victory was an empty one that even though they had won and even though the factors on which the court overturned the administrative hearing commission order were quite strong  not supported by the record but those three are the the the broad highlights of what those equitable considerations were was the district willingness to amend the  the parents supposed to communicate with the district and the private the the placement that the school district had elected for the student that was ultimately rejected by the parents and the district court said that rejection was justified if you did as an equitable consideration that sometime after the ip that that had a spencer room and could we're going to get the facilities and there were at that point your reimbursements cut off well so any communication between the school district and the parents over the change idea when or if any changes had been made and what we can say is the court has said very clearly that an i p o supposed to be looked at at the time the ip was made because parents have to have sensory room and by the way we had two kids with autism they were going to place my client at that school who also has an autism diagnosis despite the fact that they didn't have any supports for him there so the fact that there could be a sensory room we don't know what's in it we don't know if they have staff to actually run it we don't know if they have i q patient or therapists to write the play and to give the kids to be able to utilize the sensory room and in an effective way we don't know anything about it there is  a plan what's called a thirty day resolution period so if they had the school had made changes to madison and thought that they were adequate enough that it could change the parents mind about the placement decision that they had made error but i would say that it is clear the decision here was clearly erroneous you have the case are coming out of a circuit that is very clear about what you're supposed to look at when an ip judge effective or ineffective and that is at the time of the what happened at madison after does not matter and even if it did matter we have an idea that does not provide the support that he needs so another reason that the district court found that the i was denying a state is because they removed services that years and years and years of peace and evaluations which were conducted by the district said that he needed were removed from his ip entirely so once again what happened at madison after the ip meeting should not matter however even if they were able to improve the school to such a way that it could be conducive to the student being able to get a free an appropriate education the parents didn't know about it not provide records we have parents who are adequately using to have their child evaluated but actively acting in a way in which the ip did they end up with while not providing a faith due in part to the parents action here we don't have that stated that the the parents failed to communicate with the district about the ip and this was one that was just absolutely contradicted by the record itself in sort of missouri under the missouri state plan we are permitted to do discovery and we requested all of the communications between the district and the parents regarding the allegations in the case to my knowledge they gave us them never at any one from the school request any data from the parents or request anything from the parents that they did not comply with in fact what you will see is the parent actively reaching out to the school over and over and over again and being ignored and then because of government we have the benefit of the communications that are going on behind closed doors in which they are saying he does not belong here the parents should not assume he can come back here you know i'm just actually not going to respond to them and so that kind of covers the two prongs which would be that the school was willing to amend the ip when in fact thank you and then emailed the district asking for the  at simply not supported by the record and i think that i'm going to reserve the rest of my time unless you have any other question could i ask you a question on the underlying determination related i'm a little confused about who has the burden at the administrative hearing commission my understanding was that the party requesting the modification in that case would be the parents have the burden but the district court here in my reading of the opinion that the school district or the burden of proof at the commission is my understanding accurate that i may have a disagreement with the court on the burden of proof yes but i also have that case it was at the age and the district court used the wrong burden of proof but but in that case we actually reversed as we found that the confusion about the burden of proof inspected the court's conclusion a perfect better and he broke the wrong burden of proof but the application he did not apply about burden of proof so we are not also not talking about a case in which there is an evidentiary tie well but as i understand it testify go to the meeting i'm just wondering doesn't that matter where you would have had the burden there to change the p when maybe you didn't produce the evidence necessary for the school district to reach the right conclusion  address the burden issue here and so block it versus commissioner the case out of the circuit in two thousand and five it says we're both parties offered evidence where there is no evidentiary tie any improper assignment of the burden of proof is harmless party supported by the weight of evidence will prevail regardless of which party or the burden of persuasion prove or preponderance in here there is no evidentiary tie in to your point about people who did or did not attend the meeting it would not be practical practical recommendations which could have done that but they didn't because i think they had already decided where this child was going and that is demonstrated by the fact as as we talked about mr hagan she didn't frantically e mailing people within the school saying i don't know how i'm going to read and i pay for this child because i don't know anything about him i taught him for seven days of which he left almost every day early nobody is responding to me i'm getting no data from great circle he didn't actually for that date until after the meeting which is not something you're supposed to be doing he didn't have any information to go on but what he did have were the recommendations of the psychiatrist the can of the parent that they had been talking about for a very long time and he didn't follow up on any of those things and for that reason i i do not think that b i think that that while the district court stated the incorrect burden initially the apple actual application of the evidence in the weighing difficult responsibilities and the idea is this case shows those responsible as really are difficult and sometimes are really difficult there are very standards of review for courts that reflect that premise that were stated by justice stevens this case is primarily about how the district court here did most of the standards of review fail to support it recently with evidence in the record and also failed to properly apply the burden of  proof before going just on the points i was going to make i would try to address some of things that came up in the prior argument with respect to the reimbursement issue when you asked about judge copus the standard review i believe it's abuse of discretion  in a case like this is left to the broad discretion of the court and in this case the reasons the district court gave are fully supported by the record with respect to the issue about the communication and  mr higgins request my recollection is that in that hearing there was a question to him or on those lines i believe you responded that he made a request i don't believe that he said he made it by e mail beyond that i don't know anything else about it in the record that reflect that so i don't think with respect to this instrument madison the evidence shows it at the time the parent visited madison there was discussion about the fact that at the time they were working on putting in a century room so at the time of the hearing especially it wasn't news to anyone to hear that there was a century at that time is it clear in the record all when the parents knew that the room had been constructed or in my misunderstanding i understand from what you said before the hearing there was a discussion that there was a plan to build the room was there ever communication when the room was constructed and when did that occur as far as i know the st time that was known was at the hearing when there was the testimony but also i don't think at the time there was any clear information made again in the hearing there wasn't testimony about the need for a century room and so i don't they was even a point for the district it was clear that that was some kind of an overriding issue  there any communication between the parents and the school district after they place a student in the private placement or was it just ok we're going to go we're both just going to let it get now  notice the parents provided at the ip meeting that when i asked about the parent the parents asked about their expectation of what that meant to do that notice the go ahead and send him to a private school and we'll come here and decide where we ought to go so the parents expectation when they gave the district that note the letter at the end of the ip meeting was there's going to be a due process here in the district court agreed with the hearing commission on that provide the notice the things that they did during the visit to madison was premised only on we're going to do these things that we can follow due process and that factored into what bothers me because i've been in a couple cases previously where the school districts not able to accommodate the needs of the child and they were not putting the child in private placement pat because of the cost the school district then makes changes to a program so that they can accommodate the student but i've always understood that at some point there are some communication between the parents and the school district to indicate these changes have been made so that we the the deficiencies that existed before not longer exist but i have seen in this case there was no communication like that but i mean i think partly you know if you look at the complaint as far as i recall i don't and there was never an allegation specifically that a sensory room was something that was required it's just not something was ever clarified as this is something that has to happen so you communicate didn't occur then because no one knew it was a key issue until the district court hearing i didn't well then did the district court and use their discretion on that point full now i think that really goes back to the main issue of he just said there isn't evidence about the need for a century room in the st place so the district court's decision that that was a failure of faith because it wasn't it provided for someone out there is not an evidentiary basis for that saying that faith was not provided because there wasn't a century or so that was the her basis then for limiting the reimbursement because the court then said later on there was but a recommendations and i don't understand i understand they don't have the obligation but typical that the doctor will not be there in person but the doctor will provide a letter or some kind of written communication and probably more often if they're not there but i've had them even dr constantino recommended and so to me that's where you thought when you asked about the burden of proof that's part of the problem with the district court the surgeon because it looked was looking for essentially for the commission and the district to provide a convincing explanation rather than looking at the evidence as the commission correctly did to see whether or not the parents had met their burden of proof and so with respect to the sensory part the commission looked at that and noted there was conflicting evidence over the years about any benefits from it but also there was no roi explanation of why whatever they were asking for couldn't be provided if you look at how dr constantino and how mr hagen explained o t services and how those could be provided they're virtually the same and basically the idea is the occupational therapist will work with the teacher work with other people working with the student and develop a century diet so basically it's sensory interventions t student might use and then some sense of how they may be used and when and one of the important parts of that service is that it allows for flexibility if things change over time one of the things that dr constantino acknowledge acknowledge the importance having been relying on information from school personnel who were in a school classroom with the student who work with the student even if it's only seven days like mr hagan is that seven more than dr constantino and a great circle they had too much so that's the evidence that's important to rely upon again if you look at the issue of the sensory there's no one who said that the provision of the ip was not sufficient to meet the needs of the deal head there was only butted evidence from milan fish for mr hagen from the great circle staff that they provided sensory activities to d l and that initially may have used them to some extent but then he really didn't there was no evidence that they didn't do it properly that they just didn't actually do it and were making that all up or that what they reported about dion was somehow not correct that was the information the team had the time to develop the ip which also leads to another error that the judge in the district court made when he found that there was a contradiction in the eye he felt be that because in one section that reference needs for sensory and in another section the reference the fact that he wasn't currently using that that was a contradictory but that's not what that shows is that the district court really didn't understand the contents of the ip and how it works and one of the fundamental reviews for a court in a case like this is that acknowledgement that floats aren't expert in educational policy and reflecting on that i think a common sense thing that most of the time judges aren't professional educators or haven't been and so a certain level of deference that goes to the decisions made by school person because of that so in this case in the ip there's a section at the beginning the talks about the student's disability and how it impacts the student's ability participate in the general curriculum that part describes the child's disability basically ideas these are the needs the child has the we're going to address in the rest of this i basically it's why do you have an a p the other part though that the judge looked at is a part changes in the current functioning of the student and that is exactly what it is since the last a p what's changed was a student so generally what you have is information about progress on girls maybe it's lack of progress but it's how things have changed so in this case that was the observations of the school personnel the deal wasn't using that in for the century activities of the time that was just a matter of fact you can't report something other than what they were observing so then you put those together and the changes in functioning part really helps explain the change in services there were based on the needs in that st part so there's not a contradiction that's how the  as not a basis for ruling against the district that's it because that ip does what it's supposed to do you know i want to go back to this whole century diet now as i understand a century diet is is just a broad spectrum of activities putting people in a sensory deprivation room where you just kind of take away all stimulus and just right so all those things could be and so why is the district judge wrong when you look at the specific identified problems of this particular student had the history tragic stress disorder got black or of all the inherent problems that the bladder and bowel control and problems under stress i mean all these things that are going on that are all brought on by external stimuli why is the court not able to say that based on the physical observations based on the diagnoses that's been presented based on the sensory diet testimony in the hearing that the deprivation room is necessary for this child not a reasonable inference that can be drawn because there's not evidence to support that there was no testimony about there was no other evidence about that and i think that also it's important to go back to the based and the fundamental premise of the day da is that a students needs are based on their unique circumstances their unique needs so for every student you're supposed to identify what are their needs so with respect to a sensory diet like you you are correct your honor that it can be a lot of things you know century stuff could be used sitting tapping your pen why you listen to this argument that kind of stuff so yes it could be the point is that it was the parents burden to show that it had to so the bottom line and it's not in the evidence and it's not consistent with the law then just to take that leap based on really nothing there's one really to me important practical impact of this case that i think the court has to consider and that is the district court's rejection of the commission's credibility findings in their briefing below the parents specifically challenge the credibility of the great circle staff members and talked about their experience and all that the commission directly addressed that it noted that yeah there's varying degrees of experience at the district you had mr hagen who taught for ten years you also have as a child who has autism he has a sister has autism he's taught children with autism he's familiar with sensory so he knows his stuff a great circle there are varying degrees of experience the commission looked at that evidence and determined that it could rely on that evidence it was it was consistent with each other it was consistent over time if you look at the last day before the november th a he one of the things it mentioned in there was the inconsistent use of sensory so was it new in november to have that information and so the commission weighed on that information also with in the bottom line was that for the most part deal like what do you like to do if you don't want to do it that's word problems came up typically and that was in the records consistently so the commission looked at that information and decided it could rely upon that this report didn't really address the fact that there was no contradiction of the testimony by the great circle people instead of really looked at the credentials and it noted that  expertise in research in treating children with autism doesn't say anything about educating children with autism doesn't say about knowing anything about occupational therapy it leaves out the fact that he never saw d l in a classroom over five years dr constantino spent a total of about ten hours with the not of that spoke with him maybe three and a half there's absolutely no way to compare that experience with the experience of the classroom people who actually worked with b l so as far as the credibility determination the judge really relied on credentials and noted the disparity in credentials and decided that the the commission and the district court should've listened to dr constantino in real life the problem for school people at this point is they want with this decision how do we know then when we have enough experience that we have enough time with the student all that that we can rely on what we see in a classroom and when we just have to defer to someone who is an expert who has given us a letter that says something different and i've probably been approaching a one thousand ip meetings at this point in my career i don't think the process can function if it functions that way schools and i p teams have to be able to rely on the observations of the people who are in classrooms the students see my time as a thank you thank you brink is oversimplifying the district court's order he did not find that faith was denied simply because madison does not have a group around he found that faith was denied because after looking at and and another issue is that he found this based on the evidence in the record he didn't find this based on dr constantino testimony he found it burst in the testimony contained within the i p s and evaluations spanning back to two thousand and twelve that were conducted by the  that a nine year old did not volunteer to go use the sensory supports or when he's having a meltdown and he's proposition with the question would you like to go to the sensory room surprisingly says no i have a three year old niece who would not choose to eat vegetables if we did not make her but that is what we have to do as educators and as parents but this is not an activity this is something that needs to be created by a there are many reasons why good ip tonight faith not just the lack of sensory room but the direct i o two minutes were taken out of the ip despite the fact that every single ip and evaluation conducted by the district including the two thousand and seventeen that is how he adopts the sensory deprivation and if i can briefly address this deference s do weight should be given to the results of state administrative proceedings that is true and then make the court need to make independent decisions based on a preponderance of the evidence but there are quite a deference to the district court pointing out that the individuals who are making these decisions so we're looking at people who d l for two months only writing year are conducted by the district itself that the weight of the evidence and because however the results i've read just going to ration by seventy percent believe should be overturned there's not evidence to support it and the court committed clear error in can and concluding otherwise if they're not for their questions thank you thank you very much for your argument can be taken under advisement