education program and its requirements those parindey of that section so what that basically means your honor is that in this case this is a child's own case there is no p to this child ok so didn't get what your client otherwise would have come back ok and the difference here is judge i don't know that we get to that part of the issue based on the law but the the nd answer that question is this  that we would have had to they would have had to been we usually in these cases use the experts at the school because they are the professionals regarding the education of the student and we proved through them that there was not equal access for the student to their education and your honor pointed out a good thing a good question he said is it just because the student made bad grades that you claimed that she was denied an education i said no it's not because that's because the child had been placed alternative school the child was in detention she had been tested with a low i q the s a scuse me as a t the a c t aspire testing has shown that she was in need of support for math science and reading in the school had done nothing to necessarily means that there is a violation of state now the court may say will change could there be a case where there is a now a fate and a child font question and that they answer yes they come up all the time in cases where there may be a child that is displaying symptoms of a d h d and we have to get a read of been a five maybe under autism so that would be a child fine case where the child may already have an i  denied if they had any court already held them at proposition judge actually i haven't found any cases that actually cite the proposition is a very new and i think even one of the judges noted in their opinion that it had not been addressed by the th circuit yet and saint because it's never been quite frankly it's never been addressed and let me tell you the interesting thing this is a companion case to sister that i tried both of these cases the identical sister's case which is included for your review in this case the hearing officer actually found that she had been the do not a fate she received compensatory education along with suggestions to change for educational program so this hearing officer unfortunately didn't take that view based on situ leave the same evidence in the case because there are identical twins that we're dealing with she tried to dismiss it i had to get judged on it to turn around and remand it back to or with instructions to award or to try the issue of child on income and struggling in school for example that th grade math teacher would you know was proactive provided on the student with help earlier and the year  there were things that were done acting teacher says to recognize the struggles your client was having the math teacher in th grade said if not i could tell from one on one instructor it would have been something different from all of that had there been a proper remediation following a child in that's fair judge but to do that we would have had to have an e p for this trial that's where you that's where you make that program to show that it's different you're asking us basically to step this use of the school and say correct and that's that's a good question in the answer to that is is pretty simple if you look at the record even though she was giving that want to one more from the teacher and giving retested she still only made these in the class she barely pass class so her ivy p that ultimately they gave to her had different interventions than that for this child so even though i enjoyed prior appreciate when that out just for points out well the math failure that the child's education then the district court has not then the district has necessarily denied the student a free appropriate public education if that and if th thanks the child's education that seems to me to be missing from the equation here that the d c circuit contemplated as part of your  that could have happened anyway it could have happened anyway i would say yes it could have happened anyway but all the signs the red flags were there for for the school to provide the student support when it wasn't well i don't think you can assume that i think that it's very specific for the reason that the statute or admin code contemplates that the now of a specifically and the district court's determination on that point was very explicit it was very thorough and so the district court was correct in the end in denying the request a demand for compensatory education the nd reason that the court sh about this and this response and now he's satisfied what do you say about i think the precise language that you pointed to from the from the booze case your honor is is the failing in the educators were were on notice of clear signs of disability and then you look to whether the educators acted and when they acted and in this case they did and so judge colline said and then this court in  and it was at that point at the beginning of the start of the next year that the district began the informal p s t interventions and then roger that and back them up to the more formal p s t necessarily the student was there not free an appropriate education i don't think that's correct your honor for this reason to want the student will not need it if you think i'm understanding his argument correctly i think you're understanding his issue is the degree of education of the caliber the educational programming that has to be provided between the time that the board was on a clear notice of the d disability and the time that the board acted for the referral for evaluation and it was that interim period that the district implemented those informal and formal p s t interventions and there was never any focus at the administrative d hearing level on how those were or insufficient or not not necessarily beyond correct your honor certainly are not so how else the other way that it could have been done it was by virtue of pointing to be a valuation materials when a student is evaluated for i eligibility there are a number of assessments that are performed a whole host of them and there were in this instance and those assessments identified deficit areas and those deficit areas are the areas that boards of education implement programming to try to address in this instance those deficit areas are identified by virtue of the materials the evaluation materials that are part of the record and certainly the appellant in this case could have identified those deficit areas and could have proposed what form of specially designed instruction special education should have been utilized during the time period in question at relevant time period between the point of notice and the point when the board case again is it's a different student different circumstances from the court's perspective in the end or treated it as such the hearing officer in that case did find a child find a violation  individually the fact that the siblings administrative record and frankly the decision from that case or included in the record here the reason that the board agreed to do so was really fixated on one point and that what it in the siblings case the nurse school nurse testified her guarding some aspects and some paperwork when purported notice of an eighty h t diagnosis was communicated to the system and so the administrative record was included on that was included so that the nurse really didn't need to be called in and the nd hearing the hearing with which we are there we're about turn very briefly to be good to the child find component your honor the board's argument there is primarily fixated on the fact that there are several several different concepts that round out the child find identified no single diagnosis for example requires a particular step at a particular point in time and the educators are not required to necessarily presume that poor academic performance means  academic performance is disability related and of course the gaiters at this school has this core identified in the brow decision are encouraged to use measures besides special education to assist struggling students and the reason for that is borne out of the board's brief but it's primarily so that general education interventions can be used to address needs if those are sufficient when there are not sufficient the board proceed further as i said before it ratchets up the interventions your honor those are the points that i wish to bring to the court's attention unless the court would have any further questions for me i would defer the balance of my time and simply ask that the court affirm the judgment in favor for the church client had entered which deny the trying to change the program from the time they should have found out about of the child's disability up until when the ip was as tooted but as you know the ib yeah goes back two years so the hearing officer or the district or met their burden by getting some of the date of from the i p that showed that she was deficient in areas to prove their case however judge i would point out that we already had data showing she was deficient in areas that we brought to the hearing all sir into the district court's attention we're going to a c t aspire standardized testing that showed that she was in need of support in multiple areas for multiple years so we did in it it does seem to me you proved you know that the student was having problems ok that that's not the same thang as proving that you right i agree my client could be provided a free of public appropriate public education and still do poorly however the difference is is that by the mechanism of the e p team they could change the program they collect the data they determine why the child's room poorly instituted a new program for the child so the child does better and that's the problem that we really have your judge is prior to us finally let me ask you hired me i think i was the question to your to the board that your argument seems to be that because there was no program developed for your client and that necessarily means as a result of a procedural violation nec your client was denied a cite is that a fair description of your argument i think that is a fair description but i would go further to say and if we disagree with that burden that the district court mentioned in his order through you know the things i mentioned proving that she was an alternative school detention verbal warnings  that ultimately if this court comes back and says well they didn't meet that burden you're putting all the petitioners into a box of having to present expert testimony at these due process hearings which was never intended by the concluded him he said he said that would be the only way you could prove that that would be one way that that would be one way but the other the other problem with what mr  just because you know you could have a child on ball ation in the case and never get that i v p or that i repeat come after the due process hearing so you could have your your  prevailing party issue i would respectfully say that well now we know what i don't need to be talking about issues that your your adversary that you didn't crank up and hoping opening and your adversary have to have an opportunity to ron and i think that the best you know i think i've got two really good arguments against what mr rudolph is in that you know you don't always have an i u d for child before you try these cases so in effect that argument is this difficult at best and number two that a lot of times in these cases if the court does rule or affirms the verdict you're putting