please the court my name is david gray and i represent as p in this matter california as articulated special factors for when and i  is being crafted for a child that's death among these special factors is a requirement making clear that it's essential that the child's prefer mode of communication be developed to an appropriate level of proficiency there is actually a second statute in california that also says that it is emphasizing how important it is that a death child's primary develop a primary language and be able to master that primary language yet another special factor articulated by california is the need for the child to be educated in the regular classroom with non disabled children to the greatest extent appropriate that is also known as the least restrictive environment standard now these special factors are subject they supplement i d e a and these special factors are the schools mandatory obligation to consider when crafting an ip or can you help me understand just sort of the the practical implications of the misclassification in this case had she been classified and at the time she was a preschooler right three three years old had she been classified as hearing impaired and not just having a speech and language this order what w as the parents asked for in the special class as a child eligible under the category of deafness she would have been intitled to have teachers everything else that they were supposed to do to educated deaf child it might very well be a harmless error i think where the district the administrative law judge and the district court went to s deaf child were to develop language and the placement that she was put in the placement that the school suggested that their flat program was never going to be able to address her needs as a deaf child and i want to clarify that we're talking about a case where i don't think there's any dispute that this child was deaf she wait wait what hearing impaired rather than if i for purposes of this case i'm using the term one of those categories because she had a difficulty processing linguistic information did because of her hearing loss and where i think everybody went to stray it is if they had addressed those needs and treated her again nobody disputes that this was a child that was deaf where where the problem arose is the district's insistence on treating her only as though she had a speech and language impairment and what flows from that is that th neglected her need to develop language to a primary purpose i i guess i need a little more help in terms of specifics right because her hearing impairment affected her  language and speech and so what the school district did was to try to treat intensively the speech and language deficiencies so if she had been classified as hearing impaired from the get go what would have happened they would have still had to presumably treat the speech and language a deficiency is right to try to bring her up to what's appropriate at each level and at this age it's it's very developmental so what sort of services like help me understand how things would have perceived it differently had she been classified as hearing impaired a child who is hearing impaired or death will have problems developing language listening speaking in using language because they're not hearing what everybody is saying so what would the i e p i think she's one how would that have been different the i can't even access mint i'm sorry had there been the assessment for hearing and i should have placed turn to general education preschool class because what's necessary for these kids is to be immersed in a spoken language environment so they can model their regular a good education piers piers that are that are speaking properly a child that's deaf or hard of hearing or hearing impaired does not naturally hear language it has to be for lack of a better word going to be forced down their throat they have to and it's got to be a proactive task and the evidence was actually undisputed at the hearing both ms reader and ms klaus both said that to remediate hearing language problems with a child that is hearing impaired that they need to be immersed with spoken language a good quality spoken language role models and that needs to earth are you going into just placement in general education that's the change that should have been made that's probably the most important change for a child like as a another change would be to have an hour or two hours a week of intensive therapy by somebody that's experienced teaching children with hearing loss how to listen and speak because you have a whole other category of kids with an articulation do ability who hear they have no trouble hearing but they were to kill ation is off and the reason why they're articulation is off is because they sometimes have trouble placing their tongue in the proper place or moving their mouth in a way that is necessary to properly form the sounds when you have it there was no evidence whatsoever that type of problem impacted this child the only evidence was that she had articulation and language problems because she couldn't hear and we hear the way we speak that's why we have foreign languages that's why we have regional accents so if we're not hearing it properly we're not going to be able to say it properly and that's the remediation that this child would need to develop the proper speaking proper use of language through her hearing and again that's how we'll do it naturally without any thought growing up we start babbling embody age approximately one weeks we start using simple words and phrases and we're doing that because we heard it so that the the i e pity for a child like like this should have put her in a general education class to give her that language immersion it should have given her at least an hour a week of individual therapy would somebody who's trained to teach the whatever once you find one violation then you are one once you find one category say the language problem then you are required to examine any other other find that once your child who is entitled to treatment under the id or special education then it's the duty of the school board that they didn't do the necessary thing any nation would be hearing impaired element correct the most important thing with a child or anyone with hearing impairment is usually not how they do in the quiet one on one testing room most people with hearing impairment will will function very well in a one on one environment the problem of somebody like s p and many folks with a hearing disability how do you function in public in this particular case how is she going to function in the noisy classroom environment where she's going to need to hone her skills to really focus on language and so that label the or the classification it's important because it tells us what we need to do to treat the child's disability and here having a child that has the hearing impairment as the disability is going to require one type of cheap treatment placement in general education class the right type of therapy as opposed to a child who has an articulation disorder separate and apart from any hearing which is going to require a different type of treatment and once there are any more questions  i've got a little bit of time left that i'd like to reserve thank you  d morning your honors please the court germy ricky on behalf of east what are your city school district will refer to as districts for ease of my ass speech here i would like to say this i'm going to break my presentation down into  primary categories mr grey brought up to us special factors in regards to primary communication and the l r rate and i think that i can address those best if i look at the appropriateness of the district's assessments know i believe i believe that there's enough in the if if if your honour's were to find that that the least restrictive environment mandate were in a properly addressed in the district court's decision i believe that remain and would be appropriate in a sense because s p is no longer in preschool she's now in a general education classroom currently so any sort of a remedy that could be could be crafted at this point primary reasons one that there was a failure to do either a functional hearing test or an agent audiogram and secondarily that the district failed to identify all of species needs to that assessment process a couple of points that would make me regards to those is that there is no requirement under i d e a to do a functional hearing test the obligation is to assess an all areas of suspected disability functional hearing test isn't defined in any way shape or form in regards to hearing the i d f says that the that the district is obligated to assess and determine the range of nature and degree of that hearing loss there is no reference at all to functional hearing and then once they determine the the range nature degree of that hearing loss to determine how that hearing loss is adversely impacting educational performance now with that said when it comes to the functional hearing component which mr gray has proffered here  due process hearing testified that a functional hearing the functional hearing component of the assessment could be satisfied with a speech and language assessment and here the district conducted a multi disciplinary assessment which included speech and language testing so by s p's own witness that functional hearing component was satisfied now in regards to whether or not the district properly assessed or strike that whether the district properly identified all of the deficit i think it's important to actually look at the relevance of the private assessments that's where that comes into play now there's two points that i would make regarding these private assessments first is they were not they were not idea compliant and i think that's i think that's very important to keep in mind here so these private assessments didn't follow certain pursuit or requirements that district assessments are required to follow so this court and timothy o stressed the importance of those procedural components when conducted when districts are conducting its assessments and the court pointed to twenty u s c fourteen fourteen and the requirements of the district determine relevant functional developmental and academic information and conducting its own assessments now there's other requirements including reviewing existing evaluation that are in classroom based observations so all of these particular pieces are important in developing an educational program now neither miss reader or misc loss complied with these requirements so their testing was deficient in the sense that they didn't do any a review of existing evaluation data s p had been in a district program its infant program from the time that she was roughly three months old and there was a breath of information there that should have been reviewed regarding her ability to function in that environment her growth over that period of time neither assessor reviewed that information nor did they do any academic testing so for lack of better term where's the rubber meet the road how is this hearing loss actually impacting the child they didn't do any actual academic testing or preoccupy them testing to be able to  hearing to the language if you if if the court were to adopt mr grant his client's position that would be correct our position is that the district did comply with that mandate by doing the speech and language testing to determine espy's functional the when the district reviewed the information the testimony was that quite frankly they were surprised at how well s p f performed serac wrong in particular identified s p scores on her verbal comprehension  receptive language scores and her verbal i q scores and determined that she was performing a sensually make had made much for months progress in regards to her hearing up until that point in time she wasn't she wasn't hearing impacted her or began to impact her in a more severe way in order to be able to catch anything that was falling through the cracks that was the point of that d h did this to definitely hear hard of hearing think the primary point is the ideologists that testified stated that the functional hearing could be testing the speech and language assessment she was the primary witness on on that point and the district complied with that in that they did their own speech and language assessment what i'm sure i thought that even per the school district assessors she had issues in terms of language that were manifest that both both because of natural developmental delays as well as due to her hearing impairment so that doesn't she then meet the definition of hearing impaired and should have been classified as such that's why i was asking counsel like ok if she had been classified so much how w program is appropriate for her but had she been classified as hearing impaired from the get go the ip might have been written differently because the goals and accommodations and services are are driven by be appropriate classification in the that her hearing loss impact was impacting her i think the question is in what way so in an undercount when you look at the definitions of both deafness and hearing impairment you're looking for the degree of impact and  degree that of impact what you would expect to see to be more severe so for example cynthia gonzales who is the d h each teacher who who did s p s academic testing she actually taught a s d c d change class and she processing linguistic information through hearing with or without empathy amplification that adversely affects a child's educational performance so was there an adverse impact on the child educational performance here as far as that first prong your honor is concerned i think what the what the team had found was that s p had made month to month progress meaning from the time that she had began wearing hearing aids at the age of three months she began making months for  month progress according to the district testing so she was showing that she wasn't severely impacted she was she was doing very well in regards to her access to her hearing because of that month or month progress in regards to adversely impacting her educational performance all of the objective testing that the district had had had done during this process including adaptive testing the academic testing the behavioral testing demonstrated that her hearing wasn't impacting her adversely in those separate ways it were that there was fish and testing to really determine their worth to determine the language and there was knowledge that was related to me but they were really the kind of hearing tests that would be required don't believe they felt that that there was insufficient testing i felt that if they could have done anything else they would have liked to have seen as p and her private preschool setting but at that point in time perry had stated that she was no longer in her private preschool  assessments which were presented that were deficient in regards to idea compliance but but s p never is fully established within what should that hearing test of look like the audiologist testimony is the only thing that we have to go off of in this situation and that states that again either aided audiogram or speech and language test in which the district did absent that their record is missing any information what would that testing look like and the burden here in this particular case rest of the s p thank you if they speak were found eligible as a child that was hearing impaired then the school district the administrative law judge and the district court would  focused in with hopefully laser like provision precision on the special factors that need to be considered for a child with with hearing loss and following those factors an emphasis would have been placed on the need for her to be in a general education classroom to treat and remediate her hearing loss and to develop our language mode two to an appropriate level of proficiency this is a child we there's a lot of robust disagreement whether the district did the right testing or not but there's no doubt whatsoever even with the testing that we believe was sub par there saying she's got articulation problems she's got she doesn't say enough doesn't use enough words she only says one word sentences and utterances that are not clear but we know this girl has a problem the only explanation for it is the hearing hearing loss and that was not properly addressed now in terms of what should be done to properly test for that we start getting into some of the nitty gritty of what an audiologist is going to do some of the tests an audiologist would do would be an aided audiogram some of the tests they could do would be a hearing a noise test and the bottom line is this is a child that had problems well beyond articulation and they treated her by putting her in an articulation only class any way you look at this she's not being or disability not being treated that fl consist only of children disabled children with articulation disorders here s p has has an ol on a logical processing problems she also has as i just mentioned she's not used enough words and sentences she's not her spontaneous language is not as robust as we would expect for a child of the of these age and there's nothing in there nothing that incidentally thing in this case that the cause of those problems is anything but her hearing loss in terms of your contention with respect to the flag class the that there was nothing done in that curriculum to address the issue of the hearing impairment you know fearing with her speech development that there was nothing at all whatsoever in that flag i wouldn't say nothing at all but it's such a trivial amount that it's relatively meaningless the flat class was a class for children with articulation disorders as people's going to be only death could not class and to treat articulation and as pieces other language problems you need more than just articulation remediation and you also need to treat it based upon its cause and in her case the cause was the not hearing it whereas the other kids in that class the cause of their articulation problems is is not anything to do with their hearing that's because they may not know how to place their tongue they may have certain weaknesses in their mouths in terms of how they they formulate words they're not doing it correctly so look the cause of the problem is completely different and more importantly articulation was only one of espy's problems so i don't know what this flat class is going to do about any of our other issues that the school district recognized she had can have a kid eligible under more than one category and this myopic view her hearing loss problems are not being treated that goes to the very core of this case and why she she she was denied