to keep track of the clock thank you so appellants are asking this court to address three critical issues in special education law specifically burden of proof how parties the statutory right to present evidence and the last is how the least restrictive environment the l r u requirement within id a law has been interpreted and applies in this case and what's critical for your honor s initially is that this is also about how the why department of education has been their policies for handling i d e a law and specifically to give you an example of where this is critical in this case this child alone has been two thess court four times it twice in a separate case twice in this case and that shows you how important what's going on here and why these issues are so  the school district when it is impossible for parents to assess the substantive reasonable ness of services offering the ip and actually that's very much on point your honour's with this case because i think it was because it seems to me that this this case unique in that when i'm really talking about curriculum we're talking about the location where the curriculum is going to be delivered by saddam out about the services offered at night that's correct but it's the same concept which is proving the negative your honor for example in this jay was not at the facility that was being proposed so there was no data there's no way to know if their services were going implemented correctly if they had the resources to provide those services and so forth so that's  why it's you're forcing a parent to prove the negative of what that school is if it's appropriate or not appropriate when they know nothing about the school it strikes me as something that might happen bear on your procedural due process claim that i think we understand your  when i read the i d f a it seems to me that it doesn't adopt that i'm not sure i agree with it but it basically is a floor as opposed to a ceiling and so it isn't a situation where just because it would be better somewhere else that's not or it's not ideal we have to analyze that in terms of what faith requires and all of that which isn't you're entitled to the best or the ideal and so that seems to me here and the way i understand the facts in this situation that  parents open their own school which appears to be a good school and that's where he's been counting and the school district wants to put him in this new school and so i can't really look at it from th standpoint is one school better than the other school i have to look at it in terms of the construct of the lot i ride on that that's correct your honor except i'll challenge you on your analogy and i'll say that at this u s supreme court  that i stand that but the supreme court actually said no that's not a good use and rally they said while rau established the law it didn't apply in that case because in roundly it was a child who was progressing through the  curriculum grade to grade on a fairly easy basis and us addressed a situation where a child was not able to progress through the curriculum on a regular basis and that's what we have here your honor we have we have a very severely autistic child who is violence not violent to other people but violent to himself he just he's not very good at communicating with other people although he can be given the right environment so there's a lot of factors and what your question is going to is whether or not the least restrictive environment the environment that's proposed provides fate and we would argue that it's pretty clear even from the record your honor that that the proposed new environment that did not provide the faith in fact until now provide the least restrictive ballenger basically testified that if you was going to be the only full time student at the new facility but he was not the only full time student at the existing facility which was factually true j g would have been the only full time student at this new facility there are experts at that would have not been that would have been a more restrictive environment the new one and that's not what id a says i do you says you have to have the child in the least restrictive environment that that child can learn and  progression and that's what we have here and that's why it was not a faith offer for the new facility yeah i'm sorry to keep trying is that your strongest argument on that on the at least restrictive alternative well i think there's a lot of aspects of that because because again just just circling back i appreciate judge callahan's questions in your responses but this is not a curriculum case right right that's right so we're talking about the location where the services are going to be offered  think relies heavily on its finding that this conclusion that this is the least restrictive alternative and it's a peculiar case in that way because the new school is both new the record is a little unclear well it just isn't clear about the number of students who are in an in in attendance and then it says that it's in this tech park right right but the hearing officer heard that evidence and decided that that that j g would have greater access to peers at the new facility then at the existing facility plus speak to that please yeah thank your honor and that goes to obviously a credibility issue that the hearing officer dealt with but the facts were completely contrary to that and i'm talking about just be clear i'm not asking you to speak to the credibility issue right talking if you could speak to the two facilities and j g has access to other developing children absolutely ok so let me give you quickly the development of the autism center and then all of us speak to what i know about the center at the moment autism center it started as a facility where they were on the campus of a catholic school so they they shared facilities they shared that they interacted with unearth typical p r peers there were so forth at the new facility and this is again the records not really clear but from what we gathered from the facts that that were on the record was that there was jock g h it was going to be the only full time student there the access to neurotypical peers would have been only in field trips because this facility was like we said in the tech park and said we've read all this and i'm not trying to and we have read it and i'm saying just worried that your time is ticking and so i'm trying to get at both the legal question before us are you asking us now to nd guess the finding of fact about where he was going to have greater access to peers i just would be really clear about your argument please when i'm i'm asking the court to do is is look at the fact that what is really required in the law for  least restrictive environment and was that being met in these between these two facilities and the like i said going back to it their own experts said it would not have been at the new facility that parents took the position that they had not and this is a little bit of scuffle over this but but the parents had taken the position they at least had not visited the new facility yet and the district in the th meeting offered to set up a tour and my understanding is that the parents did for the facility the next day and that's where our record ends i can't tell but this is a question do i have anything in the record that tells me when they found anything there on that site visit that concerned them yet let me let me correct that a little bit your honor so what happened was at the th meeting they were yeah we're expecting your child like to come here soon they didn't know anything about this so if we did answer your question argument but i'm asking a different question right ok do we know anything what happened after that this child has serious sensory issues yes events are going through the record in there and they're explained quite clearly my question is his parents surely know him that they're very involved at a parent and they know him well and so my concern is and my question is does the record tell us anything about whether they encountered anything sights sound fact that there was a difficulties in for example the lighting of the facility and the they lack of resources it's in the record roughly your honor at  to the comment made by opposing counsel regarding the only policy of handling idea cases and you cited to the fact that this particular case has been for appeal to this court challenging the pre hearing decisions by the h o on a motion for burden of proof and motion for a quest for a site visit which was then appeal the st case involving this family and i would suppose this case but the actual case that we're talking about is on appeal right now before this court for the st time so it wasn't two times that this case has been for the court and with respect to judge watson the other case that they're talking about is an i e p from november two thousand and ten which went through multiple legal proceedings went to the federal court twice after   the student seem to be doing well at the maui art to some center why shouldn't the burden of proof be on the state when it seeks to place the student in a different school through a new i  opponents at the administrative level an argument which is rejected by the show who heard the evidence supporting the argument and there's no evidence that establishes that the well i guess i'm trying to make i'm just trying to make his argument if the student was doing well there why isn't it speculative that he would do well somewhere else why why why upset the applecart with a student that clearly is has significant issues it's not i mean no one's really that doesn't seem to be in dispute right that is true but it also disrespects the ability the part of education who has professional educators who has all the resources of speech language pathologist available behavioral analysts to do what is right by the idea which is to provide the public education this child is entitle to and only if they cannot provide that public education well was he getting that at the other school all of those same th experiment but again that does disservice the professionals who are licensed to provide an education there's no evidence the stabs in the record that this was could not provide deal we homeschool which is now a different school about schedule and well i guess my point is all right you're saying that the department says ok we have a rethink that he needs and we think this is the better place for him that it's the least restrictive environment what if he what if j g gets there and you know anytime we're talking about humans they don't always respond as we as as experts think that they what if we completely degenerate any stewing much worse i mean he's obviously an adolescent male as well and what if he you know is you know really doing portly then what education as dedicated licensed professionals that is beyond dispute now sometimes issues have a reason regarding provision of particular students if that situation arises in the future which is  there regularly evaluated it's my point that's ok yes and so if this school doesn't do what you're saying it is going to do and if he doesn't do well there then it will be evaluate it right yes and i expect the family which has the right to do so will follow due process complaint i mean that the do is not provide the faith that they're entitled to be really unfortunate or left to that because that that means another year let me back up if i could and ask directly about the point for me is the most difficult part of this case and that is the parents ability to have meaningful participation their five meetings very involved very caring parents no question i think no question about that and in many ways the group can be commended i think we're going and working so constructively on the curriculum and they got down to this question of where is this supposed to take place and you know i recognize that one million miles away just reading the cold record but that's how it looks to me so the good news is nobody disagrees on the curriculum nobody agrees that j g isn't title two he requires and he's going to get one on one instruction and there's a lot to to  be grateful for in terms of and it's different than a lot of cases so that's good but the last meeting concerned me because it looks like the these parents weren't told about this new school i think they probably knew about it knew of it but it is concerning to me that it looks like the decision was made before they had had a chance to visit i realize they visited immediately thereafter but it does look to me i'm going to invite you to tell me what i'm missing this and the record that the decision was made and then the parents went to visit is that wrong or that part of the record is correct your honor which really is very concerning to me counts and i want to give you a chance to respond because this child is not just like any other i mean there's almost no such thing as any other autistic child that we're talking about his individual needs and he has really serious sensory issues so what about that is it typical that white would have the decision made before the parents have an opportunity to visit the school well i think each case differs on its facts in this case you're talking about a student does have significant behavioral needs that he has sensory issues it's a little different i felt about just lights or smells or sounds could be really agitating inappropriate for the student opposing counsel thought and this is going to be your last time at the microphone i asked him this question you know if you know if the parents then once they had a chance to see the facility did they raise any concerns about it in the end that they would have implicated the sensory issues and he says he's that there's a place in the record do you have something you know your honor the only thing i'm aware of after the meeting was that they did visit that afternoon and then they wrote a letter to the school which is part of the record in this case and that's the only evidence i have regarding whatever comments they want to make about that facility ok and then my next question i think is just follows up on judge callahan's which is that if the district prevails am i right that the very next step is going to be working with the parents to than offers a specific proposal dates to meet in the further i p meaning to develop transition plan yeah that's right and people are pointing fingers at one another about why it didn't happen and i'm really not to be blunt not very interested in that i'm just asking if it is the department's position that the next step would be to work with the parents to develop a transitional absolutely and this is experience that the partners had with other students who sometimes transfer from a proper salute back to the public department of education is one of them have protocols processes set up to have a transition phase that with then address the transition needs such as increase in self injurious behaviors are addressing needs such as for instance this matter of the fluorescent light there's no there's nothing the record that fluorescent lights couldn't be taken out of that particular facility i'm just pointing out the fact is the administrative hearing where all these facts are developed is there and of all these arguments lets you know that there are no facts to support the arguments that opponents concentration today he talks about for instance this scenario the number of students and you clarify the number of yes the deeply the number of students at the time the ip meeting i believe was somewhere around five and that's reflected in the it's  industry of hearing officers decision at one place it says one and the other places has four or five so there was i think one when that as i recall that when the parents went to visit they only saw one student that afternoon th the program point is if socialization these require a certain number of students that would be part of the department's duty nobly patient to provide that and implement that as part of th opportunities that we're talking about is what the idea requires which is opportunities with the general education population and that's residence reference there are idea cases that talk about there laurie is also statutorily prescribe fifteen about what l r e means and refers to the general education population that's why in the spectrum we start from general education students only down to the hospital study we absolutely have no exposure to anyone so on the spectrum this public separate facility which had access to the dealy home schools with respect to students who made up the population had access to the general student general education population of the respective home schools besides having the part the peer group were in their facility so that is the significant difference between that public separate facility and the autism center and your honor i realize difficult cases or difficult facts make difficult cases but i think it's disrespectful to the part of education that places can argue without proof that this facility which is manned by a license the only professional who is who was who has had extensive training in behavioral services a program specifically established for these types of students  it is a farce as his opponents claim there's absolutely no evidence to support that kind of specious argument so unless you're honest any further questions i'm done thank you can't thank you very much if i may your honour's will address a couple the questions were lingering let me st draw your attention in the record and actually this is a finding of fact that the h o made that the private separate facility which was that the school has pleasant lighting yes ok where does it tell me that the chapel have issues with fluorescent lighting well i don't know if that specific issue was raised or if it's in the record but right there is a long history with this child and the parents  input and that's a book by the way your honor that's part of the problem here and i think you even asked a question of counsel on that point which is that the parents really had no opportunity to see this facility before its proposal had an opportunity once they saw the facility to come back because in the record it's very clear that the principal during the i p l meeting said i've made my faith decision this is it we're gone and actually told the parents to leave the ip meeting well if that part of the transcript is certainly unfortunate but it's a little hard for us to tell what really happened because there was also an offer to tour the facility and the parents did to the facility immediately and that's why i'm asking this question there well to my knowledge you're out of there's no part in the record that showed that there was an offer by the do we for the parents to visit the parents took it upon their own initiative to visit because they had never heard of this facade well or perhaps they had heard of it but they didn't know where it was or any facts about it and that gets back to the burden of proof your honor which is that how are the parents supposed to prove that this was an inappropriate facility if they know nothing about it and then even when they get to tour it they're not given opportunity come back to the ip meeting and say well this doesn't seem right i have this issue this issue this issue with that facility they were never given that opportunity that you were going to give me an animal i actually know it's a transcript site so a couple things i want to give you the one i just gave you transcript page forty six this is the administrative record transcript page forty six line three to page forty seven a line twenty basically what we're finding is there are currently five to six students at the public private separate facility those students were part time and that's in the record under under no multiple testimonies ms whitely ballenger right but we don't thank you very much your honor so also in the findings of fact and this is kind of to wrap all these these questions up h o found parents noted the harmful effect the change in placement would cause such as regression and increase c self injurious behaviors and that's really what's going on here as we said in the briefing we made the argument about change is very difficult for kids with autism there were there was this was going to be a dramatic change could have resulted in  had seen that before and they were not allowed that input was not recognized by the ip team and so and without a transition plaintiffs a plan to explain how that was going to be addressed this was just not an offer of faith by the