said he had a need and the two factfinder said we credit that yes and they did credit that in fact judge spice is very clear to credit the teachers in terms of what they had decided and in the original evaluation the second issue is that in terms of rally and sometimes there's references to rally and eligibility cases rarely is not an school still addressing is really just really all about the attorney's fees for what happened a number of years ago we didn't appeal but right right you know essentially the outcome of this case would be a determination that the child was entitle to and i pee in the parents were correct and they prevailed correctly before the hearing there at least in the elementary school and in the other it's just interest for this anecdotally i will say he's he's it's in seventh grade now and he does i also wanted to mention that with respect to the definition of need which question was raised i think in our brief we cited to no no i was just informing the court it would not be with respect to need however i would refer the court to the weber article which was referenced in our brief that is appropriately called the of how to examine eligibility cases and he says quite correctly you keep the you have the what is really a three part eligibility determination sometimes people say two because one includes the condition and then the second one is the adverse performance so in this case there wasn't really a disagreement about the that first part it was all about the need but that the point that professor makes at page twenty one of his law review is that accommodations modifications in our classrooms today or other types of educational systems such as having a special teacher in a regular classroom just be both licensed and both we have to keep those in mind when we're looking at eligibility today and in that the courts the court should really look at the fact that congress did not put a limitation congress did not say you know this type of need or this level of need and he refers this back to some of the early jurisprudence or the jurisprudence around the americans with disabilities act when people were concerned about whether or not you could qualify under the a d n a and then congress stepped in and said you didn't put a limit and it's kind of the same situation here so unless the court has other questions that is what i have thank you very much remainder of the year i think what the court should look at is what he was doing during the relevant period of time which would have been the third and fourth six during the third and fourth six weeks he was making high low eighty's and at that time during february january and february of two thousand and sixteen he was at the middle of the year with respect to words per minute he was on track he was reading  two instructional under the diagnostic reading assessment which again was on grade level and as i noted earlier he was on district rubiks so with respect to his writing so the disability that j i was just about to get there so the benchmarks are the only measurable performance outlier during j and when you look at the definition of a benchmark it's a standard or point of reference against which things may be compared are assessed and in the districts case the district standard was where students should be at the end so it's not surprising that a student in the middle of his fourth grade year is not meeting the district's expectations of where he should be at the end and because that's what it's measuring so it can be used to help determine how to differentiate instruction and why with a team how there was testimony of the teachers were so i think shocked even at that point because he was a bright student and they were surprised that he didn't do better however not meeting a benchmark for the end of the year or i'm sorry for the middle of the year doesn't mean he wasn't functioning on grade level it just meant he wasn't where he was supposed to be at the and it certainly doesn't evidence a need for specially designed instruction and if you go and listen to the recording of the art committee meeting and the teacher's commentary on it they stated that he didn't show his work on his paper and he didn't doubling the answers correctly from what he had on his paper and so the teachers not only did they say they were shockingly low but they also testified or said during on the recordings during our meetings that they weren't even sure that it was an accurate picture so the benchmarks because of what they are they're just  want you know eighty percent of students get a's or b so it then it's not that telling if only half the students get a's or b s it's more telling there is not anything in the record but there is plenty in the record showing the criteria that i gave you with risk to his reading and his