morning and may it please the court my name is mirror question and along with my colleague elizabeth angela on i represent the appellant a as parent guardian next friend of k k a minor individual with a disability as a preliminary matter my colleague will be addressing the arguments related to the student's functional behavioral assessment and behavior intervention plan the district court committed clear error in finding that northside independent school district procedurally and substantive complied with the id a and that her side independent school district provided the student with a free appropriate public education or a favor the student in this case has documented mental health disability and academic deficit however in terms of cognitive functioning he is average meaning that he has an average ability to learn when provided with appropriate supports and services to address his disabilities the student was found eligible for special education and related services in tw twelve when he attended klein independent school district at that time he was placed in klein's therapeutic education program which is a placement for student with severe behaviors and was provided with an eye e p that provided him with a long of related services including but not limited to counseling and psychological services the student enrolled in northside independent school district in two thousand and fifteen at that point northside declined to conduct any additional evaluations of the student but then moved the student to a regular ed elementary school campus and strip effectively strip the students i p of for all related services though this is outside of the relevant time frame i present this information as context to show that in terms of related services and getting those services from and i asked steve the student was effectively starting from zero at the district court to make clear error in finding that northside to not procedurally violate the a the district court reviewed the record and identified only one technical procedural violation regarding progress reports however the district court did not appear to consider appellants arguments regarding north sides delay in complaining about no not in terms of the three services that we specifically briefed related to speech services the parent initially requested the of the you ation of student for speech in february th in before the student was hospitalized at that time the district declined to conduct the evaluation and stated that it needed to collect data regarding the need for services through the response to intervention process parent renewed her request in september t  teen and the district was able to conduct the speech of valuation at that time before the student was hospitalized for counseling the same and i asked you was on notice that the student required counseling when he enrolled in tw fifteen because he brought an i v with him that had counseling services in it parent requested evaluation for psychological services in september th teen along with the other evaluations that she requested at that time the district convened in our meeting in october th sixteen she renewed her request for counseling then but they did not conduct the evaluation for counseling services at that time even though they conducted evaluations in a number of other areas and were able to complete those evaluations before the student was hospitalized so then the student was hospitalized in november december and january and they still did not conduct the counseling evaluation until people of two thousand and seventeen so the students reevaluated the student for counseling services between on parents request in september th teen so that should have been the trigger and he was not hospitalized at that time and northside was able to complete evaluations in a number of other areas before his hospitalization in november of that year so the idea here does not specify a timeline for reevaluations we would argue that the timeline would potentially be commensurate with the timelines for an initial evaluation in this instance because in this case it's services that the student was not receiving he had not been evaluated for those services by northside and he was ultimately found eligible for all of those services meaning that when they delayed evaluating him in those areas they denied him services to which he was entitled and which he required in order to receive a free appropriate public education and then relating to the dyslexia services which isn't a different sort of delay in that case the parent that was one of the evaluations of the parent requested in that september th team she requested evaluation for a specific learning disability and dyslexia is considered to be a reading disability within the definition of specific learning disability under the i d e a however northside has apparently two separate evaluations one for specific learning disability one for dyslexia they did the evaluation for specific learning disability in a timely manner we have no dispute with that however the student scored low in corresponding cognitive in academic weaknesses that are all indicators of dyslexia and instead of conducting additional dyslexia testing or finding based on those evaluation results that he had a specific learning disability namely dyslexia they discounted their own evaluation results and said that the student's poor performance was because of his other disability namely his behavior and as a result they did not find him eligible did not provide him with specialized reading instruction or dyslexia services it was only again in april two thousand and seventeen that they conducted their specific dyslexia evaluation and at that time he scored commensurate with what he had scored in september or october november th seen when they had done the s l d evaluation and at that time they found that he did in fact have dyslexia but our argument in that regard is that he should have been found eligible to receive dyslexia reading services on their  independent school district they had started tracking his reading progress as all schools in texas do and had noted that his progress in reading was slow his progress in reading remained slow while he was in north side he was n to struggle greatly with reading and writing to the point of having aggressive outbursts when asked to write he couldn't even write his last name when he was starting th grade and that was what prompted parent to request the evaluation in the st place reading were fairly well documented and that coupled with the parents request coupled with the fact that he scored still low on the district's specific learning specific learning disability evaluations all of those things should have triggered either a finding that he had dyslexia based on those november th sixteen evaluation results or the additional dyslexia evaluation that and i  and i would like to briefly in my remaining one minute discuss the student's lack of nonacademic progress in terms of his behavior the district court found that opponents had not met their burden under the michael f factors to demonstrate that a substantive violation of the i d e a had occurred specifically in terms of a nonacademic benefit i believe the admin and the preponderance of evidence and in ministry of record shows that the students behaviors specifically his task refusal sleeping and aggressive behaviors continued both before and during the relevant time period without any meaningful improvement which is the standard it is not just any any sort of improvement it has to be a meaningful academic benefit or not an academic benefit in this case and especially when it comes to the teacher's statement which the district court relied on stating that the student could be successful at a traditional campus the area d c actually disagreed with her at that meeting and decided to keep the student at the home green behavioral campus which shows that they did not believe he had made meaningful non academic progress  assistance of the department of family and protective services to gain mental health treatment through a refusal to accept parental responsibility she remains a managing conservator of the child but the child has actually been placed back at the  of all the circumstances you know what you've argued to us but what's the ultimate relief you want to you want let's assume for the sake of argument we determine you know an reasonable  do you want us to remain back to the district court for do over to consider all this evidence or consider all these factors that you know are laid out in light of where the child is  about these things but any other name we take every case is its own case so my specific question is in this instance given this is the child has a moped you know a multiple of that mean well the release that we're seeking specifically in relation to the delay of the valuation issue which it would be compensatory services which could still be provided to the student he is he has not aged out o and i believe that the court is empowered to craft an appropriate remedy based on the student's changed circumstances and i so know how we're going to know what that is in order to do it anyway just just wanted to get that out in obviously what compensatory services would be of value or even the problem well the child is not fully institutionalized he resides at a residential treatment facility and i believe that he is also his biological father also has some visitation as wells but he's slowly transitioning out of that setting but in terms of the educational component he is still attending a public school district he still receiving educational services at a public school that compensatory services no compensatory services our services that should make up for what the child was entitle to but did not receive so compensatory services can be ordered above and beyond what the student is receiving in his current placement her house to be reasonable i mean if you can't cope with the basics housing in a cold war supplemental compensatory i just think you're asking for something that's not real well actually if you look at dr jones report which was admitted as additional evidence by the district court the student has actually stabilized in his current placement at the argument is that the student if he's given the appropriate behavioral supports and services in the educational context can learn and can make educational progress he just needs those supports behind him to address his behavior so he has now stabilized in his current placement he was able to be about successfully of it evaluated by a doctor down she determined that he had in fact made behavioral and academic progress so because he's stabilized he can in fact receive the compensatory services and benefit from them and you know the argument is that had he been receiving these services all along we may not even be in this situation ok all right well you've reserved thanks for responding to those questions so  good morning your honor is may it please the court my name is liz but the engine in the focus of my three minute argument today is twofold but before i get to that i do want to clarify that the texas department of family and protective services has recently relinquished their rights to the back to the focus of my argument because he and i asked to determine that an f b i was required in order to develop an appropriate i e pay for this child the f b a then became an educational evaluation under the district court going to clear error and failing to determine the appropriate of that f b i under the id is general at the evaluation procedures and under industry standards the behavior intervention plan is a significant component of this child's i p the district court erred in determining that the b i p was recently calculated to enable the child to make progress i'm sorry he failed to determine that any filter address whether the b i p can ported with the four disciplinary removal because the and i asked a determined it was necessary and the development of an appropriate i e p it became an evaluation and i used to have a duty to conduct that a valuation appropriately the court failed to address that issue the district court found only that the f b i was appropriate because it was similar in breadth and depth to the prior districts at v a which is not the standard under the idea as the valuation procedures or in determining the appropriateness  commentary without regard to the appropriateness or relevance of that commentary and finally the district court erred in a charming the b i p was appropriate merely because the parent participated in the underlying about you ation which cannot be the standard the court i am stacey to her christiane are present your side in a school district in this case i want to start at five pointing out the poets have raised several issues that are beyond the statue of limitations period in special education cases the statue of limitations is one year focus is not on labels so we don't focus on the label that's given to disability the label that's given to the services were focused on what the appropriate educational services were for this child what his educational needs were how they were in serv how he was serviced how the services were implemented and how he was performing i want to turn to the reevaluation issue the statute and the regulations do not provide any timeline for reevaluations other than reevaluation is required at least once every three years and no more than once every year or re evaluation would arise if the district to terms that the child's educational needs weren't looking at them again and reevaluating those needs or if a parent request a reevaluation they have raised the parent they claim that parent quested reevaluations for speech counseling psychological and dyslexia and i want to focus my time right now on those particular request and how the district responded to them and how they were evaluating the child's needs in those areas specifically on speech they st our talk about february t again that is outside statute the statute of limitations period so if we focus on the relevant time period the parent st requested speech about you ation september th two thousand and sixteen the district mat less than two weeks later to discuss that request and approve that evaluation and began that evaluation that month met the following month to approve and review the evaluation for speech needs and included that in the students at u t there was no delay and the speech isolation for psychological and counseling psychological and counseling was st requested by the parent in the psychological as requested at the end of september and counseling was raised consent for a counseling evaluation and the arguments don't reflect that the parent provided consent and instead with the minutes reflect are the parents in our committee discussed emotional behavior assessment and that is what the district assess the child on emotional behavior and emotional behavior again this will go back to not use not worrying about what labels are used on things in emotional behavior system that would necessarily bring up things that would entail counseling related services should those be necessary they agreed to this assessment it was conducted in october with the results coming out in november the emotional behavior assessment identified two specific needs for him that are relevant in terms of counseling which were coping skills and decision making skills those are right in a five targeted interventions were developed and s and you look at what they had for counselling service related services you will see they were targeting coping skills and decision making skills and they were using social skills training and there testimony in the record from our l s s hippy that talks about social skills training that we were providing to the student and those social skills training skills were teaching them how to cope how to deal with frustration how to use  common techniques all of those social skills that we were providing in his classroom setting clean as they were using it as counselling as related services using a different label for it but these are the same skills in the same type interventions we were using emotional behavior assessment addressed those and as i e p looked at teacher observation and teacher reports the teachers were not reporting that they were not reporting seeing somewhere behavior that mom was claiming was happening at home and that is difficult to address when you're in the school setting because at the school the teachers are sterile reporting that he did not have any uncontrolled misbehaviors and that they were able to redirect him with one or two props and that he was down using the skills he was learning through a social skills training so there was not a need that was evidence in itself requiring anything more than the district was doing at that time and importantly when you look at  nodes and their independent evaluation they had after he left northside the teachers at kleiner reporting the same thing they're not seeing uncontrolled misbehavior in the classroom and he's redirecting with one dollar to two dollars prompts those are the same thing or sid experiencing it in the classroom now that being raised out to over twenty and he was hospitalized early november and this is important because during that hospitalization period from november to january he was serviced by charter school which was separate from your side ice t and being serviced by another school while he's hospitalized changes the dynamic when he's returning to northside at the end of january  because when he transfers from one district to another the district of hard to put in place for the st thirty days of his return a transfer ip where we provide comparable services to what he was receiving it as p placements and that is what we did from january to february was offer the comparable services he was receiving a kite charter school and then at the end of february beginning of march is when he was the district's reassessing and reevaluating the  yet his behavior intervention plan and at that time the us s p so let's talk about counseling can we get consent for counseling evaluation we got consent for the counseling evaluation began at that month and at the next at the next our meeting added counseling is a related service to his eye e p and i do want to point out that counseling as a related service is in special and special terms it's not therapeutic counseling that's counseling that's directed towards helping him in assisting him achieve his i d p goals and when you look at the counseling evaluation that was completed by more side you'll find that they identified the same interventions that were necessary that they identified when they did the emotional behavior assessment which were his needs were coping skills and decision making skills and in the counseling of assessment the counselor they also say that was doing the evaluation noted that the behavior interventions they were doing in the classroom the social skills training were providing him benefit but counseling would be beneficial to him there was not a finding that it was warranted or needed that it would be beneficial and that added it to his are you people concerning the dyslexia bomb requested a learning disability evaluation at the end of september we conducted it in october but they found that there was no learning disability at that time as you noted earlier this child does have severe behavior needs and be emotional needs and testing is notoriously difficult with this child not just in the the school district environment but they have the same issue when they've used outside providers there's been times i've not been able to complete the evaluation because the student can't just simply can't complete the evaluation it was not raised again until march t for dyslexia testing and as soon as she requested of the district agreed and began assessing him for dyslexia they completed that evaluation an april and ard wanted to review an independent evaluation in conjunction with the one the district did to compare the results and that was an instance where the i e was unable to be completed because the child was not cooperative not having the i e to compare where the district went ahead and said we're going to go ahead and provide dyslexia services because some of this testing was inconclusive we're going to provide the services which they did so the delaying with dyslexia is easily explained looking at how the district they evaluated him for learning disability initially they did it again for dyslexia and the results were difficult to read simply because the child doesn't perform well in the failure to diagnose at the earliest possible moment is not a precise actionable in part because disability or senatorial slee difficult to diagnose dyslexia is one of those especially with a child with with these particular disabilities now even if the court found that there was an unreasonable to the lawyer procedural error in this case the next step is to determine whether those procedural errors deny the parent participation or impeded the students fate and the record is clear this child was provided a while he was enrolled at northside i stay the course still uses the michael f factors in determining whether facebook provided that is whether the a p was individualized on the basis of assessment performance shoot question yes don't we have here a period in which i just made lee the student was in decline as fours you know functioning a building i mean it starts going that way downward i thought it a part of the grab them and of the complaint was of course and reasonable send to the ladies but isn't there a point in time when i'm asking is because point in time where the student was a movie in decline from you know whatever your dish or whatever but start spiraling downward to where you know what just in t did the record shows that he was making progress commensurate with his disability when you look at the record and you take each of his academic goals each of his nonacademic goals see what the goals were from the beginning and how he was progressing in meeting them he progressing and the up the r t committee would change those goals to layer on top of it to have him improve step by step now in general you know he's in th grade he is reading below the level he is struggling with the writing component but the ip goals are written specifically for him based on his abilities and have him as a stepladder improving each different level as they assess it for instance in reading in this relevant time period he did have measurable progress in reading that was that the student teacher said was right reflected more than a year of progress he went from reading at level c to reading at level j which the teacher said was more than a year progress in a one year period and in math it was the same thing they had specific goals in each area of math where he was doing simple addition progressing to want problems not with the record reflect look on our record does reflect progress and also in as well as in behavior and behavior goals if you start the beginning of the time period he was having at least four incidents of physical aggression in a thirty day plus time period and by the end of the period he was only having one and the same timeframe hospitalizations result from decline or did they result from something other than one month because obviously that's what they claim but that we were not the behaviors that in hospitals ation were behaviors that were occurring in the home environment not at school and like i had said earlier that the behaviors that moms reporting happening at home we were not staying at school we were watching for them we had plans in place to deal with them but we're teaching him coping skills teaching him decision making skills teaching him how to lower frustration level removing yourself from a situation when you're frustrated but the behaviors that ultimately result in  their if they're saying two months and he was denied two months of counseling they're asking for the district to pay for two months of counseling at this time now whether this court should reminded to the district court or whether it's within your province to craft that remedy that would be something i would have to brief the court i would not able to answer that right now and where the two month time period when he was hospitalized are you talking about september they've they've kind of got different different ranges that  is the hospitalization they're claiming that because they claim we were providing counseling but we were writing social skills training which i'm saying i encourage you to look at the client honesty i u p d that they claimed they had counseling as related services because those social skills were being taught in his classroom at the district and at the district he was in a self contained behavioral unit with one on one instruction and he was providing that the supports are provided in the classroom and so where is he now does he go to school from my understanding i'd i don't have the evidence concerning i just have from counsel what they said today that he's currently on what they want right where he is and whether he's getting counseling i mean nobody seems to know the well after the court refused to record i feel strongly that you'll find out as the hearing up the hearing up sort of special education hearing that the student was provided faith at all times the district court found the same thing and i asked the court to find that the child was provided fate at all times and  remain to be just a chord with some language so what would that mean in terms of your gesture because of where the child is now i mean would that be meaningful or is that just triggered a question of well the way i understand how the kind of story services put it work for instance a site assume it's counseling the district if we were found liable would be responsible for whatever time period the court found he should have been provided counseling that wasn't provided counseling for that specific time period we provide to either up a district with our counselors and have to come here or we would pay for a counselor at his current setting well i asked that question for a reason but also but in spring break which what the panel sent back was the remedy i mean they reversed on the remedy part which sort of gets to where we are in this case of like assuming some you know like what is the what's going on here i did not find that to be the test ok i think we look at the speech services they were provided and evaluated right when she asked to counseling we had the hospital patient it was it in turn between the discussion of it and when he what we're being asked in this case under these circumstances beyond just waxing about what the faith says but in this instance and in the case where we have the child who's no longer in the arena so to speak and like that it just seems to kind of make a difference with where you know where we are in the to my lupus or whatever but we don't want to be in just an academic exercise of opining when it regarding the issue of the issue of counseling versus social skills services that council was speaking about a few minutes ago i'd like to offer some clarification on that issue their record actually shows that even when the student was supposed to be receiving group social skills instruction in his regular classroom the district actually substituted speech therapy for some of those social skills sessions because the student adamantly refused to work with his speech therapist outside of the classroom and that so when the district says that it provided these reported social skills services it's not the same as individually tailored counseling court what we were asking the district to do at the due process level when the due process hearing occurred the student had not yet moved to klein a student from my understanding he was still unrolled at northside but again that i would have to verify the exact dates but he at that time we were seeking a new i p for the student and i believe we were also seeking the consideration of residential placement for the student because at that his behaviors warranted a residential placement which is eventually where he did end up in regarding opposing counsel's point that the behaviors that resulted in and in his home in the students hospitalisation were only observed in the home setting they administer the record actually shows that the student had these behaviors in the school setting and reported them to teachers who then reported them to parents so for example in nov before he was hospitalized he went to his general education counselor at school and said that he had hallucinated hurting his teacher with a piece of paper that he had been drawing stuff like murder that he needed to speak to a doctor and he used the phrase like one you can talk to because he was nine years old at the time in addition he did that the record shows that he did self harm in school on a number of occasions and his teachers communicated with parent to say that you know he carved an x into himself with the metal part of of a pencil today and parent would report back that that's a serious concern because one of the events that often precipitated a hospitalization when it comes to the fact that his behaviors were purportedly addressed by the social skills training the record shows that his disruptive and aggressive behavior continued in the educational setting without any real him or meaningful improvement which is the standard during the relevant time period when he started in back and i esteem in january two thousand and seventeen he destroyed the front office and had to be restrained because he kicked and bit a staff member as the semester continued the aggressive behaviors continued he got into fights with other students who still farmed as i said  would rip up materials he was thrown materials and a lot of the time he was permitted to refuse tasks so this speech therapy provider would come to the classroom the occupational therapist would come to the classroom he would just put his head down and refused to work with them and if you was prompted or push with them he would then have one of these aggressive outbursts so the idea that his behaviors were completely in the home setting or not otherwise or that they were addressed under his eye he or his behavior intervention plan is not supported by the record and in addition to that appellant's argued that his sleeping behavior which was not addressed in either his functional behavioral assessment or his behavior intervention program was also a form of task refusal he was permitted to sleep in a student who is sleeping cannot receive a meaningful educational benefit which is the standard under the i still in the custody of the parent and subject to this with him starting over yes where would leave the client is that he would not receive the compensatory services so he would not receive additional services in addition to whatever his current school district is providing him and i do not know the details of the student's current i p because he was just recently moved back to the custody of his parent in a new school district but he would be receiving the educational services from the school district an i and presumably an ip from the school district but the school district he's and i believe he is i believe my  the order would be to northside independent school district and as opposing counsel mentioned there are multiple ways for northside to provide those compensatory services with a do it if the child is now in another school district well as she as she state could fund the services so they could make a certain amount of money available to the parents for their private services or they could make a counselor available that could