supreme court has cautioned courts not to substitute their own ideas of sound educational policy for those of educational officials that they are review that's exactly what happened here the district court who ruled the determination of a certified school psychologist this certified school psychologist had not that this is a student who doesn't need any support but that this is a student who should be supported with a five zero four service agreement meaning he can be accommodated with the regular education curriculum and the record supports that determination but the school psychologist was critical of the also saying that the parents have to prove the student required special education by reason of the crows disease almost insisting that they rule out every other every other factor did they did that district school psychologist which said five o four not and right and considered all the detailed record the district court did not go into why that evaluation was wrong other than necessarily that it got the wrong conclusion almost requiring the parents to eliminate every other possible cause whereas it seemed like this it's students declining performance could easily have been the advance of this disease well the the district court combines a bunch of different issues including the fact that they're they're combining crohn's disease with math difficulty which are not related and so the only area of specially designed instruction that is suggested even by the parents private evaluator is math but it's not just specially designed instruction it's methodology the student could could not really focus couldn't do things in a in in a you know a quick way had  had to take time was fatigued lacked energy a lot of the things that seem to be associated with this disability and i don't know how a student in this kind of situation who can't focus and can't simulate a whole lot of information at the same time and you know is constantly fatigued and lacking energy how they should not need special education will be different and the difference that he needs in accommodations plan that he needs when he is going to be absent he needs time to be able to make up that work and a copy of teachers notes he needs to have assignments modified if he is absent for a long period of time that's why that's in the five zero four service agreement the question is does him he still participate in the regular education curriculum and the answer is yes he is he is a bright student with an average achievement scores and the district court does not get into the second prong of that idea eligibility which is the need for specially designed instruction if the parents expert is saying the only area of specially designed instruction is mat which is not related to crops it's not related to the concerns that you're suggesting i get what i'm saying that if it's really into a specific learning disability in math then we look at the hearing officers determination that that's inconsistent with six years of proficiency in advanced sterilised test scores it's consistent with the independent a value waiter's on test scores which show scores above a hundred in math it doesn't make any sense to say that if you're testing in the average range that you'd qualify as a specific we're going to see hearing officer doesn't say this is only math and math was fine he said that that there's no there's no connection between  the requirement and crohn's disease yes he would be suggesting is that there is no connection as i understand your question what they're suggesting is there's no connection between the declining performance and the cr and that goes to ok the homebound instructor goes out to jaycee's house and he refuses to participate in structure and said i would rather go skateboarding with my friends i'm not doing it that's not crohn's disease that's just he refuses to participate in this psychiatric about that what he says is the reason for the problem with the hearing officer yes he or he said he says that the declining the declining test the evaluation report concluded that he was not eligible under the i v he was eligible under section five before he actually remained eligible under section five of what's the difference here so under five before service agreement he would be accommodated meaning we're not changing the curriculum we're not changing what math not when i need that he needs special education and in special education as it's defined a specially designed and instruction adapting the curriculum the methodology to really be right but what we are saying is under the five zero four agreement he's going to be taking care of in terms of he is a liberal access to the bathroom he can carry food with him go to the nurse whenever he needs to if he has more than five days of absence the teacher is required then to modify assignments what about the finding regarding his inability to assess and organize all this information and the finding that he can't focus on the funding that he's fatigued and doesn't have penns borough evaluation about his motivation and if that attitude met you were fused to do stuff now that we can't necessarily if the purpose of the i b a n section five zero four isn't to ensure that all students get is in peace it's to the comma valley school district requested permission for a city after her valuation and the parents denied that permission and they said we're going to get our own and provide it to you and then they did not provide it to us so the district court is saying this evalu that says this is a student who does have a drug problem and needs to get sober needs to be in treatment this is a student who has motivation problems but in the end east spends burrowed didn't even provide specially designed instruction he was one hundred percent in regular ed it was a five zero four plan on n i e p four the district court never did that second prong does he need specially designed instruction and the principle that we're asking is that if the parents withhold information from the district as part of their valuation process the district court should not be holding that against the district so in this case the school district also requested permission to speak with jaycee's doctors and the parents said no so ok we could have found out more about the motivation more about the leopard but but we couldn't because they withheld that permission but do you find in the hearing officers analysis do you find that he's saying this is just a poorly motivated kid who is a behavioral problem i mean there's a footnote about the sensor down on january seventeenth and i quite frankly think that this was probably part of the problem that they suspected that drug disease that is giving him the problem it is it is it's it's drugs it's motivation it's wanting to be with his friends and not want to see that in the in the hearing officers findings it's not in the hearing officers finding he's not learning the way other people do he's having fatigue energy problems he can't focus you can organize material if we go if we go all the way back into to sixth grade seventh grade the last three years three yeah but if we go all the way back he's still having sixteen seventeen absences all through middle school this is this is this is typical for this student's performance this is a bit worse than it worse and generally worse and and  if if we look at the time period when his own doctor said he can go to vote in the afternoon and he goes for two days he actually he went for two days in four partial days so he missed he went he attended refusing to participate have doesn't mean that the district wasn't willing to accommodate was ready to accommodate and wasn't saying this is a student who needs no support it was that he needed a fight of going to the district or found that the hearing officer hearing officer take that into account is that enough the hearing officer it gave the independent evaluation last week partially based on its finding that j c had a specific learning disability and that was contradicted by her own testing her own testing showed him in the average range the only specially designed instruction that day the independent valuate are suggested once per math everything that's related to designed instruction and the hearing officer saying it's not math you're wrong a matter you believe that needs special education is confined to academic performance or should it include the whole aspect of the need special education means right and and some of them say it's whether he could be whether his condition situation would improve with it some of said societal others have focused on academic what what is it but  i'm concerned by the district courts just saying he needed special education without explaining he needed specially designed instruction has i'm asking you if in the district courts determination in the hearing officers and i p p s are one aspect of special education you'd have students in there who have one of the enumerated disabilities by congress whether it's autism or specific learning disability or intellectual disability there is a huge category of students who are under five zero for service agreements because of medical conditions whether that be celiac disease or peanut allergies or  and because of it need to be accommodated in the school environment it doesn't mean that those students don't need support whether it be they need a nurse support or they need extended time from the teacher or they need the ability to make up work because their absent the question of which we should box you go into is determined properly by a school psychologist in this case the school psychologist looked at all of the records in all of his needs and did  own testing in said he's smart his test scores are average across the board he should be accommodated it's not to say we're not going to help you you're on your own with you with with difficult periods we're going to do these things for you because that's what you were constellation of needs need says you need but it's not what the district says of not providing anything this is a lack of parental cooperation  providing availability for testing this qualifying automatically disqualifying what the regulations indicate that that if the if the pick the district does not get consent for what for what it's supposed to what it wants to do it's not supposed to be held against the district so the regulations it comes as explicit explicitly promulgated  that through the regulations that the department that parents have a right to privacy if they want to allow us to have a secure trick about a ration they have a right to that but then you can't later sue and say how dare you not find find that  emotional disturbance richard which is looking at their you know the hearing officer doesn't doubt that he needs special education but a comedy special no no in this case the parents must prove the student required special education by reason of the crohn's disease nothing in the record establishes that he required special education by reason of the cruise disease he's assuming that he says regardless of the briefs or the student had hearing the parents advanced it was born or other health impairment because of crowe's disease and the hearing officer assumed that they met the crohn's disease met pronged one but then the question is did they prove wrong too and the hearing officer said no and the district court reversed without actually considering contest that's why we're here this record did not do the now so we're in the curriculum or we modified where their teacher comments that were input for the hearing examiner yes yes there's extensive teacher input in the home our instructor did input all throughout the evaluation report on with academic transcript which indicates things like accommodations that the school district put in place basically addressed attendance and what would happen if chase c were absent from school for a period of time and the response was that he'd be given an opportunity to make up work which really didn't help him i think the abundant evidence in the record shows c clearly needed specially designed instruction there cannot be any doubt on this record that he should have been evaluated much earlier than he was he began to where he was performing well in the subjects right i don't know unfortunately he was not he had a d average beginning in seventh grade every year beginning in is that he is very fatigued he's always tired he spends an enormous amount of time in the bathroom there are teachers know it's in the record the teacher is running  notes for a period of a few months after the parents asked for the evaluation show that he would spend up to thirty five minutes at a time just in the bathroom he was  pain in discomfort but what the district never valuated properly was his difficulty with attention only after the parents asked for an evaluation in january of his tenth grade year his last year in the district did the district even try to evaluate his difficulty with attention and the district should have identified him as a student with attention deficit disorder of the inattentive type with any testing  there was a seventy six percent chance that he had clinically significant attention deficit disorder the independent evaluator found that he did the independent value it or confirmed that by doing for additional tests and each one of them showed a high level or clinically significant level of difficulty with attention is a d t automatically mean  you need special education it doesn't automatically mean that but in in jaycee's case it did as you can see from the recommendations of the independent evaluator  in mathematics using a structured sequential step by step approach for his academic subjects she recommends different methodology if specially designed instruction is defined as a change in the content methodology and delivery of instruction the recommendation she may clearly apply she recommended that he not be required to complete all of the assignments that typical students are required to complete which would be a modification of the general curricul when we take the from the behavioral aspects the fact that he he didn't want to do this and he wasn't motivated and yet where do you draw the line between that and is this crohn's disease or is this just a youngster who has behaving badly or is on drugs or whatever well there are lots of students in schools who are not particularly motivated who have problems buckling down and giving all the actual education no we can't and  jaycee's case the district did an evaluation and it was their job to determine whether his difficulty with doing work his apathy his his tiredness his difficulty getting out of bed and going to school in the morning the fact that he was sleeping and class putting his head down and falling asleep the district have the job of determining whether that was due to a disability or not or whether it was just bad behavior there is a process for doing that a functional behavioral assessment the district claimed to have done one but it really didn't there's nothing in there a valuation that ascribes a function to the behavior that they complained about and incidentally it's a red herring to say that the parents can let's start with the medical evaluation they asked for permission to get information from jaycee's physician they could have done their own medical evaluation if they desired to but that's really not important because the doctor wasn't going to be able to describe the the academic consequences or the consequences for c in school of his physical condition he had described it i think everyone knew that he was being hospitalized at times for it that he was out of school a lot with excused absences that he was going to the nurse that was all well known but the lack of permission for the district to do a psychiatric evaluation as my colleague has has indicated the parents did obtain a private psych psychiatric evaluation the district asked them for permission to do this evaluation in late march on april first the parents returned the district's request for their consent with a notation that they would seek their own private independent evaluation it was given over to  so it was almost the end of the year but it got not work out well for one thing he had been expelled from school and and the parents were busy fighting it out was that there was a fire but it was a spell where mary no he what the hoberman structure reported was that when he came to the home to instruct to see during school hours he was fine he was attentive and he worked hard which is further evidence that with i think frankly jaycee's disaffection from school with all that it happened up to that point and the difficulty he was having in class contributed to a lack of motivation but he wasn't unmotivated all the time he did work and he did learn so what should what should be done here in order to get the most benefit for this particular  well he's out of school now he the judge jones held that he was entitled to compensatory education the party stipulated to an amount of compensatory education that he would receive if this court affirms judge jones and i think that holds the best prospect of making him as whole as he can be  the the school district are characterized as this case as the district court overruled saying a school psychologist that's not the standard of review of the case was very clear on that going back to scott peterson's car while the stand to the appropriate standard is put ponder and of the evidence the  court the district court did what it is supposed to do it received the record of the administrative hearing including the evaluation by the independent evaluator it admitted additional evidence in the form of the i e if p and revaluation by these pens per school district and it rendered his decision based on the preponderance of the evidence and i believe that is is korat because the preponderance of the evidence not only the independent evaluation which was very much more thorough than the school districts evalu n and the reports of teachers overhears the reports of jaycee's grades his absences the fact that no one did anything about about that the the record out of the hearing that there was a witness called who was jaycee's math teacher and eighth grade and j c was failing math and eighth grade he barely got through it by the skin of his teeth and the teacher didn't remember him nobody seemed to really remember what if any effort to address jaycee's problems was taken other than blaming him for when you bad  back in a case like this crohn's disease is obviously a baddie it's not it's not good at all and when somebody has that type of condition wouldn't the usual thought the we need to do a lot of accommodating in order to make sure that the student learns as much as he can and that's what they did here so then the question then becomes is chrome's disease make you eligible under the i d e a for an individual educational program not automatically but if it causes a lack of the television which in this case clearly did that clinically significant attention deficit disorder which was clearly interfering with his ability to benefit from education for him to sit through a class pay attention absorb the information he has i judge rendell said he learns differently and that in that we choir specially designed instruction and not just accommodation i think an error that the school district and hearing officer both made is by applying something like a rational basis standard to this well it could be something else that is causing the problem it could be drug use could be lack of motivation i do eate doesn't allow a school district to a vegas just grounds which you have behavioral issues than you could conceivably other things that a pro bono may be alcohol maybe drugs i don't know but the it seems that there's a whole lot of things going on here that make it very difficult for this particular individual and also for those who are trying to to work to deal with the situation here i would imagine he's been pro has the same problem yes i agree  c has a complex profile and i think that is why the the independent psychologist recommended placement outside the district in a private school for a school that specializes in students with significant learning differences and at one point she said it would be very difficult for him to get an appropriate education in a public school but now we're the hearing officer said the parent private evaluation included much testing but offered conclusory results no i think the in the panel valuate are certainly did much  testing and i think that's commendable that she administered for tests of attention deficit disorder rather than one and not even drawing a conclusion from that but her analysis are the school district administered two different assessments to look at that one one indicated that it was possible the other indicated that it was average range and this school psychologist did not say that it has no attention difficulties but concluded again not a need for specially designed instruction because of attention meaning we can accommodate that we can meet his needs through the five zero four point now this this but how about i'm looking now at the independent evaluation from like one eighty two on all these tests and they've adaptive behavior one percent sixteen percent nine percent attention executive functioning all of these tests and conclusions regarding the impact of crohn's disease on his ability unable to maintain his attention in listening situations for firing sustained effort well that's called school i mean the current test indicated love i mean there's a lot here how is it the hearing officer appropriately discounted these recommendations as conclusory the hearing out certain look right back at the school psychologist conclusions from common ballyhoo said his attention here are three different assessments of attention and it appears within normal normal limits on the cognitive assessment if it is appears within normal we are in that in the hearing officers report in the hearing officers decision yes i'm not sure that he dealt into that tension deficit disorder because know the link is is if you're going to miss thirty percent of instruction want why are you having an excuse to not unlawful absences why are they a mall if he's not saying that but this is whe i'm looking at the record i'm saying ok i'm looking at what he's looking at if i look at the students grades for ninth grade i see that he's in that he's middling in the low d average when grades he has d sixty s a low sevent sixty sixty marking period one marking period two marking period three and marking period for miraculously he is ninety percent in almost every subject and passes for the year that signals not that crone is not an indication that crone's disease is impacting his grades they didn't present testimony from dr kay they just put her her her report in the record so there wasn't a link to say he missed twenty four days in here the excuses that it all shows it was because of chrome in fact the evidence in the record is that he's refusing to participate instruction he doesn't want to do that that even his own doctor at the beginning of tenth grade said he needs a liberal back from privilege and his own doctor should know best what he needs so that the school district was providing what is doctor said that should be enough for the courts as well thank you