good morning your honors may it please the court my name is marion walsh and i am here representing the appellant's ms c m on behalf of her child a student with a disability g i also have my colleague here miss erica fitzgerald your honour's as you know from the papers the primary issue here is when the parents claims of a gross misjudgement and bad faith under section five a for the rehabilitation act of one thousand nine hundred seventy three accrued and whether indeed these claims were filed in a timely fashion your honor we submit they were and your honors the impartial hearing officer after a trial that lasted an extended for a full year with almost three hundred exhibits twenty over twenty witnesses and extensive testimony found that these claims accrued during january to june two thousand and twelve and thus were timely your honor the student now has aged out of special education he did receive his compensatory each year at the whitney academy the specialized school for us students with dual diagnosis but he has aged out he is in a group home with a supportive placement upstate he's so he was he was there for two years your honor ok he was there for the  sixteen seventeen school year and the fifteen sixteen school year and then dede for two years and part of that was paid by clarkstown the clarkston school district and part of that was by the pelly the north rockland school district and that was by order twelve and it's september two thousand and twelve after not receiving a residential placement from the school district due to their bad faith in christmas judgment he was the parent moved into a group home and because he moved to a group home out of the north rockland school district he then had to attend the district of location which was clarkstown clarkstown school district let me ask why didn't your client have all the information she needed to bring suit in june two thousand and eleven as the district court concluded as opposed to two thousand and twelve she knew she had to have a residential placement she had a psychiatrist and psychologist strongly to residential placement so why isn't that  the trigger your honor the claims of cross misjudgement and bad faith are fundamentally different then the may have two thousand disagreement and mentally the the parent did disagree with the c s e meeting may two thousand and eleven she had her therapist there she had the psychologist there her concerns she was concerned about his academic progress she was concerned about his classification but her honor was until january to june two thousand and twelve as the  documented that the student's behavior severely deteriorated and to compensate he really became a danger to himself or others he became he eloped was held by others as there are such a continuing duty right of this under the individuals with disabilities education act which the this case has brought under i b a n section five of four districts have an affirmative duty to provide a free appropriate public education did she made many request your honor first she at this see a c and february two thousand and twelve which was during the eleven twelve school year and at that c s see that the district had an obligation to consider the residential placement for that year she did request a residential placement then after the c s e she received a prior written notice and she then called the private notice that the call mis heaney in the district she called many times the district never returned her calls the first what the advocate was helping her a little bit on the process but did not really educate her on the full extent of what her rights were and he was not an attorney you know how to seek a residential placement and he was particularly from one state approved setting which is not out to get state approved anymore the judge rotenberg center so he was really educating her about that placement and how to go about getting a residential  fact pattern and the students levels of present levels of performance and his educational achievement were significantly different than they were in january june two thousand and twelve and that is why there is to the distinction between  unclear on her rights and your honor at the c s e meeting if you recall the district c s e chairperson who was completely discredited by the impartial hearing officer stated that she had no rights and that there was nothing she c colleagues statement that under the rehabilitation at and the id and he school district has a continuing duty even after a placement decision to monitor student's progress and  whether that initial decision is still an appropriate one i would agree with the premise of that statement by itself but not in the context that was presented to you isn't there some evidence on the record that during the record to clarify the record before before this court your honor the february two thousand and twelve c s e meeting was for as it was an annual review to discuss the program for the two thousand and twelve thirteen school year which is not at issue before this court obligation is to monitor the student's academic educational and behavioral concerns as they affect the student's ability to access academic instruction while it's certainly sad and the district sympathizes with the issues that took place outside the school setting those issues were in fact outside the school setting the father the father passing away the issue about the student being bullied in his neighborhood not in the school setting the issues with the student running into law enforcement outside the school setting while the district is also things have impacted his progress in the school so no because there's no evidence in the record that it did the student actually the student's behavior is actually improved throughout the course of the period that's at issue in this proceeding there is a document in the record of a document from the school psychologist recommending the removal of what's one aide in may of two thousand and eleven because the student's behavior said improve so much that aid was never institute and there was no need to institute that aid for the two thousand and eleven twelve school year nor are there any incident reports for the eleven twelve school year that indicated that the eight needed to be reinstituted while what happened outside the school setting is sad and is something that nobody wants to see it's not necessarily the responsibility of the school district to intervene in every single incident or every single situation that a child my fi is a funding statute first and foremost and in order to receive funding school districts might must provide a free appropriate public education for student section five zero four simply says you cannot discriminate on the basis of disability and while there are five or four regs all eight of them that the department of education has instituted for the making sure that appropriate accommodations are met and yes there is some overlap there are to do distinct things to just to go back to the point but the continuing obligation it's in the record and it's not necessarily put in the appendix of special pen it is the issue was the statue limitations but it is in the underlying record that the district actually communicated with outside agencies a spall was was set up in the district did communicate with the spoke shorthand for single point of access i realize there's a lot of alphabet soup involved in this matter where the where the district actually did communicate with other state agencies that do have  statutory responsibility for the students wellbeing outside of the school setting is that correct i would agree with that your honor if you agree with judge percentage decision you do not have to reach that issue we made the argument because we were frankly caught off guard by the the analysis that was put forth by the show or i should say lack thereof as there was no discussion regarding the accrual they in is just ad hoc january through june two thousand and twelve fell within three years therefore it's time when we disagree with the i h l when we made every argument we could  was brought up by defendant appellant that puts the pair in the student between a rock and a hard place as this court knows on issues such as statue limitations as a legal determination that is not necessarily a determination that you are bound to by the lower court or the ministry of proceeding questions of fact that are relevant to educational policy that does require some deference by this court but not on legal issues such a statue limitations the parent summits that notwithstanding that there should be deference to the i show where we would notice that in these situations because the facts that give rise to both the parents id a zero four claims arise from the same set of circumstances namely the may two thousand and eleven c s e meeting then any analysis if their words to be done if there was to be deference should be given to the which was the more reasoned analysis of the situation specifically the may two thousand and eleven and the june two thousand and eleven receive the prior written notice determining what the district's position was on residential placement i also note for the record that while we put in arguments that the continuing violation exception doesn't apply we note that the argument was waived by the by the parent in the lower court level the parent and her affidavit before the injunctive relief that was granted by judge her said in lower court stated and it's document twenty seven and the a lower court record the court has no need to consider whether there was a continuing violation which would circumvent the statute of limitations  if you recall the lower court summary judgment proceedings it went district parent district parent in terms of the briefing schedule the parent essentially had a survey apply and at no point did they make the continuing violation exception argument it was only after judge for said his decision came down and he noted that there was no continuing violation exception did the parent first bring the argument before this court so on the issue of whether it's a two or three year statute of limitations if we do reach the issue is morse binding on us no what we submit is more says binding not we're not asking you to overrule morse we're asking you is to distinguish morse from situations such as this we would respectfully request that the second circuit adopt a third circuit standard on i d e a claims and five or four claims where the claim is based on the same set of facts and circumstances this is different from say there's a claim of a violation on the idea because there's a disagreement on program and placement or services and at the same time a want to one aide abused a student because of his or her disability i think that's a clear cut case in that situation you would use more says the three year standard because that is more akin to a personal injury action here it's important to note in the underlying due process complaint the original document that started this in january two thousand and fifteen and i'm quoting from the document the parent allege that the district violated five of four by quote by failing to provide an appropriate residential placement in appropriate support services there's no allegation of actual discrimination on the part of the district or its staff or anyone contracted by the district on the basis of the student's disability in this situation they simply disagree with the residential placement and said that disagreement constitute a violation of both the idea and section five zero four if that's the claim by the pair an argument that gotten wrong and having this special rule for a certain type can't claim because then you're going to have to do a careful perusal of the complaint to distinguish some rehabilitation act claims from others even in the context of children in educational settings in order to determine the statue of limitations but i think that claims under five or four need to be and the need to be exhausted so in a situation where claims need to be exhausted it only makes sense to adopt the idea a statue of limitations because if the claims are so intertwined intertwined why should a school district be subject to a different statue limitations for the same alleged wrong that under two different statutes the idea of prescribes that there be a prompt resolution to any disputes it's not only something that's recognized in the courts but it is actually contained in the language of the statute there's multiple methods for resolving disagreements mediation resolution session what to do process complaints filed in this instance if these process plaint was filed that's unheard of in court but something that goes very quickly if a district has to defend that and then is still subject to the same claimed essentially that it failed to provide a residential placement three years later then the district will never get any rest it defeats the purpose of a statue limitations at some point the district has to be able to say when a defendant has to be able say enough we need to be you had your chance you had the opportunity the parent had it had an adequate more than adequate notice of what the district's actions were and what her rights were under the act we have a right to not have to look over our shoulder at some point  however the claim is is not moot because the under judge percent is order the there is still the possibility of the district we hoping costs from the parent for this and in addition what the academy was not st you won't want to be ordered to do words your honor we're asking that the court reversed the district court decision as a rania's and reverse the vacation vacating of the policeman ery injunction and uphold the ice show decision  if you're honest if i may opposing counsel honestly has a creative fiction about the student state between january two thousand and twelve and the district's obligation indeed as you know in the seminal case  he was being bullied there was he was to switch from being on the region's track to the ultimate assessment he was so you can see there was a decline in his academic functioning it was only great reading on a third grade level after the year before and  bad decision in two thousand and eleven your client sought a residential placement didn't receive the residential placement and then in two thousand and twelve other things happened in the student's life and the effects of that bad decision became more and more parents and we said in the case that is when the consequences of the decision emerge but the decision to discriminatory act was still the decision not to place in residential placement you saying no no there was a gross misjudgment in two thousand and twelve but what precisely is that gross misjudgement in two thousand and twelve because there wasn't c s e convened and they did again say no residential placement but you're not complaining about that that is that was brought to the my understanding no your honor about your honor respectfully the c a c from our position did have the obligation at that meeting to evaluate the student's functioning and there was such a discrepancy between the how the student was doing and his it's more important now than ever you three i don't get you three i do the same thing you for do the same thing under that scenario when does the statute let's assume it's a three year when does it stork to run your monitor's the stand your honor that's that's an excellent question and it's unnecessarily as the courts have held a a very fact based increase of when the accrual actually occurs and here we submit the i but your honor no it does not because we're looking at discrete and separate instances and you know her and says you want to know you don't go to residential placement year to know you don't get a residential place near your three no you don't get a residential place when you're four no you don't get a residential placement all except those a discrete acts but your honor if the student they are assuming hypothetically that they're discrete acts district's position aren't hoddle to know when when there is relief from the claims i mean people in your position have to know when they've got a following people in the school district and bad faith which is a corollary and that the claim accrues that if there has been a significant change in the student's performance and the district has tonight faith and shown gross misjudgement and bad faith i know it's it's has to be fact based it's depends on the circumstances but your honor and the ideate if you think about it a c s e denied a residential placement in may two thousand and eleven if there's a significant decline if the student had a shred of brain injury that they would have to consider a new placement and this is it was a kin to that when the students father died it was that kind of compensation that kind of falling apart and that's the kind of thing districts have to look at they're obligated to look at it so that that's that's what you're on our amount of time