the institution the school for part of the time and the long conformity with the plan was essential because he wasn't there what am i missing i apologize for how complex the facts are here there's actually two periods of time it is shoot when the plan was not complied with and we were referring to the behavior intervention plan which was scientifically created according to the found identifying the functions of the child's behavior he has autism behavioral difficulties are actually what makes him eligible for the services to begin with the two periods of time it is you are the periods of time when he was actually attending school which is actually quite a brief period of about four or five weeks at issue here and plaintive argues that during that time although the defendant had inappropriate behavior intervention plan in place it did not follow the letter of the plan and the second period of time than the i guess the week when they were observing the special day class right and yes i realize that but that argument fails because under the code there is an annual i p and the i p can say that in plain english you know in this case we have the two thousand and eleven plan yes you're saying that there is an amendment and manual amendment of that plan that put the execution for the new location would be in the home where is the amend that there were multiple amendments changing the location the final one that changed the location to the home was in september of two thousand and eleven and then and initial part about some of the events that took place while he was attending school where the administrative proceedings or the district court do you think they went wrong what pages were we specifically looking at because quite an extensive decisions on both part where we specifically looking to find what really is at issue in that challenge well i would argue that what's really at issue is quite simple there was an agreed upon and consented to my e p and the only thing that changed was the amendment that the educational setting be home home there's no reasonable excellent expectation that the idea will be implemented were can you so i guess i missed this because when i read the opinions i didn't see discussion about an amendment even one student was not attending school and was receiving home hospital services is unclear what legal grounds exist to support this theory since the v i p was relayed to students in school behavior and specifically cared to address  it is cited actually in the districts supplemental excerpts of record i don't have the page number here i mean this is the key to your argument and you can't what i want to know what it says because  feel like we're talking and it says that and right now i'm talking about the first amendment and september of two thousand and eleven the amendment says that although the district i p team members believe that he should be placed in a special day class the mother will not agree to that so they are going to place them on home instruction or home hospital temporarily while she can review a class placement then the subsequent i  agrees only to that portion the subsequent ip in november states that the district is again making a special day class available and again the mother is saying no she will not  agree to place and so he was going to be placed in home instruction quote unquote for a period of time it's a red herring that this is somehow a change of the initial offer in the in the annual i is very clear that it was never rescinded the services that were offered in the annual life january eighteenth two thousand and eleven that i eat people vied for multiple services to support behaviors in an autistic child are equally as important to develop and teach as they are to eliminate so what does that mean in paragraph seventy seven after the pork portion r in the ministry of law judge goes on to say that the hearing officer goes on to say there's no evidence whatsoever that student had behavioral issues when receiving his home hospital schooling and mother did not testify that he currently or earlier in two thousand and eleven or twelve experienced problems in the home what is if the impact or effect of that well first of all i would argue that it's completely irrelevant what we are the i d e a covers the responsibility of the school district to the child  and this court has determined in anchorage that the child should not be penalized for that for parents actions but regardless of that the it it doesn't excuse the district responsibility to still implement the services in the ip that said what services were required and not implemented while the troubles at home thank you your honor the service behavior instruction again the i e p had goals that had to do with behavior other than just remediating negative behaviors that impacted his presence in the classroom he was also being taught social behaviors such as indiana a conversation appropriately in fact the district itself offered that he should have some of his behavior services outside of the classroom anyway so that he could have discreet  you know well let me make make sure i understand this thank you and the plan said behavior instruction is appropriate yes the school offered behavior instruction in the school in a special class it's their right yes that the mother did not agree with the amendment she thought it was insufficient so she kept the child at home the behavior instruction was offered in the school but not at the home but no plan said he should get the behavior instruction at home and she did not present expert testimony that he should get the behavior instruction at home rather than at school january i e p provides for what behavior services would be provided the amendments i e piece only discussed where it's also the amendment to that offer the special day and that my client's mother did not consent to is actually irrelevant to the district's failure to offer support and implement the january ip while he was at home because she never consented to it and the district did not follow through with the legal requirements to enforce and that by giving her my understanding is breaking down at as i recall the way these cases work is the parental must be consulted but it is not the law that what must be done has to be what the parent consents to or wants that there has to be a determination by the l j about what's appropriate your honor yes and i would argue that actually we go back to the e p team it has to be determined by the e p teen what's appropriate and at the end of the i e p team the district determined it was appropriate and offered to place my client at home what they did at that point was failed to implement or offer to implement all the services that were incorporated with it and encompassed in that i e p i guess parent an advance is money to get or i guess the cases i've seen the most of that low vos have treatment at home the school refuses to pay for it and we wind up gating about whether the district test reimburse the parent for the cost of the low bus treatment that's the typical i d e a case that i've had anyway that the rich person's option my client can have that option here so since your client was not rich enough to get the low boss treatment which is pretty expensive what is it the worst goes to do about it i mean two thousand and eleven two thousand and twelve or history now well i think it's very very important that might have much better because it would they provided her a lot of financial aid and but she still was she still had to pay three hundred dollars a month for his time there and she had to quit her educational program so she can go to school and see if things are working out correct and then the next amendment is like a month later in october and it says it changed the placement from the birth  it's that was the next amendment that's correct your honor and so is what we're talking about is september to october no your honor he after after the from september to october i would agree was a temporary placement at home he went back to school for two and a half days at which point the horrific event happened where he was handcuffed and restrained and secluded over a period of multiple hours and handcuffs on the floor after that his mother took him back home in a tent in an ip after that where they offered to introduce additional reactionary and punitive that measures it was after that period that we're arguing there was no that it was a permanent placement the district did nothing to determine how it could serve him at home but the ip offered him his january i e p as well as the because the actual brain november he's in the school or he's just not going to school he only went to school for two and a half days right and it took a while to get to the ip but and then don't bamber so is it really the november amendment that you're saying following that they didn't provide the person the services required by the two thousand and eleven january plan yes ok so at so it's post november that you're asking about so it would be  november through the time he was placed in the catholic school which was march right so i have another question and that has to do with the filing of the notice of appeal i know the error or just a correction for example of the caption extends the notice of appeal time it was an amended notice it was an excuse me an amended decision and at the end of it it said you have ninety days from this date to file your appeal and there is no exception for  well if you if you are an administrator its in its ninety days is really a federal law correct so we look to the federal statute and when should then look to rule sixty b to see how this is handled as to you know or rule sixty as to whether this actually extends the hearing here in the us the appeal here ian i'm seven for some trouble placing this procedurally where you say because we have cases  say you know even if the court tells you oh you don't have to appeal tell tomorrow and then actually it's due to day they say well sorry the court is an error but it didn't matter we have cases like that so what are you on the notice of appeal rights that is at the end of the decision no your honor is also from my memory is my and my understanding that the rule sixty b did not did not apply because it was an administrative decision and i have to relook at it but i i don't think that that it applied for the reason that i put in mine was the morning your honour's peter sansom on behalf of the new c m r unified school district there are three grounds upon which this court should adjudicate this case in the district's favor first c l did not timely lodge his appeal to whether a february third two thousand and twelve individualized education program made a free appropriate public education available to seal that issue is moot because the parents subsequently consented to that i and a new ip was developed a few months later in october two thousand and fifteen which supersedes that february third two thousand and twelve third regardless of whether this court dismisses the second issue as moot this court should affirm the district court's decision in its entirety because c l has failed to meet his burden of proof before this court to demonstrate that the district court committed a clear factual error or in correctly applied the law in regards to your honor's clarifying questions concerning the sequence of the individualized education programs the annual ip was dated january eighteenth two thousand and eleven the placement offer within that i can be found in c l's excerpts of record volume three pages one zero seven two two one zero eight four that i p clearly made a placement of a lable at a school site the behavior intervention plan or the bit as we sometimes say was you say that that behavior plan was created exclusively to address behaviors in school at the time that dr randall ball conducted the assessment that led to that behavior intervention plan he interview c l's mother v l and she told him very bluntly i don't have problems with his behaviors at home so there was nothing in that guiding annual i p that provided a placement in the home or contain any sort of behavioral support or plan that had any connection with c l in his home now we fast forward to september twenty third two thousand and eleven that ip can be found in c l's excerpts of record volume three page one hundred eighteen the i p t met because c l had returned from summer break without accessing any special education programming during the summer and it had been recommended because he didn't he would not be able to maintain skills with that type of break in his educational program so he returns from the summer break having number c recommended serve we say having not received the passive voice makes it hard for me to understand where services offered and not accepted the are you saying the mother did not accept the services correct dr thank you for the clarification the district did make services available during the summer to see l we refer to those as extended school year or why services could you please avoid the acronyms all they do is make me drift  elbe did not access those services for c l what what services were offered where what do you mean by did not access are you saying some counsel was available at school and a kid didn't show up or what are you saying there is a special education classroom that is available for him to receive instruction in for twenty school days a credentialed special education teacher oh how about this where they have where they services in the school or outside school in the school  and his behaviors have essentially deteriorated as compared to the end of the preceding regular school year and so the i p t meet this is a concern to the team and their recommendation made in the september twenty third two thousand and eleven i p is c l should attend a special day class that was the offer and if you look specifically at the september twenty third two thousand and eleven ip you can see that the l did not consent to that offer there's actually a page in the i you know it just might be easier if we called her the mother and him the denial the mother then mom or the mother just this september twenty third twenty eleven document you're talking about does that constitute it a new amendment to the twenty eight level to the january ip the i he was an offer of an amendment to move the child into a special day class but the mother did not and that one consented to ok of record volume two page one hundred seventy eight the mother then agreed to consent to the special day class a classroom on a school placement and them was implemented and then we have the behavioral incident on october twenty first and after that incident the mother did not return the child to school but he continued to receive was a stand alone temporary service of home instruction comprised exclusively of instruction from a teacher there is no i e p document in the record legally obligating the school district to provide the boy at home and the school simply teacher to the home correct and the teacher went to the home and that was the extent of the services provided and you're saying there was no y u p that required any additional services to be provided in the home in the home correct your honor and at this point there's is there an amendment to the a p and place or no other than the special daycare class which was the last thing that it was not until the ip team reconvened on february third two thousand and twelve to develop a new ip for c l a meeting that his mother did not attend ok so where you get to that she says that really at issue here is post november two thousand and eleven and that there was an amendment to the plan in two thousand and eleven so can you yeah start there i have my notes of every second twenty eleven changed placement to the home it did not the november twelfth two thousand and eleven ifi which is at c e o s supplemental excerpts of record volume three pages one one three three two one one four seven that i continue to offer to the child the opportunity to return to a school based placement the parents chose not to access that and instead c l continued to receive this standalone temporary service of in home instruction can i just ask about this in home instruction is that equivalent to like if a child was in a long term  physical situation and couldn't go to school that the school would send you someone but it's not necessarily part of a night it's not even it's not even that substantial the sequence of events was essentially a mother refusing to access and offered program at school the district the mother said i'm not bringing my child to school the district did not want the child to go without any services and so it was explained to the mother at the september two thousand and eleven i meeting we want you to look at our proposed national education classroom while you do that ok you know you're i think the question is pretty simple how is it you get someone to come to your house and be your teacher is it because the school has an obligation in general under state law to educate children and if they can't come for whatever reason for a longer term use and i'm someone or is this somehow an adjunct to that it was through the i that the district offered and the mother accepted the stand alone service is there an as or piece of paper that says that there is ok and what what's that called well there's and there's an ip there's a september twenty thir two thousand and eleven ip that's the special day class correct because i'm talking about the one where you the teacher comes to your house it's in that ip as well because what happened was the district proposed a special day class the mother said i'm not sending my child there in the district said ok well that's still our offer but in the interim while you look at the program we can send a teacher to the house and if you look at the document in the record you will see the mother's signature so on an interim basis the teacher comes to the house correct then there is an amendment and to november two thousand and eleven there's an amendment in october on up to a great teams two thousand and eleven where the mother agrees to the special education classroom at the school the child attends a special education classroom then we have the behavioral incident october twenty first two thousand and eleven the district reconvenes the i p t meeting in on november second two thousand and eleven explains to the mother we want to educate him in this budget as special education classroom please return him the mother refuses to do that the mother refuses to participate in an i p t meeting the district satisfies its legal obligation to develop a new ip on february third two thousand and twelve so in the november twentieth levon reconvening of the i p your view is that there was no amendment to the i e re offer of the special education class correct correct that is correct or honor because if you look at these id documents including september twenty third two thousand and eleven october eighteenth two thousand and eleven and november twelfth two thousand and eleven each i p has a section where the parent can agree to amend the genially two thousand and eleven i it's not signed on any of those documents so that when that issue to focus on what counsel was asking about is she saying post november two thousand and eleven through march and you're saying there is no amendment to the plan and that she declined to send him back to school so basically there is no new plan in place no different plan in place correct until february  three page one hundred thirty three there is a phrase on that document that states initial then there's a space to initial i agreed to the contents of the amendment to the ip dated one eighteenth two thousand and eleven the signature line there is a blank because the mother never consented to an amendment that january two thousand and i will make sure i understand what happened here after the handcuff incident the mother did not want to send the kid back to school people plan provided for special behavioral classes at school but the mother did not want to send the kid to school directly on the school provided a teacher to come to the home but did not provide a behavior modification specialist to come to the home and the mother thinks it should have what i want to know is that the plan in effect during the time between the handcuffing in the catholic school say that the school was to provide a behavior specialist where the child was or did it merely say provide a behavior modification specialist at the the school  only educational program that the parent agreed to after november two thousand and eleven was for the district to send a teacher alone into the home that was all she consented to the parent had the option of the school offered behavior modification specialist at school the mother refused to bring the child to school after what to her would have been this traumatic incident of the child being him cuffed correct your honor now as i understood  argument leaving aside whether she rejected the offer where you were going to provide behavioral services at the school she reads the january two thousand and eleven plan as not location dependent but it is location dependent the bar at least that the server that some of the services are not location dependent all the services are designated a location in the ip document that is one of the requirements of the federal individuals with disabilities education act the home is not identified as a location and as the district court judge correctly pointed out in the decision location is a component of the as the child's counsel has acknowledged there were only clerical changes made to that decision and under federal rule sixty b and the relevant case law those changes did not commence the running of a new appeal deadline thank you i had a question about that do you have any case that marries the idea statute with rule sixty i do not have and just further it's a federal statute that says ninety days california says ninety days what do you do with the fact that i guess the the appeal was still untimely and the federal statute is very explicit there's ninety days to file that appeal and it's our position that changing the name of the school district in the caption of the decision is just surely clerical and should be dealt with by analogy by looking to rule sixty for guidance on how to resolve the issue thank you thank you russ thank you if you could put a minute back on the clock for rebuttal ok ok we have one more question so this don't go away for long i don't know if this matters or not but was there any expert opinion that this justifying  discussion of expense justifying offering the behavioral modification specialist services at the school but not at the home my my inference which is speculative that the school would not want to spend the considerable sum of money to send the specialists to the home and that the pair of the parents would not want to send the child to the school after the child that had this what i imagine to a mentally disturbed child would be a horrible experience of being handcuffed by a policeman and that that would cause this everything that fail it's not a question of cost for the district the district committed a lot of resources to educating the student but they don't care what the cost was that means there must have been some expert opinion that said i give taxpayers money it's not there to provide that so there's expert opinion that says provide the class at the school not the home that there's a there's a context i'm going to articulate that will help respond to your question what is there's a lot of things are unusual about this case and one of them is that when these i p s were developed nobody requested and nobody recommended that he received behavioral services in the home when the issues were articulated for the were submitted be the behavior modification correct no no no one at and i and they did to me in your modification training can't remember they gave him some sort of reward and then they gave points or took away points kind of a merit demerit system that was the behavior modification system correct they would use reinforcements to encourage him so i'm wondering it's perfectly understandable in the circumstances that after the kid gets handcuffed by the cops mom does not want to send him back to school for more of that and i'm wondering what was the basis i assumed it was money and you say it's not what was the basis for not sending a behavior modification specialist to the home the district has a legal obligation to educate this child in the least restrictive environment which is exposure to typical peers the ip team correctly determined also it was the mainstreaming idea at least get him in the school building even if he's not in a regular class that correct that is one of the key components of the federal law and it would not have been appropriate for the district to simply move his entire program into the home thank you thank you your hon just like to follow up quickly on that with regards to restrictive i'm my client i'm sure would argue that being handcuffed and secluded restrained repeatedly is much more restrictive than being at home and receiving home instruction if that  mainstreaming no it's actually a continuum of placement so mainstreaming means to the extent practical being educated with children with their who are not only not disabled but also i did want to just point out that the mother did turn out twenty days of summer school this summer preceding the handcuffing incident and there was testimony here in the teacher agree that he needed a break and so he successfully did karate and tutoring over the summer without any behavioral problems you know you wouldn't just so in your view if she didn't refuse the services you provide what would be appropriate for the child exactly and he did need a break  also furthermore in the fall he was placed in a new class with a new aide who had never met him who had no training with him who had never taught a child with autism before had never been an aide before  and it is kind of a a leap of logic to assume that his failure in that in that setting was a result of her not attending twenty days of summer school all right thank you i think we have your arguments well i have from both