good morning runners may have placed the court my name is john taylor i represent j t the plaintiffs appellant in this case my client is asking this court to reverse the denial of reimbursement of tuition and other expenses at loveland academy which he attended for two years the a district court affirmed a decision by hearings officer which resulted in aid to dial of reimbursement for three basically three reasons first statute of limitations secondly a finding that loveland was an inappropriate placement and third of finding that the parent had failed to cooperate with the department of education with regard to the statute of  limitations i think it's important to note that what the court really did was to say that the one hundred eighty day statute of limitations prescribed by state law began running in july when my client first entered the loveland campus for the purposes of being assessed for admission even though the basis for the reimbursement claim is governed by federal law and that clearly started accruing in november when he was formally unrolled in effect the court was saying that the statute of limitations begins running for months before the claim for reimbursement even a rose that i submit is a clear violation of of the state law the federal court to the federal statute talks about reimbursing the costs of enrollment the statute of limitations in hawaii talks about the cost of placement but the important point to be made is that under federal law the tuition at a private school is only reimbursable if the private school is an appropriate placement and it can only be an appropriate placement if it offers services that the child needs that are individually tailored to those needs in this case in july loveland was not an appropriate placement because they didn't know the needs that j t had that needed to be addressed that was only determined after four months when they had completed the evaluation process and created a treatment plan that was put into effect on his formal enroll mint in november we therefore submit that the decision was was wrong as a matter of law and we've cited a judge see brights decision in a case makiko in the district of hawaii that this court adopted as a valid interpretation of when a placement occurs judge seabright found that a student is placed in a unilateral parental placement such as we are and concerned here when the student is unrolled in the private school this court adopted that definition in the case of k d vs studio we let's assume that you get over the statute of limitations what does that what does and then get you well the second reason for denying reimbursement here was a finding that loveland is inappropriate and that's based upon the the court issued two decisions here one on fourteen twelve which is reimbursement of the tuition and the other on compensatory yet and stated in number of reasons why the court believed the loveland was inappropriate and would go through each one of them but i will focus on the first the court found that my client exhibited behavioral problems of loveland that had not been shown in public school and that was based solely on the testimony of two special ed teachers who simply said they didn't notice any problems when he was in public school and then what had happened at loveland where there were some minor problems but the court overlooked the fact that j t s difficulty here is not that he disrupts the class and that he interferes with other children but his disabilities were basically withdrawing shutting down dr bowman the psychiatrist termed it pretending to learn what would happen is a teacher would give lessons he wouldn't understand he was afraid to ask questions because he didn't want d resulted in some educational benefit or that she probably considered it but made clear errors in factual findings she made clear errors i think it's an abuse of discretion under versus sinks in i think all of the evidence really is on one side on the question of behavioral problems that were noticed at loveland but not in the public school it's simply not true the problems that he had were in the in there in the public school and what we have forth for mental health professionals three's clinical trial if that's the case and you're saying that the court basically looked at a certain set of facts and made some in determining whether there was repression are not this is a situation where the court was required to evaluate the conduct of both parties so the court went beyond just whether he did well at loveland and talk about the level of level of cooperation analyzing the record with regard to the lack of progress why wouldn't those other findings in weighing of factors be sufficient to firm in this case your honor there was no lack of cooperation the deal we had a right to evaluate j they asked the parent to consent to the evaluation within two weeks the parents signed a written consent the date for the evaluation she requested that that be delayed first because of a death in the family and that's it expects of record zero five and secondly she didn't want the deal we needed to conduct a special a speech language evaluation while loveland was doing the same kind of evaluation because the two would interfere with the other and that set your two seventy five porton point is the deal we agreed to delay the evaluation and basically said let us know when it's convenient and we'll reschedule it that's not a lack of cooperation a lack of cooperation is where one party wants to do something and the other says no in this case both parties agree that the evaluation could be put off the parents the other the other points to be made is that the case is really not a question of progress at at loveland i think the issue in this case was determined by this circuit's decision in c b versus garden grove where significant growth which the court found did not existed at loveland is really irrelevant the question for the appropriateness of a private school is whether c b said the private placement provide specially designed instruction supported by services the child needs to receive if you just report make that determination the district court would benefit you rightly said prior to you know the time she at the time not looking back but looking at the time she made the decision to putting the mom putting made the decision to put j t in loveland was loveland did it meet that test that you just read the court i believe erroneous we found that loveland actually exceeded the needs that j t had as anybody made a determination then did the hearing officer make a determination one would have met his his needs the hearings officer found that loveland did not meet j t s needs because he misread one of the declarations and in the record to say that loveland really exists for the purpose of children at risk of psychiatric hospitalization that takes a phrase out of context and is totally inconsistent with all of the evidence here including the creditor nation reports of the two agencies that are credited loveland one the commission on accreditation of rehabilitation facilities the other national independent private schools association both of which concluded that loveland served the students well let's so you said you just said that the what the district court did was said well the program loveland provided too many i guess i don't quite know what the district court said but central was too beneficial or provided additional services that the child didn't really need that's right it said the intensive mental health program was not necessary for students condition that doesn't mean that it was not an appropriate place for that's that's the conclusion of the hearings officer on the court the answer to that is that i was based on the testimony of special ed teachers who were really not trained in special load at all they were reclassified as special ed teachers in a program the judge in this state had found to be  the court ignored the opinions of all of the mental health professionals which found that the kinds of programs that loveland instituted here greater dependence support for the child is precisely what j t needed to cope with his unique  mental health and they knew he needed wrap around services and the only thing one could say is it maybe there was too much but the answer to that is not to say that the entire program is inappropriate so i understood that  the showing are finding that the private school would meet the needs but you're saying reimbursement for private education is not automatic you then it's discretionary he looked at a number of factors one of which could well then be how the kid performed in a benefit the child got from the school well your honor all i can say is that under c b how the child performs is really not a criterion for the person for the simple reason oh you'd agree though i mean the statute says and i think amplifies this or demonstrates this they getting reimbursement is not automatic just because the school met you know  could see meet the test being a school that would provide the services we run right not an automatic you don't have an automatic right to reimbursement for private education well i didn't say that anything is automatic but all i can say is that under fourteen twelve if the parent removes the child from a public school because the public school failed to provide a free appropriate public education and if the parent in rolls the child in a private school which is an appropriate setting meaning that it meets the child's needs the parent is entitle to be reimbursed now you might say that if the school provides too much summer in europe or master classes in music or something the court certainly could invoking where they actually happened your honor there was no evidence of regression the only other proper standard well if the child regressed in truth then i think probably the services provided by the public school did not meet the child's needs but that's not even the private school start in the private school yeah in fact the only thing in the record here about regression is the testimony of dr tyson one of the clinical psychologist that ip meeting and that's how you determine whether or not i pay is appropriate and i would make the same argument here for a private school you look at the needs that were provided to the student not how the student performed later and looking at the needs that were provided and looking at the opinions of the mental health professionals in this record there's no question that those services met the needs that were identified by the psychiatrists and the psychologists you want to see some time i'm sorry you like to  my name is kevin richardson and i represent the appellee what a department of education may it please the court the case before this panel concerns appropriate remedies for a procedural denial of faith under the i d e a the argument presented by parents is that the only appropriate remedy in this situation is to issue reimbursement for two hundred ninety thousand dollars whether in the form of compensatory education or direct reimbursement and attorney's fees as well so parents argue that tuitions reimbursement is barred by the one hundred eighty day statute of limitations that compensatory education is available to foot the bill at that point however this approach is nothing more than a means revive a stale claim for reimbursement that would otherwise be barred by the statute of limitations we disagree with this point our parents failed at both the administrative level and before the district court to prove award for services was the appropriate remedy and three that attorney's fees were appropriately denied for the duration of the remand proceedings and if we don't agree with you on the statute of limitations  you don't agree with us on the statute of limitations than the two other points that were brought up by the district court where that was that loveland was an inappropriate placement and parents failed to avail their child during the sixty day period to evaluating the choice at the inception was pretty clearly said this is the appropriate time to evaluate otherwise the parents are risk  instruction is specially designed to meet individual eyes needs and where services are necessary to be to permit the child to benefit from instruction so in looking at whether or not that these needs were individual design you would have to go  assessments found whether they determined that there were needs and what what students needs were in that circumstance so we don't know if loveland met his needs because the initial baseline level of his the determination of what he needs and the type of educational services he needs was never determined in addition the court and c v determined that significant benefits that where prevent significant benefits were provided by a private program even though they did not meet all of the child's needs that reimbursement was appropriate however on the other side this court in m n upheld the district court's finding where the educational benefits conferred were meager so in this case the educational benefits didn't even rise to that base level of meager benefits because student actually regressed so tuitions reimbursement is the record show that how the student progress rath so as we know from two thousand and eight to two thousand and ten two of student special education teachers testified that they didn't see shutting down didn't see the the various behaviors that were included in loveland's incident report i believe where he was throwing objects where he was chasing he chased a student with a blunt objects all kinds of behaviors that did not occur in the public school setting these teachers observed him on a daily basis they were i believe the hearing officer qualified them as an expert witness and deemed they were considered very credible they observed him for this two year period of time and didn't see any indication of that behavior the worst i believe that they saw was that he needed to be rejected sometimes he needed to be a bridge redirected and he would be able to be redirected after just one one instruction however we get to love then and all of a sudden there's these behaviors that are occurring and based on the evidence it appears that these behaviors were significant however later  believe was march or it in a march two thousand and eleven progress report there was a one hundred eighty degree turn that these behaviors significantly improved the difference that we know that occurred during that time is that student was moved from his elementary school classroom to middle slash high school classroom so his edge his academic setting changed because the level of his academic functioning was significantly higher than those that he was placed in this education in this elementary school classroom whether or not these behaviors manifest as a result of that placement is unclear but we do know that it's coincidental that the his behaviors improved after he was moved to the appropriate in addition of looking at the issue of attorneys fees attorneys fees are discretionary under the i d e a so the court in its discretion may or ward reasonable attorneys fees as part of those costs in making that determination the equities of the case come into if are a factor in certain it determine if factor excuse me so that the situation here is not one word no fees were awarded whatsoever fees were awarded up to the point of the first order by the district court however and each party was to bear their own fees on remand as part of the district court's order and they would also split the costs of the evaluation the two evaluations that were to take place upon remand however if you look at the purpose of the remand it was to conduct for the fact finding to establish whether it is an appropriate ward of compensatory or compensatory education might look like the reason for this is because parents did not meet their burden in submitting evidence at the in the in the first place at the excuse me at the administrative hearing level to demonstrate a sufficient need for compensatory education so hearings officer award consisted of speech language language services that were contingent upon a future assessment because a determination based on the facts that were presented could be made at that time same problem occurred at the district court there was  insufficient information to determine just herman whether an injury in fact occurred and the record was and i quote devoid of sufficient facts with which the court could craft an appropriate award of compensatory compensatory education so the case was remanded for further fact finding and this is where the fees were to be shared by individual parties in addition the court instructed on the remap proceedings that a lengthy protracted litigation would only compound the denial of a faith and possible injury that student may be suffering therefore the court cautioned against religious gating issues and focusing instead on compensatory education and what facts both parents and the deal we would need to present in order to create and fashion appropriate plan for compensatory education that actually take place before the administrative officer yes so on the that did take place so both video we and parents submitted a plan for compensatory education parents plan only consisted of two additional requests for tuition reimbursement deal plan was deemed adequate by the hearings officer but it lacked up to date evaluation and it also was not to be instituted until students i p and i p meeting could be held and it was and it was an interim plan until an ip meeting could be held so what the court it what the hearing officer did is he took these two reports and implemented them into deal with plan because the hearing officer determined that because tuition reimbursement was not appropriate because of the behavioral issues that loveland was not deemed inappropriate setting that the only thing they were left to work with was do you always plan and these evaluations that occurred so there was dr bolden and there was we saw to report which was the speech language assessment so the court took these two reports the bellman and we sought to report and took the recommendations and applied that to the services student was already receiving so as an additional layer of services that student was to receive on top of his current services at the time and to the court ordered there excuse me the hearing officer order that these services were to take place at the beginning of the twenty thirteen twenty fourteen school year so they would go into effect immediately upon students school year beginning so essentially when when we look at attorney's fees and how this all played out parents were gifted a second bite of the apple by the district court to present evidence for a claim for appropriate content compensatory education in the remand proceedings and now parents are asking for that they get paid addressing the issue of the statute of limitations so in determining when the placement actually occurred a judge kobayashi looked at the nature of the educational prog programming so what was being provided to this student whether he was receiving related services the nature and character of the program at loveland so there's evidence in the record that demonstrates that student was receiving full programming first he was attending loveland full time five days a week all day he was participating in all of the programs of love and offered and he was included in classes and receiving academic services so the educational component of loveland was in place during this time from july two thousand and ten to november two thousand and ten in addition other students in the program wouldn't be able to distil declare at that time that he was going to be there indefinitely the record doesn't indicate that he was going to be there indefinitely but they're going back to school in september right that's correct but we would argue for even that period of time where he was receiving these services these for this the full array of services that are still received in a public public school setting that that would be considered a placement for that wouldn't it make the cruel of the statue of limitations dicey for parents excuse me wouldn't that make a quarrel of the statute of limitations a bit dicey for the parents you have a bright line when you when the child is actually enrolled in a program ongoing program for in lieu of public school we would offer is that the date of attendance should be that date so the date student begins attending and is receiving this full array of services educate special education and  related services attendance so could only just be for you know short period of time you know really know even a parent doesn't the parent may be checking out the school even if it's yours yeah if i think if the evidence show that this student was just there checking out the school and receiving assessments that that might be a different situation here though student was receiving all the services that enrolled students were receiving he was he was there from july twenty twenty ten to november twenty eighth and and the period after his diagnostic period his alleged diagnostic period you were there for to try and if you were there for two weeks and receiving the full again if he was treated as a student that was fully enrolled there if he was receiving the same amount of services that enrolled students were receiving that he would be for all intents and purposes that weeks is the critical time because there they didn't file for reimbursement they need the first two weeks not to be counted against the statute of limitations two weeks of testing by attendance and then there roll them in the third week and therefore you're saying if the statute was triggered as soon as they started tending the attendant and then they didn't file for reimbursement a year from whatever the time  is from that point then they were the if i understand you correctly for that initial period if he was attending but i would be again it would be dependent on whether or not he was receiving the same unless you have any other questions i don't think so thank you very much can't you your honour's once again i think the assessment period does not start the statute of limitations running because during that period there are no individually tailored services that have met or meeting j a t s needs they don't know what those services are going to be until they  completed their assessment of his condition and and prepared a treatment plan that doesn't take two weeks it takes a number of months in this case it took between july and november and therefore the statute didn't run until the services that were tailored to j t s individual eyes needs were in place i'd like to mention just briefly on this business of regression the court did not specify what the regression was counsel is just mentioned  incident with a blunt object that that was a sporting event at loveland academy were a child made a remark about the team the g t was on he took offense and he chased him around the playground that was the so called  regression there was no evidence of regression here what we're talking about is a period that public school where the teachers basically did not recognize his problems shutting down ignoring pretending to learn and not learning in fact and then of loveland he was challenged and he did speak out from time to time and do things that he didn't do in public school where his needs were ignored but that's not regression that's really learning and as a result dr judge kobayashi actually did say that even though she felt the services it loveland were excessive she said at the year thirty four that he apparently received some benefit but she decided not to war not to ward any any compensation for the for the time at lovel kobayashi was supplying here was the realm and standard of basic floor of opportunity i think you can say that the school becomes inappropriate because it exceeds the child's needs or you could say as i said earlier was maybe the compensation should be reduced the problem one final point on the on the compensation on the compensatory education award that the court affirmed here it's deficient for two reasons first it doesn't compensate j t all it does is to give him the services that dr bowman said in his report were required to meet his mental health and speech language needs and compensatory education award must compensate for the denials of fate this did not secondly it's almost ironic this case the violations of fate occurred because the deal we failed to involve the parent in the i p process here under the compensatory education award that the court affirmed the court they do you know we is doing exactly the same thing it's designing this program based upon dr bowman's evaluation without any participation by the parent and so the remedy violates the law for the same reason the original denials of faith did thank you thank you counsel we appreciate your arguments in this matter and in the cases submitted at this time