the statute in this case is clear and unambiguous when a school district evaluates a student for special education eligibility it's required to assess in all areas of suspected disability not its own assessment that concession disposes of the district's primary argument in this appeal now the statute also provides for specific requirements on what  be conducted it has to use a variety of assessment tools and strategies must not use any single measure or assessment as a sole criterion technically sound instruments must be used that are valid for the purpose and they have to be administered by child possibly falling within the autism spectrum part of the district court analysis relied on the fact that mr pac dr pac actually did participate in the school district assessment very clear that it was not part of the assessment the assessment plan did not list mr peck as being an assessor and he testified at the hearing because i specifically raised an objection to his testimony that sounded like he was presenting an assessment and he was examined by the hearing officer and he said no this was not an assessment this was a casual observation for me to determine whether an assessment really was necessary those  sort of a second layer where he was second guessing the suspicion of autism and what happened is he went in and child and all just sick to him so they decided they wouldn't affect now and he wasn't certified to conduct the assessment is not was a routine procedure that the school district did when there was a suspicion of autism instead of assessing they simply set the school psychologist in to take a look and if he didn't see what he thought were obvious characteristics of autism they wouldn't affect there's nothing in the statute the permits just to happen if there's a suspicion there has to be an assessment and it has to be done the way the statute says and used to be done none of that was done here nor would it have been very difficult to do so when you're assessing a three year old who is non verbal and uncooperative yes that's not really consists of giving questionnaires to the parents and to the service providers those questionnaires are designed to elicit the appropriate information and this are information relevant to the standards for eligibility this was not done nobody made an effort to ask the parents in a systematic way consistent with what this doctor requires what were the characteristics what was happening with the child would not have been expensive it wouldn't have been particularly time consuming and it's very difficult to understand why the district simply wouldn't have done it the cost of not doing it was quite substantial as this court has recognized in the man the james early intensive intervention is strongly important rituals and watches and the outcome can be very different if the child gets the intervention services they need at an early age and three to five is considered to be the most significant window of opportunity educate me a little bit stiffly with regard to this issue let's assume that there was a procedural violation because there was a failure to conduct the assessment despite the fact that there are suspicions sickly coming from the group from chris and assessment but  not diagnose autism a disorder somewhere on the scale of autism itself and so that rendered the child i recall correctly the record in eligibles for regional center services so let's say that the chocolate strike had conducted the assessment but it came back the same as what dr griffin the term in which is that there's no autism there are certainly since sometimes falling along the office and  scale its record clear that the goals would have been written differently your honor the eligibility criteria are different in regional center they required what is called full blown autism which today would be severe autism under the new standards that they're using for the d s m at that time when a child was on the autism spectrum but didn't have what they called full blown autism they would give an alternative diagnosis like p d d west as was the case here or possibly asperger's those terms aren't used anymore but they were at that time for for educational eligibility the standards are very different and in the appendix to the brief we show for example a example of the d s m standards of the time which were substantially more stringent than the educational standard very commonly children who have p d d n o s who have asperger's who are on the spectrum are eligible for special education services as autistic because the standard is very different and it's intended to be it's intended to be substantially broader so that it does not exclude children who are exhibiting characteristics of autism so we believe and in fact our test when eric were testimony was and frankly if you just read the wreck read the assessment that dr griffin conducted and performed she found two of those elements that are necessary and only two are necessary to be eligible autistic in the education code a severe language delay and severe social skills delays those were more than substantial at that time to warrant eligibility for autism and yet the school district didn't even bother to assess so there would be  behavioral services offered through the i t c for example but would have been written and it's quite possible that there would have been and certainly the parents would have been in a position to request those services and to contest the appropriateness of what was offered the the whole concept of having these procedures and this court has held that the procedures are vital they're equally as vital as the substantive i see and the reason is that when  then yes give deference to the school district respect their views of the child's make some educational benefits and that's appropriate but if they haven't filed followed then the parents and even the school districts employees the staff now turning to the behavior issue this really underscores the importance of knowing the nature of the disability not just what the district has referred to as areas of me the district did not know by this trial i'm tall they just didn't know mr castro who was a speech therapist slipped through the d s m and came across this concept of selective mutism and so she thought well maybe thats it now she classroom because he didn't like to do that well the goal of that was to make him feel comfortable and relaxed and the idea would eventually he'll just start talking because of his comfort level that was exactly the wrong thing to do if the refusal to see  and when we finally did get him the appropriate program during the summer in fact he began to speak after a very short amount of time when the appropriate therapies were provided so without knowing the autism you can't really design an appropriate program i don't know if this was in the record if he's still part of this school district or did parents pull him out your honor the parents felt so uncomfortable after this hearing that they decided they could not send him back to that school district  told him in the charter school and he has been involved there for a few years frankly that placement is not working out either this child desperately need the services that we wanted to get him and to be to begin with the a b a therapy and effect a speech program and he's not getting either like y liar is when i prepare for a case i however i want to give you the opportunity if you prefer that i not hear this case you should tell you show and then that another judge will take my whether or not you feel there is a conflict of interest that would impact your ability to render a fair decision in the matter and i assume you would recuse yourself if you felt  it's difficult to know where to start so i would like to begin by referencing a little bit of the procedural history so i can put this case in contest in context with respect to the disputed   she also wrote the briefing below before the district court i did argue that case but i do not preparing as a pleadings i am going to follow in your your own candor your honor i'm going to be very honest and say that when i were viewed parts of the record below in the briefing and argued the case before the district court i realized that a fact which should have been disputed was not  frankly the facts on the record don't support they don't support not disputing that fact and that is just the honest matter and i did read the entire transcript when i prepared the pleadings in this case in the briefing and i did set forth the facts and are praying which explained that the school district really did not have a suspicion that luke the difficulty with the griffin report is that dr grafman conducted her assessment for on behalf of the regional center to see if the if a student was was going to qualify for continued services she conducted it on november eighteenth of two thousand and nine she wrote a report there after that report came to the school district on approximately december second there is no any possibility factually that the school district team including mr peck would have been aware of dr griffin's report her testing her observations or any of her conclusions at the time they conducted their own initial assessment that because she was highly involved in asking questions during this hearing process and the one finally in the record mr packard did finally say when he observed the district l that it did refresh his recollection that he did not have that report until december second when you look at this issue of what the district knew and didn't know at the time they conducted the assessment mis he based that undisputed fact on two pieces from the record two distinct pieces that i think are extremely important for the court to look at one was the judge there ministry of law judge asked mr packed what was the purpose of your observation he answered just basically to consult with the staff in terms of possible handicapping conditions which may be and then he said may have or may not have bent present was this a standard practice of the district for us has been a sort of law just yes then she asked can you give me some idea as to web for senate of these kinds of assessments and then he said paxton of all the little peppers assessments that was the preschool assessment process i'd say approximately about twenty five percent she asked then i'm a sort of law judge and what would be the reason that would impel you to do this the witnesses answer i think what triggered my involvement was the report from dr griffon in a sense that there was a possibility of looking at autism as a handicapping condition i usually get called into the observations if there might be the presence of handicap yeah i think that what is that what happens with the little peppers process as we are kind of aware of a report in the pull him an area results the tri county ski scarier and then he said and i'm not sure if that was the case or a question trying to go back and remember that i was i was listening to care very carefully that i was writing them down on your first question in looking at the law on the standard of review i believe that this court because you review can know and that because you can evaluate witness counted testimony and evidence in the pendant leigh that you can go back and look at the facts in the records to see whether or not record i have gone to the record painstakingly i have several different points that i could give to you just to demonstrate that that fact was not proven i do not think it changed the district court the district court's analysis however i think it only bolsters that it i think it only lends additional weight to the district court finding because the district court assume that that was an undisputed fact and went on to say that that that dispelled when mr peck came in and did his observations during the initial assessment on october thirtieth of two thousand and nine so if you're missing if you don't even have if you haven't even established  was if the second question i believe is what do you do when you get the district when the district receives the report correct is that your question what do you do and so it's it's a factor in case and particularly around the issue of whether there was suspicion regarding autism is a disability when and mr peck and if i could note just briefly we're not we're not talking about a casual observer yes he was doing an observation which was allowed under the assessment plan but he was a school psychologist with thirty one years of experience who had assessed many autistic children himself even though he was not a doctor and he looked at a number of pieces of other material other data other reports regarding the students he came in he observed him for thirty to forty minutes he did not observe what he believed to be two characteristics of the of being autistic like under th regulations thirty thirty g b and he specifically spelled that out in his testimony which the judge gave great you know weight to because he went into great detail about what he saw with the student socially now when he received it dr griffin's report which we know from the fact i mean that she didn't even conduct that assessment and so well after he was done with it and she found will number one she made a provisional diagnosis it was provisional it was a wait and see they were in a watch mode and she also administered the car the child autism rating and she found on the cars that the students scored in the non autistic range and mr peck testified that the car scoring and her findings with the cars was consistent with what he observed during the observation of the students l o or the students why he didn't believe that that caused him to qualify for special education under the autistic like criteria and again doing a medical no because she found that he was not autistic she found that he had a provisional diagnosis of p t s d and pervasive developmental delay not otherwise that's not enough for suspicion to test him well it sounds to me like that argument is more of a we relied on dr grip and testimony so let me let me ask you this if we disagree with you and find that there was in fact  procedural violation that the district court then loses and if no why not well of course your honor i would respectfully disagree that there's a procedural violation however no i still believe that you can follow this court the district you can follow and give due weight to the district courts and elsa's regarding was there because as we pointed out there briefs and there have been cases around this issue and it is also spelled out in the idea that a student is not entitled to an eligibility classification their title search free appropriate public education that is right that's what i'm getting to whether there whether the procedure violations result in the nile let's bring in appropriate public education how can you destroy when given the testified that with all the information that they have their own assessment and dr griffin's assessment that they would have made the same offer of faith they would have identified the same areas of need and they would have prepared the same goals whether or not they had they had classified the student as eligible for special education under the category of autistic like or whether they would have classified as assume is old wonder speech and language impaired because at the end of the day their obligation under the i got me a speech therapist that she would have think it gets confusing because and in education law and in this case we look at school years so because i'm running short on time i better make my points quickly so first we have to look at the the two thousand and two thousand and ten school have they would have developed the same ip for the student regardless of the eligibility category the i d s made it clear that what matters is not eligibility category nor is the student entitled to a specific eligibility category there have been discussion with the the parents regarding that the programs that were available they were both special education related there was the peppers program in the pas program both were taught by special education teachers both had autistic children in the classroom both had some evidence to base practices infuse into them they were both embedded with speech and language they both had speech and language their parts working in the classroom there was clear testimony that the parents wanted a parent participation preschool because they did not want to drop their child off and they wanted to be able to participate the ip was specifically written off rain the parent education preschool program with the coffee that the staff were going to monitor the student in that program and come back to the table if the student needed more intensive  children on the autism spectrum there was testimony that autistic children were in that program and they benefit benefited from it the ip that they developed identified all the students areas of need we pointed out that he the student made progress on his goals in the half of the year that he was in the program and also the district very quickly got back to the parents in february and started having a dialogue with parents about moving the student into the pas program so that he could r receive more intensive services parents chose not to do that at that time and instead wanted to wait to the following school year at the the missed rate of law judge made specific findings factual findings that the student benefited that that program irregardless of his own ability category and she also pointed out that the students expert criticize the program but never sought and fact never ever even observe the child in school now with respect to mr phonies comment  return the child to school until november of the two thousand and ten two thousand and eleven school year so when he came he missed part of august september october and he came in in november so he's coming into the classroom you've been out of school for for months because the parents have kept him out of school and so now the staff is trying to reintegrate him back into the classroom and are observing him they're adapting as they go from day to day there's a speech and language therapist working with them he's receiving speech and language therapy pursuant to his i p and i p was held in december of that year to do to discuss working with with a student around his his speech and then in february of two thousand and eleven the district sent in the settlement plan to the parents which included a behavioral assessment and the parents did not return that assessment plan until may and so they the parents by not signing the assessment plan precluded the district from going back and conducting for their sufferance which by the way dr said would you know that was with around the time frame when dr griffin had recommended that the student be reassessed anyway in preparation for kindergarten so i would submit to you that the record bears out that there was not a procedural