and central school district issue before you iran or is is that whether or not the district court erred in awarding tuition reimbursement to the parents for a private school that did not provide specially designed instruction in a case where we would can submit to you that there was no qualitative difference between the s r o decisions and case number one in case number two you should know that the was well reasoned had to care carefully and fro discussion of the evidence and this court and the district court we argue should have been bound to support the decision of the state review officer while there may have been some differences in the administrati yes and that's that brings up an issue point your honor we would submit that really they did not he issued that decision accepting the affidavit in a footnote not a decision that was a motion to admit the evidence and what we would submit is that the additional evidence was a rehash and an embellishment by a witness who had already testified in case number two he did it's true that he did not testify in case number one but it the the court i believe in in its opinion in case regarding the source decision case two specifically said that the student had access at the the the witness stated that the he had access to the i pads and he was the only which there really was a rebuttable presumption the court found there what the evidence should have been in ocean why that the individual why the evidence wasn't submitted to the court and why the witness didn't testify in the underlying hearing an explanation as to why i think that the district court here just simply looked at the issue of well there was no bad faith so we should accept it and i think part of the problem is in and that this circuit has has held that there should be particular deference to s r o decisions when there is no distinction between the records that there are that were being reviewed the court found that there was a dish all measures that were tak the supervised study hall and access to nursing services but in reality those accommodations are no substitute for specially designed instruction and that in fact is what the court has held on this court has held on a number of occasions that an accommodation plan is not a substitute for and i think the board's problem is that for some reason and in some way  this student went from having over one hundred days off of school which amounts to with no education to having nine nine or ten something something happened and  is it and why can't it be assumed that if that  for determining whether a private school is appropriate is whether a student it's the same considerations in criteria that they review when you're looking at whether the public school program is appropriate did the student receive specially designed instruction no we don't we can see that he received accommodations but you're correct about that but there's some of this this this odd disconnect re said the school didn't provide anything that would that  improve on what the the the school provided and the school conceded it was not providing an appropriate education and yet and yet and yet the problem vanished  your honor but he was not receiving any any specially designed instruction for his organizational deficits and even the counseling and room just want to point out to the court the parents in rolled this child originally in the private school because of the persistent vulnerabilities in his social emotional issues i mean that's what his psychiatrist said that's what the psychologist said and what's an example of what should be in the record from your perspective in order for us too so what should be in the record  for example specific instances where the teachers were breaking down the tasks the student show did a disengagement in certain subjects a certain topics he was for frequently late in submitting assignments completing class work the parents themselves even suggested goals in that area to be worked on and there should have been any evidence in the record of what the teachers did in the class in fact the teachers a said  while climbing rocks but that didn't get into the underlying the need for this student which everyone agrees he needed insight into an understanding as to what causes anxiety and stress and coping skills had to deal with that that's why the psychiatrist recommended a systematic psychotherapy program he added prior to the twelve thirteen school year that did not occur that occurred not until march of tw thirteen six months into the school year when the parents and informed the infor informed the teacher that the counsellor as well as the director of guidance that the student  less enthusiastic was more withdrawn and one and then arranged to set up through a private psych psychologist or social worker not connected with the school to have these therapy sessions it wasn't part of the nor the the private schools program to offer this so that's the kind of examples of specially designed instruction even even the district court agreed that from the counseling standpoint that that was that was a critical part that that was not specially designed that that weighed in fact in favor of the s arose decision  private the public school program and that's not an issue before your court but while he was at the private school he had to get something spent specific targets specifically targeting his needs from the other children in that school that's the right  yes and he was getting the same kind of accommodations that were available to all the students in the school whether it dealt with supervised study hall whether it dealt with his extended time preferential seating even use of the i pad that was wall accommodations that were available to other students its parts in that school the law is that you have to essentially be a class of one and have your own special accommodations in order to  this student that that's the only issue this is not a private school all the other students had the same unique needs so that you could provide that specially designed program for five students or ten students all at the same time they lose they're all alike and all have the same sorts of needs no not not not necessarily i mean each you have to take each of these students on an individual basis i mean we're just focusing on this student  clearly this time because the other students get the same sort of thing as he does if you put the shoe on the other foot that he's not special and he's not getting special attention we would argue that it's clearly not a special education  school we don't know what types of services the other students were getting we but we we do know is what this particular student's needs were organizationally motivationally and so from a from a social from a social and emotional standpoint and the s r o i think concluded correctly in both cases and in very thorough discussion of of the types of services there was really nothing in the record to show that there was any specially designed instruction it please the court the morning your honour's my name is william walsh i represent the parents w a n s as well as the student in this matter the district's fundamental position is that northwood offered notes in educational benefits to w e for the district the school offered no specialized instruction for the district northwood offered nothing to deal with his health and migraine issues for the district northwood offered nothing to address his social isolation and this position for the district is not surprising is consistent as the district of fundamentally ignored w e throughout his middle school years and failed to provide or offer any support for him during his eighth grade year the district does not come in here today and challenge a determination that it that the student required monitoring for his eighth grader the district did not and install monitoring although the testing revealed that w in seventh grade year had a smile as asian disorder for which there was a clinically significant score which in the school psychologist own language demonstrated a maladjustment that required immediate attention the school district again did nothing what do you what if the decisive  feature of the education northward is smaller classes close to teacher attention and things that any parent would  want for their kid in in the public settings while our president seemed to say that that's not that's not enough it might work in others for a lot of students who might really work to have smaller classes and be in a s and have less social pressures but it looks like what you are pressing as the advantages of northwood really just amount to the very desirable very benefit most students but specific to w dr william said a small class in the small class environment due to the stress and the consequences of his stress the migraines the somalis ation disorder that he experienced he needed those classes that was the special service and specific specific special service if you were required or precedence say that that it's not enough for for the  for the for the private school to provide stuff that any parent would want for any kid it may be that a particular child has particular need for those things but under our precedence you know get them if they discussing with regard to specialized designed and specially designed instruction both under the federal and new york regulations looking here at eight n y c or section eight hundred one v v specially designed instruction means adapting an appropriate as appropriate to the needs of the eligible student under this part the content methodology or delivery of instruction to would address the unique needs of that student now in this case the unique needs of the student were what was delivered at northwood if you look at it first whether the content needed to be adjusted whether there was a need for w a to adjust how he was learning geometry or how  world history was taught there is not he could access the content as well as any other student equally there is nothing with regard to methought methodology that was relevant here rather the sole issue here is and what needed to be adjusted was the delivery of the instruction and the district itself or the ip that it finally developed for his sophomore year recognize that w e would benefit from a smaller class they moved from the twenty four twenty five students in a high school regular public school class two or eight to one recommendation so for w e the specialized instruction that he needed was that small classroom further d williams provided information in the district a den of fine the other needs he wrote that what w e needed was quote small supportive classes twenty four hour nursing services with two nurses a structured study hall medication management therapeutic recreational services flexible invite individuals counseling services flexibility with assignments an accommodation plan and academic advisor and carefully monitored to be carefully monitored by staff northwood provided each and every one of these elements yes most students would benefit from having preferential seating where you are in a class of eight individuals you're sitting next to your teacher but here that was a specific need that w e required and it is the specific need the northwood addressed by giving him the preferential t treatment where the teachers were even able to passively observe what he was doing in fight some of the things that this court should look to mr corbell who knows history teacher from ninth and tenth grade provided that express testimony he talked about looking at w e he described the i pad as a godsend to w he for his ability to organize his work while mr pettigrew is making representations his action representations are inaccurate also with regard to pad with regard to northwood why yes there were students who were also using it indeed the w is use a rose from its the chemistry class w e was the only student of the hundred seventy within this school system that was required to have the i pad equally for the counseling that was provided he was one of a small handful six or seven students within the school who is receiving counseling yes counseling was available to all but he was the one who was one of the few that was required to he was he was the only one for whom specially guided notes were provided to have by each of his teachers that he received dr risen for looking at who conducted a furn full neuro psych evaluation of he noted his ability or inability for having short term memory and his therefore his inability to both take notes and focus on instruction during class therefore the guided notes that he that the school provided as part of the accommodation planned to w we were specific specially tailored to his specific needs in this instance as with each of the elements of the combination plan would receive from northwood was specific to the needs of d williams a den of fide with regard to the district court's underlined determination judge cares provided a careful and thorough examination of the record he provided a detailed examination with regard to the elements going to his each of the issues at hand you can read in reading his decision you'll see that he is giving wayne of the information away and of the evidence of towards a preponderance of it specific with his appropriate review of the s r s determination but the district court made a different terminations with respect to the tenth grade year yes you did your honor and tease that out for me at least so what what's the factor in there that there are several factors your honor and judge harris looked at them i think the one that he provided the greatest emphasis with in tenth grade  was the i pad again mr corbell provided extensive testimony with regard to the benefit that that i pad had he talked about observing william utilizing that i pad organizing his work in providing information utilizing it actually to provide information to the class while the while the yes or overlook that issue the just record emphasized that equally the district court emphasized the advantages of having nursing nurses available now here i think actually judge and weren't available in the previous years which did have approval and that just wasn't a factor that was comes that was brought up with respect and other your honor i think that's the one of the aspects of  underlined his determination for freshman year because judge perry's did not mention nursing during the freshman year but he uses it as a benefit at hearing to the student for the sophomore year for his freshman year actually the availability of nursing became a greater benefit because as noted dr williams recommended w we arrived at northwood when he had there were two nurses in the at the school one became his academic advisor for his freshman year the second was in essence his whole individual that the nurse had her apartment at the end of that hall therefore he was a vip he had availability and access to the nurses twenty four hours the nurses were readily available to him so that's where he was looking at the nurses and i think it was of be a further advantage for freshman year now your honor you asked earlier why this court cannot assume that there was an advantage in w we going from missing  hundred eight days to missing nine days in ten days and why you can't assume that the did that there was an advantage that north would provide judge harrison his decision expressly and to address this he said  he said it belies common sense that suggests a w is improvements to this regard was not attributable to the specific improvements in his educational environment and quote i were i believe the judge cares erred with regard to his for the freshman year while he did fine for tuition reimbursement in the sophomore year if he failed to consider the academic advantages you have a student who went from not only missing one hundred eight days to missing nine we have a student who went from receiving no academic required he was forced to drop his enriching ghoulish class who is doing no homework who was not turning in assignments who was not really reading the books in class was not attending and was basically due to migraines and able to attend school and he went from that to the following year fully integrated in the school a leader in his classroom turning in his homework yes occasionally it was late but it wasn't frequent it was on a number of occasions he went from having no academic credit to maintaining a b average with the exception of spanish where he received a c but there's a there's a significant value in yes getting the student back into the classroom having him warning again and being able to progress rather than not reading the text the record test denotes all the books that he was reading during his freshman and then on into his sophomore year  again as judge care is recognized it belies common sense to find not define that northwood provided not only benefits at a attendance level but also at an instructional level that benefited w e substantially equally if you don't mind there's a brief issue on child fine if the court wishes to hear that i that's with respect to the first year it's with regard i actually do is eighth grade year before he left the district your honor it's first year issue first year issue ferret out child find requires a determination that the student was one who would be honor because under the definition for other health impairment which is a classification for special education an individual's impairment for health so that these we can disable the nabl to access and process allows him to special educational services yes they were aware that he was missing classes yes they were aware that he was receiving debilitate he was suffering from debilitating migraines that should've flagged for them particularly after the school psychologist the prior year had to identified him as being requiring monitoring and requiring immediate intervention that should have flagged for them when as the prior year he had missed thirty days through the whole year by december when he had thirty to hear you're talking about he had above average grades no it began to go south and december which is three months and into the term your honor he had above average grades for the first quarter which ended earlier it ended in november by december he had dropped in ridged english by december he was well on his way to receiving in completes in january for all of his major subjects of medical those incomplete were changed to medical incomplete subsequently on the report card those were classes at the end of the year for which he would receive no credit but medical incomplete just explain why the i show in her determination found that a child find that the district failed to me to live up to and meet its child find obligations because by december when this student had missed thirty days even though district policy stated that he was a student is subject to not progressing after twenty days they should have stepped in they had an affirmative obligation under which to step in here the district even though they were they knew the prior may that they should be monitoring the student failed to do so oh you're w having a struggle needs to be evaluated there must be a suspicion that special education is required and i think the record is replete that the students grades continued to be to be strong through at least december in fact when the parents had asked for a five o four meeting that the district went and asked for information from from the teachers as to what they felt and all felt that he was you know a solid their recommendation teacher recommendations to the northward school two teachers of the student in eighth grade found that you know his understanding of concepts was was was hard he was he was able to attend to tasks and even one of them said you know look even if he's not physically present when he comes back he quickly gets right back on track that doesn't sound to me as some as would be enough sufficient information for a school district to suspect at that point that a child requires special education services where the evaluations that the district had at the time indicated that he was a solid above average to above average academically and the freshman year i think the difference really boils down to the fact that there was a a disagreement between the i h o and the s r o whereas there was no disagreement in the first year and if you really look at it at the evidence in the record that the s r o considered there was no instruction yes he got access to the i pad but there was no instruction on how he was using it there was no instruction in the supervised study hall on how he was approaching and attacking his abilities to manage tasks and as far as the individual ised nursing services that i guess the show that judge carrots referenced in the i chose decision sure if you look at the lives of the nursing when when the student had an onset of migraines the recommendation was to eat and drink and have fluids and get some rest no different than any other student would get if they had they had migraines and in fact there is a reference at one point that if the migraines were student was being absent from school he would recommendation would be he needs to go home and get more twenty four hour service i just want to end by saying  in this case i think what judge caris did was because there was this disagreement between the i h o and the s r o it allowed him to carefully go through the record and identify evidence that he felt that the s r o specifically didn't focus on and that i believe disregarded the duty of the court that in areas of  educational progress and appropriateness of a program you need to defer to the experts the in this case the state administrative officers and it's not sufficient not even enough to reach reach the right conclusion but part of that expertise is deciding it was it did not show specially designed instruction so was the review officer the same person and the freshman and sophomore years yes your