good morning your honors i may please the court my name is marks over and i represent me gal and barbara vila i would like to reserve approximately two three minutes for a bottle time and i'll make sure to watch the clock on that this case test them on sure that every public school child is entitled to a free and appropriate public education there are three main issues in this case first did the district court correctly calculate the statue of limitations second was the two thousand and ten reevaluation appropriate and finally did any deficiencies in the two thousand and ten reevaluation deprive the child for free and appropriate public education first although the district tries its best to muddy than the analysis the statue of limitations analysis at the statute of limitations analysis error is actually fairly straightforward that the dish record applied a flat two year analysis the complaint was filed in april twenty sixth two thousand and ten two years before barred by the statue of limitations the problem with that is that's not what the washington statute nor the federal statute limitation states so i guess the question is what does the school district know or what should it have known in two thousand and eight based on the information then before it we would argue that the correct analysis here would be more focused on the parents what the parents know or should have known and the district  in a kind of a different world now talking about limitations and i of course they have counsel so let me just start did they take a position before as to the  what the date should be or they were going down the occurrence route also no again the parents were proceeding pro se they did not they did not explicitly take a position on what that new or should have known have they taken the position now as to what that date would be or do you think that there needs to be a district court and we believe that there needs to be a district court finding that's an extremely fast intensive analysis the district of the key dates that really wasn't a focus below but that we would kind of if there was more factual development below would be the two december two thousand and eight date when the district attorney in that the student was eligible for special education services you and i seem to be mis communicating here i just want some help here understanding what evidence was before either the administrative law judge or the district court that should have given rise to discovery of autism what do we have that the school district should have either just tell me tell me some facts here what not going to prove if we send this back for a hearing so that i can conclude that as of december of two thousand eight somebody knew or should have known that this child had autism and therefore needed services to address and i'm very sorry were miscommunication are i was misunderstanding maybe i wasn't making the very articulate question but you now understand yes i do ok what's the very first school psychologist that evaluated this child and i believe it was two thousand and six stated that the reason for referral for special education students was suspected autism that was written on the evaluation suspected autism this child was then evaluated and that it that was when i believe that was in two thousand and six that was when the parents originally requested this evaluation it was referred to the school district and it is undisputed that they did not evaluate him for autism a few months later what happened was we seen it all by anybody yeah he was seen it all and he was by who he was seen by a school psychologist ok and he was evaluated generally for general learning facts and behavior behaviors of concern when you say it's undisputed that he was not tested for autism i think a school district getting ready to stand up and and contest that council they certainly do in the briefing i'm not particularly helpful i testified at the l j hearing that they did not evaluate him for autism and going back to your question directly a few months later the parents paid for their own doctor to evaluate this child and he was evaluated and found to suffer from autism but of course if you're talking t statute of limitations then you know that they goofed up i mean if if you take at that point which is way before so i think the question may be a different way to phrase it is are there any facts after april of two thousand eight that would fall into this additional facts by which they knew or should know so really quickly just to back up a tiny bit it would only be fourteen days difference so it was two years and fourteen days from the time that the the that the school district was notified that sorry that the parents were notified that he was going to be reclassified for autism so october twenty sixth the independent third party physician diagnosed with aspe syndrome yes ok then on the record that we have it says fall of two thousand and seven the district attorney and he was eligible for accommodations under five zero four yes so that would have been i don't have the exact date but i think it was around december of two thousand and eight december twelfth two thousand and seven the parents requested that the second evaluation the child line referral right december seventeenth the parents met with the district to develop the five zero four accommodation plan is to april fourteenth where the school psychologist issues the second evaluation says he's eligible for services for autism so the fourteen days i'm sorry but your time's ticking so i'm trying to just get there that the fourteen days is from  it was twelve days so april fourteenth two thousand and eight to april twenty sixth two thousand and ten so that would be two years and twelve days so really the ok so this is the date you think the clock started no no your honor i'm just saying that that is an argument that could have been made below but we would say that that was not the critical date but when did the clock start again that's a very fact intensive issue but if we were below we would argue it started december of two thousand round december of two thousand and eight that's the date that the parents realized that's the date that they put out a new i e p and the parents realized initially that he had been harmed by the failure to evaluate him for autism in two thousand and six and two thousand and seven again the critical date is not the date of the misdiagnosis or the date that they did not value a time for autism it's the date of the critical injury i've got a quick about you you represented  the school psychologist suspected autism in two thousand and six i believe her name was ashley haagen ok and he was evaluated by a school psychologist based on behavior concerns yes but as i read the record the school psychologist thought because of his age when we need to sort of see how he develops a little further here because the behavior might be typical of what was even three and a half or so yeah i believe years of it might not be autism at all but will will keep an eye on him and check him again and then you say a few months later the parents paid for their own doctor who gave them an express diagnosis of autism he would have an october two thousand and seven  of parents give i'm sorry dr chris dr christy reiss ok did they did the parents give dr rice's diagnosis to the school district at that time i believe that the record shows that they did if they did  what if anything did the school district do in response to the school district then in april fourteenth of two thousand and eighteen evaluated him for dying for autism and then found that he did qualify for services at that time but again we would argue at the district court below because again this determination was not looked at all that the parents still did not realize that this child was injured by the possibility that he was not originally evaluated for autism but i guess going back to the discovery rule my concern is what more did the parents need to know in two thousand and seven or two thousand and eight that would start the running of the statute of limitations absolutely they needed to know that  the that the ip was going to be different that this student was going to get additional additional services they did not know that until around december of two thousand and eight just because you're evaluated for and found eligible for special education services for an additional for an additional diagnoses or an additional disability does not necessarily mean that the plan for the child would have changed so there may be evident aren't the parents involved i mean these parents it looks we were very actively involved and interacting with the school district so i guess at what point do we say the parents are sort of charged with responsibility of seeing to it at least saying to the school district look my child has autism  what are we going to do to address that first i would say they did and second i would say the precise date again we're talking about days here we're talking about two years fourteen days and if you miss counsel if you miss it by fourteen days you're also by fourteen days i a limitation means i totally agree i just our position would be that the district court clearly misapplied specializations and that it needs to be remanded back there may be evidence that these well i'm not so sure or if if it is if it truly is two years and change then the district court properly applied the statute of limitations you're correct your honor what i'm the district would have applied the wrong analysis by not starting with the new or should have known date that the key determination for of two thousand and eight and they go in december of two thousand and seven he went into the best program because of the asperger's the third party diagnosis for asperger's it doesn't say in your briefing but i've been trying to figure out is it your position that there's a difference a significant difference between  that that so should have the diagnosis or there he shouldn't have been in best he should have been adapt yeah that would have been a section five zero four program and yes there would have been and that's shown by in december of two thousand and eight there were additional steps that we're taking to take different steps with this show is that part of what has to happen on remand is that your view the disher court would have to determine yes that is there were a harm there yes that i think we've got what we need in our record to know whether there whether or not that is exactly our position your honor that that this court just clarify quickly the standard the knew or should have known date and remember back to the district court judge held an one day evidentiary hearing the l j held an eight day said they are  we believe fully competent to make this determination and first then do you think the evidence is in the record we just need some factual findings on the basis of with their no we well maybe factual findings in additionally there may be more evidence needed as to the precise differences for the school psychologist testify as to the exact differences between the best program in the adapter program and just see what was the date when the parents knew or should have known of the harm to the child counseling going to ask you to what testing do you think they missed the testing that they missed is the parent specifically requested numerous times for neurological testing dyslexia discraft here specifically or neurological disabilities that affect of course reading and writing that the school district said that they didn't do these precise sub tests there are two sub tests better for dyslexia discraft in the white two test they stated that they didn't do that because in their opinion students normally don't suffer from child so again the school district states we did some broad testing some general testing as to reading and writing but this is really they've admitted below before this litigation they don't even test for dyslexic that  that is their argument and while they may be testing for some of the different it's writing portions or some of the different reading and comprehension portions again dyslexia dyspraxia are very specific disorders that and there are specific tests that the school district should have given the council just to be very specific the school district says it does evaluate students suspected of having a specific learning disability as defined in thirty four c f r three hundred point eight ten i know you know that evaluated any students for dyslexia from july one twenty two thousand and five to date the district does evaluate students suspected of having a specific learning disability as defined in the reg i just mentioned and my understanding is well you know the reagan clued dyslexia so can you help me what are they missing what they're missing is that they used their subjective belief that this student was not such suffering from dyslexia to toss aside those tests and it says can you somewhat test did they need to administer there were two tests in the twenty seven of the what of the mate seventeenth two thousand and three notes of a o j hearing ok and that's where there were there was testimony about test specific to dyslexia and i would also turn the court to dr sharp's two thousand twelve analysis that the district court received and actually reminded back for an additional avenue in cherry hearing thank you i'm sorry good morning your owners greg stevens for spokane school district a couple things i think it's a misrepresentation to say that the initial referral of the student was for autism it is true that the referral filled out by the parent did say that a preschool teacher private preschool teacher wondered whether the student was suffering slight signs of autism and the record  clear that the district did assess for autism there are some perhaps unfortunate distinctions that the school district staff make between a diagnosis which they do not do and an educational assessment for educational does to be there it is not the district's position is it that this child didn't need to be assessed for autism given that that was a concern correct that is not the district he doesn't get into that correct  look at the record what is very very clear is that the only statute of limitations appeal that the parents made was as to the two exceptions so  it's a matter of well as a matter of law do you agree that the standard should be new or should have known rather than occurrence a standard yes or and if you go into knew or should have known you don't get into the exceptions correct well you could have a new or should have known date and then the exceptions would be told the statute of limitations so perhaps an example let's say on december once would you but you need a new or should have known date and but the difficulty i have here and i recognize that that you know they were not represented below the difficulty i have is whether the district court actually made a new or should have known finding in the a discovery rule as opposed to an occurrence ruling that seems to me to be what's missing here sure although the district school district would would argue that if that was not an issue appealed by the parents one might not expect the district court to address an issue that was not raised by the appellants when you look at the issues that the district court established which were not objected to by the parents when you look at the parents briefing when you look at their amended complaint their sole focus was on the two exceptions to the stand it's a statute of limitations and so that is what the district court did address well i think one of the reasons for that is that every record and my question would be is there some way we can define divine under the discovery rule when the knew or should have known they was now the the list counsel didn't offer us much in the way of facts but i also can't don't know that if we should be the ones actually determining that as opposed to it me meant so what would be your position on every man said that the district court could make a determination as to what that date was specifically under the discovery rule sure well obviously on on the but before the administrative law judge and before the district court there were many many issues but it seems like that the crux of the issues before the current statute of limitations was did the district care are create a violation by not assessing finding the student qualified earlier back in december of two thousand and six the district would suggest that the record is clear and replete with evidence that the parents were involved every step of the way that the referral was made by the parents the d that isn't answering my question my question is and that may be the case the fact that they knew or should have known date actually goes back in time given the history of the private diagnosis the back and forth in all those things my question was really more precisely to why shouldn't we rem and let the district court make a clear finding on the knew or should have known date in the propre it construct of a discovery the district would suggest your honor two reasons one the district would suggest that the record is so clear that we would ask this court to make a finding based on the record before you which we think you can do that as to a newer should note date but of course we don't really make findings we're  known date that it was the parents burden to appeal the administrative law judges ruling ministry of law judge ruled statute of limitations was cut off as of april two thousand and eight was the parent's burden and in terms of the equitable arguments i understand are pro se but they also were supplied are provided with a an attorney just northwest justice project whom they fired in any event the parents did not appeal that they only appealed the exceptions they appealed eight separate exceptions the district court addressed every one of those let me just ask you that's that's basically a waiver argument correct yes and where is that in your br not in our brief your honor that's what i thought and that's what i was looking for but that's not in your brief so did you waive the waiver argument no thanks so your honor i think it was their obligation to do it i mean honestly we read their opening brief and and responded to those issues perhaps made the error of of letting them frame the issues and then we saw their reply brief or go why what's going on here  and i suppose we just thought more about infallible wait a minute that was new or should have known dave was never an issue for the distributors to close because the exceptions are withholding or misrepresentation and we have other case law a g case for example that talks about where there is really specific expert that's required that really factors into the knew or should have known and we're talking about whether a little guy in kindergarten did or did not get the right kind of testing that could have a cot autism which in and of itself is a course a spectrum disorder a ticklish issue so it seems to me to be laden with facts well questions about at what point would a reasonable parent have have known what point were there specific signs for this you know in this case regarding this child so you question your honor just that is the very fact it might might but my point is that maybe it isn't the question it might be but i want to give you an opportunity you've conceded that they what they appealed was misrepresentation or withholding that the two exceptions and it seems to me that those wrap in those encompass the very problem that we're talking about i don't think so your honor when you look at the specific misrepresentations in exceptions i mean those are clearly exceptions where the parents would know of the crucial facts leading to their claim but for policy reasons congress is determined we're going to pull the statute of limitations for example on the misrepresenting it's  mis representing that the school district solve the problem so the parents may know what the crucial facts here but the district said well don't worry we've solved that so that's an exception to the newer sort of their and their point in this case is that the rip the school district has taken  position and in fact is taking it today is your position consistently that we did test in for autism so if the parents are told that from the school district it's pretty tough right that's going to be their argument that we didn't know because you told us you did testing for autism and in fact the type of testing was not done that's their view well in this case the parents were apprised of every step of the way of the district's assessments what they did they were provide a copy of the evaluation there at the meeting so if they can if they can avoid the statute of limitations by saying well we didn't know but counsel it's not quite that simple right and i'm just trying to play devil's advocate not trying to take a side here but what they know is they come to an i p meeting or whichever type of me doesn't matter they were very involved this went home and indicated and they were told from the district we would administer this battery of tests these different types of tests would look like alphabet soup to a lay person and we have tested this child for autism so their position is in terms of knew or should have known how were we to know the district wasn't applying the appropriate how's only person supposed to know that that is what i'm getting at is of course is the new or discovery rule requires that the party engage in due diligence that that if they have suspicions they're obligated to pursue that and ask questions so given the fact that the parent wrote in the referral they did test for a correct year could you address the dyslexia at this graphic of testing for me i'm having difficulty because the district does have this response i think to a foyer request and we have not evaluated any students for dyslexia from july one two thousand and five to date and then goes on to say we do evaluate students for specific learning disabilities they say you didn't do the right kind of testing for dyslexia dyspraxia i would suspect your honor that i believe was page twenty seven of the transfer it will not support the arguments the parent is making but yes it really gets into semantics if you look at the definition of dyslexia including the definition provided by the parents experts it's a general reading disability which could include fluency could include reading comprehension the district get a number of tests i have them listed here in my outlying go over them for all of those issues reading fluency the coding skills comprehension all of those skills were assessed by the district indeed the i p provided services in those areas yes some district staff view dyslexia as more of a medical clinical term and it's not one they use because of the different ways that people interpret it but it i think the record is clear the district did assess for  record tell us or maybe you can point to where the record might explain why there's a difference between the adapt program and the best program yes thinking you're the best perhaps some confusion in the record the best program is not a school district program it's not  recent discussion of the original diagnosis of the student by dr rice i believe the record will reflect that this diagnosis was provided to the parents on october nineteenth two thousand and seven and then the parents provided that to the school district and made a referral on december twelfth two thousand and seven so processed me three months  later the parents also made an argument that the district did not test for disk graffy a because the district used described in some of its assessments and i think that's a misrepresentation of the record if you look at the exhibits yes the district did use a scribe to test the student's limits in some aspects of reading x a written expression one of those was a sentence combining where the test is the student is given two short sentences  frank has a sister named dan and is six years old and in the student is to combine it and yes to test limits the school district provided describe what the assessments are very clear by the occupational therapist that the students actual fine motor mechanical handwriting was tested extensively there was also standardized testing given on on copying shapes the student's tripod grasp of a pencil was was and that would be exhibit a fifteen the a valuation by the occupational therapist the school psychologist also did testing in having the students given the student a piece of paper thirty seconds write as many letters of the alphabet as you can so again focusing on the mechanical fine motor skills of writing fellow that's a question directed at you carol so fair enough we would say that the parents did adequately raise this enough they extensively went through the statue of limitations analysis while they may not have explicitly hammered on the new or should have known date they did say all of our claims are within the statute militate and that in fact if you go back and review their briefs it was pretty and nauseum there were multiple pages of statue limitations analysis and to hold them to you know pro se parties to that kind of standard we believe would not be appropriate here i would also like to quickly address the parents were told numerous times that in two thousand and six he was about a would for autism he was i would direct this court to the record excerpt one thirty one that is the government witness saying and i quote i did not do a professional autism evaluation no in and who said that is sorry i have this on the other page that was the school's witness i believe it was corey valley for the school district but that was the school district asked expert and again that is page one twenty seven of the transcript part a record excerpt one thirty one my second argument very quickly is that and this goes  to the points that were made earlier the parents were told numerous times this school district is not evaluate for dyslexia dyspraxia this school district is not evaluate their day by half as a problem really is a semantics argument if they test for the symptom of those two diagnoses doesn't that satisfy the regulatory standard it does not because i know there are specific techniques  utilized based on whether it's a neurological disorder based on whether it's motor disorder different techniques or utilize to best address the child there's no designer says the record the school districts witnesses were saying we test for in essence the results of that flow from a diagnosis of dyslexia or discraft we just don't use those terms so i'm trying to figure out where's the beef here in your argument to respond to that first that is their new argument before this litigation occurred they continuously told the parents we do not test for this we believe we adequately addressed it we don't believe that he suffers from any sort of similar disorder because he suffers from autism that's very clear in the record that these school experts did not believe that he had these types of neurological disorders even some of the similar symptoms and that they all addressed it did they believe that all of this was because of his autism but let me put it a different way is there evidence in the record offered by the parents that the tests that the district administered would not have been adequate to would have contended below that he would have suffered from these i'm not sure that answers my question but i've had this problem before so i guess we'll just leave i think you are both counsel for your argument the case