he was the general counsel school district you should know oftentimes attorneys will come in with associates and we never ever find out where they are sometimes other clients it's always kind of nice to know who sitting where they do what you're gonna have on this or on extra probably able to handle it is fine thank you your honor your honor we are here today in a case under the individual individuals with disabilities education act and the question is whether to school districts obligation to provide the plaintiff daughter courtney with a free appropriate public education includes an obligation to pay for her admission to and her medical treatment ass a psychiatric treatment center called supervised lifestyles s plaintiff's claim that the school district denied courtney a free appropriate public education both when it deferred preparing an o e p at the time courtney was admit it and later when it in prepared  manager clinic manager treated her for a few weeks manager said that we are not the poor appropriate facility she needs a different facility and the parents then had her and it's ad s since she had been a manager before she had been a mentor for about two weeks your honor yes and that worked out fine i'm sorry they were going to find the first treatment there was one location i thought was manager where she went the response to feed and was fine in fact she went on to become the new quite wrong too or was that manager i'm not sure i know what you're for she was at rancho del mar which is a school she left natural belmore because they concluded that she had a medical need for a different type of facility she did was in manager for about two weeks they treated her but they concluded that they simply could not continue to treat her because they were not the appropriate facility for her when she was telling us what was the difference between manager in a cell your honor as i understand it manager dealt with a different type of patient i can't tell you exactly services your honor there is no dispute in the record that i think can see that s l has provided no academic services the only academic services that were provided to courtney at s l s were a tutor that was supplied by the school district sense essentially education has to be outsourced so that's correct your honor that's correct your honor they have no teachers on staff they are not an accredited school they have no educational foundation whatsoever they are a mental health facility in may it was concluded that she wasn't ready for any educational treatment whatsoever however the school evaluated her situation had a psychologist review records things of that nature and as soon as the school district was informed that she was in a position where she could be evaluated the school district provided a tutor in math and english because prior i e p showed that's where her needs were that's what the records showed her needs were with have provided  to the existence your honor you could say that it was provided pursuance of ye p from back a pathway i mean i'm not sure that it was actually key to that i p it was key to the idea understanding that everyone knew she needed tutoring in math in english that's what the record showed and so that's what they provided her while they prepared and i e p which they did in a matter of weeks i mean they started to tutoring i think in mid october they had her evaluated by a psychologist two days later the psychologist confirmed that those were her needs were and i e t e p team met in november the i e p teen in november then prepared an interim for the next three months and that indorsed the tutoring for three hours a week which was then increased as she was able to a take greater tutoring over a longer period of time we factually here we as well as in terms of the reimbursement we have to discrete periods of time correct correct and  differ with the district couper's determination this that second period of time from post october twelve two thousand and five and right that's correct so everyone agrees there is no educational service provided at all during that first period from may twenty three to walk over twelve that's correct we try to provide it we're told by the medical staff that it was an appropriate at that time that's correct medical service educational amount of educated stern's interest paid my next question because i want to know if there was any dispute with respect to that first period of time both that she was not susceptible to educate any kind of educational service but  that the parents did not seek to have any such educational service provided for her during that first period of time up to around mid october of two thousand judge smith what happened in that period in may was that the school district convened a fact finding team to determine what education should be provided to courtney when the team mess the team was informed by tracey pat was a member of courtney's medical team the behavioral therapist is a member of the team that courtney was too sick to receive education at that time and on the basis of miss peck's advice the school district concluded that it could not provide education the parents judge smith agreed with that us and the parents said yes she is too sick to receive education at that time we will inform you when the time comes when  on the advice of s l s she is now able to receive education and that's what the parents did confess your honor that's unfair and contested but let me say this i think that the argument that is made by the plaintiffs is that they are nevertheless was an obligation on the part of the school district to provide what they will refer to as residential placement to courtney during that period which means pay the hospital bill that their idea of education that was needed by courtney during that first period of time is that she needed placement at s s and since that is what she needed their view is that the school district should pay the bill for that placement and it's we have the basic disagreement here as to whether that is a medical service for which the school district is obligated to pay or whether it is an educational service and how do we draw that line is to say this this circuit has very little jurisprudence that seems helpful we have the cruel decision of the sc then the starting point for every court that we have seen that has considered this issue outside of the third circuit and what the courts have done as they have said you look to see whether the primary purpose for providing the service is medical or whether it is educational and whether you can segregate and in doing that primary purpose when let's say at the  everyone does but let's assume that everyone agrees that a medical crisis what eventually did the placement in may of two thousand odd who condition isn't going to remain static will most conditions  static so at what point does some other factor come into play would determine whether or not education at least can be offered or whether or not she is minimal to not merely treatment there but education's judge smith i think you look at the totality of the circumstances for what is being done for courtney i want to come back to your question about factors but first to answer your question i the time when that happens is when courtney was no longer in need of psychiatric hospitalization and at that point she was able to move to an educational facility because now there is a facility that would provide her with a program that would service her educational needs but before then judge smith in terms of factors i think you have to look at what type of facility she's in first of all date and this is what the courts in the seventh circuit the ninth circuit that have considered this issue have looked they say first of all what kind of a facility is this is it an educational institution or is it a medical facility and as we discussed a minute ago i don't think there's much question about that no teachers no academic staff it's under the new york office of mental health not under the new york education department couldn't a medical psychological facility resident there be required in order to allow a person to benefit from educational training judge mckee in that situation you would in it the person at an educational facility that also provides educational services and in fact there are also all sorts of those pathways devereaux ranch which are among the places that courtney was accurate but when she is in need of a medical facility the type of services that it provides services by a psychiatry of a trained medical staff and by the need of the patient who goes there and everyone agreed as you mentioned earlier dr stearns courtney went there because she was sick in the view of her own psychologist that was the universal conclusion of everyone who has looked at this case  service is that you need to be in a school i mean you don't you do not cover every visit to a doctor because a student is going to need good health in order to be able to attend school the next day but it's not a term hypothetical without the services that person gets were not in school the person would not be able to return to school would not be able to benefit from that is a strain your honor i think that you may need psychological services of some sort i mean into this going to depend on exactly what it is but there are psychological services and psychological services and full time psychotherapy of the type the court he was receiving here certainly would not be covered that's not even covered in the definition of psychological services the regs under the i d e a certainly a treatment by a psychiatry wrist in order to be able to sit in school the next day would not be covered service everyone i think agrees that services by a doctor are not covered whether you need some sort of outpatient related services because you're visiting say the occupational therapist at five o'clock at the end of the school day so after the end of the normal school day and whether that is helpful i don't know your honor i think that is a harder case but your honor that's a very different case from psychiatric hospitalization where your reason for being there under the opinion of every professional who testified in this case was that courtney was sick and she needed her for a medical crisis and remember again we're dealing with a facility that is providing an integrated medical program it's providing a single program with a psychiatrist and a psychologist and a behavioral therapist with drug therapy and with psychotherapy it is an intern created medical program to deal with the fact that courtney was suffering from psych courtney because she's suffering who needs to be stable for lack of a better term as she seemed to be yes in may of two thousand and five the is that in and of itself enough to warrant reimbursement for the medical services because her stabilization cynic on the loan of her being able to learn it all neuron or no because i mean basically what that says that would cruel seems to allow at least on the one hand i mean i'm grappling with this test as i guess it is from rule which says it which is essentially whether full time placement may be considered necessary for education process how do you ever segregate in a meaningful way the kind of psychosis that was diagnosed here and at least animated her receive educational services i think you're on a cruel also said that the test is whether the residential placement is part and parcel of a specially designed instruction i think that the way cruel draws the line is that the treatments if you will the services that are provided must be one and the same as the educational services that courtney needs and that is not the case here that what we're seeing here is that before courtney can ever get to education first she needs to be stabilized medically and that's the first period of time you would say clear your honor i would say that for both periods of  i understand we're providing tutors but that doesn't mean that the primary focus of the hospitalization is not medical it is that's why she settled there and we're doing what they have to do and you the school district are doing what you are required to do and we are doing what we are required to do at the sufferance of the medical people who are telling us when we could be there and how long is appropriate and in the minute we didn't go in there until the medical people said ok you could start now to evaluate or you could start to provide something but she's still in a medical program full time for all the time that she's there that's the reason that she was there she didn't come out of that until july of two thousand and six and yes gradually as part of that process the school district provided tutoring and it increased different three hours to six hours and it did it what it could do for her but that does not mean that while she was there the primary focus was not a medical program so your honor i think the answer is that just because someone needs health before they can be educated that does not make them so intertwined that the school district under the i d e a has to pay for be getting them well if that's the case then it's not just do you not don't just have a problem psychiatric hospitalization you have it with any hospitalization the court in corpus the ninth circuit decision addressed this issue and what the court said there is the psychotherapeutic services the person there was name a shell received may be qualitatively similar to those receiving a residential placement but it's clear that some may be provided as part of education but the intensity of the program the services she received here were focusing on underlying medical crisis and that's where you look at what is the main reason she's here and everyone agrees she's here for a medical reason to address a medical dissipate we've been very liberal in time and i think you get a pretty good idea as to what the arguments he would want to raise that you want to address and you pass a bill you were talking about for his period where the giving it up in the pre well i believe it's education your honor because the position that the school district has taken throughout this litigation and which unfortunately the district court a sow's is that education is limited to academic instruction and the school district hangs its hat on this definition the plaintiffs the family has taken the position throughout that education includes more than academics because as this court has stated repeatedly in mc in in polk education includes beyond academics that's certainly part of it the social emotional and physical progress necessary to move disabled children toward the goals of the i d e what you're saying is basically the school district's position they have likened courtney to a student who was in a coma in fact they have said that her condition she was actually less able to access instruction than a student in a coma we disagree with that or you could would pay for them the school district or pay for the educational piece of the services that the student required in the hospital i didn't use him even students in coma comas require physical therapy occupational therapy these things are within the ambit of education under the i d e oh and cedar rapids which are the two controlling supreme court decisions do draw distinctions between medical services for which a school district is not responsible and services for which they are but  and essentially you know the language that i've just given the court comes straight from those cases where i d e a as a remedial statute needing to be broadly interpreted to protect this class of of citizens has been interpreted to include far more than just academics and in prac in the practical implications that your honor a fairly obvious if i may give an example many special education kids their programs don't include academics at all needing special education because of a primary disability of emotional service which read the all these the is a particularly difficult this one is really actually because there was a period where she really got up and running and she was on her own through the valedictorian so for that snapshot of her life she was fine she was like the kids in the automobile accident because of something which is momentary causes the kid to be in a situation where they then need these kinds of services the issue becomes what's the nature of the service is basically the idea if we look at her even though she's had some history of problems as being someone that for a time in her life was it will do ok academically even without any kind of after a period of over a year at s l s where courtney was receiving the types of services that she needed and we don't concede that this was a psychotic episode or an acute crisis this is a student who's emotional emotional disturbance which means emotional issues are part of who she is always a challenge in this house right discipline if you are right is a big you both sides here but how do we write an opinion which does not make the school districts of the world the health insurers for everybody was of school age because whenever anybody has an impact like the school like the car accident could be anything because the kid to be in a situation where they need medical intervention psychological intervention to be able to benefit from education how do we write an opinion in a way that doesn't require the school district to pick up the tab for any kind of injury which interferes with  then to meet the segregated bill of the aspect of cool simply hold the district responsible for providing as occurred here in the second period of placement strictly educational services and hold you to the parents or some other agency or entity if there is in the end they're responsible distinction between what services the school the state responsible and what services some other agency would be responsible in tatra in cedar rapids the school district is not responsible for medical services that are required to be provided by a license physician the school district is responsible so is my doctor goldstein's recommendation in her report number one recommendation was long term around twelve to twenty four months placement in a are that we have two school district psychologists during this relevant time period the first was harvey thompson who did a revaluation in june of two thousand and five who recommended at that time that what courtney needed was a residential treatment center placement for emotional disturbance in october of two thousand and five when school district psychologist holly cohen did another evaluation of courtney she said that the students needs could not be disentangle they were intertwined and she didn't recommend a residential placement because she said that the philadelphia school district has a policy that their psychologists are not allowed to recommend residential placements however that's clearly in contravention with the law but she said the  needs were intertwined and so what we're asking the court to do is to take the crew else and her and apply them to the facts of this case and find that the residential program was necessary but your daughter brought up the issue of proximate cause and i'd like to address that just for a moment if i may by putting some critical facts in context here and correcting a factual conclusion of the district court it i think it's important to remember that as of december of zero four quigley's last district off replacement pathway school was no longer appropriate the parents went to the school district and told them immediately that pathway was no longer appropriate and instead of offering to help make pathway appropriate reevaluating the student giving any help whatsoever to look for a different placement the school district took the position essentially that we're not responsible for this child we're not going to help you and they did it the next five months that ensued consisted of a frantic search of the parents looking for a placement for this child the took them across the country in those five months courtney went from pennsylvania to new mexico to texas back to pennsylvania to new york and at the end of that five months this emotionally disturbed child who wasn't doing so well to begin with was understandably not in great shape by the time she reached s l s however the school district is putting the onus of that condition in that situation completely on the student and calling it an acute crisis and i would ask the court to look at what happened to her in the context of the school district essentially refusing to serve her because of her condition and if not creating the situation at least exacerbating it another issue that i think the medical treatment is not there would not be the responsibility of the school district because we've made right we've now made the transition psychiatric or psychological care that's it yes if if the services were educational in nature under those definitions like the hurt your body because of the accident without psychological counseling if the if it was determined by the child's eye that the student's needs now required her to have the the agencies and school districts have entered into a memorandum of understanding which can't be forgotten in this case which contemplated situations exactly like this and where it was agreed among those agencies that in situations where there a question about the nature of the service as the school district essential he fronts the money and as the payer is the payer of last resort but essentially fronts the money the school district has recourse to go to the public agencies responsible for medical services t's don't have any recourse and that memorandum of understanding was also specifically contemplated in the i d e a which authorizes hope was made we get the idea of subpoenas that might but the fact that they don't have any resource  placed in a situation that is not an academic situation written shelia medical perhaps psychiatric facility in an able to have any kind of met or educational coach and help me get from that placement to a fa that your honor that's not this case and i think that i need to highlight that's not this case absolutely not s l s provided services and we provided an expert report and supplemented the administrative record that spoke precisely to this the district had no provide however as mr klein our expert opined were services that looked very much like what a school district's emotional support ip would look like related services under the i d e a include specifically psychological services counseling services therapeutic recreation in fact the only medical services that are excluded under related services are those that are performed by a licensed physician under tatar oh and cedar rapids she was on a token economy system she was receiving behavior modification she was receiving individualized one to one instruction by a behavioral therapist in these related services specially designed instruction and related services that's what special education if that's the definition of special education under the i d e a as far as the credentials of the behavioral therapist school districts either have on staff or contract with behavioral therapist as a matter of course in order to implement the of their emotionally disturbed students so as mr klein opined is the district really offered no testimony to rebut this these services were not medical in nature the only service medical in nature that courtney received were medication management consultations by a psychiatrist other than that the services of the psychologist that's also a constant member of an ip team and the behavioral therapist were educational in nature under the definition of related services and i d e a definition of special education and as illustrated by the plaintiff's expert another troubling piece of the district court's opinion that i want to bring to the court's attention is that the district court based it of both compensatory education and tuitions reimbursement for that first may to october period based on its wrong factual finding that the parents refused to consent to an evaluation in june of two thousand and five there is no record support for that isn't that factual finding and even the school district is not claiming that it approached the parents and said please let us evaluate courtney and the parents that know we won't give you consent what happened was in june of two thousand and five and  this is clear on page four of the district court's opinion the district inquired about evaluating courtney in order to develop a quote long term academic program for her again the key word there is academic in the context of that proposal focusing only on academics which court he was not able to access at that particular time the parents fight crime wanting to cooperate with the school district now that it was finally getting involved at all after so many months didn't insist on an evaluation and i pay for academics yet the district court found that the parents refused an evaluation and use that relied on that very heavily in denying relief to my clients and the records show that the parents actually did consent to a revaluation it took place thompson in june two thousand and five recommended a residential treatment center for emotional service which is wh that there is no one who offers academic services on the staff as opposed to what you would more broadly defined as education i don't know whether there's anyone who offers academic programming on staff i do know that academic programming was not offered courtney i'm doing the period from may to october i academics that's correct your honor but the the notion that a student can be so disabled as to not warrant special education services puts the whole basis for special education law back into the dark ages as far back as special education law has existed that was the education for all handicapped act which was the predecessor to the i d e a  legislature has been concerned with giving the most in title meant to the most severely disabled students here the school district is taking the position that the most severely disabled students are in have no entitle met to a faith and that the school district was permitted to simply not give her any instruction because it's only obligation was academics which is just not correct even if the school district believed that she wasn't entitled to special education for a period of time it didn't even procedur lly do what it should have done which would have been to exit her from special education so that she was no longer to sever that obligation for a period of time yes your honor you give a notice of recommended educational placement to the parents recommending that the student not receive any special education services anymore and informed consent from the parents and you provide them with procedural safeguards so that you're ensuring that they know what their rights are under i requirements under the law that were not done instead the school district simply took the position that well the parents say she doesn't need academics so we don't have to do anything until they tell us that she needs academics in the meantime she had very real educational needs that s l s was addressing and meeting in a very real way but not strictly confined to the notion of academics the issue of illness versus disability is also there in misleading the school district psychologist holly cohen made very clear in her testimony and we've cited it in our brief that mental health issues are covered under the i d e a under the category of emotional service the legislature saw fit to recognize that as a category and said that school districts have to remediate students who have an emotional disturbance the fact that her issue is a mental one respectfully around or it is of no moment most disability or at least many disabilities have a mental component to them if you have a specific learning disability there's something different about your brain if you have  program consisted of because the cruel standard asks us to look at the program itself and this court has held in polk which is also cited in our brief that a special education program can comprise related services and that for severely disabled students related services can form the core of that student's special education program here my concern is how do we who are all how do we write an opinion in such a way that doesn't make the school district the tour of the mental home school in the i think the first thing your honor is it if i may and certainly it's not up to me to write the opinion i think the the they get the person to a point where for that person that's what they need to be able to learn but your honor i think that the legislature has already helped help the court to figure out what services should be included in the definition of related services at three hundred point twenty four where it specifically includes as special education which means education which means we're not just talking about academics here related services means transportation and such developmental corrective and other supportive services as are required to assist a child with a disability to benefit from special education include speech and language have audiology psychological services physical and occupational therapy recreation including therapeutic recreation goes on to talk about counseling and the i d e a also very clearly authorizes placement in a public or private residential program when necessary to provide special education and related services to a child with a disability including non medical care and room and board and it must be at no cost to the parents of the child return school did not intervene aggressively enough the right sort of record that thank you for asking that clarifying question your honor it's both our position is that the school district had a continuing responsibility to provide faith to courtney and completely failed in that responsibility by refusing to serve her because of her disability and i your honor i do believe that's the school district's position at least it was articulated in their brief as such in the absence of any provision of fate for the student the parents were then forced to find some program for her the burlington card or standard for reimbursement for placement says there are three prongs to consideration of whether parent can get reimbursement in situations like this the first is was the ip that the school district offered appropriate we have no i hear the school district offer nothing has been women please there yes your honor there had been one in place for the pathway school in december of two thousand and four but that ip was no longer valid as it was meant to be implemented it pathway and the student was no longer at halfway so there literally was no offer of faith and in fact the district court even specifically stated in her opinion that there's no contest there was no offer of faith the issue is whether the district is correct in asserting it did not have to offer faith because courtney was too sick to access instruction narrowly defined as only academics the second prong of the burlington carter test is whether the parents placement was proper and burlington carter warren g tell us that there is a relaxed standard of appropriateness for parental placements they do not have to meet the same standards as placements that are offered by school districts here we're asking the court to look at the nature of the services as we've discussed them as mr klein has opined in his report which was not related by the school districts and determine that that placement was proper thirdly equitable considerations also come into play which i think are quite in favor of the plaintiffs in this particular matter and that is the the most troublesome aspect of the district's court's finding that the parents refused an evaluation that simply did not happen the parents merely agreed that an evaluation in the context of only for academic purposes would not have been appropriate but never said we're not going to allow you to provide any educational services and in fact s l s was providing appropriate educational services and the burlington carter test was applied by the hearing officer and although the school district now claims in its briefs before the court that burlington carter is not the correct test for the correct framework that's not what it argued before the the hearing officer in the appeals panel in fact it did argue the playability of the burlington carter test so equitable considerations are important for tuition reimbursement another error on the part of the district court unfortunately was that the district court denied compensatory education based on incorrect factual findings and equitable considerations pacifically compensatory education is available when a school district has failed to offer a free appropriate public education in the form of an appropriate ip and placement and then the student is entitled to services to compensate for that deprivation in leicester h versus gill which is cited in our brief this court held that compensatory education isn't in kind remedy if faith was denied then the student is entitled to whatever services equate with that deprivation the district court first found wrongly found that the parents delayed provision of services as we've discussed before and then went on to say that equitable considerations prevent compensatory education relief when there is no support for that and less to reach in fact says it's an in kind remedy the only support the district court provided for that proposition was one district of new jersey case and nothing from the circuit saying that that the parents could have been denied compensatory education so for that period from eight to to october were seeking relief under two alternative but harmonious theories one is that the parent should be entitled to reimbursement for s l s for that period under the burlington carter standard and if for some reason the the s l s placing is found not to be appropriate we assert that we're still entitle to compensatory education by virtue of the lack of absolutely any program offered by the school district we've also argued in our brief that for the period from october to january  that the hearing officer was correct the ip that was offered was not appropriate it didn't appropriately address the needs that the school districts own reevaluation in october of two thousand and five recognised and for that reason we're entitled  lot of ground and i'd like to just respond to a few things first of all academic program i mean the school district has paid for courtney's placement at rancho val morrow it paid for pathway paid for mainline academy it is not the case that the school district because things to pay for educational placement the question here is of course it is an educational placement and it's not right if we look at what is educational  the services are being provided and there are services were provided here for medical reasons not for educational ones and i think that goes as well to just make it a question of are the services the same there or not let's take psychological services can i think those are the hardest ones in the context of a psychiatric hospitalization the idea is that because psychological services are included under the i that if she's receiving psychological services in a hospital it must be to same services and so why isn't the same thing under coelho first of all just because they're all psychological services doesn't mean that they're to seem to preserve assist provided in the hospital were  psychosis they were for a medical program they are very different from the types of psychological services that would be covered for an educational program it was like a logical serve as the for medical program they're excluded a look at the definition of covered psychological services under the i d e a there's a reg on this and i wish we had cited in our brief we didn't the reg number is thirty four c f r three hundred point thirty four  and it lists what our psychological services are the ideal yes and it covers things like and ministering in assessing tests attaining and interpret ng information about child behavior and conditions relating to learning planning programs to meet special educational needs shown by tests and behavioral evaluations planning and managing a program of psychological services including psychological counseling for children and parents planning and management don't say therapy assisting in developing positive behavioral intervention strategies psychotherapy certainly intensive psychotherapy as part of  program in a psychiatric hospital don't fit into that definition it's not the type of services that the i d e a crunching plates as related services for in an educational placement and so we don't think the services are the same even though they most both may be labeled psychological your honor returning to something that mr rayney said in her argument about whether the parents agreed that there was no need for disk will destroy to develop an i e p at the time that courtney was first admitted to s l s in may of two thousand and three there was a fact finding meeting by the school district on june fifteenth two thousand and five i said two because of courtney's emotional status parents agree that no new right eat pee is needed at this time and the school district will continue to provide faith on an annual basis parents agreed the school district deferred to the parents but the school district also deferred to courtney's medical provider under the argument is being made by the plaintiffs the school district was supposed to ignore the medical advice ignore the advice of courtney's parents and somehow devise and sort of educational program and we submit that doesn't make any sense we are aware of no law anywhere that says that and your honor the the little law that we have found on the subject there's a fourth circuit decision called tice says the opposite  with respect to i said to you look to the reason for the service i'm not going to repeat myself with respect to the services being integrated being one and the same your durbin findings on this issue the appeals court rejected what the hearing examiner said on this subject and the appeals panel said the record clearly and convincingly establishes that courtney's admission to s l s prompted by psychiatric crisis was necessary for medical reasons rather than educational purposes and that the services provided to courtney during the first four months there were medical rather than educational under their definition really includes everything under that definition you have to any what time anyone has a need for any sort of psychological service and it can be your honor a child suffering from  counseling or type as examples the court has already raised that that is automatically covered and your honor there is no indication anywhere that congress ever intended for the i e d e a to cover that type of cost