i would like to reserve five minutes of rebuttal time you had i see the clock is set there your honour's this case involves two primary issues that the first of which is a threshold procedural issue that is whether or not the plaintiffs appellants e l and her parents exhausted all administrative remedies that were available to her under the individuals with disabilities education act we have were if this issue secondarily but in reviewing the briefings in reviewing the posture of this case i think it's important to address it upfront and the conclusion that i think this court has to reach is that the plaintiffs did exhaust all of the administrative remedies available to them under the  no question course that plaintiffs fall they do process petition under the idea of a they conducted a full blown hearing it was administered by the state's office of administrative hearings the question is whether or not under those factual circumstances as the i d e a require the plaintiffs to if they or agree before they go and file a complaint and say we're in state or federal court you have to go through what's called a second tier state level administrative review when that  didn't do with respect to the appeal to the state review officer but yes i think that's the only thing but that's a necessary thing in some states it is your honor but that's the point of this case in this case under say under the plain meaning of its appeal provision the plaintiffs had no right to appeal to an s r o a state review officer the crux of your argument is that north carolina doesn't have a two tier system in north carolina that it does it does not have that first level the administrative law judge level is in fact a state level because it's with the office of administrative hearings also a state agency but the contract took over in order to bring some level system to local individual local governments is not  your i'm not sure that that's clear at all that's what the the state review officer said in his opinion but the fact of the matter is the i d e a give states to shoot two choices essentially either the due process hearing can be conducted by the local educational agency or the state educational agency what i'm trying to do is get on in on your argument and your argument is that there was no local educational utility hearing because because what took place was in fact run by the state by contract with local government correct and that's exactly right and your reason for arguing that th arguing that the local educational agency couldn't have conducted the hearing the irregularly north carolina could choose to do that and under subsection g fourteen fifteen if a local educational agency conducts that hearing then there's a right to appeal to the s r o the statutes are frankly clear and but the but the local educational agency did not conduct knowingly contracted with the state to do it and what i'm trying to get to is why you see that as a problem because the statutory because the language of the statute compels the conclusion that you only have a right to or an opportunity to review at by a state state board of education yes but the state board of education did not conduct the first year hearing that that's the problem you just touched on the whole analytical problem with the district court's order the s arose decision and the but not the old days decision the point is i d e a the specific language says if a local educational agency conducts the due process hearing a party ag can appeal to an s r o administered by the state or by exclusion there is no right of appeal to the s r o or the state board of education if it's not conducted problem no sir in fact the department of education and or any of the appendix to our reply brief in two thousand and three but apartment of education issued a letter ruling consistent with its regulations that says a state educational agency that contracts with its office of administrative hearings in that case it was florida l like many other states do it the department rule that if a state contracts with its office of administrative hearings to conduct a hearing it's still conducted by the state educational agency because that's the end of the visit all to merely responsible for making sure that all the due process safeguards in the statute are met for example the forty five day rule and others but in no event does a state educational agency actually adjudicate a hearing they always have to hire an independent hearing officer who is not employed same thing if if a local educational agency does it there is a requirement that that presiding judicial official not be an employee e or otherwise there the there's a finding by the administrative law judge who adjudicated the case he may be expressed finding that the hearing was conducted by the state educational agency in the sense that the idea uses the i think it is it i think it's something that you can take judicial notice of because it's in the statutes it's also something he's well aware of and it's undisputed but the point is you don't have to get there your honor you don't have to worry as much about whether the state educational is contract in with another entity whether that creates a distinction because because i d n a is very simple it says if the hearing is conducted by the local educational agency that's the board the defendant the appellee in this case if they conduct here then you can have a state level review you have a right to it that's fourteen fifteen g and if you go dad to f one it says if you don't have a right to that state level review which means if there wasn't conducted by the local educational agency you have a right to direct appeal to state or federal court as that's that you are an additional level of review within this they agency even if you're right or canons of construction the plain meaning of it i've just discussed it at but you didn't say anything about requiring us prohibiting additional layers or review was to simply says the review lies within the state agency there's nothing in that statute that i see that bars an additional level overview within the state agency but your honor i would i would suggest you that that the first canon of statutory construction we talk about which is i'll butcher this x include us as an exclusive out periods which basically is as you know the inclusion of one thing means the exclusion of others so the inclusion of a right to appeal to an s r o if the state sort if the local educational agency conducts the hearing that excludes the circumstance were and where the state or actually more specifically the local educational agency did not conduct the hearing so we moved to f one a which says i would say it would appear that that can and would apply if the rights were mutually exclusive but there's nothing mutually exclusive about granting a petitioner an additional level of review within the state agency how is that a problem well it becomes a problem if as you conceive of a state well it could be but it has to be separate then the local educational agency so yes if your question is could a local legends educational agency contract with the you have said that the office of the new strain of hearings is independent of the state board of education yes so what is the problem with your relationship with the local education if it's the only problem and only issue is that the local educational agency did not conduct this hearing and under subsection g a fourteen fifteen you just come you had to be independent of well that that i think you're getting hung up on the word conducted in that that's i think a term of art as it's used in the statute the the l e a n s yeah they don't adjudicate the hearing they always have to find an independent hearing officer some states do have their local board of education hiring hearing officers from a list i've identified the eight states that are left that do that but if the state law or idea of the statute spells it out if state law gives the responsibility for making sure that the due process hearing is conducted according to the procedural safeguards of the statute then in the essence then the s c a is conducting the hearing the localism you have have filed a protective notice of appeal here with the state review officer second level has been made this argument there you would have preserved everything i wish i had to be honest but i think what i tried to do was make that clearer for everyone by asking the judge and then the explosive issue to tell the parties what the real what their responsibilities viz of the appeal were and the other part of this is that there is you to a contract with the state board of education this hearing was not conducted by the local educational agency or overseen by the local educational agency and therefore there is no right of appeal not the state board of education he was he was acting pursuant to a contract with the state board of education that was his finding that that's the state educational agency and so you're o in the clear statement of policy by other partment of education that's been existing for ten years over ten years that we've included in the appendix to our reply brief what sports says clearly that where the state educational agency is made responsible for the hearing under state law and they contract to their office of administrative hearings as they did in florida that does not create a two tier system that's a one tier system there is no right to hearings to the office of administrative hearings which are on ours of pointed out is not the state educational agency north there when you talk about the provisions that we've been discussing in fourteen fifteen the only boards are subdivisions of the state their authority is granted to them by the state and in north carolina not the state educational agency but the general assembly of north carolina has said that the local hearings will be conducted by the office of administrative hearings in the county or school district where the student attends school or is untitled attend school in this case it happened and not in that county as the statute allows the parties to agree to have it elsewhere in the parties did so in this case the local school board could not have conducted the hearing so well so that is an interesting question the local school board did not have an ability to do anything other of thank you your honor to do anything other between the local school board and this office of administrative hearings there is there is no contract there's no contract between the school board the state educational thought of the state board in the office of administrative hearings the statute says the state board will enter into a memorandum of understanding that ensures that the o h hearings will be conducted in compliance with i d e a and state special education law the statute says the impartial due process hearing shall be conducted by the state educational forty or the local education authority as determined by state law and you could just say well that means as determined which do we pick but if you want to have an a view that allows states to adapt to their unique circumstances that as determined creates flexibility interesting lee the two thousand and three letter that's attached to the appellants amended reply brief supports our position what the education department says e a in a state that is a one tier state does not preclude the s c a from assigning the state educational forty from assigning responsibility to conduct hearings to an entity other than the ca and that is despite the language that we've just discussed that says that the impartial due process hearing shall be conducted by the state educational authority or the l e a and the only way to read that consistently is to say that there is discretion to assign the only specifics about these hearings or not what kind of contract so let's say north carolina law said local education authorities are directed to enter into a contract with the office for administrative hearings to conduct these hearings would that i mean that might be more comfortable but it would be a distinction without a difference i must assume are you saying that north carolina is a one tier state if in fact it's consistent with the florida provision i don't think i explained my position on the florida statement very well  north carolina is clearly a two tier state what the it department education said in that opinion letter is there is flexibility in figuring out who holds the state level hearing in a one tier state and by analogy by the same token  tier state there is flexibility to determine how the local hearing is conducted up but the flexibility that you described in the florida statute in the letter was let's ability to delegate the authority to a  local age or equivalent in florida i was that any different what's happening in north carolina well it's different in the sense that north carolina has a two tier system that has a purpose you have a first tier the that is conducted and going back to the real the specific requirements and i d e a what are they they don't say what it what it means for a hearing to be conducted by one of the other they say you have to have somebody who is able to conduct a hearing according to appropriate legal standards someone who has knowledge of special education law someone who's able to issue a written and decide a case according to appropriate legal stand yes my question is if it really has no role that the local education agency plays in north carolina system they generally host or often host the hearing about their interests their role but not a substantive role so what does i mean what does contract mean for example if you take if you take the position that the state educational authority in florida actually asked to conduct that hearing called the witnesses and everything else then you then you're going to apply the same language to say as that department of education letter says all these states that contract out that level of hearing are not in compliance with the law well as the law says they will and i was just in early because i think my view of this case is that even if north carolina could be characterized as a one tier system there is nothing to bar the state  implementing it additional level of review within the state agency and it may be that to some degree we're talking about semantics and we agree i mean because because the bottom line is we have a system in north carolina where we have a professionally run by an administr judge hearing and then you have a state level review and you notice in this case it's a quick review it took one month from the time of our appeal to the state review officer issuing a decision that person has to be a special educator or someone specially qualified those two things serve different purposes that's the system we've adopted and it meets every procedural requirement that i d e a has or for people who are conducting these hearings with special knowledge of appropriate legal procedures for people who have knowledge of special education law and there are many procedures in north carolina that go beyond what the idea guarantees the l j hearing offers a discovery process  rules everybody understands them i mean my my my argument and i think i may be in disagreement position that judge d s has stated is that when the statute says shall be conducted by the s yea or l e a as determined by state law it is flexibility i mean if again if the state law said local boards of education you have to contract with the office of the ministry of hearings would there be any difference and if you start interfering with how these things are done in all different states by saying oh no it says it must be by the ca is in florida there for florida you don't have a system the department of ed said it's not there's nothing in i d e a that prevents one level of hearing or the other that's my implication from having the a different designated hearing officer particularly when it's here as in the interest here of impartiality so when we go back to what does it mean for the local board of education to conduct the hearing they certainly can't conduct the hearing they can't call witnesses the statute specifically says you have to have somebody who is not an employee of the local board of education not an employee of the state board of education who does not have any other professional or personal conflict how else are you going to do that with somebody like th of law judge and as i as as i emphasized before i think ever there was no specific requirement that there was any violation of due process any lack of procedure the hearing went on for the better appeal there is of course the substantive issue and we believe that the issue before the court in terms of substance services offered to this disabled student were was the administrative law judge correct or was the state review officer and judge schroeder correct when they said that that student received sufficient speech language services one component of a program as a general background the sort of in an analogous  puts the responsibility on the local educational the forty to provide educational services in this case the chapel hill carb or a school's contracted with frank porter graham child development center which is an internationally recognized center that does a research based program that has embedded therapy and embedded services where they put disabled children in classrooms with their typically developing hears and and the theory there and it was spelled out on the he has judge schroeder notes that the parents signed in this case that they were a p would be administered throughout the school day in an embedded fashion and what that means is the therapists are there much of the day when they see opportunities when disabled children are interacting with other children disabled or typical that's when they apply therapy they use real life situations and part that is based on the notion that as opposed to a more strictly conditioning approach approach that would be more purely like the theories of b f skinner kids are going to be better prepared if they learn how to operate in the kinds of environments they're going to face in in the world and so there there is this fundamental distinction about difference about methodology the administrative law judge said the ip including the ip that said these services including speech language will be offered in an embedded fashion throughout the school day was appropriate for the student and every decision maker all the way up to said that she made progress there are one example that of a deficiency or an alleged deficiency that the appellant's of put forth is this chart that suggests that that the student that he did not get all the sessions that she was required to get that is once again about methodology she might not have gotten one on one sit down sessions where she received operant conditioning from a therapist without anybody else present but she was receiving this therapy throughout the school day and there is an issue about the one of the speech language therapists whose notes were destroyed because they have many students names and she was concerned about confidentiality there's been no finding by any decision maker that the speech language there is did not provide the full range and beyond the full range the testimony was we met and exceeded those minimums we might not have written it down every time because of the methodology that we use is there concern that some of the therapy had been provided by interned as opposed to properly license there as well that is a concern that parents raise i mean these are masters degree level students who are operating under the supervision of a licensed therapist and it is it was that it was that testimony that was adequate those were is what the decision makers have found all the way up as the ip say anything about who is to provide the therapy there is there is no specific better requirement about what state licensing requirements must be these are students who as part of their programs are required to administer clinical services there be no way for the profession to advance otherwise and there isn't any there was no specific showing that they were unqualified did not have the background to do so that the clinical program programs were somehow deficient were not preceded by sufficient classroom training and so on and that's you know that's part of the institution it is a teaching institution as well as an institution that provides services so without i mean just applying the label will these are in turns is about as far as the complaint is gone there's nothing more substantial that about the quality of what was provided  in summary your honour's all the decision makers in this case to found that the ideas were appropriate all the decision makers have found that the student made progress and there was a there's it was a almost a three week hearing there's a boatload of evidence about how specific that progress was the last speech language there was described an incident in which the child was sitting with her interacting with the typically developing peers her friends who are around her we think that it was an outstanding program at a world class center and that the real difference in this case is about methodology the parents and they have the right to want a specific methodology wanted a one on one conditioning approach for the child all the evidence is that the approach that we used a holistic approach where the child was educated with master's degree and doctoral degree level staff in a classroom that specifically designed for this purpose was was more than adequate for her and generate a lot of growth we ask that you uphold judge schroeder on all points in his decision including as we we noted there's a lot in appellant's brief about the more general issues that were not appealed or and a half out of five of our theories of fate deprivation in this case but what he did reach was the question of whether or not ella was given the speech language half ology services that her prescribed and with respect to that i want to address to two points one in each i e p year in the first i e p year the ail day found that she was not given the speech language the services she required because they were not administered by the by the speech language followed his own admission they were not had ministered by her although she signed various progress notes along with one of her in turns it was never disclosed until her testimony in the hearing when she was asked does that mean you supervised the therapy she said no it just means i supervised notes meaning she read them so well as qualifying because under the standard is that disabled children must be given education according to the state's standards at minimum north carolina's standard with respect to speech language beth ology services is that they must be delivered by a licensed certified speech language pathologist none of those in turns were trained certified or license in fact the s l p testified that she really didn't train them for l up in particular and which you found was of course as a result all of the was evidence there was what i think that that's been confused and i think the l j s factual findings are based on credibility determinations that the district court should not have upset but the s r o did as well under this court's holdings but most importantly their confusion i think is that from halfway through ellis first year her parents because she could not make functional speech sounds she could not deliberately make a functional speech sound they took her to private there where they specifically worked on those confidence valves the the quarter calls that make up the functional speech that's where she progress to and the only evidence in her records from the school was an in turns realisation halfway through the spring that somehow ella seems to be making speech sounds i don't know how it happened but it happened with the private therapy excuse me i thought review officer determined that the board delivered the services  he gave her he credited her testimony in the second year in the first year he credited the s l p kathy davis's own testimony and evaluated her testimony in which she finally conceded that no she didn't deliver the services students with one teacher with out one to one supplementary aids and services in other words an adult that's facilitating her participation and that is not what that is something the i that at the very much mr grant