i'm still here even if you can't see me ok i don't know what happened what are we  ok i don't know what happened issue of eligibility is the most important determination for special education without eligibility you can't get any of the provisions or protections of the individuals with disabilities education act going forward longer be eligible for special education is they either graduate or through a reevaluation the district finds a change in circumstance such that the child no longer qualifies as a child with a disability ju me so when we're talking about is there a change between the legal status of the parties absolutely the presumption when you are before you have eligibility is that you're not a child with a disability the presumption after you're found to have a disability presumed to be a child with a disability and they have to show you no longer qualify as a child with a disability the eligibility kicks in process and once you are eligible for special education you must be then given a free and appropriate education based on your unique needs so it isn't a something it's everything or whatever it takes so it would be totally dependent on the child and what services what program what placements they would need in this case you can see that the judge was actually into some painting that her eligibility would continue he went on and crafted a whole program on what the district services would be providing and what she would need to be successful so although it was a snapshot in time where he was saying if it's from january to that present which happened to be the last day of hearings that's that was what was properly before him time marches on and so yes of course by the time the hearing decision came out it was past the present because the president was now in the future but that didn't change the fact that eligibility had already been determined for for alex and would continue so the district once the eligibility attached could not then go back and do an initial evaluation to find if she was eligible because she was they could only do an evaluation to find that she was no longer for due process and the school district after they file for due process he ends the parent in the cessna plan for special education that is that automatic delay technique because the parents then have two choices they can wait the seventy five days for that evaluation to be complete pushing off the time of the hearing date or they can go to hearing but the hearing officer can then only determine from the time of the complaint through the hearing and this child was a junior in high school even moving the process that it's quickest speech she didn't get a decision till the end of her junior year if if the school district were allowed to complete its assessment prior to having the determination it wouldn't ventile in the middle of her senior year that any determination would have made been made by a hearing officer and quite frankly since he found she was eligible there was no reason to wait the district has an absolute right to assess but they have an absolute right to assess and the appropriate time frame which the judge found should have started in october of two thousand and three now in april of two thousand and four  in this case time was of the essence for this particular child because she had so little school left and she was declining so quickly by the time the hearing of his decision was rendered she was unable to attend school at all they hear the district held their due process or their their i e p as a result of their evaluation five days before this decision came out in this case well and they'd be gone and they determined she wasn't eligible for special education through the same time period that the hearing officer found she was eligible so what happened as a result of the hearing station the next and the next a p they held in the fall after the hearing decision you know alex is still out of school now she's qualifies for special education so they didn't recognize the change in status due to this decision or their will would have been no reason why five days before this decision she wasn't eligible and the next time they met she was eligible and so your point is that the lawyer was doing everything that all the parent was doing everything was possible the parent was doing everything else possible and the problem is that by finding eligibility doesn't meet the standard for attorney's fees you would be saying to the parent parent you have to pay out of pocket an admission fee of tens of thousands of dollars which you are going to be able to recover to get your child into the program that they're legally entitled to by law and that's sort of the problem with this because what this message sends to the school district says districts you've got a financial incentive not to find the child eligible because there's no fall the longer you delay you hope the parents go away you hope that they can't afford to keep the beginning because they can't recover in the end if it's just for eligibility so what you're doing is encouraging them to really put education which would have been a remedy had heath found a violation and qualifications he expressed plea refused to do so and i think if this court looks at its most recent decision in park versus anaheim unified high school district for sixty four fed third ten twenty five it will see the difference between that case where attorneys fees were awarded and this case where they were properly not awarded in a park which was  action on the part of the school district it was not a legally recognized material change in circumstances eligibility was it i'm sorry is that your argument that the school district that finding altogether the school district could not have ignored a finding of eligibility however this finding of eligibility was for a period of time prior to and up to the date of the hearing so in fact the school district did not ignore the finding of eligibility the hearing officer did not require or obligate the school district to do anything with respect to that finding as a matter obligation under the statute once the determination was made that the student was eligible you know if the eligibility determination is made then and i e p team is stablished to determine what plan of special education and services would be appropriate if in fact that eligibility continued if there had not been isn't that a requirement that the school district would not otherwise have had the direct answer is no because of the time limitation as this hearing officer found had there been in response to your question a finding that eligibility would continue which was certainly a possibility that the hearing officer could have made very i would eligibility determination follow until the school district in some way does an assessment that shows the student is no longer disabled in some circumstances that would be the case in this circumstance i would say it was not the case because of the specific finding by the hearing officer that he was not going to decide prospect of eligibility again judge she was a junior yes did i respond your honor well i was going to ask you what portion of the ad you're a line upon to support your argument that because there was no portion of fourteenth fifteenth your honor at this point i apologize again if i may refer to the court's decision in park in that case the fast were very very similar we had a determination of four months of denial of free and appropriate education but they hearing officer in the park case awarded compensatory education and awarded additional services that this court found to qualify the parents in that case for attorney's fees and the court at pages i'm sorry i just have the west law version towards the end of the decision talked about what would constitute prevailing party status for purposes of an award of attorney's fees and the court again referring to the line of the canon in the cases requiring a material change in the legal relationship and i quote appellants successes satisfy this standard as a result of appellants claimed the district was obligated to provide for consultant services by josef's special education teacher to formulate self help goals to undertake a functional behavioral assessment and to implement a new eligibility determination itself constituted a material change that because it was in effect a diminished the terminations again under this court's decision  park there is no entitle me to attorney's fees so unless counsel yes ma'am would you agree that the hearing officer specifically ruled that the district can't deny the student based free appropriate public education i would and didn't part recognize that that is the essence of the success that warrants prevailing party status i don't read parked that way your honor park accurate description of a threshold determination again but prevailing party status as i read park require something more than just a faith denial a of as i recall the initial determination by this court on park was despite the fate denial there was a denial of attorney's fees and then it came back up on rehearing the only reason the language  minimus value which is certainly also within the night circuit law if they denial of fate per se constituted prevailing party status for attorneys i believe there would not be a need for that didn't  as characteristic i think to pinpoint it and maybe i'm wrong but what i think your position is the armed with the decision she's not side he is as soon as it terminations is made that she is a special student was qualified for assistance from a period i think january to april but as you called it  thank you i just wanted to go back and address a couple of issues one of the monetary award in a special education case is names that a child has been denied special education for a certain amount of time that they are either reimbursing the parent for out of pocket expenses or they are saying this child is going to need x y z services going forward the problem with applying that to this case is we were moving as quickly as we could we couldn't wait for two years of the student not to have services such that we could get a pot of money that would be not a diminished amount but for the school district to say that the finding of eligibility for special education for getting an a tory had it right compensatory education is always only for reimbursement or for a finding that the child was denied for certain amount of time such that the hearing officer says you're going to need extra vista's going forward to make up for the amount of time so the child's denied a free an appropriate education for two years chances are they're going to get a lot of compensatory yet here we filed so it was basically the time from january to april and the hearing officer said you know what it's not that it's not that i don't think that she needs a program going forward because he outlines what the program going forward should be for her to get an appropriate education but what he does say is it wasn't enough time that we we feel that we have to g extra services in addition to the specialist service that she already get so and once again this isn't a time limit it was from january to present and i think saying it was only three months finding of eligibility isn't correct that's the only that's the only determination he could make he couldn't make a prospective determination because of the litigation strategies used by the school district once they put in assessment plan in place that  after couldn't say for ever that's just that's just the way that the regulations and the statutes interplay in the last point that i wanted to make is that the hearing officer can only decide for issues identification which is eligibility evaluation placement and state effort in appropriate education if you're saying one of those doesn't meet the standard for getting attorneys fees under prevailing party you're taking a lot out of anything that they hearing officer would be able to decide thank you for your time t