the court counsel of record peter martin for the school district the district court entered as a matter of law when it determined that the student in this case was eligible for special education even though the student never manifested any its child fine obligations the district court committed additional errors by determining that the school districts evaluation was not appropriate ordering the reimbursement of various private evaluation expenses and b denying the school districts motion to supplement the administrative record as to these matters the district court's decision must be reversed i want to mainly talk about eligibility because that issue is the crux of this case  student is not eligible for special education and the remaining issues including the cross appeal need not be considered whether the students eligible for special education is a legal question which is reviewed by this court without deference to the administrative hearing decision that as particularly true here where the quality of the hearing officers reasoning is suspect and infected with bias against the school district district court found some merit to the school district allegations of bias by the same hearing officer in a companion case involving the very same parties i want to be clear that this case is not about whether the student is in general terms in need of medical and therapy services from rd parties to address her difficult circumstances this case is also not about whether the student is entitled to a requires specialized instruction from a public school teacher in order to learn a special education eligibility hinges on three considerations  student meet the criteria for a specific disability nd does the identified disability adversely affect educational performance and does the adverse effect an educational performance from that qualifying free to impose their own special education standards provided but they are not inconsistent with the federal standards established by the i d e a the state of minnesota has crafted its own eligibility standards which contemporaneous face time with one of our public school teachers prior to that time the last time that the student had exposure to any one of our teachers was for a limited time period and september of two thousand and seventeen when the student was in the pas program with a teacher named bob logan had three different dates so we feel like that supplementation would have aided the district court clearly on the question of need and also the dark laurentian of deanna lawrence indicated they students productivit both that particular remedy of reimbursement and also the need for special education the statute seems to provide on its face for supplementation but also for the student would argue that the circus case law would preclude that how would you respond i don't think it's a i don't think there is a ra blocking supplementation in every case your honor i do not read in circuit precedent in that way i think you have to have a present a solid justification i think that's what our case the most absolutely relevant so i don't see a clear impediment to supplementation here at all your honor i think you kind of look at each individual case and in this case is admittedly an unusual case where supplement significant impairment in the classroom or any other educational setting this conclusion is fully supported by the school district's exhaustive evaluation but also from the testimony of the parent who said several times during the valuation based in part upon our not applying that criteria we actually did consider the criterion that consideration is reflected in the evaluation report but as we said in our brief it team override experienced evaluators collectively over one hundred years of evaluation experience concluded that there were no invalid findings here so the criteria did not apply also override criteria  must special education in the team concluded based upon the collective evidence that she did not need special education so we concluded that the override rule wouldn't apply in this case and i w apply under the unique facts here else with regard to your two e c and elsa's why wouldn't be the student's complete absence from the classroom have to be taken into consideration under that  home but that's that's where the epicenter of these absences is occurring so we factor that in you check that box that environment is there but you can't double counted and say th to the educational setting there has to be something additional what the caring officer did as he did something that is not supported anywhere in any regulation there is no case there is no federal or state case there is no characterization to say it was going on at home i mean there was evidence in the record that i want to kazan at least she got to school but couldn't walk in the school and the allegation is that there may or may and there may have been issues but the fundamental problem here was that she couldn't access and participate in the classroom activities and that i guess i struggle with the two distinct characterizations problems at home vs problems at school it doesn't seem to me that these were problems at home and there were at least problems that bled over into school no your honor in fact it's actually the opposite in fact the circumstance that you're describing was a situation that occurred in march march th of two thousand and sixteen i believe where the  was in the parking lot did not want to get out of her father's car to come to school in that particular case the school counselor came out to her car talked to her for about i think she said six or seven minutes they walked into school together and as the record shows she went to counselor talked to her at that time and then she went to school and had a good day and i will say and there was one other situation where your position is is that anything that happens before you cross the threshold into the school is all part of the whole thing and we don't and that just goes to the st consideration the other two considerations only start becoming relevant the minute you cross threshold well it does saying the rule i'm reading the plain language of the rule your honor  there are none not a single time in fact it's interesting because if you will also looked at her health records over time she only in her entire school career she'd only visited the nurse's office like three times in her whole exceptionally talented in that environment so so we our conclusion is is that the three environments test wasn't met therefore the student does not have a qualifying disability she's not eligible a list of eight factors you have to meet three of those eight well we said that there was excessive absenteeism linked to a health condition but we didn't find any other the boxes  checked for this particular student the hearing officer said that she met three other criteria for a total of four of the eight but each and every one of those criteria for example he said she could not complete the educational task of going to school which is interesting but but he basically quadruple counted the a brains the statement of needs and reasonable ness for that particular administrative rule in the rule says that each of those criteria are meant to reflect different skills so you can't double noted by her teachers and by the way this is across our settings for teachers in school who dealt with hurt said that she was a model student very brilliant capable had friends worked well with in groups she had no difficulties carry hermansen who was the declarant in our motion to supplement said the same thing the private provider heather lindstrom said the same thing when she's in a learning environment she does extremely well she's very talented and she doesn't need special education and i see what i mean rubber bottle time and i would like to say that thank you to provide special education when undisputed evidence demonstrates illegitimate disability that prevents school attendance and results from school failure and id a defined special education as providing instruction outside the classroom in the hahn in hospitals and other institutions even in jails their students inability to attend school resulted from an emotional disability that prevented her from receiving an education for three years there is no dispute that a genuine emotional disability is the reason she does not attend school th her parents and even the district own psychiatric expert agreed none of the district's fifteen witnesses disputed this pediatric psychiatrist dr reed t found this testimony credible and based the eligibility determination on it and the undisputed evidence of school failure the district court properly affirmed when not in school or provided instruction at home failed her classes but to over three years this is the essence of an adverse effect on educational performance in letter to anonymous cited in the district's brief the office of special ed programs  states department of education recognize that it's self evident that the inability to be present in a classroom adversely affects one's educational performance and this child her educational performance was affected in every class every day in every location at school when she was not in attendance because she failed to learn she felt the earned credits she felt passed her classes or advance toward graduation there's simply no evidence that she can succeed academically without addressing her behavioral and emotional problems it's the very reason she's eligible for and need special education the district which has the burden of proof here has provided no evidence to the contrary as this court recognized and i s d versus a c the i d e a included emotional disturbance as a category of disability that entitle children to special education when social and emotional problems are not separable from the learning process as here the idea it was an acted to serve children just like this with disabilities that prevented them from coming to school and to provide access to the general curriculum no matter where instruction must be provided the district would take us back fifty years to a time when students with disabilities both physical and psychological were left out of education the idea is concerned with both academic and functional skills because both are necessary for educational success functional skills are defined as skills to increase performance and rule subdivision twenty four that ministry of law judge in a thorough and well reasoned decision made the correct legal conclusions based on the evidence and credibility determinations to which preferences do the district court properly affirmed the legal conclusions on eligibility on child find and the denial of a free appropriate public education or faith like to ask you a question about the child find obligations specifically with regard to the limitations period is it your position that the to your limitations period can never start running until the parents are officially notified of their legal rights it is when the district has an obligation to inform the parents of their legal rights to inform the parents of a refusal or a proposal to do or not do something that triggers the obligation of the school district believe i cited that in our in our brief there are a number of cases and i don't have them at the ready i can turn to our brief if you like their number of federal court cases and appellate court court case i think the th circuit  has decided directly on point this issue when a school district does not give parents the procedural safeguards notice in a timely manner that the statue of limitations doesn't apply the statute itself frankly says that when parents are prevented from requesting hearing because the district does not provide to them the information it is required to provide because procedural procedural due process is and bedded in the statute this wasn't there a difference b prevented from requesting a hearing because they did not know that they had a claim they didn't know they had a claim because they were not provided wetton notice of their rights so that they could be apprised of of their of the of those rights and exercise  some as a stablished to exhaust administrative remedies encourage early resolution of disputes and discourage multiple appeals that lack merit the district refused to evaluate the student or almost three years  w she was failing classes she was in and out of psychiatric hospital and treatment programs and she had stopped attending school the district never offered to evaluate the student but staff provided inaccurate and misleading verbal information about special education to her parents what about the minnesota requirement that the abt at least one of the observations needs to be in a classroom and your client never came to the classroom in order to satisfy that regulation came in sort of regulation says that an observation must occur in the classroom or other learning environment it clause that the district repeatedly leaves out of its re of applicable law there were many opportunities for the district to observe the student her parents repeatedly requested and provided letters from her psychiatrist that she'd be given homebound instruction  that student went to school on the student was in the hospital at the at the beginning of this case when her parent requested evaluation her parents specifically asked the district to coordinate their evaluation with the hospital where she was she could have been observed there she went to the district schools during the district's evaluation to conduct some of the evaluation activities which could have been observed there she went to the district school r i think this one yeah and dk barouche's abington where they where they talk about the framework as their school district withholds information such that the parent can't make an informed decision it is that your position here parents don't know nor should they be assumed to know or required to have knowledge that they have a claim against a public school that the public schools deny their child rights when they never provided notice of their rights when they have no information on which to base that knowledge that the statue of limitations at that's why there are those exceptions because the statue of limitations shouldn't begin around its discovery stache imitation and parents shouldn't be held to a standard of discovery of claims when they are not given the information on which to to form that knowledge the parents never refused any special education evaluation but consented to every evaluation the duster proposed without condition they gave consent and asked for more information about the functional behavior  it does not withhold consent as the district asserts once a dead evaluate the student the district refused to evaluate the function of the very behavior causing the failure and refused to evaluate or provide instruction to her in the hospital or at home this is why it's a valuation missed the boat the district has affirmative and honest final obligations to identify children suspected of having a disability in a need for special education and cannot force responsibility on the parents in order to trigger its duties nor can the district avoid its chopping up legations because the student's disability prevented her from regular attendance at school when her parents requested home services over time s of the student and parents appeal the district court committed error when it reversed the award of private compensatory education services for three reasons st the district  that the student was denied a faith for appropriate public education and the denial of a faith must be cured and id a remedy language is mandatory the court shell order relief and the supreme court recognized in fr napoleon that if a school district fails to fulfill the id is a requirement the hearing officer must order relief the district court failed explain how denying any relief for three years of deprivation was appropriate services rd the school district can a cure the educational harm it produced by providing current services the district has both a current and past obligation to the student because she's currently eligible and because she was eligible for three years when it provided to her no special education related services even if the district fulfilled its current obligation the district's past failures would not be cured this court recognized in c b versus special school district number one that school districts had already failed a student don't get more opportunities to serve our failed them before private compensatory services are awarded as relief the district court effectively immunized the district's refusal to fulfill child find up legations when it removed the private services awarded as compensatory education and irrational rule according to the supreme court in force girl versus t a a from last three years while the district ignored its child find obligations the student earned only two semester credits in less than sixteen hours with the private special educator hired by the parents the student turned almost the same on the credits the private special educator provided specialized instruction that was effective almost immediately to support the student getting out of her bedroom out of her home and starting to learn every witness to testify on the subject agreed that with timely and appropriate special education the student could catch up and graduate with her peers had the private special education ordered by the ministry of law judge continued she would likely have graduated and today been in college rather than remaining three years behind waiting for effective private services to be restored scuse me private special education while specialized instruction and it came to the student in f start to restore her to her education st she developed a safe and trusting relationship then she helped the student get emotionally regulated in order to learn then she provided the supports to cope with and work through the emotional barriers to engaging in learning to initiating maintaining in completing tasks and for by assuring alignment with the therapeutic approaches provided by her treatment providers at this is far more than just the babysitting that the district describes what what the student needs the tutors testimony is complete and descriptive and explains exactly how she was able to produce such fabulous results in really such short order and in the face of a long period of failure the private special educator described the student as very excited to learn private instruction was provided and comfortable community settings with a goal toward expanding locations with support to increase her stamina and tolerance and to build on her success that's private program should be reinstated to make up for the three years of education the student is still missing that was mad not three i'm sure that you have a different opinion on that and i'm just curious what your position exactly is yes we have a very different opinion on that they the reason why we have multiple criteria is to make sure that we're covering the waterfront in terms of getting that adverse effect on education pronto so we look at a variety of variables one is is the student not in attendance the others it's a stone initiating maintaining and well she can't do that when she's not in school you know that this district seems to be arguing that the student doesn't need education at all and that simply is not the case or she would have graduated by now so the reason we was affected in every environment every day she wasn't there she didn't learn she didn't complete assignments she didn't learn she failed her classes all but two in three years  you your honor there is no short cut to eligibility recognized in state or federal law based on excessive absenteeism alone and that is what we have here we have  who is excessively absent as a result of medical conditions that are beyond the school district's control to ameliorate those are matters for medical professionals were educators there is no rule there is no interpretation of a rule that says you're eligible for special education based solely upon exce were the case we i mean this is a spec policy issue related to this issue can a student qualify for special education who doesn't manifest any particular difficulties of any kind in a school environment you will expand the scope of school districts child fine obligations and the potential universe of special education students because there's a lot of kids who are absent from school we cited an article in our brief that it was a mini post article that says that in twenty being ascribed to the actions of the school district but if you read the e mail communications over several years the parent mother is really complimentary of the efforts of the school and one of the things the school district would frequently was that parent request excuse therefore it triggers your child find obligation in the student should be eligible that is of great concern i mean i think that is the big issue in this case as can a student who doesn't manifest any challenges in school can they still be eligible based there is no doubt in the hearing officer said this by the way there's no doubt that if she was in school she'd be excelling without any special systems the other reason why she's credit the freshman is she's at home with an illness and she does not she's not able to do school work because she's ill just like any one of us would be you know the reality of us is that you can have an illness or disability or mental health diagnosis and not need special education and that is the student nd that and i by the education the story does not exhibit unusual or alarming conduct warranting special education for teachers testified that she was socially appropriate at school and in other learning environment so she worked well in groups had friends  was not a challenge from a behavior standpoint and then the th one does the student demonstrate the capacity to comprehend course material manifestly yes she has a greater ability than even non disabled instruction from a public school teacher for students not a little for special education because she does not need it in order to learn for those reasons and those in the bronx the district court's decision should be reversed thank you