we're here seeking reversal and independent educational evaluation under the law apparent has the right to such an evaluation quote the parent disagrees with an evaluation of pain by the school board when that happens the board has two the entire case right there your honor that background let me turn to a quick overview of the legal issues and keep in mind that we can win the case on any one of them whereas the board needs to sweep the table st the scope issue this is the question of whether d s disagreed with the two thousand and seventeen board evaluation which was limited to a behavioral assessment the district court says as a matter of law vs can't disagree with the omission of assessments but of course you can and to the extent that's not clear we have authoritative guidance from the federal department of education saying three different times can disagree on the basis that the evaluation did not assess the child in all areas related to this respect the disability the board response to just give it a  by and let them do another evaluation but again that's not what the law says and that's not what the department of ed similarly the board creates these categories of little e and big evaluations but there is no statute regulation or case law supporting  the statute subjects all evaluations to the same safeguards finally the board says parents will make any reasonable request but keep in mind a touchstone appropriateness if what the board did and did not do is appropriate then there is no available and that is as it should be turning to the nd big issue the statute of limitations or whether even if we ignore the two thousand and seventeen evaluation we get relief based on disagreement with the and fourteen about you ation excuse me you have on one minute thank you the district court says b s can't disagree with that either because of a two year time bar that's wrong as a matter of law for three reasons one the statute of limitations by its own terms applies to due process complaints only not to parents i eat requests the board responds only by invoking the absurdity doctrine it is a high bar to rewrite congress's language and they have not shown any absurdity to the board been raised the statue limitations argument and due process complain to that argument as way that rule is in the id a statute three the court wrongly put the burden on the parents to show when they knew and let the board get away with no proof on this issue and the burden shifting happened on both issues actually i'm scope and timeliness each of these reasons your honor independently requires your wrestle with that i'm happy to take your questions on any of these topics no your honor the tranny analysts call that because under the statute the school boards require to do an evaluation you know less than every three years the independent educational evaluation that we're requesting on a consisted of seven necessarily require if you're in the statute sure the statute only has two categories in it initial evaluations and reevaluation all of them are subject to the same safeguards and the reevaluation is sometimes referred to as a triennial because in the requirement that it occurred you know less than every three years although of course you could occur more frequently than every three years there was a a quote unquote comprehensive consisted of just a behavioral assessment initial evaluations or revaluations and they say you can get in i e either if you disagree on the basis that that evaluation did not evaluate all areas of suspected disability your honor i i think it's not quite clear but you're correct that the board concedes that it's and valuation the hearing officer found that as well that that's what creates the box here because because the functional behavioral assessment is not kin to what occurs every three years even the initial or the what you referred to as the initial of the reevaluation every two years themselves with they're on the autistic they're on the autism spectrum but they have some verbal skills but they and they they have certain difficulties with regard to language they have other difficulties with regard to perhaps writing organizing thoughts and then they have then they present this presented a ray of behavioral issues that also either that have they have that educators have no choice but to deal with in the context because educating the child requires both dealing with the behavioral aspects of the child and the child electoral disability correct correct your honor that's right very much be appropriate under this circumstance but i understand that but but but in the in the in the years in between the triangles a functional behavioral assessment is a is allowed but the functional behavioral assessment just looks at what's going on with the child's behavior and what the school district is doing to ensure that that is the child's behavior isn't interrupting their opportunities to learn correct that's correct but your honor it perhaps you can imagine a s yeah so so what happens is is that you have a functional behavioral assessment that's done and the parents say well we we disagree with this and we want to look at other things right correct and that is not what was that occurred after all of the litigation was initiated so if the if there hadn't been box by that concession that's all i'm trying to understand sure so the reason the board conceded it let me just give you a little bit of context on that is because there are multiple cases from district courts around the country finding that an them have been cited in the briefing ok go ahead and n f p a yes it looks to the functions of the students behaviors but that is itself right a fairly broad inquiry as we point out even the assessment that d s is requesting related to be havior and you can imagine easily a situation where hypo one a student has only behavioral areas of suspected disability in that case and evaluation with only a functional behavioral assessment would be quite appropriate hypo to you do an evaluation that consists of many different assessments it is appropriate it is operative it remains up today but an issue arises only with the student's behavior and the school board supplements with a functional behavioral assessment now if the parents challenge that and try to get more the school board can go into an administrative hearing you say hearing officer we have an appropriate evaluation right now the student we looked at every area suspected disability and we have an up to date evaluation of the student there is nothing that has come up since that time is it your view that is it your view that under the statute punctual behavioral assessment request can be broader than that because a the regulation allows it be the parents may wish to explore other aspects of the child's disability and or behavior beyond what the functional behavioral assessment fellow i guess i want to follow up on a couple of those things so i mean it seems pretty clear under the statute and regs there's an initial evaluation to assess whether the child has a disability that happens isn't a reevaluation that has to happen at least every three years but it can happen more often if the school thinks another evaluation is appropriate or if the child's parents or the teacher requests to reevaluation right correct your honor evaluation and a reevaluation at least every three years but realistically for most kids three years is an attorney and so a lot of school districts do these routinely every year but in this case i guess i like judge wesley pointed out we your honor we would not concede that they are supposed to be different but but that is certainly the distinction that the board is making and yet the s b a was loop limited to looking only at behavior and we same properly but children are assessed all the time even ones without disabilities and there are constant assessments being made and you are taking the position that any correspondence that includes an assessment is a reevaluation for purposes of triggering obligations for and i said correct well the f d a i think is a little bit unique here again courts and found that it constitutes an evaluation because it evaluation done as quickly as possible i realize that at the end of this appellate process that is a strange point but that is that was the intention at the time time is obviously very important in a student's them a career and they did not know it would take this long they wanted to not have the board string along the parents for their own conduct and evaluation and at the end of the year given all of the distrust that occurred when they saw the records you know but i mean i and hadn't done it since this school board does not get a nd chance under the regulation but i tell you what you're saying is that the parents get to dictate the conditions in terms of the reevaluat in advance and that's not obvious to me and certainly seems like it's not a that would not be a system designed for efficient outcomes that would result in no we have here which is you know years before the child is appropriately assessed and is able to get the benefit of an independent evaluation your honor by no means are we arguing that parents should dictate of course the parents can disagree and then the  ultimate touchstone of appropriateness support can initiate an expedited ministry a process that involves mediation procedures and an early resolution process that is designed to be done relatively quickly and without lawyers and the board can show to a hearing officer if it gets to that point that its evaluation is appropriate and i submit your honor that if the evaluation is not appropriate and is lacking that it better to be addressed then and have the evaluation done that that forms the foundation for the public education the students receiving instead of having litigation on the backend about whether the student was deprived of a free and appropriate public education let's close there you've reserved two minutes for rebutt performed on a child is in fact an evaluation and need to test all areas of suspected disability that is not in fact the case and evaluation is defined in certain portions of the daily or yearly educational programming of a child boards of education are required to conduct assessment of the child whether it be a reading assessment occupational therapy assessment some other  education briefs that provides that in the course i'm planning a child's individualized education program or an i p a board shall frequently do periodic not competent the testing to determine what programming and whether the programming has been met many of those tests are not designed to be comprehensive nor should the right to an i e e e from those tests be comprehensive in order to challenge or request and i e e e a parent must under the statute disagree with a test that's been obtained by the board or an evaluation the keyword there are disagree and obtain district court appropriately pointed out the requirement for board of education when responding to an i e e e request to show that it's a valuation was appropriate simply put if no evaluation with the pain then one cannot be shown to be appropriate particularly where the underlying evaluation is what we call a periodic not comprehensive or in our warrant a little a valuation the right to an i e d is to give parents information so they can conform or disagree with what the board has done and that properly narrow the scope of their entitle to hear the board properly defended a tally by requesting a due process hearing and then in the course of that determine that they would approve an s b a there were no other evaluations to defend and it was unnecessary to defend those because they had not yet been  to beyond the i mean the ruling on the ruling for the court was is that well the f b i is limited and but the parents are seeking is a much broader based assessment is that correct that is  correct and the district court said well that's inappropriate but that's clearly inconsistent with the regulations as mine i don't think it is because i think what the regulations in the statutes are talking about are you have an initial evaluation to determine whether a child eligible for special education related services then there is a yearly requirement where both administrators and teachers meet with the parents in what they call the p p t the  team to determine what the student individualized educational plan it and i think that during the course of the children's yearly education and determining with the i p a there are going to ride him assessments done and no all of them are comprehensive meaning they don't all evaluate every single possible disability a child may have they may be they have to be in many cases very limited so a behavioral test occupational therapy test and i think what the parents propose is that any time a board of education conducts any one of those single tests and they disagree with it they're opening the entire universe the valuation and i don't think that aspect or that aspect of parents objection would necessarily be just to the logic of the or the reasoning within the f b i it might be that you haven't considered still additional data that might be relevant to cases have shown to have them get information to know whether the underlying assessment is appropriate or whether they have a disagreement with it provide the parents or the mechanism to have an expert that is on equal footing with the board has done what we have here is a functional behavior examine what the parents are seeking as a result of that is a variety of other things such as occupational therapy assist evaluation that triggered an evaluation under the statute that would trigger a parent's right to make a request for an i e d because the term is evaluation and you can see that it was an evaluation as if it were as if it were the equal to or the statutory equal to or the definitional equal to or try an ala sussan i mean you're making the case that there's a difference a substantial difference and yet you can see that this is an evaluation  and does not the regulations say that a parent does not necessarily have to agree with all the parent can ask for testing that in areas in which there was not and it has not guilty specifically indicated that they can ask for areas in which they disagree with or that areas were not tested differences in the letters from the department of education the letters to carroll the matter to ball both of those deal with you're you're saying that they're entitled to request it by its very nature because of its nature that they're not entitled to request the information that they normally would under and i hope i mean somehow you get the benefit of your concession no i don't think that what we are saying i think what we are saying is that apparently the word evaluation is not clearly defined in any of the statutes or regulation then it can mean a variety of things including an initial comprehensive  statute provides that a board must show that it's evaluation is appropriate and if certain things were never meant to be tested by that more limited evaluation it would be impossible for board to actually show  tests i want these other tests done can i ask for those other tests to be done and then i i think that turn to the question of whether the tests you're asking for are within the scope of what an f b i testing our contention here include the technology assessment so what would a parent is entitled to and in an f d a done by an independent individual so that they can determine whether or not the underlying  in the regulations that says that your authority is for that or the premise that the scope of the underlying evaluation dictates what the i a e a is correct if you if you get if a parent you've got to wait until you get one of those before you can then as a parent request an i e d when the school district has conceded that it's an al you ation i don't see anything in the regs or the statute that says that there's a different different approaches depending on what kind of an evaluation it seems to be just made up so i would be interested in seeing what what you can cite to us in that letter or any other questions for m different kinds of evaluations other than initial one revaluations and that would have different procedural safeguards your honor i also want to point out that the test that they're suggesting that the district or used of you get an i e d limited to what was intended to be measured by the and by the evaluation here disagreeing i think is going to lead to plenty of controversy administrative hearings and litigation about that as well we've seen that in our brief i think it  and thirty eight of the opening that all of these assessments requested were were related to behavior in fundamental ways and having litigation about that's a side issue was no one's interest said there a word on that i  it's me not in anybody's interests is not in the child's dream you have one more minute well your honor again the time with of the essence and you know that is a funny thing to say given where we are but in future cases of course your rule this ruling will matter and  gauge and headbanging there was no assessment done of that that related to that fundamental issue that got worse agreed as the years went by but that was not assessed there were multiple assessments that were not done at all that were planned to have been were not performed is the right to request an assessment evaluation a full blown triennial evaluation every year if they want to write yes your honor that's the remedy isn't it if you're not happy with what you've got in two thousand and fourteen and it's now two thousand and seventeen you just ask for a new evaluation and you get one right well you know that is one potential remedy but the regulations say that another potential remedy if you disagree with an evaluation that was a twenty how does this young and he is a senior honor he's entitled to three more your social education right i'm familiar i have a long running case that this is somewhat similar to in some ways  but this case is this case is angled tagal cases make a law is the law i speak only for myself you two would be well served for your clients and for the law to settle this case i will give you a decision i promise you that you would be well advised to settle this case that's my own that's just my view and said a word to anybody about this case but obviously you've got a lot of questions about this and it's in my view it is tangled and i'm trying to figure out how to make the left acacias clear extrication law i'm having trouble with so you can finish now you don't have to respond i'm not asking to respond i