good morning and please the court this is a existing case so to speak and i think there are some very interesting new issues that the court briefed relates to the new supreme court decision and i say do you see the march of last year but the end of the decision and its effect on the standard of review for making  determinations we are arguing as are you how do you agree that if we determined that the private school was not an appropriate school one of more precise terminology we agree and i would like to address that issue momentarily with regard to that private school placement and find with with regard to that issue i believe that  did and it's been well briefed but i believe that the that the findings of the but the hearing officer because the federal district court did not address that issue but the findings of the hearing officer even if even if you take them as true we don't believe that that they were accurate and correct but he taken is true none of those findings made that program inappropriate the child was placed in briarwo school in the public school program she has a significant developmental disability the program the briarwood school it was an outstanding school it's probably the best school of course in the houston area for educating children with is concerned was he didn't believe it to be an individual i welcomed the u s supreme court even harder basically said i he's not required in private schools so it doesn't technically have to be individualized well i her needs as as i recall the hearing officer and again i'm certainly stand to be corrected found that the child had regressed her educational abilities had regressed at this private school that the hearing officer saying she was at a first grade level but when she went to the new school they put her back at the beginning of this reading program which is the kindergarten level i don't think there is indeed any finding of regression i don't recall that i think what she was saying is that it was too low functioning or too low a program for her at that point in time but the issue is this once the once the parent places the child in the private school which happened in january  it's just you know you have a new teacher she doesn't know where this child this is functioning academically and so did what she should do which is start doing an assessment to try to make that determination and it her going back and reviewing information or reviewing a reading program is as appropriate it certainly did not harm her in any way and of course then she moves on and by the end of the book by the time that we had the testimony in september she had she had already excelled and was in the first grade with a read to me that does not render the program the private school program appropriate nor did the fact that one of the arguments with regard to occupational therapy the recent case law specifically on that point a school district i mean i'm sorry a private school that does my motion for summary judgment but we don't we don't look at what you briefed in the district court we look at what you brief here that you cited often in your briefs you know we could refer to various papers in the district court that we don't look to yet we didn't receive a ruling from the federal district judge which she didn't and she didn't found it necessary because she had ruled there hadn't been procedural and substantive violations correct and i say she judge gilmore adopting the seventy five page report  issue in this case is the fact that the parent was excluded from involvement in the preparation of the the present level of academic achievement functional performance portion of an i e and that's with regard to the fact that there is this guidance document of question and answer document that the texas education agency has  what the school district should do when our committee should do with it is trying to determine particularly for global legally child you've got to take out the state standards which are put in the record and exact same that the so that's what happened here basically we have a plaster that is whole with insufficient in group the court talks about the plaster has to be to some sort of science class that she was learning the life scales and i mean isn't that part of it she was doing math why it's not bad at all it's not that that contains all the material information you need for goal development ok you need to determine what the child's needs are what the child's potential is but wasn't the school indicating that they were pushing her pushing her hair i mean i read ender to say this has to be an ambitious what is the word for it it's not not a legal term but appropriately ambitious for guidelines and those had to do with moving toward second or third grade level reading and math right oh what's wrong what's not appropriately and why does the plastic not because in form with that well there are that there were two primary issues that just stuck out to me one was where is her reading go were you know she had won the previous year you know she was reading she'd already said she knew one hundred site words and were going to teacher another was forty sight words for that previous year all the sudden we come up to decide he she has no reading no reading goal other than for fluency your comprehension nothing to improve her basic reading skills or basic reading book at your parents signed that i did they not they did but what happens is they bring in the key that the record shows they bring in the platen the ip and they sit down and we say ok here's what we're proposing and the paradox if you're if you don't if you've already cut out most the standards then what's the good parents aren't aware of that because you're limited to what they consider critical than what's the parent to do they can only agree to what what they're aware of and in this situation yeah they agreed to this not knowing that in effect they're not realizing that whereas her reading goal you know they have a reading goal for fluency but that's not measurable they have a reading goal for well called comprehension and again that's not measurable because the plant doesn't contain the baseline data that's necessary in order to measure it how do you know that and i'm just inquiring how do you know that standard is any different from the standard for the mainstream kids in other words you're teaching them certain words from time to time but in and they can pick out words on a page but when they get into second and third grade they're supposed to learn more words and get into fluency and comprehension brecht because because the special ed students are entitled to that same general education curricula that's what i'm saying how are those words in fact different from the kind of goals that you would have if it was a mainstream kid well there are there are different in that whenever you're going to provide specialized instruction here modifying the current your model have to modify the curriculum either the content the methodology or the delivery of that instruction and whenever you do that you're supposed to craft  people so if you're if you're modifying the structure then that was the argument in this case that for this child she's globally delayed she's she cannot be educated at her grade level in any subject so why did they not why did the yard committee not sit down go through everything and say ok in history this is what she's going to learn this is going to be the golden history this is where she's at this interview with her learning disabilities i give her a great deal of credit because i have grandchildren in public school and they're not doing much  but but that's a state standard those standards are there history geography and in fact when she went to the private school she memorized all the fifty states she could locate all of the fifty states so she has the ability to learn a good ability to  learn that's her potential and when you look at the ips that were crafted and they were only crafted out of this plastic that to me is one of the worst collapse that i've ever see beyond us with court because there is really very little or no information in that at all from which to develop appropriate ips for these was what was so difficult for me to grasp in this he'll was all these first of all i'd never heard of a plaque the line no but it's not in the record excerpts i don't believe and i just found under you know maybe i'm sure it's on the record somewhere but i wasn't just saying it's inadequate didn't mean a lot to me so you're not in your own yeah except the present level of academic achievement and functional performance which is part of the i p definition for gold with development and and that supposed to be done with the parents at an art committee meeting and again procedurally to me that's one of these major issues that procedurally they didn't do that and because they didn't do that the parents were significantly impaired in in with regard to the decision making process or the development of this site p which renders it inappropriate and in fact you know the record is replete with basically what transpired after that fact  but and and how she ended up better at frost would elementary school the that's one of the issues of course is whether or not that there was a  and then regressed at briarwood that she was performing more complex math problems at frost would than she was at briarwood and so the hearing officer after having heard the testimony of all the witnesses made the factual determination that there was a regression and that the program was not sufficiently individualized because briarwood used the same program for all students without giving any specific focus the hearing officers finding that briarwood was not an appropriate placement is correct and to your point because the placement was not appropriate even if the court were to find that there were procedural or substantive violations the idea as appellants conceded they would still exist for cause this action is to recover the cost of the problem school tuition correct or longer and so not being able to satisfy that final prong of appropriate placement even if we start at the very end the balance cannot prevail but if we start at the beginning as to whether there was a substantive violation of the idea in the first instance appellants have not shown that either much of appellants briefing goes to the question of whether or not in drew f modified the standard that should be applied for determining the individual about whether an i p an individual education plan is appropriate the district is of the position that interested not modify the law in this circuit and that this circuit twenty years ago at least in the michael left case articulated a standard that rejected the de minimus standard that was it issued an interim the law has not changed in this circuit and i think the court can fairly easily dispense with the arguments that there is a change in law that necessitates our new review or a new look at this record because injury last merely embraced the standard this court had reached long before in giraffe that night he had to be calculated to give meaningful benefit meaningful progress and had to be more than de minimus so there is no need to take a fresh look under new law because our law of the circuit was accurate if anything michael left gives us a test to find out whether or not the injury standard has been that and the district court here applied that michael left test in reviewing hearing officers determination as did the hearing officer and what primarily heard today from a the our strengths and it identifies certainly aids so it's plainly within the plath now appellant seems to suggest that the school district and the parent should sit down and draft the platform beginning to end at the of meeting but bear in mind that teachers and school officials who are members of the art committee which includes the teachers school officials professional evaluators and the parents they have a wealth of information from their day to day interactions with the student and are a position to know exactly where that child's functioning there's an economy of being able to allow the educators to prepare a draft or a discussion document that can be discussed and as judge jones noted the parents signed off on this i e they had no objection to the substance of the i d p as drafted and these parents are and the shines through in the testimony highly sophisticated knowledgeable and involved parents the tax is essential knowledge and skills standards the t's when she can tell you as the hearing officer of this report recognized over one hundred twenty different streams of knowledge and information that typically would be mastered in the general education curriculum who still struggling to learn basic reading concepts to your point judge jones adding in history when the reading focus was the ability to independently read level text and state two things about the text the father testified  r could not relate information about her dad she would say everything was wonderful and lovely and then tell a story from something that happened weeks ago with this child focusing on those critical needs was entirely appropriate and entirely michael left rejects that standard that the tenth circuit embraced given that factor i really don't think that michael left has been over certainly not expressed or it's not mentioned in the supreme court's decision and it would be difficult to standard was alive here and even looking to the facts given the articulation left that it needs to be an appropriately ambitious program for the student again we look at the particular student and looking at the or even the undisputed nature  addressed what constitutes additional evidence and when it should be permitted and when it should not be permitted while the statute provides the court shall consider additional evidence district courts in the circuit both the southern district and the western district testimony and judge the credibility of the witnesses and your clear rate in such a way that this court should reverse and i think that that failings is the only finding that the hearing officer my against the district was the procedural violation of not identifying how ers condition affected learning abilities in one particular area but the hearing officer determined that that was essentially a harmless him finally appellants to the substantial amount of their briefing to the idea that the district violated the idea by changing the location of each program this court has already twice addressed the idea that a school district can move a little to the physical citing of an educational program without offending the program is the instruction that's being done livered not the physical location we're a specific person changing the location of the approach and here like the while case it was the same ip being implemented just in a different  given up to three choices she makes personal connections distorts the exercise rates what does she need to do she needs to read independent level text give me an idea with two supporting details big increase or fluency and write sentences with appropriate size and spaces that's the extent of what we got of reading nowhere in there does it tell you what's what's your reading what was it you know when she had a kindergarten eight month level where she had a first grade but there's nothing there's nothing about how you're telling us that's the type of thing you see in these proceedings is that in the rocker's that you're based on your experience i guess that would probably be based on my experience because we didn't put in on a from another student the reco and you know i do have a substantial amount of experience but but the situation is this when you look at the at all you have to do is look at this particular plant and you can determine that it's an add you adequate because there is no baseline data from which you can develop the goals and objectives i can't recall did the hearing officer go over the plateau and point and the response to your saying this is  the guidance document that talked about these critical areas of need that in the federal court may be used as part of the ecstasy in talking about it saying it's not authority but it is you know this is where this information came from you know you your brief focused quite a bit on this term critical needs and i did not i did not understand i've read the whole magistrate judge opinion and i just didn't think that was a back and i know where he criticized about the number of strands and things like that but the definition of the name of an i p requires that it meet the state's standards state standards for every student including this broad range of subject and materials the only way you can draft a fact intensity which is what indra's says exposed to be a fact intensity present level of academic achievement and functional performance is by pulling this information together exposed to be done at an already meeting according to the i need to do the definition to get to what what's required for faith and what's required for an appropriate id so it all supposed to be done at that location we certainly don't have a problem with them bringing in a draft and then working from that ingo will go over it and if and if they're going to exclude a particular area and that's where this critical issue comes from that they're going to scoot a particular area the parent needs to be informed of that and headsets and decision making and certainly what to exclude i heard you say they were excluding her present level of academic achievement they were they were excluding subject areas and all the subjects for example as a point there's no reading i i there's no history there's no social so there's no spelling there's no personal finance they actually identified in their math in the math class her need for learning to points but then they didn't develop a goal for so i mean that there's a substantial amount of of violations so to speak look at it closely thank you ron all right thank you s