a school must offer an individualized education program reasonably calculated to enable a child to make progress appropriate in light of the child's circumstances supreme court made clear that in developing a program for a child the school district must understand and take stock of the circumstances and characteristics unique to that child highland park individual highland park independent school district failed to do that for years for plaintiff here and he suffered dramatically as districts mischaracterizations of the data but in allowing themselves to focus on those missing characterizations of the data they missed the force of the expert testimony that alone would explain with the unique characteristics and circumstances of plaintiff actually or and the problem with that is that if you don't understand what the characteristics unique characteristics and circumstance the plaintiff actually are you happy didn't you lack the tools to analyze the data that you're trying to review of the r that they're based on data that is completely unreliable but let me just say i mean you're not making a procedural attack on on those are you in other words the parents for consulted notified involved i think the rule is you have to sign off on those i eat peas don't the parents disagreed with individualized education for they never put anything in writing about that or requested a due process hearing this this hearing today there is this argument today as a result of the due process well i understand that after he was in school district for several years that's correct and in terms of the if your honor for free the stat have on his career on the part in pensacola district he had five injuries over the course of his tenure there the every time he had an injury the school district would indicate well ok we understand we've got to taken care of we will we we won't let it happen again we'll take that the procedures necessary to make that stop the parents believe them because they're not what it is they're not trying to follow due process claim every if the school district is representing that it can make the situation better now did this school districts itself in may of two thousand and twelve recognized that plaintiff himself was susceptible to these kinds of injuries that in fact even sitting on the for himself that that events and the reason for that is not necessarily because of the specific injury suffered in terms of a bruising on the face in terms of the a black eye or whatnot that something extent of it the extent of it is that when you have a child who is falling over and hurting himself that way has absolutely don't wait protect himself under the circumstances whether it's being a changing table if it's off k bench if he's falling over an i pad all these things happen in this case then that child is experiencing a complete helplessness a complete vulnerability in the face of gravity has no ability to protect himself and according to the expert testimony that child is going to suffer stresses that will stay with him  not i certainly would not detract from the serious situation but but it did appear to me that each injury came up for two of them four of them happened under completely different circumstances in other words one of them on the changing table one of them falling out of a rolling chair two of them on this special b was a case where there might have been an attendant and in fact they assigned extra attendance but triggering limit or extending limitations because of depict things is a difficult concept for me i don't think that this case and i think there's there are several issues here so i'll try to address each one of them i don't think this case hinges on extending the statue limitations in any event reasonable likelihood that the plaintiff is going to have these kinds of injuries going forward is going to have eight to traction whose ability to receive an appropriate education from the school district going forward now the  play mary relevance of the past injuries than is there the fact they build up history they build up a history a showing that highland park independent school district even though they knew in may of two thousand and twelve that on the  that this child was particularly susceptible to injuries and would suffer from that get over and over again he's getting injured he's getting injured in the school district's care the doctor vandyke of associated with his disability and should protect him day and night from falls and related injuries now it is true your honor as you point out that there are differences in the particular circumstances that go along with each one of these injuries keep in the case fell off a changing table in one case she fell off of the table but in each circumstance and even the hearing officer recognize this that in each circumstance these injuries recently preventable that they may have there walking away we've got two persons there but they're not within arm's length in unstrapped changing table for example or defective chair whatever the particular circumstances or you have to even in this case if you understand unique circumstances of this disabled child you have to make sure that that child is not going to fall out of a tutor well let's you know you mentioned the andrew case and i agree that controlling is this court the this court has applied for factors in the wake and those are number one whether the plan was individualized it was whether the plan was to ministered in the least restrictive environment it was whether services are provided in a coordinated and pointed in an collaborative manner do you disagree with that do i disagree whether it was provided whether the services were provided in a coordinated and it a little more concretely in terms of those two factors in terms of the last two factors i think well whatever factors you're disagreeing with so we disagree with all four up is because with respect to the individualized  the point of the st requirement under michael after michael's the whichever case you want to look at the point of that st requirement is whether the school district takes seriously and implements the evaluation dated hands now the st evaluation data that the school district itself had was in may of two thousand and twelve in may of two thousand and twelve the district already understood that for example the  ff had the susceptibility to injuries and yet the school district in take the measures necessary to implement that and make sure that he didn't get injured in the in the may of two thousand and twelve in that st evaluation part school district noted that plaintiff will point to pictures when they are presented to him on a black belt or in a field of tour for he will consistently accurately identify a picture of one of his reon st one of his reinforcing items when the other choices are non reinforcing he was already doing that in may of two thousand and twelve and yet in may of in in october of two thousand and fourteen and in may have two thousand and fifteen they're trying to present him with the same goals and they're trying to understand why he's not doing these things without taking surrogates seriously the fact that he's regressed by their own by their own evaluation data from a of two thousand and twelve they're not taking that seriously they're not whether the the plaintive it or whether the individual with disabilities is progressing you have to understand the basic characteristics of that individual and in this case the  didn't only misunderstand terms of the injuries they didn't only miss the point with respect this is a sup ability the injuries and his vulnerability to stress that accrue from that they also misunderstood who they were dealing with st with respect to at least two other factors which is one his delayed processing and other thing that was mentioned in the may two thousand and twelve full individual valuation it said all the way along that he had delayed processing and yet in may of two thousand and fifteen the district comes up with another valuation that's just oh oh wow he's got delay processing and that and there are assistive technology experts said well this was a huge deal to us because now we recognize that when we were trying to data from him before sometimes he wasn't finished processing and he might have continued to give us the right answer but we didn't know that so we didn't get that a right well they should have known that because it was in there may two thousand and twelve full individual valuation and he was in the texas school for the blind and visually impaired had constantly told him he's got delayed processing don't rush him don't move through these activities why is it that at the end in may of two thousand and fifteen this is such a stunning recognition for them well it's because they didn't several things one they didn't use their own evaluation they are properly to do they didn't coordinate and collaborate with the key stakeholders because the parents could have told them that all the way along that when you don't know what you're working at who are you going to try to you going to go to to evaluate what's going on with this child all the people who time you sit with them in admission review and dismissal meetings it's do you give them a fair chance to explain what they're actually trying to say or do you just stay wedded to your own preconceptions of what your da showing when you actually don't know what the data is is indicating at all the th element where the where the school district in understand what they were dealing with is and i think this  into the least restrictive environment issue and that is that they didn't understand when plaintiff was stressed out or when he was happy or what he was doing with respect to his behaviors one of the things please the court my name is meredith walker and on here on behalf of highland park independent school district at the core of this case is about the safety of a student and whether five minor injuries occurring over the span of two years can deprive  child of a free appropriate public education or face highland park i esteem maintains that it does not because the michael x factor show r is received a fate despite the minor injuries when you overlay the michael x factor us as parents as well as his outside providers is the epitome of collaboration is exactly what this court is looking for when it evaluates that factor but most importantly our as been infinite from his i e even though its progress was slow and it was small and it was incremental it was absolutely appropriate for his unique circumstances i'm happy to answer questions about structural limitations to the extent the court has any questions but the record on appeal clearly demonstrates our as did not meet his burden to show that either exceptional klyde importantly there is no evidence in the record to show that any alleged misrepresentation made by highland park i honesty or any alleged withholding of information by highland park honesty prevented his parents from requesting a due process hearing and that is a required element when you look at the exception in the statute before looking at the michael f factors it's important for the court to understand the type of disability that r s has he's has an intellectual disability a visual impairment a speech impairment an orthopedic impairment he also qualifies a student with other health impairment as well as a student with multiple disabilit so this is not a student who is mainstreamed in the regular regular education classroom this is the exact type of student that indirect addressed because he was an integrated in the regular classroom so the question becomes was his educational individual eyes on the basis of his assessment and performance in our briefing we've cited you to multiple sites in the records showing that we were lied on or evaluations we relied on are as present levels of academic achievement and functional performance we based in formation based on the input of not only his parents but also his outside providers and all of that information together is what home care guy is steve based are as his goals and objectives on in those goals and objectives were absolutely appropriate as seen by the progress he made both academically and not academically which i will get to r s claims however that the opinion of dr van dyke essentially brief individualized on the basis of the sussman and performance neither the special education hearing officer or ringback the district court below put much stock in dr van dyke's at that's because when dr van dyke issued his opinion or gave his opinion and testified in the underlying due process hearing he specifically said that he relied on information in the due process hearing request well when you review the special education hearing officers decision and you compare it to the allegations made in the request you find that there is quite a dichotomy between what was actually alleged and what the hearing officer found to be true but even more important when you look at some of the things dr bandai believe what do you mean precisely by that for instance there are we believe that our as his parents or the record shows that ours is parents had an exaggerated distance of what they believe was occurring for instance one of the allegations made in the complaint had to do with an accident a bathroom accident r us had an at school and according to the due process hearing requests they stated that the district failed to notify our of his mother of the incident and and they failed to address the toileting issue appropriately and that's at record site seven hundred and forty one when our as his mother testified she didn't admit at the underlying process hearing she admitted that she was called that she was unavailable and then stated when he got home marist had not been clean  his wheelchair had not been cleaned appropriately and that's at five thousand nine hundred and fifty dollars of the record but then when you look at the hearing officers decision he noted that the medicine that he was taking is what caused the bathroom accident that the parents were notified and they asked if they wanted to pick him up they declined to do so the district cleaned r s they cleaned the will chair he saw the school nurse and he received new clothes and that's at six hundred and ninety one thousand six hundred and ninety two of the hearing officer suspicion so there's a complete dichotomy between what was alleged and what the hearing officer found so when you look at dr van dyke's opinion one of the things he said was that the year flicking r us was demonstrating while at the district was the result of stress was still attending highland park i esteem he was under the impression that he was still coming home from school and that highland park o c was the reason he was flicking is here he did not know at that time that aristide already been moved to his private placement changed this place and he did not know that are as flicked as yours and virginia ultimately resulting in his testimony that he couldn't really trace this alleged stress to highland park ice t given that information so when you look at the fact that dr van dyke based his opinion based on everything that the parents were telling him it's easy to see why the hearing officer in the district or both disregard it with respect to the injuries it's important and judge jones has already pointed this out that the injuries were all separate and they all were different with the exception of the two falls from the cape and but what's also important for the court to note is that every time an injury have been the district took some kind of step in order to address it and for instance after he fell off a k bench in october of two thousand and twelve the district added another staff member to make sure the staff member was within an arm's distance and in october two thousand and thirteen he was in a standing frame and he fell forward and hit his head on the i pad when he was working with his assistant technology there was really no steps to be taken at that point but when he fell off the changing table in november of two thousand and thirteen the principal investigated the incident met with parents followed up on the meeting with an e mail regarding the steps how in part highest he was going to take was going to take to ensure safety including the institution of a hygiene protocol that hygiene protocol was emailed to r s s parents they added a belt to the changing table and they sure that there would be a staff member within reach so this isn't a situation where we have a student who is sitting in a corner with severe disability who is not getting the attention that he needs from a school district this is a situation where we have a school district pushing a student in light of his unique circumstances putting in place an appropriate ip to make sure that he is making progress i'm sure that i mean when you look at the type of issues that are as has one of those is he lacks core strength and he lacks muscle tone in order for him to gain course training in order for him to gain muscle tone one of the things they did was put him on the  and when he's in the process of trying to sit up on the cape and he fell over once or twice i should say but this is no different than when you have a baby who's learning to sit up or a toddler who is learning to walk in order for the toddler or the baby to learn that skill you have to put them in the position for them to learn that skill and sometimes in the process of doing so there are accidents but again the district responded to those accidents by putting protocols in place to help lessen the chance of those occurring again when you look at the nd factor which is whether the ip was administered in the least restrictive environment the record is clear that he absolutely had the appropriate amount of exposure to his general education peers in light of his just at his elementary school he had lunch with his peers in the classroom he had interactions with his general education peers in not only the classroom but on field trips on the playground and during all school assemblies when he moved to intermediate school he continued to have that interaction as a matter of fact he had two dollars to three dollars general education peers that would come into his math class each day and they would do various activities with him they would listen to music with him they would accompany him to his and activities outside of the classroom he had key for thirty minutes each day with his general education peers he also had an assistant p e class where he also had general education peers in there as system him with the p e and most importantly he had a mccullough where he would deliver items such as mail to various classrooms so he was getting to interact with general education peers for out the day this is exactly what this court looks to and wants to see when you have a student with disabilities such as  s's that this is the appropriate l r e in light of his unique circle there's also no question with respect to the rd michael i factor which is the coordination and cooperation the most important fact that stands out when you look at the record is that the physical therapist alone had a one hundred and forty five documented interactions with our us as parents are as is outside providers and other school staff to show that not only was the district working with itself but it two thousand and twelve until approximately may of two thousand and fifteen but that was just the physical therapist alone but then you also look to the art committee meetings where our us as parents attended the district and worked with them to make sure that both parents could come to the our committee meetings held them on different days provided them with the draft i e t's in the draft goes i was very impressed by the level of involvement of the  they were present and accounted for they absolutely were in highland park i used to make sure that was the case because they provided him goals and objectives beforehand they provided him the i e piece before him they had monthly meetings where they would talk about what was going on with our us so these parents were involved in the district made sure these parents were involved so this is not a record where the school district shut the parents out and didn't take into consideration and the fact that our as his parents might have disagreed with the i or might have disagreed with what with goals and objectives as the court has found in white versus ascension paris disagreement over that is not does not rise to old failing to collaborate and courtney with respect to the last michael i factor which is whether he made academic and nonacademic benefit i simply want to highlight a few things for the court when you look at his progress with respect to communication in may of two thousand and eleven when he was in virginia at fairfax public schools he was not making very much progress on his communication skills after being in highland park only with a little clorox but one of the things they were working on in virginia for instance was trying to help him and use an augmentative assistive communication device so he would have a voice in order to communicate and he wasn't making progress but after being in highland park i esteem and having his eye minute he was pretty had progressed to using his to answer yes and no questions such as do you want your glasses off our ass and he could also identify his name his school some basic needs as well as make choices with his and i did with his a seed of eyes when you look at his mobility which is a big issue given his his disability and when he was in virginia he was using a walker to propel himself through school but the important part is that virginia was locking the wheels on that walker so arias was propelling himself in one direction in one direction only when you moved to to texas and to get tile and park after the district implements as i e p n is working on him and working on core strength and doing all those things that he needs because of his circumstances you see that he's now able to move his walker with some intent to steer or lean when he's trying to move the wheels aren't locked in on only that he's making laps around the gym so we've gone from propelling our walker with a locked will in one direction to making several laps around the gym which requires him to go in circles when you look at his circumstances and his disability this is absolutely significant progress when you're looking at mobility he also went from being able to bear weight on his legs for a couple of seconds to after being in highland park bearing weight on his legs from ten seconds to two minutes he also made progress with respect to his fine motor skills when he was in virginia he needed hand over hand support in order to activate cells on  a c which is how he would communicate after being in highland park i esteem for several years and having his ip implemented there he was eight actually able to activate as a c by himself putting his index and rd finger together again when you're looking at a student with a disability that r us has this is absolutely significant progress because when you look at the testimony from dr for mr bolton berger who was with the texas school for the blind and visually impaired his testimony is with r s you have to be in progress for a long haul because it's going to become it's going to come in incremental stages it's going to be slow so when our us says well any student could make this progress over a four year period our isn't any student he's unique he has unique circumstances and for him this is absolutely significant progress and you can also see that with the academic progress he made while unrolled in highland park iowa city in virginia he was absolutely identifying numbers one through seventeen but after having his eye p implement in texas he was actually identifying numbers one through ten from three choices so he went from a fifty percent chance of getting it right to being able to identify numbers out of a thirty three percent he was also identifying the next number in a sequence so he was essentially learning to count with seventy five percent accuracy and he actually up his i peak old to be able to match things out of three choices with an eighty percent mastery skill he also started answering where questions with sixty three percent accuracy what questions was sixty nine percent accuracy and who questions with sixty one percent accuracy so this is absolutely academic progress particularly in  the for michael of factors undoubtably weigh in favor of the district and show our us received a fate because of that the court never has to reach the question as to whether chase this place was an appropriate placement for  because as you know when you're looking at the public placement you have to or i'm sorry the private placement you have to find that the public placement violated the i d e a and the private school placement was proper under the id you don't is appropriate here because michael's he looks at the propriety of a student's unilateral unilateral placement at eight presidential facility and that's not the case that we have here are as was not put into a residential facility so the question before the court under florence versus carter is was his placement actually says place a otherwise appropriate under the id chase this place had a serious lack of providers there was no physical therapist there was no vi teacher who's visually impaired teacher there was no orientation mobility specialist there was no eighty specialist assistive technology there was no adoptive p e teacher there was no music therapist there was no one on one aide for r s all of these things where things are as needed that were set forth eat all of these things were things that highland park or services that highland park i esteem not only could provide but was providing and none of those were being provided by chase's play and because none of those were being provided by chase's place there was nothing that chase's place was providing our us that helen parka could not otherwise provide i wasn't able to find a circuit case directly on point but when you look at the six circuits case in burger versus medina it specifically says that a private placement is not appropriate if there it's not providing a student with something that the public placement can't otherwise provide and the facts and berger are similar to the facts here there were some things that the public school arms are the private school placement wasn't providing the student that the student needed under the i e p in the th circuit said the private placement is not  question but has they found that the district provided the student with a free appropriate public education and so there was no reason to reach that bad and i think i didn't think i had the answer as i didn't write and that's the reason you have it is because should affirm the district court's decision upholding the hearing officers decision finding highland park i esteem provided the student with a free appropriate public education and complied with the idea ok thank you  these others issues that my colleague was describing in the due process complaint what dr van dyke was concerned about is what would the effect be of a child with cortical visual impairment and cerebral palsy and these multiple disabilities falling over from a bench from a chair from these things that's what he accepted that the due process complaint he wasn't there to to see whether it happened or not he was taking for granted that the due process complaint that was correct that these in injuries happened and in fact it's undisputed that these injuries happen in these events happened what was he doing when he met with plaintive in october of two thousand and fifteen what my colleague implies is that he was trying to do some sort of causal personal injury analysis and that bus made a difference when he saw stress in a plaintive as to where plato was going to school at that time and that's the document that make that clear on the record as well he wasn't evaluate doing some sort of causal personal injury analysis he wasn't looking at point of stress in the at the meeting to determine well where is that coming from is it coming from highland park independent school district or somewhere else it didn't make any difference to him where plant was going to school moment because he knew where that stress was coming from it was coming from him but he what dr bent bike makes clear is that what he was trying to do in that meeting is evoke stress in plaintive so that he could look and see with his of his caliber would do is look and see who he's dealing with and try to figure out what exactly what you need characteristics and circumstances are we dealing with with this child he has these kinds of stress reactions that was what i would expect with somebody with cortical visual impairment cerebral palsy and the like ok when you take a child like that now that i verify that when you take a child like that what effect would it have if that child falls over from a chair from a bench if these things did happen and then he described the effects that those things would have now in terms of the issue of the least restrictive environment that i was talking about when i close before one of the another thing that highland park independent school district didn't understand was how plaintiff's exhibit stress dr van dyke indicated in his testimony that it is absolutely clear is a heavily research science that when a child with these disabilities flaps his ears that that is a sign of stress i don't park independent school district in understand that in the record they indicate that they thought it was a sign of task avoidance or even happiness they didn't realize it was a sign of stress at all what happened what what did they do on the basis of that what happened is that when they when he actually was stressed they thought he was happy or they thought he was avoiding tasks so they took measures designed to combat bad instead of realizing that they needed to prevent the stress levels from accumulating when he was actually was happy and when he was exhibiting signs that he wasn't stressed that he was enjoying himself they thought they interpreted those as signs of stress and this is in what should they have what what would have been better what would have been better by the school well they weren't they weren't reading his body language correctly what the school for the blind the been there was some some manner it right in every reaction between the district and the school at the time was that there was some interaction between between the school district texas school for the blind or visually impaired the at the time when there was the st idea of a transfer tech school for the blind and visually impaired declined to accept the transfer but they did then send up some thousand and fourteen i see that i'm running out of time so i want to make one last point about tech school for the blind or visually impaired and that is that you would think that when or when finally having the opportunity to consult with t school for the blind or visually impaired at the highland park independent school district would act on their advice and would take the necessary measures ok now we do have people that we can roll on and to figure out how to do this better two things the texas school for the blind visually impaired did is that they kept asking this they kept saying you've got to slow this down you can't rush this kid he's got delayed processing but even at the end in may of two thousand and fifteen they were still going too fast they were still for the blind or visually impaired or for the proposition that these injuries might actually have benefited plaintive they may talk about this article as though it somehow about played to or relates to planet but no this article is just an article about the blind in general this is an article about them the visually impaired in general but you can't be certain overprotective of them because if if they happen to stumble into something that well they might learn from that that is not applicable to pla is not somebody who sort of testing the waters might accidently put his hand in a bunch of hooey learn from that or something like that this is a kid who sitting on a bench and it is is completely unprepared for the trauma of falling off