remedies in order to pursue non i d e a remedies under non ideate causes of action against the california department of education the cd he was dismissed from the underlying due process case by their own motion and in that motion the administrative law judge specifically noted that the type of relief we were attempting to seek was outside the jurisdiction of the hearing office at the lower level the district court also agreed with us that the damages we were seeking were also not available under the i d e a but counsel i get those points but under the frankish supreme court phase they gave us a three part test three questions that we need to ask to determine whether the i d e a is really the underlying issue here and as i look at the three questions and apply them to this circumstance it seems to me that in each case the i d e a is involved it's clearly a something that was the underlying basis why is that wrong well your honor if you look at footnote for frye which follows the site the pain which is a decision from this very court this supreme court specifically notes that they are not addressing the issue of whether or not exhaustion is required in the situation where a parent is pursuing damages i e remedies not available under the i d e a and that they would say that question for another day so the proper analysis to paul g s case is under the pain case and if we look at pain pain is very clear on its face pain pain held quote non ideate claims that you're not seek relief  vailable under the i d e a are not subject to the exhaustion requirement even if they allege injuries that could conceivably have been rejected by the i d e a in quote pain made it very clear so long as you're pursuing remedie no your honor that's not accurate in july of two thousand and fifteen through the i u p process the school district and paul's parents determined that the proper school house for paul was a residential treatment center ok paul was never able to access sit for a period of time paul was not able to access any sort of schoolhouse within the state of california and subsequent to that period of time he had to leave the state in order to access a schoolhouse that's an issue of equal access we're not challenging the quality  of the services in that document in frye makes that very clear i mean that is the point of frye frye articulated three clues not a bright line rule but clues to help guide courts in the right direction and what frye says is the distinction is between a challenge to the quality of the u p a versus issues of equal access though it is your position that you have an obligation to build a residential facility for paul along no your honor i think that would be rather problematic i agree but isn't that what he was asking for no your honor but we were what we're asking for is for the state to do something they did not think what to intervene in a and tricky situation where we had a boy who couldn't leave the state of california to access his school house made him and he got a ruling that he was entitle to residential placement right  thousand and fifteen when his school district determined that the proper schoolhouse for paul was a residential treatment center right he was not allowed to leave the state until february of two thousand and sixteen during that time he had no access to any schoolhouse whatsoever because no such placement exists in the state of california during that period of time we engaged as well as the school district to engage the c d e to participate in the process to figure out how to resolve this issue how to get paul to school and there were certainly a plethora of options that we could have and that was all  provide a service or refuses to the state is supposed to step in and to help address that particular situation though could you compel the legislature to pass a bill for paul hopefully i mean perhaps that's the thing to look at next but at this point that's not the issue currently before the court but under your construction of the statute that certainly would be within the contemplation of the federal government right is you've got to remedy it some way so let's do whatever the state needs to do you're just guessing here you should the local school district but you also should the state and the states that were not involved the state correct at the administrative level we filed against both the school district and the cd and that's a cd that he was dismissed  at that point we believe we had exhausted argument a straight of remedies and then we proceeded to bring claims under non id a cause of action seeking relief unavailable under the i d e a and that squarely falls within the purview of pain exhaustion is well if our case goes back down then we'll deal with the issue of five of the violations that we raise the civil rights violations that deal with the period of time that paul was isolated in his own home without a schoolhouse to go to as well as the the period of time where he was shipped halfway across united states and right off the real problem here was that there was not available in california the kind of placement that you need that's absolutely correct and that is incredibly impactful for adult special education students let me explain why because when you get shipped out of state you lose your state benefits so for example in paul's case medicare was a big issue his parents had to privately pay for his med management which would have been paid for how the state in the state of california conservatorships are a big issue here are doki doki eventually was shipped out of the state that's a residential placement that's correct so what you're seeking ultimately establishes for those expenses  incurred before that was resolve that's part of it your honour's was the pain and suffering this is a young boy with autism who was isolated and not provided the social exposure that we would want him to be accessed wanted was an in state placement ultimately what we want is policy to address the state education's responsibility to intervene in these unique situations and help alleviate the pressure on pro remedy under the i d e a that said he needed an in state placement that's all you got was that you needed a residential place that's trained you never so you never exhaust it in order to get the the  program that you now say he was entitled to pain the pain k stands for moving from an injury centered approach to a relief centered approach the district court erred in focusing on the injury and the judge determined that we needed a order from an administrative law judge specifying it in place in state placement however that's quite problematic when i go to trial in these types of cases i have to bring evidence and proof of the availability of the remedy i can't prove or argue for a remedy that doesn't exist furthermore even if a judge did order an in state placement there wasn't one so you know that type of relief would be completely inadequate and i believe fall under the hof exception to exhaustion i don't have twenty two seconds  morning your honor someone garfinkel for the california department of education i believe that the district court got the exhaustion else this correct in all three parts that exhaustion was required here that no action of the appellant satisfied exhaustion and that there was no exception to the requirement of exhaustion that was met what do you what do you make of your opponent's position that he asked for in state residential care and it was simply not available and therefore it's basically futile to ask for anything else has just taken off for it how does that not satisfy the exhaustion issue so at the office of appropriate if the judge thinks that the student needs a particular type of placement thinks it should be in within a certain geographic area the judge can state with the judge thinks it's necessary now if  the school district then said we find ourselves unable to meet you know we're not finding a group home willing to accept them then i think this is what all the district courts who handle these matters are saying then maybe we have a basis for an underlying predicate for an action against the c t e because then you have an inability on the part of the district to provide a fate and you can make the argument that that somehow tied to action or inaction of the cd but all the courts have looked at this have said if you have no underlying finding an administrative hearing that the student needs an in state residential placement there is no basis to  go have an action against the c t e for systemic remedy on that issue when you haven't identified one child who has experienced harm from that but i think if the if the orange had said this saying it didn't say that and he had made the case for why you couldn't go to kansas it's a right right what happened was the matter settled and so it was settled without any finding that the student was denied faith or that the student needed an in state residential placement and in fact based on the settlement there will never be a finding like that right and that's what the district court was concerned about that that was never any finding on to be under th that he needed this in state place that's right and i think the district court also looked at remedies in a few stages for example that the student got and i d e a remedy from the district at o age the student bargained for the right to pursue a nd remedy when he negotiated a settlement with the district that he could continue to pursue damage claims under disability discrimination laws at the district or and the district court pointed out of a rd opportunity really for a remedy which was at any time when the student was placed in the out of state placement the student could have brought a new case said oh h and said you know this placement is not meeting my needs i really think now based on the facts that have evolved in this out of state placement i'd like to make the case fifteen according to the the complaint by november of two thousand and fifteen and out of state placement had been identified but because there was this pending superior court criminal judge's order that he couldn't leave the state he never actually started that placement till february that's an extra nowaday that can happen in ninety eight cases there are a myriad of things can happen that may impact the school district's ability to follow through on what they were trying to do for the student whether that's a student landing in juvenile hall or a family moving or obviously a variety of things is it your position that given the settlement that there really is no way that that the  in this case can ever that is five exhaustion issue that they're seeking at this point for the claims he's bringing right here that's correct ok you're going to tell me i'm with you i'm still not sure what point was in savile it was  together we're looking at whether the grab him and of the complainant seeks relief or an alleged denial of fate and that's exactly what happened here placement is a critical issue under i d e a educational placement and this case is about whether the student received an appropriate educational placement of the i d e a and as far as the damage issue as the district court pointed out in situations where even though damages are requested they are clearly based on an underlying alleged denial of fate exhaustion is is still required and in this case the judge went through the analysis of what type of damages were requested and there really emotional distress damages  related to being forced the allegation of being forced to go out of state and the judge said according to the language in pain those damages followed directly from the alleged denial of faith distinguishing a type of a case like is mentioned and pain where let's say for example the allegation was that a teacher physically abused a student that might be a case in which she would say you know those damages are really related to conduct that is not directly tied to an alleged  faith in the educational program meeting was not raised in the o h proceeding and therefore under th circuit law cannot be raised for the st time the district court nd they i d d a claim has already been settled with the district rd there is no requirement in b refers to extraordinary situations in which a state determines that a school district is an able to provide a fate to a student that that might be a situation where state needs to step in that section by the way be this school district was unable to provide a faith to the student and that in fact that still remains the case we have no basis to know that the out of state placement did not provide a faith to the student because it hasn't been through the procedures that would decide what is a faith that's correct are there other questions for me yours ira i do have in the brief  two remaining grounds for dismissal the district court did not dismiss them scuse me did not address them finding them because the case is being dismissed on exhaustion grounds she would not reach them i have included them in the brief for completeness and because they are alternative grounds that would support a dismissal in this case well thanks very much dan thank you for title to in this court has noted those differences and a plethora of different cases so the determination let's let's assume that the administrative law judge determined wrap it up if you will you be a little bit more time or something of that paul required and state  placement that does not change the analysis under section five of four of whether or not he had access even in the situation if the administrative law judge determined he required an out of state placement that still does not change the analysis under section fifty four dollars because the analysis is about equal access access as opposed to the fake standard so there was no need to determine at the administrative level when there was no dispute between the school dish and his parents that he required pursuant to the i d e a in place i