learning disability it's a pervasive disorder that affects every aspect of her life and generally affects about one percent of the student population it has an effect her psychological aspects of her emotional aspects her intelligence her ability to learn and she requires in the most strict twenty eight j a letter the ender's versus douglas county case where the supreme court or reenter rates the statutory framework for developing and i eat p and the court directs that this is to be an interactive process between the school district the parents of the student and the student's consultant that it did not happen here and in fact it is never happened there have been a number of i e piece developed for this student but none of them have worked and here's the reason because of the particular news is your argument that there was no participation on behalf of the child who is psychologist to try to get to the root of this matter or she prepared a very detailed report found at page forty two through seventy five of the record here part of her report  and there's a significant difference in that they didn't understand it because the school psychologist and this is in the the record before the i h o at about ninety five through one tenth the school psychologist actually admit that there is no such thing as a non verbal learning disorder it does not exist as  recognized condition but the deficiencies that informs that disorder is identified by the psychologist on your adversary argues we're all identified by b i e p that was prepared for l b so to that extent i'm i'm concerned that we not be focusing on labels as with what the child's needs for can you tell us what it was that the child needed that was not captured is the challenge perhaps it's easiest to understand this by thinking about a very small player on a baseball team and the player is given a very extra large uniform  that player has everything that all the other players have uniform and socks in a jersey and by all the outward trimmings that that player is getting what he needs to be part of the team of what what  missing here is the psychological aspects of it what effect would would that have on that player actually being made to stand out because he had you know the player standing there in a sl developed perceptual reasoning skills she had difficulty sustaining attention she had depression she had exonerating she needed a nurturing environment she needed structure she needed supervision she needed predictability and so they came up with a plan that provided for her to be in a situation where she would be in a five to one student teacher research research room program and that's a defined you know program under under the state that she got direct daily consultant teacher services in map she got weekly counseling and there was directions about you know breaking information into chunks providing her with three teens providing her with access to a computer i'm trying to understand in that analysis what's the need that is not captured or how are the responses somehow inadequate your client is seeking compensation for the placement of the child in a residential facility not at home and not in a regular school if you know that that is a situation that as i understand the law school boards are are generally told to proceed with only when it is impossible to teach the child or to provide and  a regular school and with with the child stay at home impossible may be a little bit strong here but the standard is does this meet the needs of the child and this disturbs not everything that you're on or described or all of the outward trappings of just ate a common every day i e p they're going to vote for example if you look on page eighty one it's the actual i e piece they say  nazi to be exactly what i've seen in other cases so tell me what answer my question what's the that's not captured by the the need is this child has to be in an educational setting where the her actual mental working use her spatial dissonance the fact that she needs a very closely to be monitored and read a rep teaching and methods that allow her mind to work as it exists everything that your honor is describing you know the classroom the number of teachers having a computer to her sister that's with every disabled child gets what this child needs and never receive and that i have read any number of i e piece that do not put children in five to one programs they put them in some other kind of programs i have not always seen  this child needs a computer to help her communicate i mean i'm just not prepared to accept that this is a cookie cutter i e p well it when when you look at the child's needs as described by the parent psychologist it becomes clear that what she needs is the type of residential setting where they recognise and they understand a non verbal learning disability and they can address  that they do do they not in the ordinary setting that a public school does they do it in a in a setting that understands the full and complete needs her of her disability and how she has to learn on an individual istic basis that those that did not happen here all any any disabled child could have gotten pretty much the same i e p here it didn't work for this child because the school district admittedly that they never really understood the nature in the scope of a nonverbal learning disability where is that admission record that admission is in the testimony of the school psychologist oh  i believe on peaches ninety one through one hundred five isn't it also a page to twenty that join appendix nonverbal learning disability is not formally recognized as a psychiatric diagnosis by the medical literature as yet by new york state you know here's the strange thing about that your honor the school district had on prior occasion and actually diagnosed her with a non verbal learning disability but actually diagnosed that so here you have this in congruity were the district is now arguing hey this nonverbal learning disability just doesn't really work we don't even recognize it in the literature and when you two propositions that they didn't understand this well sir i say that they didn't understand this because this is the school psychologist who was part of the committee on what you refer to as being at ninety one and following yes or no i misquoted that you judge what i was telling you were the peaches of the transcript itself ok from page ninety one of the transcript excuse me ninety five of the transcript tragedy identified as what precisely was required for her plan to be adequate here what activities what accommodations what i mean because your response really was that she needed a setting in which people understood that there is such a thing as a verbal learning disability and she needed to feel not different from others well but your honor that point is so important because it has such a pervasive effect upon her ability to learn in in this residential setting and greenbrier they are set up for children that have this particular type of disorder where  the equivalent to saying then that any child with that nonverbal learning disability is it needs to be in a residential setting as i think that that may be and i think your honor is on to something there i think that a school district who does not recognize this sort of disorder certainly could not be equipped to address it and i think your honor has a good point that the the very few students that are appropriate in determining what a tailored plan would be to look at the individual characteristics of a child and look at specific aspects of a plan as being  we look at the demand data of congress under idea that all children as a matter of public policy in the united states or going to get an education and then when we look at the most recent in appropriate education yes thank you we are now in appropriate education and then when we look out the most recent supreme court case interpreted that endures in the supreme court case says that  in formulating the i e p we have to rely upon the expertise of the district now in this case were the do street admits that they do not have that expertise i say that under ender's this child was entitle to that residential setting i'm not sure how you can make that argument in light of the testimony at trial that the nonverbal learning disability as a diagnosis that the evidence was is controversial in the field the research doesn't necessarily support that it's not recognised by the state of new york as a category of disability or by i d e a it's not in the d s m is a psychiatric diagnosis so there are different researchers who have tried to come to conclusions but celt so we've got a diagnosis that's controversial that seems to me that the default comes back to what are the child's identified needs and does this site pete and you still haven't identified what need it is she needs one on one as opposed to five on one she needs you know whatever else you think she needs you haven't identified anything that she needs that she didn't yet hear and i'm having trouble therefore with your argument you know what most respectfully your honor continues to focus on the one to one  teaching i don't think she anybody said she needed want one i'm so i hypothesise that to you for you to tell us she got five to one she got other things what he said she needed that she didn't get he needed some pedagogical program where her teachers understood her very individualistic learning disabilities that are not ok she has a spatial disorder  what i we've kept you a long time why don't we hear from your adversary and i believe where mr koppel began was that the process never happened in this case and i would concur with that but for a different reason i believe than than my adversary which is the history of this case  parent with the drew this child from the ithaca city school district in fourth grade the utica city school district has not seen this child since fourth grade she was parentally placed home skewes health now she is now i believe in the eleventh grade yes yes so withdrawn in fourth grade placed in private school withdrawn from private school homeschooled returned to private school she returns to the city school district in the in the spring prior to the commencement of her eight grade year when we have not seen her for four years so at that point the parent which is the c s e requests placement in the district indicates for all intents and purposes the child's returning to the district and unbeknownst to the district on july sixth i believe if the record reflects that the parent then turned around and unilaterally placed the child a greenbrier academy before the c s e had convened before she had engaged in that interactive process with the c s e she then turned up at the c d c meeting with a report prepared by a private consultant handed that consultants report to the c s c as an ultimatum containing a residential placement  recommendation she walked out after ten minutes she provided no input whatsoever regarding what she wanted in that ip what placement was necessary what services were necessary for her child to see if the then said well we hadn't had a chance to see this report we're seeing it for the first time on the day of the c s e let's reconvene after we've all had a chance to digest let's revisit the ip re invite the parent in and what i would contend is that the ip that came out of that process notwithstanding the parents lack of participation reflects every functional limitation identified by her own consultant and this is why mr capo is having difficulty identifying any specific need and the specific need for this child that was not addressed in that ip three specific service and i think it is telling that neither before the i h o before the as sorrow and then subsequently in front of the northern district of new york has there been any substantive deficiency in either our understanding of this child's needs the sufficiency of her evaluations the program that was alternately put in place though and those very very robust supplementary  but then the s r o thought that that procedural omission was not one that forgit any relief because the c s e had sufficient information otherwise to develop an i e but you know if you tell us this tale of what happened here and it's complexities it seems to me that's another person in peace now do you want to shed any light on that beyond what i understand i would i would love to shed some light on that so that is correct so what the  it's that there is a notation in the meeting minutes following the second meeting of the c s c where the c s e indicated that perhaps some updated testing might be necessary the areas that were specifically identified there with me where that some additional testing and social emotional attention academic achievement and assistive technology could be conducted so i think we turned to this court's test as identified in the c f case for when a procedural violation amounts to a denial of faith in  ideal case and if the law is very very clear that a procedural violation will only amount to a denial of faith if it substantially impeded the child's right to faith if it significantly impeded the parent's participation rights or otherwise cause some substantive interference of the child's right to an education so we look at what happened in this case the parents had already unilaterally and will this child to greenbrier academy in july so the the failure if i mean we can we can pontificate about what would have happened if this child had come to us and we had no opportunity to implement this ip on september first and i think that notation merely indicates the based on additional information that was shared by d parents consultant that the district was willing to consider some additional testing my opinion is that the s a rose observation that that was a procedural violation and not a substitute violation is supported by the fact that if we look at the areas that the district proposed to retest the record is replete with ample evaluative data in each of those areas so let's look at social emotional that was one of the areas that was identified the district's own school psychologist and ministered the basque that is an intensive psychological assessment both to the parent and to the child and obtained information about the child's emotional state and her relationship with her education based on that testing and there is a service that correlates with the needs identified by that testing in the ip it's counseling the child is going to receive individual counseling in school there's also the reflection of a goal a social emotional goal so to the extent that the see as he said we  can conduct some additional social motional testing that area had already been very amply tested at that point the other piece was attention the district was willing to conduct some additional testing in that area what we look at the horse heads evaluation that the child came to us with the whisk had been performed that identified already that she had some perceptual difficulties that she had some processing difficulties that long term memory might be an issue for her so so we had that from the prior district we also had the districts own updated psychoeducational testing finally we had this comprehensive report from the parents own consultant that likewise identified the child has some intentional difficulties so it seems that there was a failure  collaborative process perhaps not the school board's responsibility i think nonetheless do you agree that there might be some disabilities that require residential placement unquestionably and question and do you think that  they're there maybe they're marching practices the educational feels in which new disabilities are being recognized and here we have one that was diagnosed by the parents consultant although perhaps controversial and you have the school district saying we don't really buy that we don't really understand we're not versed in that and nonetheless you're taking the position that they were able to deal with that because of these you know kind of atomistic functional offerings that the i p made but it's a little disconcerting still to have what seems to be a a diagnosis it's a kind of whole package that the school says we don't really know if it's not a label that we recognize and so we reject the premise that to light so what our district witnesses were testifying to in that space at the time was that from their standpoint there were eleven enumerated i d e a disability categories and one of those is learning disability and what the school psychologist was speaking to was it's not a diagnosis in the d s m so we can't attach that label to it furthermore it's not a category under the idea so in other words when we  that that grid on the front page that we're not going to say nonverbal learning disability because the state doesn't allow us to do that but that doesn't mean we can't program and develop supplementary aids and services that are specifically addressing the facets of that disability so i would contend that the court was asking precisely the right questions of mr kopp go which is to what extent did the did the fact that the state doesn't recognize this label mean that the that the district cannot program i'm for a child who's learning disability happens to affect them in the mathematical realm that's really what we're talking about we're talking about a child here who on all objective measures was functioning act grade level or above grade level in pretty much every domain the only area in which she was struggling by all objective testing was in that perception piece that correlated with her math quantitative skills as well as in the social behavioral r of the emotional overlay the emotional overlay so so my parent's perspective is that that's part and parcel of the nonverbal learning disability i don't think the district would dispute that and i think that's reflected in the i the present levels of performance sections where the where where my client clearly indicated this this disability causes this child to have anxiety in a classroom setting  causes her to have difficulty relating and forming that connection with teachers in the first instance so so and the deed a from that was derived not only from the private consultants report but also from the district's own behavioral testing so so i think mr capos characterization that the district disavowed nonverbal learning disability is a complete mischaracterization of the record what what what the district did was was throughout time since that the first ip they prepared for this child going back to fourth grade they recognized that she has a mild learning disability mild to moderate learning disability that impacts her predominately in the non verbal domain and provided supports to target that area so to my mind whether the psychologist says well there's there's some doubt about the existence of this diagnosis the research about this diagnosis in the d s m that's completely irrelevant you would say that there's nothing in the testing and the evaluation package overall that indicated that the only place that she could receive an appropriate education was in a residential setting away from the public school i would say that it's not just not supported by the record i would say it's completely contrary to the least restrictive environment mandate of the i d e a the that we would get it out only when we decide whether or not your ip is satisfactory right whether or not if we would have to conclude you were is was not and then the question would be  this is the examination of the school psychologist who reviewed the parents report about the educational setting i believe that i state it in my professional opinion i don't believe that a non verbal learning disability in and of itself exists in the first lips and it wasn't there another witness from the district who testified at the diagnosis is controversial that it's there are disagreements within the district about this being an appropriate or recognized diagnosis and so it is that it is sort of that's the whole point about this stuff there you have one school psychologist saying non verbal learning disability doesn't even exist you have another school psychologist saying look i'm sorry and that's what i really just don't get and maybe you can help me what you have at best i think is whether a particular package of conditions or symptoms constitutes for one of the better term my part a syndrome to which a particular label ought to be fixed and yes there are disagreements about whether that's appropriate to take it out of this realm to another one there is a great controversy or at least used to may still be in the medical profession about fibro my algebra is a diagnosis in another itself for sort of widely disseminated muscular or soft tissue pain through the body or not but nobody did not just the symptoms so the whole point of this case is did the district understand what the problems with this  address them appropriately not whether they put the right label on that in the opinion of your psychologist as distinguished from other psychologists who say whether or not i believe that the non verbal leering disability exists in and of itself is irrelevant to the child and her individual needs and that's what i was focused on so that's my concern is what you have to show us not simply that this psychologist fell on the side of the controversy that doesn't recognize this condition as a unique disability but whether he failed as a result to identify the nine and to page sixty the record that's where the the parents school psychologist listed the the very specific needs that the residential setting would provide to this child in order to meet her minimum educational requirements which in fees is not identified and not provided a real problem with you saying they didn't recognize the need your honor it's the point that i was trying to set before putting this child in a five to one classroom does nothing to recognize the individual istic nurturing environment that is that is being recommended by the expert here that she needs teachers who understand the non verbal learning disability is that on an immediate basis that she needs to be reinforced that information has to be repetitively presented to her that's the uniqueness of this this is a cookie cutter i e p that doesn't address for all of these reasons that your honor and asked me earlier for all of these reasons this is why a residential setting is necessary and judge kaplan you talk about this fiber my allergy and i think your writer is totally correct about that because years ago though this was dismissed by the medical communities and for a long time it wasn't recognize we now have a whole body of science that in stablish is that in fact this is a true phenomenon that people do this this is no different than what we