may please the court plaintiffs is a young adult with disabilities at the time of the due process hearing alone during the two thousand and fourteen two thousand and fifteen school year she was twenty one she was struggling mightily in the lewisville in a pet school district with even the most basic hygenic and personal care tasks her parents believe this was in part because she was autistic and the school district had failed to diagnose or with autism and therefore had failed to do to develop a an appropriate program for her there was a due processing hearing due process syria april twenty second the twenty third of two thousand and fifteen the hearing officer in his decision determined that the school district had indeed failed to determine that the plaintiff was autistic but that she had in fact received a free appropriate public education from the school district the plaintiff petition to the district court for attorney's fees the district appealed to two thousand and sixteen school year was actually her last year at the district her last year that she was eligible for education in the district so i think it's my duty to tell the court now that i believe this case that actually moot but  i will go on with my argument i don't think that there are any actual life issues for the court you're appealing the denial of the word of attorney  your attorney's fees route right and it was my understanding up until recently that the that that would be enough to constitute a life controversy but pursuant to the fifth circuit case deal or sorry dover says marshall which is six twenty two f second one eighteen the denial or availability of attorneys fees is actually not enough to keep a lot of controversy before the court that if the substantive issues are no longer in play the issue of attorney's fees is not enough to save the case from moving this so it's a pretty old case if it's a half second is that right issue so when to the when did your client graduate he said it was the graduation or what what what is it that moves the case in your view so the my claim actually left lose philip pettit district in october of two thousand and fifteen but i don't believe it was her act of leaving that rendered the case moot because she still could have come back technically speaking until the end of the two thousand and fifteen to two thousand and sixteen school year but at the end of the two thousand and fifteen  thousand and sixteen school year which is before even the district court below made its decision in two thousand and seventeen she would that was the end of her eligibility to receive services from mosul and put school district anyway so she wasn't you know after that point the issue of whether she was autistic or not for purposes of developing an individualized education program i guess what you're saying is this isn't a situation where the attorney's fees are for something that it cheve a matter and the now that's being appealed and that's still in play this is where the attorney's fees would be because we would remain for a free appropriate public education that now can't be given something that can be considered i do understand the concept that for you to be a prevailing party you had to of won something and the winning something would be getting a new set of plans for lauren c which now can't indicated and of course the school district continued to disagree at that order committee meeting that there was any that war was autistic to school to continue to insist that she only had intellectual disabilities but it did implement the hearing officer decision and so to ban extent at that point plaintiff was a prevailing party in the sense that she got what she asked for she got that the i e p that was designed in the way that they were an office r had articulated and then be hearing miso that this report later on indicated that the hearing officer had been inappropriate in determining that the school district should have had to do that because the that this report determined that whether or not she was autistic wasn't really relevant to whether she received a free appropriate public education and so this that the district court in two thousand and seventeen raising this point now i was raising this point now because i believe it's my duty to the court to do to raise the subject better try now instead of saying that the district court's decision was made why didn't i make the argument for this it found but then the district court reversed that if the district court properly reversed that finding you're not prevailing party well normally speaking if a case is phantoms to be moved in this in this going back to the  verse marshall case i'm assuming that that's standard law and then also this is based on arizona as for official english versus arizona in the supreme court nine hundred ninety seven case what normally happens is if a case is mooted out while an appeal is pending then the lower court the district court decision blow is vacated now technically speaking of course according to bill versus marshall but i don't think that's an issue that need trouble of course right now you know it occurs to me that we probably should have some supplemental briefing on this because this seems a little catch as catch can to me which is not typically how i like to handle i agree  and that's not it taking away from your need to be honest with us and i'm greatly appreciated knowledge that why don't you tell us anything that you think if in fact we could consider the attorneys fees issue if the newness argument did not d did not have an obligation to make an appropriate determination as to plaintiffs eligibility category rather the that the district only had the obligation to provide a free appropriate public education as and consequently because it done so it had no further obligation to diagnose the plaintiff's autism correctly now the district court did analyze whether or not the  seventeen right around the same change the supreme court's not change that standard that's exactly right you're in and one of the contentions that the district has made in that in this matter is that andrew f didn't really change what this court has done with respect to that but i would contend that the district that the supreme court expressly reversed the merely more than diminishes progress from year to year standard and that when the same standard that the supreme court rejected in andrew f in fact what andrew f said is you can't just use some sort of basis for and then say with long as you got a little bit further up from that basis sort of matter who you are no matter what disability you have you're doing ok as far as what the id a requires now what andrew f said with supreme court said to eff it is you have to know who you're dealing with you have to understand what the child is all about that you're dealing with before you  articulate in standard you have to have meaningful progress for that child you have to know what kind of disability are involved so you have to know what the unique needs of that child or if it's a hearing impaired child such as was the case  long as each child has a disability except her accent or it's under the construction part you familiar with that part of the child fine provision right i think that is that impact your argument about the failure to diagnose well i think that  program to address their special education needs i think that's the operative part that's where child fine you know i think that's what the courts are using to say all right yes child find the child find statute or the provisions of the address the special education needs and so you have to understand what those needs or to determine what you know how to find what it doesn't make sense to say that you know ok we found that any over here has a physical disability  wheelchair and we're going to address that we totally overlooked the fact that he's also autistic we didn't know what happened here i mean the disability that they were finding were parallel if you will with the autism finding it wasn't like oh he needs help hearing  it all he also needs help mentally right well i that's of course the district's argument the district's argument is that it is irrelevant whether you talk about somebody with a  intellectual disability or if you talk about somebody with autism i think that the the way that the district actually talks about them you can look at volume one of the transcripts one sixty eight to one sixty nine the the doctor he who is the key figure no pun intended who is the central figure in the district's analysis of of lawrence autism ms walker i just a no i don't know if you're hearing for the first time about the smoothness issue but i just looked up the doe case and what it says is a determination of minutes of the merits of the case neither precludes nor is precluded by an attorney the ward and thus the attorney for your ward is separate and can still be discussed decided and so they vacated the preliminary injunction because the injunction took place after the child graduated but remey ended for a determination of attorney's fees so i think the attorney's fees issue is still alive but i'm interested in your thoughts and whether this is hitting you somewhat cold as it is me it's absolutely culture on here i'm caught completely flat footed on the issue of whether the case is rendered moot what i would say at first blush just listening to what you just read morton's argument on on those issues is that it doesn't make sense to me that the district would not have the ability to appeal to rooney's hearing officers decision and then have the district court take that decision and then come up to this court because if the district doesn't have that ability then essentially plaintiff would end up as prevailing party and the district would have no ability whatsoever to challenge that which is what we did here because opposing counsel plaintiff are arguing that they're the prevailing party because they won if you will on the issue of whether she was a student with ups but dough is involving apparently some sort of injunction about a child playing football in the child or a graduate from high school so would be eligible to play football so the injunction was clearly moot in joining the school to prevent them from stopping him from playing football but the issue of attorney's fees at least you know whether he's a prevailing party i guess your argument would be we would still have to look at whether the hearing officers determination was correct for purposes of the attorney's fee even though the merits of that might be in other words whether she now deserves a different ip or deserves an autism diagnosis that itself heart but whether they were  deem to prevail and party maybe isn't now i have to look at this in more detail but at least the general subject matter of attorney's fees i think is still alive long enough for you to say something about it outset and then we're going to do the supplemental briefing i think i think that's fair your honor so if we're assuming that the court has jurisdiction over this case because it's not in fact to me that i think that there are two issues in front of the court and i think they're very easy the first is what you were just discussing with mr witt burn which is the child's mind issue and judge duncan pointed out the statute says that you do not have to identify students by their disabilities it's not about what label you put on a student it's about what programming you provide  says that it's so that what it specifically says is nothing in this chapter requires that children be classified by their disability would you explain that to me what what you are the word classified so when looking at the case law when you're trying to determine some kind of disability such as autism and intellectual disability those two overlap and there are characteristics of each that could go either way and so the purpose of the id and when congress passed it was not so courts were getting into arguments with plaintiffs and school districts between whether the students properly paul if i had a student with autism or properly qualified as a student with disability the purpose of the idea is to make sure that we're giving kids a free appropriate public education so if there's nothing in the i d e a that requires us to properly classify him because we're focusing on their programming and not what disability they have then i bit follows that there is nothing in child fund that requires as in this case to properly identifiers a student has autonomy it could matter in the wheelchair example absolutely i could come up with several examples where it would matter if you've got a kid who has some kind of hearing impairment that they also perhaps have autism and we say but we tested them and we found a hearing in the hearing impairment and we've program to that well nothing about the hearing impairment programs to a kid who having autism but there's no argument here haven't identified her evaluated her i should use that word in all area as the suspected disability let me ask you this i mean getting to this sort of in no prevailing party is it accurate that the only real change in the ip was adding the autism diagnosis it didn't change shall we say the subset of it in change how much help she was getting and all of that that's absolutely right because when you look at what the school district did in the testimony in the administrative records record of one pill that's before the court is that even though they didn't formally use the autism supplement the autism supplement is considered when the school district is creating night p for a student all of the things that are in the autism sub and are considered for all students and parent involvement parent training and socialization things like that so even though the district did not find that she was a student with autism they were still programming towards that they were still looking at the supplement they were still providing her with a they were still doing all of those things which is why when she went to her outside i e her independent educational evaluation provider that provider said i'm not going to waste time critics critiquing the district school an individual autism your argument would be she wasn't a prevailing party because it added nothing substantive to the i to the actual ip that's absolutely right and i think changed if we went down that road dr sally ride our argument would be that there's a new material change the parties because her i e when it came out of that september meeting after the hearing officers decision the only thing that changed was now instead of saying she's a student eligible for special education and related services as a student with an intellectual disability it said she's not were doing everything they needed to cases are so difficult because the parents rightly and justifiably are just trying to do everything they can to do right by the trial absolutely i agree with that one hundred percent  district to provide additional cream of that they were not you know as a matter of fact when you look at the at the eat and the independent educational evaluator said that elsie's mother made no complaint about the type and quality of services provided by the district rather her concern was over the diagnostic label it was huge brian washy was concerned about that there was some evidence and the underline due process hearing that perhaps they were looking towards the future and perhaps needed that particular label in order to obtain services and that that wasn't really the focus of the due process hearing the focus of the due process hearing was whether she was in fact a student with autism whether the district violated their violated their child's on obligations o district appealed the hearing officer what we believe to be the erroneous portions of the hearing officers decision and danger and around and then filed an amended complaint and appealed for the first time the hearing officers decision so the district the school district filed a motion to dismiss claiming akin to appealing district court decision to this court and so they had a ninety day timeline to appeal so the district court absolutely got that correct but then he said he could use that as a defense and if i had to guess just using my crystal ball and trying to figure out what the district court was doing if this court found if it had been appealed which it hasn't but if this court found that there was a timely appeal of the hearing officers decision by now by analyzing the fate issue then that this court has something to look at as opposed to remaining it back to the faith issue so judicial economy and i don't think the court should have ever gone there because it's one thing hearing officer made the now the district has just said that they always consider all of these eleven items with respect to every child however i think it matters whether you consider these items believing that a child is autistic or whether you consider these these items believing that child i legislature also mandates and eighty nine point one zero five five f is that any time you're not going to do one of the things in the eleven items that you have to give a basis for why you're not doing that well that was never the case in any of the i p's up until this last one now it is true your honor as the district just pointed out and as you're asking about now that in the september two thousand and fifteen i e p that the district did not make any changes based on this something else the the the all of the order committee i can't really point to anything they did wrong other than not labeling her autistic well i think what they did wrong among other things is that they didn't provide her a b a treatment and one of the things that the that the district does and i think they prevaricate they prepare kate on this is they say well sure we provided a b a treatment we did things like we provided feedback that's an a b a methodology we provided plumping that's an a b a methodology but those are a b a is not a series of different methodologies like feedback that prompted you to look at prompting you that whenever you could teach a child anything at feedback what teaching methodology would not involve giving feedback when you when you talk about you know collecting data is there any teaching methodology that doesn't involve any collection of data well maybe it's not just a series of sort of  you reinforce that child until they get through the first increments if they can do it successfully move on to the next instrument think of it at every stage you're collecting data methodically and if the data doesn't show there's any progress you move back a little if the data shows that your move forward at all so when the when the district says that they didn't get that oh you know there's nothing that we didn't do that's what they're pointing it we came some feed that we collected data twice and twice every nine weeks but that's not a b a when the when the parents actually did put lor in teach me which is an a b a treatment program two thousand and fourteen two thousand fifteen things turned around dramatically and then she really started making progress because that's is an treatment methodology that's what they did that's not at all what and seek reimbursement for that do not seek reimbursement for that no no we did not but but in terms of answering the question of what the you know what should have been done that wasn't done was that's what should have been done now in answer to judge davis question as to why wasn't the the mother complaining about that all the way along why weren't they you know up in arms about this parents don't always know i mean one of the things that ha in these due process proceedings is that you start getting expert witnesses up there you start getting you know into the the the brass tacks of the medical the parents or are doing a lot of her earnings doing you know during the entire due process proceeding they're starting to understand more about what their child was was able to do were able or not able to do what should have been happening all along the fact that they didn't before that know that there should have been a b a treatment doesn't mean that there shouldn't have been a be a treatment the i think the idea a puts the