morning mia please the court i'm cynthia vargas appearing on behalf of the lake elsinore unified school district i'd like to preserve three minutes for rebuttal if i could your honor let you die could you help me on something i don't know  probably isn't part of your argument but i'm waiting if we should and wondering if we should just wait for the supreme court decision i think they've granted certain a case and race versus the go city or something like that i don't know your honor that that case will apply specifically because in this case the hearing are the i'm sorry the hearing officer definitely but the district court as well ruled that the student made appropriate progress and the case that's pending before the u s supreme court has to do with whether or not with the the standard of whether or not a child may progress the issue of progress is not being addressed in this case at all it was not appealed by student so the district court affirmed the administrative law judges position that the student had made progress during the period of time that she was in the districts program she made academic progress independent of what this report so found she did so this a procedural violation i mean it's a procedural i'll ation correct your honor and in fact it's it's it's the second level of the peel and although i can appreciate the expertise of the district court i believe that she simply got it wrong in this case first the district court reached a conclusion on an issue that was never addressed during the due process hearing could you help me on another programming or issue i was very curious about the standard of review because in these a cases the deference to the administrative law judge seems to be less than it usually is in cases where there's an administrative law judge and then the district court and it made me wonder i think the way it works but you will actually know the way it works is that when a child fits within the disabled child category there's a bundle of federal money that goes to the public school if the public school is able to provide a free appropriate public education and it goes to the private school often these specialty schools that take care of autistic children if the public school can't is set the way it works is there a bundle of money so that as long as a o j in the school system so that the schools are accomplishing something they keep the money and if they don't the private school gets the money that is a very good and simplified version of exactly the way it works so school districts there is federal monies that are set aside for school districts to serve the needs of all different types of students with disabilities and that money can be used to fund a nonpublic agency or nonpublic school where the school district is an able to offer a program that's appropriate  difference yes standard review is a very important component here but before we even get to that i just want to point out that here the district court issued a ruling on a topic an issue that was never presented during the complaint it was not addressed during the due process hearing it was not even river rose on appeal and in fact in students reply brief in this appeal she acknowledges the fact that that was not raised here was my concern about that  though the statute says the school really does is supposed to do a review once every three years correct at the parents can request a review sooner than  that and did not in this case i think that's your case and you've got record to spores that right that's correct your honor i had when i was wondering was whether under the statute this child's condition was so bad that it would have been obvious to any school district acting in good faith that she should have had review world where this business of pulling out her hair not being toilet trained when she's what twelve thirteen years old playing in a toilet  violence it looks like she really needs to be out of the public school why wouldn't the school just undertakes to a sponsor its own review your honor goes right to the heart of this case and in fact this student smith m f and has engaged in very severe behavior she has done so over many years they were recognized before she was put into the district's alternative educational program so what's key here is to look at m f through a timeline not in certain points not in certain just looking at her behavior overall and unfortunately what you are going to hear from counsel on the other side is a list of very extreme behavior some of which count your hon listed just now and there are others as well but when you look at m s through the timeline you will see that there's behaviors were cyclical that they came and went that the district had interventions in place and they do believe that they were addressing those behaviors appropriately and in fact at the district court own decision recognized the fact that m s had made progress academically and behaviorally in the end so if we look at the cycle if we look at the history we've got one point in time that's prior to the statute period and that's august of two thousand and ten there was an assessment conducted on student it was a psycho educational evaluation that included behavior and anxiety both areas addressed by the district court sr the one by dr patterson that's correct your honor the district court recognized that the party stipulated to the assessment so that was stipulated in the agree in the due process hearing and accepted by the district court as of january two thousand and eleven student was placed in the district's alternative program at that time she engaged in some very serious behaviors she would have she had aggressive behaviors she had somewhat self injurious behaviors named by by your honor earlier she would pull out her hair pull out her hair she was dunking herself in her clothing and in the toilet and she had other maladaptive behaviors that are consistent with autism because of those behaviors the district contracted with and funded the services of the center for autism related disorders that's a nonpublic agency that specializes in working with students with autism card is who they're is well known well recognized in the community for providing what's called applied behavior analysis of interventions through those interventions if you look to the record  of may of two thousand and eleven at that point the school year ended and m s was then on summer break although she had the opportunity to she did not attend a district program during the summer break she continued to get some card services during that time but they were less than what she would get if she had been in the school setting her behaviors increased significantly during the summer as of september two thousand and eleven when she returned to school  they were if they had gone back up and she was engaging in aggressive she was not pulling out her hair at that time but as was the case in previous years and understand at that time a was eleven years old she had been in the districts and she was three this is or was very familiar with her cycles and that upon return from a break she routinely had an escalation in behavior as a result of that escalation new car goals were put into place interventions were modified by the end of september and certainly into october those behaviors had significantly decreased by november card again was not tracking the aggressive behavior because she wasn't engaging in it she got through the remainder of the calendar year taking her to the end of two thousand and eleven and then she went on winter break in lake elsinore the winter break just three weeks long as opposed to two it's quite a long break for a child with an s s need when she came back from winter break as is often the case with her as was the case in september her behaviors increased again they were again high again but the interventions were modified and we did see some of the turn of the pulling out her hair at that time but by march ninth two thousand and twelve that behavior completely ceased it was stopped again it wasn't happening in the dish in the school at all so she was doing well and starting to make really good academic progress which was recognized by the district court and then sometime in april the district started to see an increase in her aggressive behaviors again and other maladaptive behavior she was screeching more and she was making loud vocal outbursts that's towards the end of april the district held an ip team meeting in on may eighth two thousand twelve the beginning of the increase of her her behaviors were and knowledged and new goals were written and interventions were modified by june the very beginning her behaviors continued to escalate and by the beginning of june she was removed from the district in july two thousand and twelve the district held a night p t a meeting if i could step back for just a second the parents notified the district that they intended to pull m f out of school unilaterally place her in a nonpublic school and seek reimbursement from the district the district did not believe that its program was inappropriate for her they had been able to meet her needs they understood her that it couldn't even need to remove her from the district three that's not exactly the way it happened parents removed her in june and i p t a meeting was held in july where there was a discussion about the fact that it was unusual considering m s s typical cycle for her to have an increase in negative behaviors at the end of the school year those typically happened at the beginning of a school year so what the school district did was to recommend the ip team recommended that an f a a be conducted a functional  assessment but they did not ask for a functional analysis assessment what they asked for were new independent educational evaluations but the problem with their request is the district had already funded independent educational evaluations for student the first one being in august of two thousand and ten that i started with today and then in two thousand and eleven the district funded an i e e e independent educational evaluation of speech and another one in and then in may of two thousand and twelve student requests new independent educational evaluations that request was denied because the district had already funded independent evaluation in july two thousand and twelve when they met they talked about the fact that it was unusual that her behavior increase in april and perhaps it was time to do a functional analysis assessment and determine whether the interventions were no longer working not they had already determined they weren't but to determine whether there was something different going on in the computer about something ok the parents did request some kind of reevaluation in may but it was the wrong kind have two thousand and twelve correct out there right you do have that correct you know what or what is the kind they asked for and what the cause didn't ask for what's the difference ok i'd like to first just take a few one step back i'm going to answer your question absolutely but the district court read the facts to say that the parents had repeatedly numerously after assessments in the area behavior which is incorrect inconsistent with the record inconsistent with the l g s decision point to point that out in may of two thousand and twelve what they asked for were independent evaluations in the area of psycho education which includes cognition motor development academics social emotional functioning that includes behavior that's part of it that's part of what dr patterson had done in two thousand and twelve they also asked for an i e e e speech assessment and an i e e e o t assessment they did not ask for a functional analysis assessment what's there from a functional analysis assessment if focused on a child's behavior sol you're not looking at the child as a whole you're looking strictly at the child's behaviors and your determining whether or not there is a particular function to the child's behavior and determining what interventions are appropriate and that way to a layman this would just be a bunch of jargon that all means roughly the same thing another look at the kid i know but you know that's one of the reasons why this court and the u s supreme court have recognized and when looking at the standard of review for a reviewing court have recognized the complexity of  programs working out in the school said no the school district denied their request for an independent evaluation but offered them an assessment through the district so they didn't make sure they are now whitewash because the district loses the money if it says we're doing in adequate job i'm sorry i don't understand that i'm going to report in an independent assessment correct so it would be independent it correct but under the law a parent is entitled to an independent evaluation when they disagree with an assessment conducted by the district or i see you're saying when parents say kids but doing badly take another look first the school district takes a look and only then can the parents demand good morning you're honest kanya white leather appearing for plaintiff an appellate may have please the court i think the record is very full of all of the behavioral issues that m f had from twenty ten from the time that dr robert patterson indicated she had aggressive behaviors there are two things a pother me about your side of the argument i'd like to give you a chance to deal  not asking for the proper kind of assessment that you are entitled to ask for within a three year interval and the other one is when they tell you parents with the team and be part of the team and the parents could help with those two things i will be very first one not asking for the proper assessment the burden to assess is on the school district the local educational recess i think they didn't you didn't make a distinction between types if i remember right the the term reassessment with being used this record correctly noted the parents  request that the district assess m s s behavior and i don't think you argue that they had requests made some different sort of request they had made an i e e e request because the district had failed is adding your grade for you just tell your p d f now yes it is that the district had failed to conduct an assessment and when the district fails to do so when it has a reason to do so but you say you didn't request them to do it that the district the parents requested a behavior assessment with an i e e e based on the fact that the district had not done what it was required and well i didn't see that second part but i'll i thought was that they had requested an i e e e and went ahead and it so then what in your concession one does at mean this trick correctly notes that the parents did not request that the district assess m s's behavior so how should i understand that meaning that they had waited and attempted to address behavior at the i p t meetings and the district told them again and again that they were doing assessments through card that's even in the  reply brief they were doing ongoing assessments the parents having been told that there were behavior assessments being conducted by the district and the district court did note that as with district claimed it was doing assessments daily the parents said we would fourteen i guess it is and these educational evaluations is that incorrect i think that's incorrect i believe wants the basis for that when a basis for that where there is no every state is different if a parent walks in and says i want an assessment in the area of behavior of congress and id a don't require the parent to be the sophisticated person to know that we're going to call this the functional analysis assessment but you conceded that  you didn't request that the district assessment that that's what confuses me i mean that the district argues parents in requests that the district make any assessment nor did the school or the teachers request at so the fourteen fourteen be required fourteen fourteen was not triggered and you can see it as in this foot so i'm not understanding now when a when a district fails to do its duty and to go conduct an assessment will did it fail to do its duty meeting there's been no assessment i would like to have an independent educational settlement the district had not done one and the district had insisted it had been doing assessments so you're saying are you do i understand your argument that contrary to your footnote the parents implicitly requested or it should have been understood that they were requesting the sort of assessment required under fourteen fourteen is i what you're saying no no i'm sorry but i don't understand there is there is a triennial that every district is of suspected disability so they don't call it an assessment they say educational related services needs including improved academic achievement and functional performance of the child warrants or evaluation says specific sort of re evaluation that's required every three years or upon request by a parent or teacher or if the local educational agency thinks that the szell one is required and as i understand it the the district says parents never requested that sort of evaluation and they didn't nor did the teacher and so there was no requirement to do one except that the facts established and as the district court very clearly noted and let me step back a minute this court has indicated evaluations of the settlements mean the same so hopefully that will clear that out they are interpreted to be the same by the court the the parents had been told and it's in the record and it's in the briefing that the district was doing assessments constantly daily in behavior by card there was never a required assessment report there was never any consent which is required under the california cation codes to a formal behavior assessment but the parents were told again and again this is being done we are doing assessments and said the district will take this position so i'm not sure how that changes the analysis as they should have conducted a formal assessment so they are actually not have to request it that's that's our prez no that's not what the statute says and in fact the statute is to say or if conditions warrant that was removed by congress oh so there's no and if conditions warrant requirement now for the act sort of for evaluation when the district should have assessed and there had never once this is one of the things i think let me make sure i thought i had this right in twenty ten we would disagree with that but there was an evaluation done in two thousand and ten i didn't see a challenge that adequacy of that so so let's assume that that that was adequate and then the statute says it has to be done at least once every three years unless the district determines there's a need for evaluation or the parents asked for it i thought from reading the brief the same us judge who thought that there was a concession that the parents did not ask for fourteen fourteen revaluat do i take it that your argument today is that yes the parents did not ask for it but they didn't ask for it because they thought the district had been doing ongoing evaluations so somehow that's a violation of the statute yes all right so i have your argument cracked yes and how is it a violation of the statute if there's no specific request when the district fails to assuming for the sake of argument conduct this ongoing evaluation that they have purportedly represent the burden is never on the parent to do the assessment or to identify the areas of need or to begin the assessment the twenty ten assessment did not include it behavioral assessment it did not include an assessment of anxiety there were portions of the test of the cycle wead which is a very general oversight of the student that mentioned anxiety and aggression they were identified in there but it wasn't a full formal assessment of behavior and it was and that's the word i understand so let me ask in those terms the parents didn't ask for real evaluation because they thought in the district told them that it was reevaluating every day it would seem kind of obvious to me is formerly a parent of a young child that that would mean the teacher just has a little card or why checklist to mark off kid did ok today kid pulled their hair out today whatever that's a different thing from evaluating whether the kids getting a free appropriate public education the card data collection if this is helps is part of what a formal behavior functional analysis is there is data collection collected and what the parents were told was that  being used to do a sort of a functional analysis again isn't in their reply brief they were doing this assessment that it was being done on a daily basis we have daily records and that somebody from card i believe it was ms martin supervisor was overseeing that and doing that assessment the parents are not attorneys they're not special education teachers they believed when the district said we're doing these assessments every day we're doing we don't need to do this we're doing this and the parents and using their right and it's three hundred five to said ok you're doing an assessment read like the i e's because you're doing this we have a right to do this the district never funded where should i look in the record to see exactly what it is that the parents asked for and when they asked for within the three year period what x or reference that would be the five eight twelve i e talking about the administrative law judges decision that goes on forever single spaces or i will i will step back and find that a minute if i may do that and i may i answer the other questions well now the other one you had was about four days no response the parents have had a number of health issues and are dealing in the sole parents of the very difficult child with autism and there was a response by the parents those days all work school districts said get back to us and the district said if you don't get back to us by the twentieth i believe was the date will hold the ip without you this is the issue that wasn't raised at any place along the line and i think that's the district had actually offered an assessment of behavior that the parents refused to even consider because they didn't go to this july thirty s i e p or thirty first they had no notice of the i v that's the problem if they had had notice and not gone that would have been different the ale jay said it's the parents fault the district actually finally offered an assessment but the parents didn't even get notice the notice was for the twentieth them to work out a can mutually convenient date they didn't they weren't responsible in fact the school district told them it would take place on the twentieth they didn't hold o and didn't the school district told them there are four dates that are good for us one of them is the twentieth and then until the thirtieth as i recall they didn't give them notice my reply was sorry my recollection is something different i apologize but the what's  record brigades i do is that they said if you don't respond we will hold it on the twentieth and i'd reviewed that for this in preparation for this hearing as a parent show up on the twentieth no the parents did not it was not even held nothing listed as it has other evidence that it would have raised had the claim have the argument that's made that the argument was not made and i think i think you can see it as in the brace that the argument was not made the highlight of what we have jurisdiction when we said and  we didn't make a claim because it was and it was irrelevant because and if the district court the administrative law judge made a major error in the finding of fact and that that is to be reviewed by the district  thank you your honor just to address that issue very very quickly the issue of the july twenty thirty first ip it was not raised on a can in the complaint it was not raised during the due process hearing the district court the a l j i apologize  addressed it only briefly through the fact pattern but she did not issue a ruling on that it was not issue it wasn't even raised by student in her appeal with regard to anxiety the district court ruled that the district somehow failed to assess anxiety even though it were the district court itself recognise that in dr patterson's report in two thousand and ten he had assessed anxiety and that the district had in place procedures and him in interventions to address anxiety but then the district court went on to say that putting interventions in place are a response to an evaluation not instead of an evaluation therefore the district denied a favor but the district court ignored the fact that they had assessed in anxiety no request for an assessment anxiety was made during the relevant time period and then she would have been due for that