and turn to our next case which is versus new york department of education york city department of education lost one to the office of state review it was that was affirmed and ultimately then the district court affirmed sore asking this court to reverse three levels which i understand is a as a heavy burden to carry however there are some pretty fundamental errors in this case i think as far as the standard of review the state review officer here made a statement that a school district or a landmark twenty twelve case on id which says it in circumstances where it's pretty much consensus that this is what the child needs all the the people who know the child so the child needs a particular methodology  also had never done anything with respect to this child until he showed up in may of two thousand and twelve at that c s e meeting took to make the recommendation so there were eight people at that meeting one was a parent member who apparently said testify herself then you had the parent and you had four staffers from the man had children center who had all been working with the student for the past year or so and review all their records from  that's not entirely clear to me whether he did or not he did hear their recommendation which which was unanimously that this child can't function in the recommended six to one one district seventy five placement that mr o the people in the c s a recommended against the opposition of five people on the c s e were apparently the parent member abstained from expressing opinions so you know in addition to those you know the devalued of  interventions using a b a the only other psychological evaluation from the department for around the same time does express any opinion as to what this child needs at all and will defer that to  but as is required by the district concluded that quote many of the students needs involve developing reciprocity developing an awareness of peers and neutering himself within the context of other children within a classroom setting it's th seeing a commercial jingle or say stuff like that something from a cartoon this is very disruptive in the classroom he's extremely distressed when he was in a department class for kindergarten he spent all his time wandering around the room he couldn't stay to the administrative record and then forcing your opponent to file the record on appeal your priests are very unhelpful when you continue to refer to the administrative record not the record as before you becomes an additional burden to try and ferret through the very important arguments that you made leasure made an elo which i wrote the opinion and found on your behalf i'm telling you now if you appear in front of me again ip has to contain a statement of the specialist cation to be provided to the child special education is defined as specifically a specially designed instruction to meet this unique needs of the child with a disability the regulations define specially designed instruction as quote adapting as appropriate to the needs of the eligible child the content methodology or delivery of instruction rally made it clear that a free or proper public education consists of education loan struction designed to meet the unique needs of the child they provided through it i e pete and individualized education plan that really has three parts first it needs to contain students present level performance second it needs to contain goals that we hope the child will meet during the course of the coming year and third and what's most important this case in needs to specify how the student is going to be how the school district is going to get the student from where from his present level of performance to his goals without that third piece neither the parents nor the court are able to determine whether the faith offers specially  instruction individually designed to provide for the educational benefit of the child now no where in reality there's the court tell us that the i d p does not need to specify methodology is i take it then that your view is placement of the child they do not know what the what the school is is going to provide and indeed there were the assertions made at the hearing by the school psychologist were all in the as you phrased them that we there there the idea he was kind of silent to it and the parents of the parents were given notice that the child were girl whatever was indeed going to get there is this a little you in your view be an advocate as much as you want in your view is this case different because of the school psychologist that the person hadn't actually interviewed what the way because he he seemed to think that that the six one one would be more appropriate in the one on one which is tied to the he wasn't necessarily mandated for his continued development educationally now our position is that the ip should state what they're going to do the ip did not state that  the explanation about the source of leads came later wasn't good enough they need to be a little bit more than you know the yes yes to have explained how you're going to teach the child ok i get one last point and up i'll be done i see this the lack is my name is aaron blum with the new york city lot apartment i represent the new york city department of education in this case this court should or affirm because the discreet district court deferred properly deferred to the well reasoned opinions is need for an intense behavioral intervention and supplied one the supply the six to one to one specialized classroom it had a functional behavior assessment that direct and behavioral employee improvement plan that directly addressed the student's targeted behaviors problematic behaviors that were impeding learning and suggested analyze the reasons for those supposed to trust the department of education that their child's going to continue to get the one on one because one on one is available when they're confronted also with the school psychologist who's never seen the child at all who uses some terms that are actually don't make any sense in his report and then says well don't worry they're going to get the wild one the parents have to make a decision whether they're going to object and go to court or put their child in there wow that seems to me to be a terrible choice to make for the child i mean if if this i e p it simply says six on one and the child will receive a b they're a p with a with a with a pullout age or something like this on a regular basis it would seem to never said that there would be one on one said that the class is a six to one to one so but but did say that a b a is not excluded it's just that we're going to leave the metalogic method logical decisions up to the professionals individual professionals who are treating the student whether they be the specialists in the occupational therapy speech and or the trust me well it what what he said was that those are that he didn't believe that the reports justified of the you that a b a was the only methodology that could enable this what that  specified the the behaviors to target and certain means of measuring them with the specialized one and more on services that would be provided on a very rigorous schedule that was going to take up  several hours per week of that kind of therapy and with other supports that are built in that that was itself an intensive behavioral intervention and it should also be noted that under the state own regulations what they specify the six to one to one program as the appropriate program for students with intensive needs who require a high degree of individual attention in intervention so  that's eight n y c are two hundred point six sub sub division h four to a and so that's that's the highest level and that's what the state regs specify as the intensive  intervention so i think that dr nurse dr nissen o'sullivan in this instance you know stated that methodological flexibility and trusting the professionals who would be treating this child in this particular instance was appropriate for the student i'd also add that you know it's understandable that a parent you know that a parent will want what's best for their what they view as the best thing for their child and they may prefer the m c c or the mccarton school or one of these other private schools but that's not what the what the idea  says that what it says that what would benefit is behavioral intervention intervention such as the a b a method it then talks about having a twelve full year round school in a in a  structured setting and then applying behavioral methodologies so it doesn't say that a b a is the only method that will allow e h to make progress it doesn't support that and so we have you have the staff members from m c c who who testify and say that they think that that he needs that they need he needs the exact setting that they provide but that's but  that in a structural setting so the state law requires that the c s e independently evaluate results come it come to its own conclusion and have someone there who is qualified to do that there's no requirement that that person have himself or herself  personally been the one who conducted the in person evaluation of that student and what it doctor and review and preparation sure can be found on both on pages one forty one to one forty four of the record where he testified about what he reviewed and also on page independence noting how the student was able to use the system technology device and i pad with special software to actually better independently communicate so it was that the mind so this is also another we can while this is distinguishable different from the yellow case where there was no evidence of what the what the c s c had reviewed and i think as judge wesley pointed out the ari case is very different for a number of reasons not only is that our eks different because there was in that case a sense that there was a clear consensus with no opposition on court found very significant there was also the fact that in our easy and i'm talking about actually the specific part of our either deals with the student r k and there were multiple students or the one part of r d that dealt with r k there was also and finally i would note that in our e p the other one of the other cases in our you the one that was actually about the student named ari actually is very similar in that the court said there were a number of evalu evaluations and recommendations from the private school staff that a b a and was required and one to one was required but the do you know we cycle psychologist said that after reviewing those reports she didn't feel that exposure to other methodology is would be harmful and that the student would be able to be able to be ok with be able to make progress under various methodology and in a six to one to one classroom and this court said that it was appropriate to defer to that decision and this approved and did not overturn the ip in that case even though it rejected the notion that a b a and a one to one was necessary with respect to the behavior intervention plan which is in the record on age seventy three this is not legally speaking even a behavior intervention plan because it doesn't provide any mechanisms or methods to actually change it says this is that if you're verbal and motor stores happy and it says well we expect it to to decrease you know but it doesn't say what how it just says you know we'd like it to with respect to the six to one to look at the child's individual needs and what the regs really saying is you can't put a kid with highly intensive management needs in a class with more than six kids it doesn't say that six to one to one ratio is appropriate here that one is a which i know that the department when very heavily on that in brief i mean assume that the question of whether or not one puts a methodology is not the same thing as a question of computing methodology so the supreme court and the score many times have said that deference is due when questions of educational methodologies are involved but that would be choices of methodology not the question as to whether or not a particular methodology should be on the i not that's more of a legal question that this court at least in our and some other cases has said that in the circumstance that needs to be there and the s r o is saying it pretty much never has to be there and that's the position that mesereau has taken in many