the next matter is f l individually on behalf of his son r c l vs the board of education of the great yet nec union free school district may please the court my name is gary mayor's and this is my colleague susan wagner we represent the the father and his son time and again this court and the supreme court have held that the ip is the centerpiece of the school district's paper obligation it is the main event it's the foundation upon which everything else rests here the side by side chart appearing in the appendix of pages three fifty five to three sixty three shows that the goals and objectives of r c l is ips were largely repeated unchanged year after year for three consecutive school years a period when defendant claims that the student r c l was making good progress across the board but where standardized testing and other evidence would show otherwise r c l cannot reliably read he could not make change and he certainly could not get through the glass menagerie as it was claimed by the school district testimony before he even started whether it's right or not i just want to be clear what he was asked read three so you could read words like he could read some words and he could not read other words and that's what and that's what the glass menagerie episode was about could he read those three sentences i think was more than that because the hearing officer court the that the person who was testifying and who claimed that there was glass menagerie was at issue as it has even started the glass menagerie knowing the answer was no he hadn't even started but the testimony made it sound like he had already gotten through the glass menagerie i thought it said could he get through the three sounds well anyhow ok so there were credibility assessments by the sure that should have been deferred to while r c l did in fact languish in regress this court does not have to pinpoint the progress issued to decide ourselves appeal in our sales favor in p vs west hartford this court held that it's prior decisions were consistent with the supreme court's two thousand and seventeen decision and drew have applying and as i read your opening brief your argument was essentially that the supreme court's decision in andrew changed second circuit authority and therefore while we might be required to affirm based on second circuit precedent now that andrew was on the books we had to provide a different level of scrutiny and therefore reversal was report a was appropriate now obviously you're no longer taking the position but do i understand your opening argument correctly our position is that it did we did effectuate a change in so far as goals and objectives read now required to be ambitious and sufficiently challenging but i also think that it is not inconsistent with wes hartford's declaration that this court's decisions are consistent certainly largely consistent with enjoy after we have no problem with that that case whatsoever so even if this panel were to conclude that our c e o is making some progress all the more reason for defendant to change its ip calls from year to year to up the ante and make them in vicious and challenging as andrew f would require the district court while acknowledging the end the existence of n g o s did not even address the challenging in a bishop's nature yesterday and i'm sure i just understood what you said you said even if he's making progress they should increase the rigor of the goals said even if he's making so if this court were to find that he'd made some selective progress all the more reason why you should do you should up the ante and make the goals more challenging and more more ambitious why is that because if you have how can a goals that stay the same for three years ever be ambitious and challenging it's well if the if the oh the goals not not the ancillary service correct correct this when you go to the engine decision i see ok i'm focusing on the part of the decision that says that after this being the center piece which of course every court says that it's the centerpiece so that of course says the goals may differ but every child every child should have the chance to meet challenging objectives or talk about ip objectives judge that's what we're talking about and here are seals objectives in the in the ip were largely repeated year after year for three years three years and how are those defined now those this is on page one hundred seven of the appendix it's very important quote the hearing record does not offer information explaining the repetition of the annual goals that's the evaluative criteria upon which the the ip team should have been making some decision if there's going to be a decision to repeat the goals and objectives year after year the should be some evaluate of critic criteria or rationale for it and here the s r o says we don't have any such evaluation but that's a problem and it's a and thorough record hugo's the hearing record doesn't offer information well that's a problem the under section forty four zero four of the education law the burden is on the school district to prove problem one that it offered  it's not on the school it's not on the school the parent or the or the student to prove that the district court should have found that there was a failure of proof on the part of the school district to prove problem one yes or no was at a loss that loss should  fallen on the school district not on the on the parent or the student so were those goals and objectives are seals ips were largely repeated unchanged year after year and where the s r o himself noted that there's no rationale or objectives as enjoy have says and that's not inconsistent with this court's prior to decision making how else how else can the ip be reasonably calculated that is a fundamental requirement from the from from from the beginning of this court's decisions in i d the requirement of a reasonably calculated ip is a school district in title to his say or do you think that even if the goals are the same the progress year to year is sufficient to show that the plan complies with the act you don't i think the answer is no because you don't just say well we must be doing something right because the students progressing why not because the because the supreme court requires more there supreme court says if the student is progressing we want to see challenging and ambitious goals we don't want to see them staying the same and that was the sufficiently challenging and vicious how could a goal that stays the same for three years you're saying that goal the new goals must be sponsored even if there is year to year progress by the student if even if there's obviate the need to have an a challenging and ambitious goal that's exactly what congress wants us what the supreme court's once they want these kids moving forward they don't want to be stagnating and saying well that's enough progress  because if you look at the the first thing that the danger of court said was that faith is markedly more demanding than the merely more than de minimis test so we've we've lifted not here in the second circuit but in other circuits that had the merely more than the minimum test old no yeah about the lack of evaluative material that the goals allegedly were based on it was no it was a repetition of goals they didn't change the goal here well that isn't true but he right what i believe that was in reference to i p s back in during the twelve thirteen school year the ips at issue here are the thirteen fourteen school year and fourteen fifteen school year over the two school but that was  each year i'm sorry each year and there were even instances so for example during one school year the c s e met in the fall and then the c s e met again in april and then the c s e met again in june twice during that same school year and at each  to the extent that the c c members felt it was appropriate the goals of the mastery was increased and any other information in the goals were increased based on the child at the time if you look at the record we submitted to the district court in response to plaintiff's goal chart our own goal chart and we noted it's in the record that plaintiffs omitted more than twenty goals from the goals that this child had over the school year so we that's the attention of the district court and in your view you mentioned this in your brief on appeal here before our court and it was not responded to in the reply brief correctly i'm sorry i missed that is on the record its pages eight to sixty five to two eighty one i won't repeat what was in my brief but it's our position not that goal chart was not an accurate representation so the whole argument about the insufficiency of goals is based on is deficient he's a special education student for that reason he was referred to the committee on special education and has an ip since he was in preschool and that's all in the record the child's one of the child's mean issues is his reading is fluency his reading comprehension so his reading level throughout his education was considerably low he was speech he was placed in special education classes that address that each the content at a modified broken reid's only a third grade level how does he get promoted from ten to eleven i'm not sure that it was third grade in tenth grade i happen i can look but in the ninth grade he was reading into third grade but remember again that's why the child has an going on to the tenth grade where presumably go left and read things even more difficult than and the child was in modified classes so the child was not in a you know so called mainstream you know curriculum that the curriculum was reduced based on the child's abilities and the child's abilities to read and understand so what we did was we really created a program that targeted his deficits he received specialized reading instruction over the years taught by a special education teacher that was daily in resource room the reading program was targeted to all of his needs in the five areas of reading and that was actually one of the things is that not necessarily just your school is that what school districts i mean i 'm looking for will educate nothing for you is that what they do with these children who are challenging that they move them along year by year graduate them so that by age eighteen or perhaps the typical years that it would take so he graduated i think age nineteen rather than eighteen and each year you know it's some of the classes are sort of ungraded if you well meaning the last two years he was in a different program which was a pass or fail type of program but he went through the great neck school system he had you know he received sufficient amount of credits to graduate and there was no you know and again that's a little past you know where we were  with it wasn't at that level when he graduated it was yes well in the record the last we have in the record i can grab this he you know again it's he was reading by june two thousand and fourteen he was reading up to two hundred thirty seven words a minute and he was at sixth grade instructional level seventh grade frustration level fifth grade independent levels so that was six yeah there's different levels of the world a the way to run the schools were really i don't want to say too much because i don't want to be accused of saying things that are outside of the record if you will if that's ok you know i would certainly answer questions but i don't want to well do the best you can ok so my understanding is that the child was able to complete the course work again it's not eight you know when you think of the child going to great neck in these a p classes or you know ip classes this is not that child th child has significant offices and he was in special education classes his entire where he was in a fifteen one one class the last year that the ip was at issue and that class under state regulations is for kids who need specialized instruction and that's what he receives specialized is one fifty it was a fifteen one when it was recommended and then in september they added an aide to the class that was a fifteen one once that would be fifteen students one teacher and one aide and he officer reckon we know both the state hearing officer and the eastern district they didn't make explicit credibility findings against dr horatio but they dismissed dr ratio's findings and they said that in cases under the idea the fact that a privately retained expert says or speaks differently or makes a recommendation different from the school districts experts and the teachers is not determin the child's progress that whether determinative or not doesn't have to be a record it was reckoned with and dr ratio was present via teleconference at an april two thousand and fourteen c s e and i also believe that she participated at the any the the hearing officer meaning the state review officer review a state review officer yes did not both the state review officer and judge did not find that dr ratios recommendations the testimony and the testimony from the the teachers and the evaluators from the school district at the hearing over that of dr ratio over her report and her testimony we were to think that that's pages discussing why we believe that dr ratios testimony was not credible she had two different reports that she was testifying from she acknowledged in her testimony that she did not understand the reading program that the checked she said i'm googling it right now this because she was speaking she was testifying via teleconference so she had information in front of her i don't know you know what she had two different reports that the i'm sorry that she had before the hearing officer that were placed into evidence and her recommendation changed each time that the parents change their mind as to what they wanted so first she said that the child should be in a therapeutic environment meaning something outside of the school district then she changed her testimony said yeah that program fusion that the parents want that sounds good and then later when the parrot acknowledged during the hearing that the parent wants the child in great knack and that the core classes were sufficient for the child and great act then she changed her testimony and asked for more services in the district and in a specialized reading and math program so it's our it's our belief and it's our position and it's been our position from the beginning that dr ratio was not credible witness  and that her reports were not credible and instead the the progress reports that the school district submitted into evidence and the testimony from the teachers that the district court relied upon  quoted the special education teacher who spent three years or maybe four years with this child at least two periods a day she was his specialized reading instructor she taught she was in the study skills class which was an individual lies every other day forty minute period she was also his english teacher so you know it's our belief that the state testimony of the great neck it was his regular english teacher yes yes he was in the log even though he was running at third grade level while he wasn't reading it you know again a reading level is based on different components so you have an independent level and now is that a fifth grade level he was also reading at a seventh grade level for instructional purposes and so ther e's three different levels so when you pick up something independently you know i don't know exactly what it would be but there your reading is determined by you know comprehension fluency so it's how fast and how accurate you read what's in front of you and it's easy and you also have to be able to understand it so there's different reading levels so to say that he was reading at a second grade or third grade reading level is not a complete picture when used t darker ratio the supply test scores on standardized tests she did she did so when you say there was a determination she was not credible i'm just wondering what that could mean several things that could mean she's not telling the truth when she reports the scores that could be one thing you it could mean the scores aren't walkable there weren't reliable i know what do you mean when when when when you think the city he was tested over the course of a day you know six hours of testing this is a child that it has significant deficits and needs support he was put into a testing situation that he could he didn't have any support in that testing room and you know that's why some of the scores were not and who was at the which or which of either officer made the determination unreliability for that reason i don't know that either one of them said that what the court said though what judge said was that she relied on the testimony of the school district personnel that the child was making progress over assessments against some of the district personnel saying that they were contrived and rehearsed that that's what the i h o found in in this kind of situation where the i chose the trial court and here's the testimony and sees the people and has the c's the demeanor is able to assess that this court and the district court should have paid deference to the i chose assessments of credibility but failed to do that how the judge forced scene or the escrow in albany or in islip we're going to determine credibility remotely i ask because i don't think he's really talked about believability her claim is reliability of the testing itself not not that the witnesses fabric as far as i know judge neither nor judge for his team made any such finding and in fact the i joe found judge judge wright he acknowledged the ratios yeah right but i want to address something that you said judge newman which is the parents want money after remember judge that this is a public school student has made its way completely through the public school system and the majority of the relief that it was awarded by the show is not in financial relief it is compensatory education services it's remedial math it's remedial  reading this is not my i mean i see it cost the school district money to provide that service but they do as part of their overarching budget but it's not that the parents are saying give me money give me a lot of money but you understand that i just trying to to understand whether the remedy would be all of the demands you know of and there is senatorial and money and remedial steps versus a remain and to remedy the defects in the arguable effects in the record there is a relatively small financial component which is the cost of doctor ratios evaluation in those one other aspect wasn't it what were they ward of the cost of that yes it was forty five i think was forty five hundred dollars now going back to andrew f or second one thing i didn't say because i ran out of time was that there was a re man did enter off and then enjoy if there was less identity and less similarity of goals and objectives being repeated they had then we have in this case there's less identity and when the district court judge got back the case on remand the district court reversed himself and said that because the there's a pattern of an ambitious goals and objectives the student is going to get  you know to where should reimbursement on a private school now we're not seeking to issue reimbursement on a private school as i mentioned it's mostly comp it on for reading and math but our situation is more compelling and i want to go back to something the judge code mentioned about the our chart which i apologize for because our chart does not have in it the goals and objectives that they deleted as being perhaps too hard for the student and the goals and objectives that they are going to call it dumbed down to make it easier to achieve it's hard to put that into a chart we didn't make it into our chart so i apologize to the court that our chart did not have those aspects of it and to that extent it is quote inaccurate and to that extent but we made every effort to try to assist the court because we saw the court and the clerks like we could not ask you you or the panel to go back and actually start comparing goals and goals and objectives from different eyepieces it would take a long time it took us a long time to make the chart we were just trying to assist the court we were not trying to create an accurate chart so i apologize and what are the non compensatory remedies you see there's a there's a linda mood bell the parents and the child to  cost of the linda move belle program and that is it sounds like money it is money but it's it is a what i'm saying is it's the tip of the tail of the job your pocket it's the small aspect of the relief being sort is what is my point is that most of the relief that's being requested is not financial relief it is services relief so this kid can start to read and he can make change into sort of our standard arceo out of the school district now i'm sorry isn't he out of the school district now yes but as you were on the low case  judge i know that in that case it says that you can even get remedial compensatory education services after age twenty one it's available after so the fact of a student graduating is no bar but in this case i'm still not clear are you saying the remedy is reimbursement for services already rendered or is it an order requiring new services a little both is below the compensatory seven hundred fifty hours of math could be deal or and the seven hundred fifty hours of reading could could be delivered by the school district saying we have personnel that will teach you reading we have tutors that will provide this to you or the school district would say we want to wash our hands of you it cost one hundred dollars an hour or whatever to do this here's just tell us you know here's here's the amount of money they will cover the seven hundred fifty hours they could do that if they wished but they could also provide in terms of services many compensatory education services are done just that and services it's not somebody turning over money the money turnover on this case would be the cost of doctor ratios evaluation and the cost of the linda move bell reimbursement which i don't have the figure in front of me but it's i mean it's always it's always real money it's not just walking around money but it's not anything like it's one hundred thousand dollars or anything like that so we see this case you know this this court already held that its decision making is not inconsistent with andrew is probably of all the cases the closest match up to what we have in this case when terms of the identity of goals and objectives are being repeated over and over and you're not controlled by the remained whatsoever in and direct because it was at the district court level but it is instructive in terms of what should happen in this case this case we asked the court either to reinstate the i chose award in favor of the student so that he can now benefit from this seven hundred fifty hours of math and and reading so forth or if you feel as we also do that judge judge for his team didn't really grapple and wrestle with the impishness and the challenging requirements and the rule in the issue the overarching issue of whether there was this was a reasonably calculated i p and so forth the remainder back to judge foresting we would  do well to re examine the record in light of the which to do the grappling that was not done on below in terms of looking at the goals and objectives and saying are these sufficiently are these sufficiently challenging are these in fact ambitious because those aspects were not grappled with by judge force and she ruled against the student but without but undertaking that analysis and in light and we had asked the judge would you like us to brief angela we were involved in enter f as amicus counsel for autism speaks deficits that's yeah i would say that there may be some you know autism is one of these things we have to meet sixteen criteria he may have some of the criteria but he does not fulfill all of the criteria thank you