minutes for rebuttal so in front of the court today is a novel issue of special education law and an opportunity to clarify an ambiguous point that's as yet unsettled in the ninth circuit and that question is what is the current educational placement for a student who's invoked stay put pursuant to a due process hearing request after the implementation of an agreed to temporary program but before the implementation of the program in dispute and what happens when both of those programs are contained within one i e p and this was a legal question identified at the earliest ages by the parents and the district and most recently by judge roe bard who characterized this as a partially implemented multi t and acknowledge the absence of one circuit guidance directly on point so we asked for clarity today on this novel issue of law both for this family in this district and future families in districts who find themselves in dispute and was based on an erroneous interpretation of the law the standard of review would be to novo and while judge robot correctly look to the winter's factors and correctly they're out in on the merits and the likelihood of success on appeal he necessarily relied on an interpretation of the statutory language under i d e a and stay put jurisprudence and in doing so made an error of law in his analysis and so the senate of review today will be  as these questions as to the definition of current educational placement and how to interpret that in this partially implemented multi stage i p s characterized by judge la barga and we've put forward that the never implemented never agreed to program which we're calling the self contained program that was proposed initially by the bellevue school district for the twenty fifteen sixteen school year and then again proposed by seattle never implemented never agreed to can't possibly program for the new school year because that was the i repeat that was in effect and i have a difficult time understanding how moving to seattle changes that paper work thing but in fact that what you get from placements on the ground placements right but my understanding is that you're not disagreeing with judge graber to the degree that you're not relying on any you're not saying it would have been any different had they stayed in bellevue except that they would have felt the process early well i understand that but but there's no time and him in fact they're there they're venting to be a relevant time limit in terms of when the  the document should have been filed so if they have filed it on the one with the need to process proceed you should have been instigator i didn't really complicate why did they i don't i'm not sure i understand why they waited to file as you process harry let's just say well they knew they were going to go to seattle they were going to take a gamble that hopefully then they would file and file at that time to maybe get a better result i'm i'm not sure if i want to find out there's a few reasons one knowing they were moving and the whole ip team everyone knew they were moving so this was proposed the summer is coming up and when you file due process against the district residency is a part of the jurisdiction so they wouldn't actually  it would have been able to go forward a due process against bellevue that wouldn't make any sense a due process against bellevue and it couldn't have gotten resolved within the i think it was one month they got the same exact issue would have to resign i presume because whenever they filed it challenge the self contained classroom part of it correct that that would have been the characterization sorry what correct and the still question still would have her arisen as to that one would not have been implemented at that p so i don't see what the relevance of the move is i think it adds an element of complexity and there was an intervening independent educational evaluation which goes to the question of why they didn't file sooner but i agree it would have been the same issue once the temporary one to the individual program and already been implemented and agreed to and with our employment agreed to before they even got the piece of paper that's that the piece of paper that put the two placements in the same document and attempted in the program notice which was issued at least a third of the way into that program attempting to link them inextricably and that part of the district's argument is that the short term three week interim program somehow as a transition meant that the parents that implicitly accepted the self contained program for the following school year they had written disagree it's been disputed all the way at every opportunity by the parents towards both districts and the unprogrammed notice of the district attempts to argue that the prior written notice somehow links it as a transition and there are not too discreet placements contained within the same ip is there any case dealing with the  putting two essentially two placements into a single document and calling it a single implement to my knowledge i have having not seen a piece at issue in the cases it's hard to tell if they're placed together we have some that are under settlement agreements where students in one placement even after parents got the notice and i understand the time you know but even after they got it didn't bring in a due process hearing requests right away they waited until the fall when they were in when they did receive the prior written notice having already been in the program the program was already implemented and agreed to their understanding was that that temporary program was an interim placement was a short term program detachments they were unaware of the second phase and they intend to challenge it before their student ever attended so it was never agreed to never implemented why did they wait because they knew they were moving they would not have had i guess they would not have had the court would not have jurisdiction over a due process against bellevue it wouldn't make sense to file due process against bellevue and then move to seattle because they would never as it in c to be challenging a bellevue i p c addle needs to adopt a new ip when they begin at the school year there so they knew there'd be a new ip they wrote their letter to seattle and august explaining the circumstances presenting the new independent evaluation and then when the same place it was offered they promptly filed castle i want to cut to the chase here because the question under the statute is what was the event current educational placement and in your opinion placement and why we've positive we believe that it's the general education program has long term prior programs and it was a para the one to one well we accept half of it i guess my problem with that is that that seems to really fly in the face of the whole purpose of of the act this child was in the general placement and that's placement was unsuccessful the child was  uncontrollable and a number of things were done to try to mitigate that and the placement of that placement they have been not in place for quite some time i think since twenty fourteen i don't have all  until may twenty eighth i believe three weeks it was in place except for the three weeks so he was in general and with with the parent out with his placement up to the point that the parents agreed to and implemented the three week temporary individual program which in the alternative could it absolutely or there are temporary programs that can be put in place there are interim alternative educational settings that can be agreed to one option to the defendant district would have been to continue the individual program to extend it and to contain it until the student was ready to transition back into the general education with the para and we would argue that the general education program was actually tremendously successful for many years it was this third grade year there was a terrible relationship with the administration there were a lot of changes that went to place the behavior plan wasn't properly and implemented and so the student actually can be successful in that placement but there are extra factors that we're undermining his success and that that that is in fact is appropriate program today but with regard to the current educational placement the operational placement in effect if it's the individual program that works as well we would simply argue that it can't possibly be the never agreed to never implemented program the self contained program which was analyzing that legal question you look to whether the court in applied had incorrect legal standard there are two in play here one would be the standard for the issuance of an injunction i don't think anybody's arguing that the wrong standard was applied for that the second standard that was applied was the stay put one also a question of law and the question then becomes was the wrong standard applied by judge rule bart when he applied night circuit authority for what constitutes the then current educational placement or did your loans are again i don't really know why you're palavering the question of this and the strand or her but i mean there's a legal question here which is is this why does the current educational placement for the purpose of the stay put under the circumstances here and i don't i don't understand why can't declaration for the seattle school district you said she understood what was happening here i mean she said that the proposal was the cascade program a self contained you see reading therapeutic highly structured program the parents just decree so they and they wanted and then they had to deal with the media emergency because he'd been expelled so the parents came in and they said we want a private placements  steve said no but we agreed to a temporary place program to finish out the remaining few weeks and then she says while in this interim setting he was taught regular an ungenerous so that's what happened it was a they had a short term crisis  and the major placement was the the cascade program and was never implemented and i just don't understand why the fact that they stuck this into the same piece of paper makes what a difference because i think the it makes a difference for this reason your honor the standard in the ninth circuit says it's the placement described in the student's last implemented i p i do agree that this particular i had to placements in it doesn't that guidance from the ninth circuit does not say it's the last implemented portion of the are you ready it's the last implemented i think this one which has two completely different and time differentiated placements in the same piece of paper to have a case like that in a completely different right and they were covering different time periods and they have to be stuck in a in a single ip if they could have been in two eyepieces just happen to be in one no i don't have a case to cite to you that has that exact fact pattern and why should it matter whether they had one piece of paper called interim i e p n another one called you know next false ip or they put it in one place the first of all i think  to simply cover the time period the issue that was coming up between the parents and the school at that point the school administration was they didn't want the student to return to that particular building and i that could have easily been handled by simply having the the student change buildings which they did it was unnecessary to also change the program so that you had a different program in that second building that's what the i p said was the transitional part towards a more restrictive placement and what that they use the word interim only as to the setting not as to the program that's what the prior written notice if the parents i'm sure sir responses the parents had requests did a due process hearing and bellevue and had gotten a stay put order that preserved the trying to figure out what would have happened if they had filed the due process harry would the two thousand and fourteen plan had been him be considered this the implemented plan if they had filed the due process hearing in may and could they have asserted that in seattle i think the answer to the first question is probably yes i think the answer the second question is yes the first question is would the twenty fourteen i e p the december twenty fourth teen ip become have become stay put the process that's anticipated by twenty u s c fourteen fifteen j is that they file upon disagreement with a new ip at that point general quick column on this because there's a little issue here that concerns me and that's how quickly the school district i mean might have good reasons as to why they implemented the plant right away after the meeting but i don't know i'm just curious because the parents hadn't gotten the notice in this is in may two thousand and fifteen and they needed time i think to go talk to their lawyer once they did so decided not to do it for whatever reason not to challenge to do the due process hearing or the reasons they stated but if they had i just wanted to see if the school district would consider the implemented plan the one that they started overnight or if it would have been the two thousand and fifteen because i want to make sure that you know school districts not saying oh no this one there's no i think the school district is not saying that and i think that the letter from winston close up letter from wilson that's been cited to the court addresses that and i think it's going to be a fact dependent determination as to the timing of when they file versus when they are are put on notice and so on and so that's why i said to your earlier question it's probably yes depending on how quickly they did it  that sort of thing let me ask you something they weren't challenging and they went to challenge this three replays so if they had simply filed it right away but only challenge the self contained classroom because that's all they want challenge you would say that then they they can't do that they have to challenge this three week entrance thing even though they don't care about no i'm not saying that i'm saying that once they reach once they know which and i think it's important to understand in the record what happened at the a l j initial stage of this case is these arguments began being made during the initial stay put argument to the l j they'll jay said and i'm going to need to take testimony and so he did and he took testimony from four individuals at his request he took testimony from the person who drafted both the the initial draft ip and the finalized one and the prior to notice that was the same person an administrator from the building and both parents and if that point he determined that everybody knew exactly as of the ip meeting on may twenty sixth exactly what the program was going to be and that was going to contain both provisions the at that point once they're on notice of that and they know that the i p contains both then they are under an obligation if they want to invoke statehood they're under an obligation to file that's no different from any other parent who is presented with an i p that they'd object to if they want to avoid that i p becoming stay put they're required to file and in this instance that the logic that's being presented by the parents case let's flip it let's say that the two stages of the i a p t the time frames are opposite and so the part that they like the initial stage of the i p is going to last month and the part that they don't is going to last a relatively much shorter period of time under their logic they would get to write out that i p until the very end not do parts here and i want to go back to what i was saying earlier if all that was being addressed by the i p team which it's not the i p team's obligation or job to address getting the student back in school after the student's been suspended or expelled that's not an i p team function the the part that was being done on an interim basis was moving the student to a different school he could have been placed in a different school with the same program that he was receiving under his twenty fourteen p that would have been easy if that's if it was only to situation because otherwise they would have had to have a class accommodate a press release that had been going on for nine months the but the the i p team determined as the ale j found and as judge our indicated that the ip team felt like it was important to have a transitional step for the student and they crafted the short term program as a transition step now in this land with all that's going happy to address any other section of the case that that you would like me to but i would i do want to return back to the starting point and the reason i think it is important to talk about the standard of review in this case is because when when judge robe art applied the language from all of the ninth circuit cases that have been cited johnson kady in the that says if you look you look to the last implemented i e p to determine placement you do not look to what portions of that i e p have been implemented that was not a mis application of the one third standard it was not a mis application of the law it was simply an application of that standard to unusual very usual or something in between i would say it's something in a trance not it's not very usual for sure and that the scenario that i would suggest to the court is  it's common that school districts provide programs for students who have for whatever reason related to that their disability difficulty with transitions and students on the autism spectrum students with anxiety a d h the students often time exhibit that as a as a manifestation of their disability and so one when you have an ip that span school years and perhaps that i also going to span different schools a student moving for it for example from an elementary level to a middle school level where there are going to be many more transitions involved in the second part of that i p than the student has to experience in the elementary setting that it's not uncommon that you'll find a different level of services and a different level of support in the second half of that i p because that's what the student is going to need at that point in  anything they're comfortable with the first part that they're not comfortable with the second and they want to challenge the second they have to also challenge the first to rouse the didn't challenge the ip but in but they have to do so in a timely way or else you find yourself in the situation that i was talking about earlier where if the time periods were flipped and you're just writing out the parts that you enjoy or the part that you like and waiting to get to the part that you don't that's not what's contemplated either by the statute and certainly by the guidance out of osa that i sell it to i agree with you to the to these degree that to the  at the outset of the ip it's more likely in this is that the question i was addressing earlier it's likely depending it's going to be facts a specific in fact dependent but it's likely that the prior i may become stay put but because of the ninth circuit standard that you look to and what the standard of the one circus tells us is just where you look you look to the placement described in the last implemented i a p t if the parents write it out as these parents did that at some point that becomes the last implemented i a p t and you looked at that i need to determine what the placement is and at the time that this case was filed in the middle of september was that i p called for was the second stage of that i p's placement and that's what judge robe art held that's what the ail j held and so i think in that honor there's three points i'd like to address in the reply one the difference between filing in june versus september to judge mark yes point to the conflation again of i p m placement and definitions that i think are helpful in the ninth circuit and three the question of a typicality that judge graber raised so with regard to whether it would have made a difference to file immediately it was in june when they finally received the prior written notice and likely would have been late june getting a lawyer together filing that individual program would already have been implemented and agreed to and it would not make a difference how about two weeks well perhaps three they've received it at least a week we think maybe ten days within the three week program so getting it together filing and then seeking stay put happens after you write your complaint file and so with that timeline it likely would have happened at the end of june possibly when the program was over but the point was it was already the program in effect the program and placement that was happening with the individual programs of filing at the end of june or filing in the beginning of september it was actually september ninth not mid september prior to the beginning of the school year when the due process was finally filed would have made a difference because during the summer months there was no program in effect so the last operational he's any good but implemented means and i think this is a really important point under johnson v johnson which is our ninth circuit case on point we talk about the specific educational placement the unique combination of services and with regard to thomas which is the six case that a lot of our ninth circuit cases look to we're talking about the operational placement in effect and so whether we want to talk about that as an interim program that can't possibly then be a stay put that's a reason why the individual program would not be stay put but filing it after it's already been agreed to implementer it doesn't change the characterization of it as the current operational placement and doesn't change our analysis of whether or not it's interim i'm not sure i understand your response because you wouldn't you would not have agreed to that you would have said to them after you got notice and you talked to your attorney or they talked to their attorney you they would have said you would have said you know what we're objecting to this i e p with two faces you know so we want a stay put order i soon that would have meant the two thousand and fourteen would have been in place and you could have asserted but you chose not to do that we don't have checked into the fact that there were two phases piece when they're when they're separated into phases even though it's envelop in one program and i would argue that these are not phases involved in one program these are two distinct placements contained in this bunch of papers they pull together which is one part of the place that i think about and i paint and thomas the sixth circuit specifically says what congress intended for it to be the ip they would have said i actually basically if out of some and out on the ground the whole point of it is that the child should not be moved from where he is on the ground in is until there if there is a pending proceeding regarding what's supposed to happen to him next on the video says the purpose is twofold one to maintain the status quo for the student but also to prevent unilateral action by the district attempting to exclude the shed and the focus was exactly on this kind of your matter of action i e by taking the child out of a mainstream situation into an isolated completely isolated going from ninety i believe ninety two percent of the time in the general education setting with the typically developing peers to i think it was three percent in the proposed for a hugely different and exclusionary and we believe harmful according to the recommendation of his treating psychologist and the independent evaluator over the summer who both advised against that program giving that he was a highly gifted student with sensory issues he should not be warehoused in a program for emotionally behavioral disturbed students many of whom are lower cognitive and my time is up thank you very much