and i'll just very quickly also your honor your honor's point out the fact that neither my clients were able to be here today j m is a minor student who is attending school at the maui autism center so he's there on stay put and he's at school the mother maria who's also the other appellant just got out of hospital so apologize for there not being here today we have a lot to cover and there's two main things i'd like to focus on this court one is the burden of proof issue and the other is the the district court and the hearing officers decisions on free appropriate public education and i'll start with the burden of proof your honors if i may is the party who has the bears the burden of proof now the problem that we're seeing it's actually a systemic problem here in the district why is that there is in an assumption or presumption that that burden is always on the parents more often than not the parents are the ones filing a due process complaint under the administrative hearings and so therefore there's an automatic assumption that they bear the burden of proof however show raised in the district court your honor and i thank you for asking that question because we believe it's fundamental error that it was not that this court can look at that issue because it's fundamental aren't we think it's fundamental error for three reasons  remedies is is done whence the hearing officer issues their decision of another word you know at this stage with the people you were not of the u s supreme court now that's correct however this court has found exceptions to the burden must point part of the exhaustion of administered remedies is that you need to make the argument in front of you to minister to the agency you know sounds of the argument wasn't made that's correct however the ninth circuit has a  party seeking relief in the facts of this case the parents had already won private reimbursement for the private placement without be a bike then the defendants proposed a new i e p that's correct which the parents objected that's correct and the and the administrative hearing officer h o i guess in this case said the i e p is sufficient that's correct your honor so you were really this is a case in which your clients were objecting to and i e proposed by the state that's correct your honor so i don't understand why under those circumstances you think the state has the burden of proof that's that's a great question because that brings in the other reason of fundamental are and that is your honor the and they're infallible you know to do that and you know you had your input into the except it's well know that's that's also an issue though your honor whether or not the parents had adequate input into that ip but the issue is this your honor that ip came out thirty days attempted to remedy it by coming up with you think that second i e p is insufficient so it seems to me you're attacking the new i p and should have the burden of proof well ok to some extent i would agree with you your honor however let's look at the situation of placement under i d s when a placement is awarded there's there are several factors that go into that one factor is that the public school hasn't provided faith the second factor is that private school has provided faith and is and is continuing to provide faith so it does it's fundamentally wrong to allow the state to go in and change effectively change that decision because by the way and addressing a judge the she was issue is that it is sort of for the same time period because the decision by the h l came out in october that i p came out in november now that i was for that same school year beginning in november so effectively so in other words what was happening was the h o said in october that placement at the maui autism center was appropriate and now that the school during that same school year saying well no it's not appropriate  different well that's exactly why they should have the burden of proof here on such tech turn to because i think you maybe exhausted that argument although you didn't exhausted for haps perhaps you can tell us what was wrong with the faith with that was proposed ok and before you do i want to make sure i understand that you're only objection to the i e p is with respect to the anti bullying measures correct well that's the primary issue yeah that's the only one in your briefs so my right and you see only one in your briefs yes ok yes now and you know i appreciate that your honor the it was ineffective because the u s department of education come out with several guidances years before this and history of analysis of looking at bullying and how it applies to chill with disabilities and the idea there is that they said that there are roughly eight points that should be made in order to address boeing in an there or it's doesn't have binding a fact i will say that but what it is is the supreme court has said such letters are agency analysis or interpretations of the regulations in the laws and they are to be given great deference  first of all one that's clearly not there is a development implement of clear policies to address bullying ok now on the record the statement they don't have they don't have a bully anti bullying policy that that school didn't the school district in the deal we really should be addressed not well yes it should because actually you know if you look at it a policy is addressing all students but in particular it should be addressing in an ip because it's addressing that particular student and i particular because the student had a history of being bullied and have a disability which end as the emic is here i prefer pointed out that children with disabilities are highly susceptible to pulling it should have been in that so that's one one issue there's no policy from a statement another issue that was completely missing was a way to monitor and track the bullying behaviors there was nothing in the ip that suggested that behaviors more generally or only with respect to this child well child capable of observing any polling at persones and therefore capable of understanding what they were and keeping track so you're saying there's no mechanism by which we can keep track of these things will you get i don't there at all times well what are you saying that i'm prior the adult me there wasn't enough to preventable yeah right but that's not the point you're making you're making a point you can't keep track of what happened that's that's true ok so let me address that your honor the point is that a lot of its systems with ip are all about tracking in collecting data about this child about what happens to this child at school so just having a one to one it doesn't necessarily track what's going on and i will raise another issue that i also brought up in the emma to secure i which is children with autism in particular but a lot of children with disabilities have a difficulty of self advocating for themselves so the idea is that you can't put the burden on the child to sit  and say i was bullied today or this happened to me today you have to put the burden on the school to do that to track that information there's nothing in the ip that explains how we're going to track these pulling incidents ok another is to address ongoing concerns and that means ok something is come up maybe there is a report or some data that this child has been bullied and the promise there's nothing that in the i p t that says this is what we're going to do you know are we going to have anti bullying seminars are we going to give some training for these students and for the teachers and the faculty for that matter there's nothing in the ip that discusses that and perhaps the most important is the prevention of bullying there's nothing in the education was obligated under the idea to create a new i e p because the the ip that was formally in effect had been rejected in the prior administration pairing because it did not do enough to address the concerns raised by the fact the student ha t members were informed that j m been the victim of bullying at the home school and they considered that incident in the private land and as a result the november two thousand and fourteen i included numerous services that were specifically aimed a preventing bullying from occurring and b in the event that any incident shanika minimizing its effect this record is a little different in most that we see and idea cases because the age you found the previous i e insufficient and there wasn't one to one aide in the prior one it's not entirely clear whether that in the prior i would supposed to be full time but what is clear from the prior administrative hearing officers decision is that whatever the require the student was not supervised during addition i gather the polling that had previously taken place had taken place outside the classroom playground during yes joining recess and lunch and the other thing in response to that is that the new i p actually specifically addresses lunch and recess it creates a plan whereby the jam would have modified lunches and recesses and as the administrative hearing officer found based on the testimony of the special education teacher would be that what that means is that initially m would be would be able to take lunches and recesses in a classroom with just him and either a teacher or the one to one aide and gradually if jim was comfortable with it additional students would be able to be added to that classroom the other things th which was another another program aimed aiding with his anxieties and most importantly though it included the crisis point and the crisis plan it's its sole purpose the specific purpose stated in mandatory apparently all eight points should have been followed and i be in this case but weren't what your response and then well we'll just assuming for a second without conceding that there's things right right track bullying behaviors in relation to j m which actually the crisis plan specifically includes that it states the following any actual or perceived bullying incident details will be documented in the student's counseling file and in addition included it included the testimony from the principal that the school follows the chapter nineteen disciplinary procedures and chapter nineteen actually specifically defines bullying and specifically prohibits bullying the school also implements  getting that right well you're always getting you're right he's not he's as i understand it it's either the finishing of high school or age twenty one i believe is the yes yes and he's not counsel's argument this is not a case where the deponent education was attempting to circum navigate the procedural requirements of the id by unilaterally changing the placement of history because when the prior administrative hearing officer rejected the price this school was obligated to create a new id and it did that and j m and his parent and his mother were had the right to challenge that i and they did the i guess if we look at this case from thirty thousand feet difficulty in the case seems to be the record is quite clear that the student was bullied rather severely and that previous ip was insufficient to address it how does that inform our review of two thousand and fourteen in other words on under surface it looks like it may look like a fine a e p but we know we know the history that lies behind it  schools previous inability to protect the students again only right and i think that came out during the testimony that the minister hearing of his talk the both the department of education psychologist and the department of education special education teacher both of whom were members of the o e p team for the home school they both testified to the crisis plan and the other the other measures  orders the first time around i mean they just pretend it didn't happen didn't do anything about it and the trauma inflicted we have the testimony from the mother that the boy when taken back since i'm not going back to that place ever that's different than my follow up on judge which is a question that's different from somebody coming into a school for the first time when this is been a place of traumatic experience is it possible even to have an appropriate placement in this child his place where he has suffered so severely and so traumatically of the first time around yes i think it is and i think it is with do you think it is because because of all the additional measures that were put into the o e p and including the crisis and that there's a psychological western as too much i don't think either your eyes fully capable of giving an answer we do know that severe trauma in certain places the trauma can be triggered by putting the person back in the same physical place mess this is obviously what was because losing the first time around quite a while ago think what the what the department of education has done here they they try to try to craft an ip which as best as possible balances those those concerns it balances the need for g m to have opportunities  to interact with the same agent on the stable peers while at the same time protecting him from the possibility of any further bullying a cut and that was specifically one of the concerns about students placement at the private school ask you this maybe in the record but he didn't quite pick it up as i was reading all the materials how how tell me about the home school how are the kids in the the school the students in the home school i believe were all younger was he was in the first and second grade it was i think fifth graders who were doing it from wondering whether or not those same children are still in the school well that's certainly not in the record and in fact it so i didn't see it which is why i thought yes it's not in the right but i think it's an argument that  the year the student would be would be going to a different school intermediate school and that is the question i'm asking so it's like you're one through six and then there's a middle school and then there's a high school right right that  ip address some of these issues and i think that's a great point because you know what gets lost a lot of times in these ideate cases and frankly with schools is that the what the i and i p stands for it means individualized and that means that every service that's in there and also kind of addressing which to a judge to shame or brought up which is that that's the whole purpose of policy school why policies is that they are to be enforced for all the children but in particular and i pity you need to address these issues the bullying issue wasn't very well addressed in the new ip and frankly this was also addressed in our brief is that the parent really didn't even get to address the bill bolling to the extent she wanted to at the ip meeting that was one of our issues that we brought up at all levels of the of this proceeding and and why is that important well it's important because the bullying was this the central part of what was the concern in the change of placement going back from from up very safe placement which is the maoi autism center back to the public school system where this bully now you're right the record is is not clear on whether the students who had bullied him the going to be at the school where he would return to however that's not the issue because there may be a different set of bullies that are there different kids that are going to participate in that kind of activity so so the this how is this ip going to address that i don't think it ever really accurately or very well did and that's that's evident by the fact that they didn't meet all the u s department of education recommendations we ask you about mothers put in put into this the hearing officer make some findings and i'm looking at pages nine and ten of the hearing officers findings that say the schools and the mother a letter schedule a conference mail certified letters to her address they went to the address there was a no trespassing sign they tried time and again to get her to come and talk to them and they couldn't get her to come in there was one telephone call once with her to her attorney under those circumstances how how can we have can you argue that the school didn't attempt to allow her to provide input into it well that's correct your honor i will agree that there is an exception and idea that an ip team can proceed without the parent if they've made reasonable efforts however we have to look at the history here your honor and that is the mother was horribly upset as justice was observed that the trauma that happened to her child and show she was very hesitant to participate but she actually did come to an ip meeting and it was the issue of bullying was kind of shut down this also addresses the issue of this whether or not the school was very really truly sensitive to the bullying issue because they really of shut them other down in that discussion so where's that see i'm looking at the you know you think the hearing officers findings on this are not supported by the record it was in front of him or just that there is contrary evidence from what you different conclusion could be reached there's contrary evidence in the record yes you know i just want to ask you about adoption of programs school the hearing officer fines said fines to schools adopted to anti bullying programs and they have  titles were those in effect before or were they adopted in response to the first ip i don't believe the record is clear on that your honor so a to be honest i can actually question what your what your concerns was that there wasn't a general anti bullying policy and the hearing officer finds that there were and i believe in programs i don't know if that's a policy or not the record make that clear now there was a discussion of a buddy program but we don't really the record is not real clear on what the