good morning iran has made it please the court my good morning my name is christine barrington and i represent joanna as the appellant in this case this case comes before this court on appeal from a decision of the rhode island district court involving a dispute over the individuals with disabilities education improvement act or i d e a as well as a review of the administrative proceeding relative to at this time i like to defer substantially to the facts of this case are set forth fully in the priests of both parties and i will address some specific facts and turn on this the court has any specific questions relative to and begin this oral argument by saying that i stand before this court today for the proposition on behalf of my client that education is important it matters it matters so much especially for children with disabilities that i d e a safeguards that importan including in particular the child's need for entitlement to comprehensive evaluation comprehensive evaluation which is the mechanism to identify any adverse effects as a result of that disability as well as to serve the basis for reasonably calculating the this child's entire government our need for that comprehensive evaluation i believe or suggest to this court is at the heart of this matter but before addressing that in particular this court needs to first i would suggest address the issues meeting the this is the school argues that it does by reading paragraph enumerated number two in isolation and in particular to the exclusion of the umbrella introductory paragraph that specifically expressly provide that the waiver runs only through the date of the agreement we would we would argue the converse that the in the settlement agreement should be read as a are the date of the agreement but that reading that in isolation of the rest of the agreement or to the exclusion of the initial embroil introductory paragraph is is an ongoing dispute resulting in administrative procedures regarding what tests your client's child would see in the coming year so that the that your client wanted more tests and different tests than the school district was willing to provide respect respectfully your honor it is our position that there was not an ongoing dispute that the u district court terms a first due process proceeding and a second due process proceeding it is our position that those worse were separate proceedings and that the underlying substantive basis  for the parents proposed resolution and the first to process and the parents subsequent request for evaluations and i p meeting had different  but this would before the settlement agreement was signed and my correct your client wanted something that the school district had not yet committed to give until that is correct the subject of discussion was what tests would be administered to the child that is so when they don't get a settlement and the settlement refers to certain tests that will be taken and one that will not and covers a time period of i guess what a year and a half what why wouldn't we find that the parties had kind of reached an agreement as to what tests were going to be done i will defer and substantial part to that question to my brief but i will try and narrow it down and explain to your honor my position relative term the settlement agreement is very clear in its terms and conditions minus i would say an inadvertent omission and numerated paragraph number two to restate i mean it's almost in essence verbatim the second introductory paragraph it just inadvertently i said suggests omits that express language weaving claims only through the date of the agreement that the the settlement agreement granted the parties agreed that the school would support a placement into a future perspective time period but that does not also mean and paragraph number two and this is not expressing agreement  subsequent to the execution of that settlement in april agreement that either part and parcel are and whole there of could arguably serve as a reasonable basis for additional requests evaluations and i would just offer this an circumstances or transactions occurred after the parties entered into the settlement agreement and it is our position that the answer is yes what point specifically in the record but pointing to that would show a material change that came up after the absences from school but at that particular time had been wholly absent from school for about two months by by the start of the school year september of two thousand and twelve the child ha remained wholly absent from an educational program at all and we suggest that for a child especially a child with a disability who is out of school for two months versus five or six months that that is a substantial or could certainly support a substantial change in circumstances relative to that child's needs you understand the settlement where me you knew he was going to be out of school until the start and at school you are respectfully on a no that's not true the settlement agreement in fact provides that the child will either do want to do things begin attending school at the private placement or receive the provision of homebound instruction neither one of them has happened for extraneous  comprehensive evaluation had lapsed just going back to understand the context for what led to the settlement agreement she was seeking a reevaluation your call is that the right way to understand what was happening in the first two processes the apparent alleged substantive denials of fate by an s m s and what we call this wednesday under the statute are you entitled to that she tell that once a year that challenge or paragraph and the umbrella of secondary paragraph and that that should not lead to the interpretation to discount what's in that umbrella and her doctor paragraph the party is clear intent to only with claims to the date of the agreement the school then also argues that regardless that there is an implicit waiver of its affirmative statutory obligation to provide faith all the parent received as a result of the settlement agreement was a private school placement there was no discussion there is no language there is no on the intentions that any other provision or substantive provision of bait was discussed or agreed to by the parties i suggest this court that if the school intended or wished to have its affirmative statutory obligation to provide faith to this does the bill child waived get that this raises the question if that's a good understanding of the agreement how can you get a fifth test well there's those are not the only sub par it's or components of faith and that's where i think that the issue of the deference to the hearing officer comes into play the hearing officer under the statute is required mandated to have certain levels of knowledge and skill and expertise and clearing and understanding and appreciating applicable law and legal principles in deciding all issues relative to specialized instruction faith so i suggest that where the hearing officer would find that yes those two issues of a private school placement and some a valuation of the force estimates are part of faith is that all of faith and if it's not all of faith does the settlement agreement implicitly imply regardless all the rest the faith the hearing officer considered that specific issue on a motion to dismiss the very case the school filed the second due process and found that it did not and i suggest and i respect your quest this court to give deference to the hearing office's decision on issue of similarity of claims is based predominantly in the schools argument the similarity of naaman claytor of the evaluations requested and i i believe that the cases that were cited in the brief by both sides  talk about an investigation not just about what the what the evaluations are called but to the underlying injury that serves as the basis for the evaluations and the school district have the burden of proof or has the burden of proof to  establish conclusively that the injury that gives rise to either one of the parents request for evaluations is the same and i would suggest that it's not for there some of the reasons i listed there was different transactions that occurred between the the in the case before us talked about deference to and ministry of hearing officers and their decisions and fact finding i would just suggest the same thing and specifically point to and this particular case i procedural requirements for its hearing officers to have that experience and knowledge in particular to decide in these types of cases on the issue of authority of hearing officers to order a valuations i d e a specifically says that they can it's one of the only i would suggest the only authority that that i d e s specifically gives the hearing officers to do and i'm and i believe that the u s district court referenced parries or wills article on that our position that those don't rise to the level of a claim but the test we're talking about we're talking about the same named test but a different underlying individual injury giving rise to that request for those tests it would be two instances of negligence one for you know a car accident and another for you know an injury related to you know a cut or something like that the injuries different she's year you can have as many in valuations at least my understanding of the act is as you want your only end and title to a reevaluation once every three years and an annual review once every year but you can have more than that mean you could they could on their own give it to you but she's requesting it as against the school district's desire for a second time within one school year that's your  evaluations were never done they were never agreed to by the parties she had asked for those as a resolution in the first two process but had resolved to just let that go in consideration of getting the placement over anything  what it sounds like you just said she decided to pocket everything that they said they'd give her put it into a settlement agreement sign it and then turn around and ask for all the other stuff she'd been asking for that they didn't agree it's a rather unusual the idea was that the settlement agreement was an agreement that they were appropriate so that's why it seems odd to them say well now she doesn't think they're appropriate unless she was seeking a second new reevaluation but i think she's not entitled to that within one year the it was about you know the agreement was that the school district would would do those evaluations whether or not they ultimately were appropriate was left as one of those additional faith issues that the even the u good morning you're on in smearing and carol representing the south kingstown school department let me go over a little bit of the history of this case to try to put it all in perspective in february of two thousand and twelve the parent in this case files for her for us to process at that and in that process she alleged that the south kingstown school department was not appropriate providing appropriate services for the child through the school department they asked for among other things multiple evaluations eight to be exact in for not a district place that prior to this case going to hearing there was a settlement agreement and that was the settlement agreement that has been questioned my sister and the settlement agreement that we entered into specifically clearing up any issues we had up until that point in that settlement agreement we agreed that we would place the child in an odd district placement a special education school the world school in east province rhode island we would not have to do a neuro psych evaluation that we had agreed to do in the past and we agreed that we would do for evaluations for the purpose of giving the  baseline data on this child those evaluations those were evaluations were done in april of two thousand and twelve the summer came the child did not start the wolf school in april the child started the will school in september and by october of of chill thousand and twelve the parent is now asking for more evaluations specifically she's asking for ten evaluations stating that she did not have enough information to be part of the ip team and that she wanted to be clear on what her child's disability was it's the district's responsibility when independent evaluations are requested that they need to have to that nothing had changed the child had just entered school and we should not be required to do any additional evaluations that the the hearing officer who is not an attorney is certainly is known such a level up but it's not an the agreement we agreed to things we agreed that if the world school would take the child that child would immediately go to will school if the child would if the will school would not take the child in there was a medical reason for him not to go to school we would provide him home instruction the world school did not take the child the parents did not provide a doctor's note saying that he was in medically unable to go to school with the district didn't do if we  another therapeutic placement which the parent rejected so my sister is right in saying that for five weeks the child did not get education but the district did provide over the summer of two thousand and twelve and yes why program there's going to be regression to have extended school year services in basically a school district provides to the child education over the summer time the world school had a program and the district did offer and did send the child to the summer program at the will school prior to the child starting school in september at the wall school yes yes he did and  really there was no substantial change the child had been out of school for a couple of months before we seventh the due process the child was out of school for five weeks after we settled the due process we did provide a program of the w school during the summer that he attended and then he started school in september of two thousand and twelve as a matriculating student who will school so when the parent again we due process hearing officer refused to see that some of these issues had only been litigated and denied our motion regarding the evaluations we went to hearing and in hearing we went over  the appropriateness of our evaluations one of the evaluations that the hearing officer found was inappropriate was the occupational therapy evaluation in that evaluation in order to show appropriateness we had the school district's occupational therapist testify that the evaluation was appropriate and we had the well school's occupational therapist testify that the evaluation was appropriate but just to be on the safe side she provided additional testing she supplemented dot the hearing officer rejected that testimony and found that the occupational therapy was evaluation was inappropriate yes the occupational therapy has been appealed we did not appeal the educational evaluation the hearing also also found that the educational evaluation was not appropriate we did we can appeal the educational  i believe that the settlement agreement would bar any future evaluations in terms of the occupational therapy evaluation the parent was questioning the appropriateness of the occupational therapy evaluation she had a right evaluation they have a right to request an independent evaluation of something that we did so in our case we had done an occupational therapy evaluation we had done an educational evaluation we had done a psychological evaluation and we had done a speech and language evaluation if the parent is questioning the appropriateness of those evaluations then the district has one of two options they can either choose to do it when they can f an independent evaluation that piece the parent had a right to request and it's our position that the occupational therapy evaluation was appropriate and therefore she had no right to a future valuation under that occupational therapy evaluation and that from the more we put the evidence in the case that showed that we had definitely provided an appropriate evaluation based on our occupational therapists expert in the agreed to the psychoeducational evaluation that was ordered by the hearing office that was and questioned by the parent a mere five months after we had entered into the settlement agreement with nothing could change with this child educationally because he had just started the will school was once bought by that settlement agreement and was bought by the fact that right in the settlement agreement we're not doing a neural psych and we're not doing any of the other evaluations th point of that settlement agreement  no yes well claims of any issue if you look at paragraph two of the settlement agreement on page three claiming here by ways any or all causes of action in claims we can relate to his education which claim knows or should have known including but not limited to and then it goes on and it's paragraph two of the settlement agreement on page three ok but that includes in your view or any test beyond the anted they had an idea of his disability and his educational limits and what they needed to do to provide an appropriate program for him if the parent thought those in that she asked for evaluations an april we had three months of the summer nothing changed apparently by the beginning of the october she was already looking for more of valuations is she one of those wish ans that should have been part of our april settlement agreement which then again we were putting the child in the district placement he was going to the one school if at that time she felt that more information when the parent always has a right to ask for evaluations again i mean she goes to will school the child goes to the will still has their period of time in some point down during that year she feels as though she has a right she wants more evaluations i would i would entertain the fact that she would have a right to ask for them at that time and get nothing great i'm enough the settlement agreement was settling everything up until i'm entering the world school it's that point she asked for more evalu i think there is a connection between this is april and we're already into one just starting school nothing has changed i think if there was a material change in fact child in school for a year child in school for six months child's making no progress parent would have a right to us revaluation but between the time that we set owns the first in process and the parent asked for evaluations the child had been in school a month reasonable period over which there's an argument that something materially office changed look let me give you an example let's say for example that during the summer this child gets a brain concussion this child has some kind of traumatic brain injury at that point there would be a material change in circumstances and certainly evaluations would be needed to see what effect that had nothing had changed is there is there any finding by the hearing officer as to whether or