the next case is l m p versus the school board of three they are now about the turn seventeen years old i'm sorry to interrupt but i think i don't want to speak on behalf of my colleagues except that i know that from my past experience with them they're always well prepared  i think we know the facts let me ask you though one of the things that's not clear to me is when you have this claim for pre determination what is it specifically that you're saying the breach pre determination is because i think it can be construed as pre determination that there was not going to be continued the thirty hours of homebound a b a or it could be that there's you know that there's no a b a no a b a therapies at all i mean there are different things that you could be referring to and i want to make sure that we're all in agreement as to what it is that you're saying was pre determined i think you may have turned off the microphone by accident your honor the policy itself is the only way policy by the school board and what they say is we have a policy where any method what we call a method of instruction is never put on an i p unless a parent can prove to the school to the exclusion of any other intervention that it might come up with that it is the only way that he  learn so it's a global policy that they say applies not just to a b a but to every intervention so under our l with the way the playing field is supposed to be level in the i p process is supposed to be a collaborative process where parents and the school enter the i e p meetings with an open mind and r l teaches that the school board has to have an open mind that every stage of the process and under their only way policy their mind is closed from the very get go what they say is if we call something a method you're not going to get it done an unless you can meet this impossible standard and we say the standards impossible because we did do a cook a review and discovery must be tragic case of a thousand other students random not one got a b a there were as there was expert testimony at the trial that the picture exchange communication system as a difficulty validated a b a based intervention strategy to teach autistic children or where was there a contrary opinion or any evidence to contradict that finding and the records that now are finding no your honor and so that's a finding a fire i mean we appl model in other words they were trying to teach children to talk and this picture exchange system is often language in teaches children deceased beaks balik lee so that's a completely different program and what we're saying is when the the room that was never on the table they had already predetermined that no you were not going to get that unless you showed us to the exclusion of any other intervention they say that it could  evaluations this to see was a pervert method a mode of communication in work and really deferred that as a completely optional used to the schoolroom teacher so in other words the parents were cut a completely out of the situation the decisions were going to be made postponing one meeting on their requests or well there were meetings with meetings but it was never there was never any consideration given by the school board ever approving the children's programs and you'll see that there was no you'll see that we first tried first approach the school for placement they said no a b a you can't get that under any circumstances and then throughout about services i understand what your life experiences have been in this but you keep on talking about they wouldn't do a b a under any circumstances and that's what they were closed minds about if i understand it correctly a b a does not stand the american bar association it stands for applied behavior analysis it is not a technique itself it is a scientific discipline that is concerned with developing techniques so a way when you when you say that they wouldn't let you do any a b a under any circumstances that's that's not itself a technique it is a scientific discipline is it not well we have turned the mike off again i think got it back on well what we said was that there was no meaningful consideration given to at the parents made during the book then that's not a nickname he basically saying it's our way or the highway what the school more once more gets what the parents get is not relevant is that what you're saying well what we're saying is they never considered it they came into the to be enforceable their own expert testified this williams testified at trial that none of the i e p's for any of the four children in any of the cases required a a b a misc out dr kathy when you required a b a what do you mean a b a is not itself a technique maybe a is a scientific discipline is not correct none of the programs required the teacher to even  providing be considered and it's undisputed that it was never considered they never sent the fourteen fifteen letter and what's curious your honour's is even in the many years that these cases have been pending the school board never said oh never took that position what they said was look it's a method it's up to the school room teacher whether to use it or not parent you can't require that on the on the ip so what we're saying is we have a right to be listened to it every stage of the process with an open predetermination now we said the predetermination that how they did that that's consistent with their their general overall policy in the system where they say look anything we call method of instruction doesn't need to be put on  paid and if you look at the district judges holdings are very compelling a b a is the only way scientifically validated to provide an education to children that it can be a related service that it can be special education that even if it's just the method of instruction speratus have a right at all stages of the process to be listened to with an open mind there done that they would have been required under section fourteen fifteen to send a prior notice of refusal and in so the school board was required to consider those programs but it would mean when  on that request as long as you're providing them a meaningful opportunity to participate in the decision process right so should we you know the words we have to look at this record in determining whether or not there's enough standard is that they have an open mind at every stage of the proceedings and the simple answer is no from the very get go under this only way policy their minds closed your argument is we can go to this record and if we find that there is insufficient evidence that the school board had an open mind then we should reverse that you should reverse and that you should based on the record that you should afford the remedies requested or one of those is concentrating on communication but it was tragic how far behind the children had fallen let me stop you for just a second and i'm sorry i'm sorry but since you only have a limited amount of time i just want to make sure we address everything and i'm just a little confused i think your piece you said your position is even with this back to p c s that wasn't put on the i e page is that correct it was put only on the initial one but it was put as a addition assist the technology service with no description of what it was and when i asked the expert witness at the administrative hearing what you know what is pax is it is it mandatory under the i p she said no it's up to the classroom teacher and i said to her as an expert reading these reports can you tell if any behavioral interventions are being approved and she said no i q i can't tell i mean because i'm looking at it right now and it says assistive technology needs yes now yes it's checked and it says picture symbol communication symbol system among other things and then on the other one x says assistive technology needs check all that apply and then it's got checked augmentative communication and written in it says picture exchange communication system we don't know what that means you're on all it certainly didn't put the parents on notice of any a b a or earth or or anything a challenge we never did get a notice from them about the a b a so the only way policy is a closed mind every stage of the process at the very beginning when they can't even articulate a standard and how you can satisfy it when we ask them we said you know what can we show you objective lead as a parent to ever satisfy that in the this it's impossible standard which demonstrates that they've never in our particular cases gave any meaningful any consideration and that their minds were shut from the very start of th burke the morning in may please the court of my name is michael berkeley with me is hudson gill in the school board's general counsel barbara myrick your honor i know that you are familiar with the record however i wanted to bring up just two quick points in this particular case there are of course four plaintiffs one of them a c is pursuing this claim under the individual disability education act without any administrative exhaustion there was never any challenge to any p four a c with respect to the triplets the only due process hearing that was ever requested and to which there was any administrative exhaustion was with respect to a temporary six month i e p which was not implemented because number one the parent didn't attend the second i e p meeting number two they chose not to enroll the children in the school and it was never ever even implemented they subsequently did role the children the school the broward schools they were sieved individual education plans each school year and never did challenge a single one of those i think that is important  that procedural background there is no implemented and i ask you this question yes from fargo to the record in this carries where in the record will i find evidence that the board had an open mind and might possibly be swayed parents attended the january five two thousand and four meeting in there you will see that what occurred is there be at that meeting the parent brought a court reporter brought mr garcia who was providing this thirty hours of one on one discrete trial testing then the name of the the program was the skating right now but it but it was a particular model that was that that started to be discussed and then you will see that what actually occurs is that the father interrupts the exchange that's about to take place between mr garcia and the school board members of the i teen cuts him off tells him not to discuss it any further and the meeting is concluded and then it is continued for another date that the parents choose not to attend and then and i p is developed at that meeting because they it was a long first meeting you will see substantial evidence in that record of an attempt to consider the needs this case is a lot about on the verbal based  applied behavior analysis that he wanted his children to produce a paid him so were the evidence that the board actually considered that the board employees there was some discussion of it at the i e p meeting and they were in the process of discussing it when the meeting as i said ended the way i have described to you when the second meeting came back to deal with it again they chose not to attend or to present anything further they just what happened frankly if you look at this carefully is that there was another case decided by this court inside in the in the briefs it was a stay put case which is another provision of this alphabet soup called the id but it in that case which is cited in the records basically what what what the litigation strategy here was for the point of was to get beyond the children's third birthday and to argue that a recently adopted settlement with the children's diagnostic center in fort lauderdale the early intervention provider in broward county would be required to be carried over to the school district and so that's why the you'll see that the meetings get carried out at at at the request of the parents beyond the children's third birthday a day beyond january five and what the parents wanted was to keep that in place make that stay put give us thirty hours of discrete trial testing one on one at home for each each of the triplets if i go to the record now and i'll find evidence in the record that the school board considered that were that request you will you will see evidence that it was  thing it was rejected all right that the school board had a closed mind and wouldn't even going to consider that at all and if i go to the record with the evidence that the school board gave that you will you will find evidence that it was discussed as i say at the administrative hearing and the principal argument that the school board had in opposition to it was you're asking for thirty hours one on one at home it's an extremely restrictive environment for a preschool child you're asking that the children effectively be educated at home without any medical need for that and so you will hear that it is not well thought of by the school board but it is discussed at that b the evidence in the case is that the school board provides a b a based interventions and methodology s to two autistic children consistently and through its curriculum it has a teach a nationally recognized curriculum that utilizes called teach and star it utilizes the picture exchange communication system that is discussed you know by the district court judge and in that and specifically discussed in the ip so this isn't a case where these children were being denied a b a based interventions and procedures the argument and getting back to judge rosa bombs very first question was and this was pursued by the district court judge early on at the at the trial was you know what it would tell me what your claim is because you know you don't have administrative exhaustion you're not making any kind of substantive challenge to whether or not these individual education plans were reasonably calculated to provide an education for the children what is your claim in the claim at s as presented was that the school board does has pre determined not to include a b a those that acronym on its individual education plan and the testimony in that regard  was that the school board generally does doesn't want to include the acronym a b a because it doesn't tell anybody anything it is as has been pointed out as a district court found a science it's there's there's numerous interventions that are utilized to provide that scientific based method of education but what it does is it actually provides those and the reason why it doesn't want to limit that is that the it provides the basis for the instructor to provide those interventions in the classroom discrete trial testing picture exchange communication system and others as they are affective for the education of the children if specific things are noted in the i e those specifics have to be provided to the exclusion of others until let's say it said five hours a week or something it would not exclude others i would agree with that for that five hours would have to be provided that that's correct and if that was not being if that was not going forward well if that was not meeting concern is that there's no way for them to enforce that and he specific type of or any type of a b a be administered because it's not identified in the peas and i think your position is wall a b a therapy is being administered all the time the boden school i mean that's what they do you know there are examples of how the children are taken aside and taught in groups of one or two or three and guess maybe you could speak to that a little better sure what i would say in that regard is that here are what the at the in of these cases are very fact specific that's why there is this administrative process that hopefully takes place before reviews in the district court and in this court of the the the school boards general position is it wants as much flexibility as a can on the ip that that's best for sure however if you can show us that there really is a need for that to to achieve these goals it will be included in the there is in this case change communication system including on the ip moreover and i'm sorry to interrupt again but where you agree with the plaintiff's position that that is not enforceable we do not that is absolutely what what she said was her and her perpetration of it was that it was it was it was something that could be provided we would disagree with that your honor and that was certainly an issue that the the court never even address ok the district court judge never got a chance to address that issue in in here from the school board folks on that and one of the things that that i would say go back to is as you frame the issue just now that's really not the way the issue was framed for the district court judge the way the issue was framed is there is a procedural violation because they will not consider placing the broad acronym not some specific matter but the broad acronym of a a on the individual education plan and judge maher heard this case and he left a lot of things open but the one thing that he did observe from the record as has been pointed out it was undisputed that there was on this i e p a specific a b a based intervention that was included on it and so the notion that that never happens is dispelled by the by the the to address a couple of other issues the judge judge judge morrow has as referred to it as as a lack of standing but i think it could also be interpreted as the evidence itself shows that the policy that is being advocated doesn't actually exist because the there the one ip to which there was administrative exhaustion there is in fact the a based interventions specifically included on it and we do contend that's in forcible and there was never any claim made that that was the new the the the assertion either in the before the due process hearing or at the trial itself it was a much broader based cloying indeed in ac's case there never was even a single due process hearing the  we would urge that if we're wrong if everything that we have said is is is inaccurate in not correct that at the worst case scenario this this for the school board the worse case this would be go back to the district court judge to continue with with his work and not for this court to simply go in and award all kinds of of compensation for therapy and private school tuition the took place think you can see he worked very very hard on this case thank you for your time and bert and mr parker you have reserved some time thank you your honor judge will send you a question of where you should look in the record to see if they considered the parents request i would urge the court to look at the transcript of the administrative hearing in particular and i'm sorry i don't have the page in mind i think it's in the breach in the brief miss lieberman who is leading having looked at that that it appears that later the witnesses who testified in the way that you're describing clarify that what they were talking about this was during the same hearing what they were talking about was continuing their thirty hours of homebound a b a therapies and is am i misunderstanding to take a different position well what they said was that the a b a at that level was not available in the school we requested specifically that it had to be a home bound program they kind of turned it into that what we see and the children were getting it outside of the outside of the home too it wasn't a location issue for us but you look at mary stone a psychologist who testified no we don't have a program inside the school that can accommodate it either so both ways they didn't consider it i know my time is short on re mentor honor this case has been pending for quite some time we have asked for compensatory education and we've reached that issue fully the school board filed no response whatsoever and i would encourage the court the look to the toddy versus andrew's case in that case this court at oral argument was asked for the first time by counsel for todd to award compensatory education and didn't plead it separately or argue in the district court and that this court found the case was tragic awarded to become one of law and then this became one of law in this case because the only opposition did play school board had the kate the bills for three years to the award of the plaintiff damages was exhaustion of administrative remedies that was an argument that the court had decided it and had rejected so there is no way that this court could find a parent acted on reasonably by going through a gesture the court had already concluded was was futile so based on the record in this case there is ample evidence to rule and also to work and pensive the worry damages and also damages for the reimbursement and for an injunction stopping this policy