good morning your honors my name is colleen snyder and i have with me at counsel table ms christian knox so an attorney in this matter we represent the appellants and our g and g g may please the court i'd like to reserve two minutes for a battle there were many errors made by the lower courts in this case and i'd like to focus on three areas that i considered to be the most egregious or glaring  number one was my client's right to challenge the april two thousand and sixteen i p after the settlement agreement expired on december st two thousand and sixteen the nd area relates to the district's obligations to and g as mistaken they both operate off a common premise which is that the settlement agreement didn't lead didn't say you've given up your rights to challenge the two thousand and sixteen  and then that that that release that they got lasted six months yes the st agreement was actually executed in january two thousand and six i know but the last one was the last one of them bill i think the last one was on june make any sense there would be no point in giving you a bundle of money in general for a lease that would last for six months and then you can sue them in six months aside from the language of it it doesn't make any sense to that well april two thousand and sixteen i right well actually the dispute arose prior but yeah that was part of the dispute and yesterday said all right let's settle all this up we'll give you some money we'll give you some more later they say two to finance and g s education someplace else and were turned let's drop all your claims and that's that that's a and it's didn't seem to me it was it didn't see it wouldn't seem to make sense to say we'll give you some money defer on your claims until the last day of the agreement and then bring them again it just doesn't strike me as a reasonable interpretation of the agreement well your honor respect but that's not what my client did bay brought claims they did not bring claims regarding terms of the agreement even evidence the fact that the parties and dissipated there could be a further dispute and it laid out what would be called the stay put place may and in the event of a dispute so what would be parents like fallback subsequent agreements were was nothing wrong with the offer that they may i understand are calling your client's position your client's between iraq and our boys here not being able to to care for the child at home because of the aggressive and self abusive behaviors which were being addressed the court into the record at the at the local nonpublic school which was this or it was paying for and the problems that the parents were having at home which were which were caused by the self terribly self abusive and and aggressive behaviors and it has a particularly as affected their ability to deal with their other what to stick child so i'm the one hand they they want the child and a group home because they probably couldn't live with the situation as it was on the other hand the school which and the education they were getting and that and the way the school dealt with the self abusive and aggressive behaviors was making significant progress and on the other hand in the end the school in kansas was terrible well that's those  for saying we don't want we want a way want to have a residential placement that's not entirely accurate so in the record there are five additional head injuries that she sustained after that st incident on the bus that you just mentioned i'm still not clear let's assume for a moment that the release covers any challenge to the two thousand and sixteen  wanted or to be corrected so were any challenges to the two thousand and sixteen i e p at that point even if the agreements expired at the end of december  mood in other words what you said we would rather rather than a two thousand and sixteen i e p we would rather place this child in a school in kansas and the district settled with you and said for i will finance part of remains there so i'm trying to figure out what what challenge to the why the challenge the even if not waived isn't moot well at one it was that parent's expense the parent's bar the cost of the education it was not we're really what this case is really about i don't mean to i don't mean to denigrate in any way is about money at this point yes unfortunate how much money is it about about two hundred thousand dollars that my clients are out still too hard  this case benefit from mediation and we were we have been open to that but that was not the other side has not been open to that so am i right that we review the determination that a residential placement wasn't necessary for clear error i think it's a de novo review i think under ashland school district it's considered a fact determination that we review for clear air and so what i'm having trouble with and here is if we review it for clear air then st i'm having trouble figuring out how it would be clear error for the the a l j to a found that th angie was doing better at the local school than the residential placement maybe you could debate that but i don't know how it's clear air and if we take that just as a premise for a moment then it seems to me that your other arguments sort of don't even need to be decided like whether there was a waiver from the settlements doesn't matter because of alternately you can't show shit about a residential placement then there's any error is harmless and that also seems true about whether more i e were needed a lot of these procedural arguments that you're pressing seem to just fall away if we can't really reverse the ultimate determination about whether residential placement is needed so that's kind of how i'm thinking about this and if i'm making a mistake could you correct me yeah so i think well one my understanding is that mix questions a lot and that this would be a m a bunch of history in the case you may dispute those but if we it was that finding as of april th clearly erroneous yes so why looking at and i'm talking about the l j yes so she and she looked if you actually if you look at the her analysis she all of her information was based on angie's needs as of april two thousand and sixteen and her whole mousa centered  why d c which was the public school that the district had offered back in april two thousand and sixteen why that was adequate to meet her needs at that time there was no focus on ok what are her needs now as of january st two thousand and seventeen and she held the l j herself held her she had her behavior needs had actually increased since that time and she did recognize that there were some merit based on  me maybe i'm misunderstanding or misremembering but wasn't that based on the idea that she was doing really badly at the residential place i don't think she was doing really badly i think that's unfair she did say that she made progress and some areas yes she still  there's no hiding from the fact that she still had serious behavioral issues however one of the problems with this was that well i was just yeah so i was just going to say that one of the issues was that the way that the two agencies were keeping behavioral data was different and so it's not like you're actually comparing apples to oranges because the speech and language development center was recording behavior based on episodes so one instance of you know hitting her head say a one hundred times would count as  wasn't persuaded by that and the fact finder in an expert on this topic so i'm not sure how we can disagree i mean i think it's a good argument and someone could have said they're exactly what you just other taking the data differently maybe what's going on is her condition is getting worse totally unrelated to where she is there are a lot of things that could explain why actually residential placement is needed but i assume you made those arguments and i agree she noted that enough that now but she didn't really make any comment about you know about it she just but over the course of the time she even by accepting your orses even by their own their own method of doing she was getting worse so i believe that in the classroom her behaviors actually were decreasing but i think in the group or in the residential setting that they were increasing at the time of the hearing they had increased from the placement so my time  was april two thousand and sixteen ip still appropriate and reasonably calculated to meet those needs and that question has not been decided thank needs as of april seventy with respect to the new ip and she did that what what information did she have at that point with respect to whether residential all of which showed that comparing side by side the students level of progress and levels of functioning prior to heart spring to her levels  once at heart spring there was no question that the less restrictive s l t c program was more appropriate than hearts for and you can't expect a nail day to rule on data she doesn't have before her there was no data she couldn't complete she itself regardless of whether you look at the episodic versus the individual instances and which was raised below her the the individuals at the at the at the questioning on questioning by the l j the individuals from  heartstring all admitted that her behavior said degenerated when she was at heart spring they had to install a padded wall on her bedroom they had all sorts of problems maintaining personnel because they were she was hurting them and other  and they were the turnover was was tremendous they weren't staffed with appropriately qualified people not even at the supervisory level and i think your honor said what i think is just obvious that the family felt that they were and they were between a rock and a hard place with respect to the home based circumstances prior to the placement of heart spring and they had every right under the law to place her there what they couldn't do and have tried diligently to do and i think they've done as good a job as you can do under these circumstances they can't transfer that live billet each of the to the district typically even if we didn't have a settlement agreement i don't think the law would support the kind of claims they're making here but when you add on the fact that we had these three sequential settlement agreements that addressed all of these questions tell me what tell me in particular with respect claims relating to two thousand  because as i think your friend made it there's two claims are related if you're if the i d p if they had given up their right to challenge the ip they could have done so in writing or the simplest way i've come up to think about that question which i think is a is a reasonable good faith question is that the obligation the the release extended because the ip extending the ip was released there's no question it was released three times twice after it was actually put into place or at least made you know made available to was still in effect and so the the the inability to challenge it remained in effect because the ip remained in effect and i spent a fair amount of time here in the eight sharing the administrative hearing making sure that we get in the record from the dad that he understood that it was available to them and he understood that it transcended the the time friend that it extended that full year so there could could the parents of any port along the way during that year i they could have that was the whole purpose of having that ip in place is that i think each of the settlement agreements said the parties understand and agree that the district will make an offer at an ip in the spring of tw sixteen for the period post settlement because right out of the agreement for the period after the expiration of the agreement we will make an offer for her to have available if there is a dispute which really all that means is if they declined to take that then they can have the stay put the previously offered and agreed to and they agreed to that so they didn't have the right to sue about it but they had the right to dispute in the sense that they didn't have to accept it and then they had a fallback stay put opportunity c and it was i think you'd have to accept it in the sense that you gave them some money to finance right to issue kansas that's right right otherwise they had to accept well no they could do whatever they felt i mean personally i put it differently if that was  if they were going to stay if they were good use the district services those would be those ones they would be the services proposed well i'll be that other place right in the two thousand and six and if and it was perfectly within the district's  in the family's purview if they had come back after the after january want two thousand and seventeen and said we do want to bring her back but can we have a goal an additional goal area or can we have a behavior intervention plan because  no legal right to jane i think so i think so as i say be your position yes kerry yeah and i think we could have and it is a hypothetical now because he does know what he did right but i think in fact we wouldn't have done so i think we would have worked sat down with them and work with them and try to figure out a way to get her back because i think it's very clear from the overall picture of the factual and the factual six of the case that we didn't think it was a great idea to bring it hard spring but we understood there was a family dynamic at home dynamic issue and so we you know paid off an awful lot of money to to permit the parents to help the parents get what they needed but you know we always are i think flexible in that you know i think the district folks i know that having worked with them through this period they wanted her to come back and you know be at home with her sister and be at school with her sister but you know it didn't work out that way so can i ask you you don't have to answer  s where you get it's the st one today it's not the nd is the amount at issue that your friend says i think they're the best judge of that because we don't know how much they did i don't know how much they spent but i think that's in the ballpark and and there have been attempts to mediate the case i think the district feels that it went above and beyond what it what it might have needed to do or certainly medicine obligations at every step along the way so as a platform i don't want to compel people to do what they don't want to do i just i was trying to find out where the folks had considered that option i think we may have done a th circuit mediation i can remember we had least talk to the mediator on the phone about the possibility we would accept everything you say about how forthcoming and sensitive the board is it's still course of your money to litigate it's if the two hundred thousand dollars figure is i don't i couldn't actually speculate about that but it's it's not just the money and it's probably much less than that to litigate with our fee structure with with the public agency it's it's much lower than you might expect  but there are there is a principle involved in all these cases and you do want to ensure that you are permitted to exercise your rights as a public agency and that the way i always think about this is this is one student there are i don't know exactly how many in this district or twenty five thousand dollars or more we have to protect the rights of those kids to do so two hundred thousand dollars is enorm resources for special ed teachers speech pathologists general ed teachers you know a private school that we would fund a student a nonpublic school or we would fund a student like this one that's that's two that's a lot of for a school district to just extract from the public from the fund which could go to play pay for other well eventually i insisted on my mother got both sides facing these cases there's a federal law requiring services but now much federal money  this period they became unhappy they could have asked at that point couldn't they for another meeting yes to change yes you know the board notice that they want to they want to change us right that's one of the instances where we would certainly call an ip and so but they never did he or even exotic around us even accepting their tenuous argument after at the end at the end of two thousand and sixteen at no time did they ask you  response to that you can ask a question about that period i think it's june to september where the a r j says because that placement wasn't available right we're going to reimburse them for their their tuition trying to walk through this in my own mind ok we're wood and g have gone during that three month period she would have come back to the district to the that's l t c the speech language development  so there are obviously a lot of factual intricacies with this case but one of the things just to piggyback off of that was that the special ed director actually i think testified in the end it was in the record she did not know if there was a space available at the speech and language development center yeah i think that was well that was one of the main issues was that part of you did not have space so it was kind of a nonstarter the other point is that i think that there is the district has really tried hard to make it seem like you know the reason  that the parents placed and what because of the home situation and that's what the a l j found but that ignores all of the evidence about the significant behaviors and head injuries even to the point where she had to be of all you waited for a traumatic brain injury she springs stafford knowledge that the people who are two thousand and seventeen be meeting that the student self injurious and aggressive behaviors had not been controlled they and they have knowledge that in the month prior to the i p t meeting they had seen an escalation in her behavior at the school and even more in the home hard to bring staff acknowledge that it's frequent staff changes and use a consistent substitute staff cause increase in the students about adaptive behavior and in an earlier paragraph or apa month they therefore over the fifteen months period student attended hotsprings her behaviors increased significantly for what they had been during her last few months at the development center after more than a year at the residential treatment center hot spring had been able unable to address the this or up to behave use that had been the parent's reason chose to enroll there and i'll stop but it seems to me that that this was not i understand the parents predicament that i'm not unsympathetic but this child should not have been a hot spring if she made me did a residential placement and as i read it the board was actually trying to help her find one in california and that's not an that would not be an educational i know i know but but they were still there was still making an the responsibility of the parent then there's a previous governor governor pataki had taken advantage of medicare medicaid to fund group homes so i mean i don't know what it is in california but but in any event they were actually trying to they say you want to if you want to group home for her we'll try and find one well parents like that will give you will put her back where she was making progress and will try and find and california and will try and find a group home for her in california the question of whether she is making progress is gets funding from department a developmental services so that was really what was going on here was the district was wanting the regional center to bear the cost of the placement the regional center was mine the district to bear the cost and so it was a finger pointing exercise between is terrible for children and that's what happens when can i just close by saying to me that i think that the issue of how she did it hard to bring is actually kind of a red herring because that's even if she did get worse there the district had a responsibility as of january st two thousand seven hundred to assess her needs at that time and make an offer that was appropriate at that time so if she did if she was not making progress there that could even be more of an argument that she required a more intensive or a different setting and so that was all the more reason to have an ip meeting at that time to talk about a