may please the court madam clerk counsel we are here today because of a change in the i d e a statute that was an act in two thousand and four and it presents a novel issue in regards to the impact of parental consent on the application of the i d e a to this counsel's knowledge this kid this issue has not been brought before court in this country as far as what is that impact of the change in i d e a in two thousand and four on consent to the impact on parental rights and on whether idea applies including that's administrative procedures the application of these changes is something that the plaintiffs contend is is necessary to give effect and meaning to all the aspects of the i d e a so we step back and look at there's been a evolution if you will in the law regarding the treatment of children with disabilities in the educational setting it started back when prior to say the one nine hundred seventy s students with disabilities words segregated institutionalized not even afforded educational opportunities to where we are today now is that there's mainstreaming inclusion there's more treating of children or people with disabilities as mainstream and society in the educational amended and one of the key amendments dealt with the consent issue prior to two thousand and four parents always had an obligation or right they should say to consent to an evaluation to placement  services under i d e a converse leave the school district prior to two thousand and four had the right in arguably the duty to be able to contest to override the this consent in the evaluation stage placement stage and that the creation of services stage to override that consent and provide services under the act what happened in two thousand and four is while the the consented ability of the district option to override the consent of the evaluation stage remained it was it was removed it was prohibited any longer for the district to challenge the refusal to consent at the provision of services stage courts to what's your  view of the effect of the supreme court's right in treating it i think where this is is this is almost a step before if you will fry or an additional element that that the court did not specifically consider is the impact of the consent issue on administrative remedies where that would where where that plays in as we believe our position is consistent with with frye in this sense that what's being looked at here is appropriate public education is any issue which tends to steer things toward the idea of a requirement for exhaustion it and we we appreciate patent in agree with that that the courts are looking to see that but they'd but the court and i did look and see where there are specific things such as a wheelchair bound student seeking a ramp to be able to access the school setting that still relates to education but it's strictly related to sought provision of change content or those educational or related services under i d e a and so the consent pieces is what we're arguing is that it relates to the  of the complaint from the standpoint that the plaintiffs are not seeking any type of remedy protection right under i d e a and the i d e a as it was changed in two thousand and four affords them that right and that power to refuse that to provide consent under those service you're right on the merits but how is that consistent with fourteenth fifteen l that seems to contemplate that yes you can refuse to consent but you still have to exhaust it and i think your honor you have to exhaust if you're seeking protections under i d e a if you're seeking educational content services specialized instruction specialized content individualized education that's not what the plaintiffs have here but that's not what the statute says the statute again i'm going fourteen fifteen now it says except that before you're seeking also available under the i d e a yes or the i think it could be some of the accommodations what were the distinction here is in time in the consent piece your honor is take an example from frye of the wheelchair bound student who's seeking a ramp say the school district in addition said we think that part of this the accommodations are give a wheelchair ramp but you should also have some math remedial services you should have some reading remedial services and the parents said no excuse me we refuse to consent to that we don't want that and so the school said well then not only do you not get the services you don't get the ramp either parents then come to this court or a court and assert their section five for eighty eight rights with the court way you had to exhaust your remedies under ada i d e a simply because there was an accommodation that conceivably could have been offered under id i think the answer is yes though because that's what the statute says if the relief is also available under the idea a the procedures under subsections apogee shall be exhausted the same mix that as would be required if the acts were brought under the subchapter and where we're saying is that that that section fourteen fifteen l which came into play back in one thousand nine hundred four with the idea has not been interpreted or updated in light of the new consent lang but we're still stuck with it right and we're still stuck with that head and whether you consent or not like i said i think you're right under the first clause i think the second clause is where where your difficulty comes and fair enough your honor and where i appreciate is that that's why we say this is a novel issue because the implication or the impact of the consent in the  absolute authority to refuse consent to services which then you'd say ok they don't want i d s services so now they're still forced to pursue administrative procedures under the i d e a for soli section five zero four and eighty a rights well five zero for rights correct but you look at your complaint and in your complaint you say everybody everybody acknowledges that the child is disabled what you want is a meeting with the parents and specialists and the school you ask for eighteen accommodations including some assistive devices and after you agree upon those accommodations you're going to probably write it up into some type a written document so the teachers in concert and everybody knows what those accommodations of late to access related to the disability or combinations related that's an i that's what you do in a nave you have a dis a child who has just a disability and in this case you need you need hearing assistance you need an i pad you need special software that's what you do in an i e p in the schools to every day of the night you can do it had an ip you're right on her but you don't have to section about what the supreme court said and try as well we're not going to ignore the administrator remedies just because you call it something else happens if it's on the e p it's so now you belief will cheat two points your honor is first of all this isn't a situation where they were engaged they'd had it somehow accept it or given consent to an ip and then revoke which is what a lot of these cases that have come upon this issue are so insecure they were always just seeking the access not specialized content because even the accommodations that your honor is identified which we support are aids to deal with the disability so that eat e d can participate in the same educational environment as other non disabled students that is a discriminate disability discrimination the second point i would add is on the consent piece that's what the court did not address is what's the impact of that consent and how do we give meaning how do we give teeth to this clear mandate of wants as a parent can refuse to consent and if they can refuse to consent then do they still then are they still into the i d e a take that further these parents refused to consent to to the services which the district may very well believe they need a naive student needs an i p e d needed this well then but they can't challenge it well now they go into the administrative procedures and what's happened the district is now able to do so in essence challenge to override that consent and a hearing officer may or may rule on that they can always withdraw their consent in time they don't have to go through the administrative procedure if they want to remove the child which is what they did that's that's correct but what we're saying what arguments are we never entered the process we never entered an id e a a it was clear its route that they did not want those service now parents have it in this case parents need very well have many reasons i mean that's one of the evolutions in the law is that as children and keep with disabilities our mainstream or to society are looking to build independence that's what parents such as the parents of d d have an interest to they have a lifelong interest and socialization social emotional development in a relationship with all types of people may be equally if not more important to a parent at particularly at a younger age such as the d n a tender garden first grade level no tintin to garden he thinking even though i think different purposes hardier fourteen fifteen now i think it's getting at what judgment lawyers getting at which is these statutes overlap the relief you can get under these statutes overlap for disabled kids and i think what they're saying is because they overlap something that you know maybe a balalaika i e he that the that the parents haven't even contemplated maybe more maybe five maybe fit better than relief that they could get under the rehabilitation act or the a t f so what we're going to do is we're going to streamline the process under this exhaustion requirement we're going to say there's one process even though there's three sets of rights the rights under the a d a s the rights under the rehabilitation ac logic and i also agree it's difficult to divine what congress is thinking in in writing statutes but i think the changes in the statutes don't always always mesh either you even look at the regulations for section five and four they still use the word handy they haven't even updated the language on that so while these there is in our lap of these statutes there is also separate and distinct rights that you can afford under section five of four under the eighty eight and separate and distinct rights such as a right to a private cause of action which in theory the administrative process could be more streamlined but it may not be because the prospect of a lawsuit or some other damages may streamline the process under section five of four under or into the eighty eight and that's where the consent piece is now saying if if if that's the case then consistent then the fact that they can refuse to consent and never opt in and only seek discrimination accommodations under section five for it's meaning they can no they can refuse to consent but they just  in trying to get their their a t a i and rehabilitation act right they just have to go through the id a process so you can refuse to consent but you've got to appeal just the same way that the i d f wants to do that and what and so would render the consent meaningless means you have to follow that respect streamline procedure and respectfully we would say that conflicts with what this consent provision provides because consent says you can refuse i d e a and section five or says you have the right to pursue a private right of action to do and i e p the parents say we want to do a five or four point they look very similar in a lot of respects as i mentioned i think there's eighteen accommodations they want to what what's why does it make a difference if it's a viable for and i u p d i think these issues are difficult to parse out because there is overlap in the statutes both statutes and regulations speak faith requirement and designed individualized instruction so it is necessary under either five or or i d e a to provide faith i believe that that is why recognizing that there is overlap congress specifically drafted section fourteen fifteen to say we recognize this isn't the only law that protects children with disabilities in a school setting but before you bring a claim under any of these other laws challenging the education of a student with a disability and against a public school district you must administer or go through that a mystery to well as this court has recognized that the rationale for that provision is that it allows an administrative agency to apply its expertise to develop a full court or befall record that is appropriate for judicial child's education and time school is critical most educators would argue that one hundred seventy four days was generally what you have in a school year is not enough time so to spend three years later typically i'm not sure i would say approximately three months your honor your answer usually held within three months and there can be a provision for even x rated hearing but before you even get the heat the hearing there is an option to sit the parties together try and resolve it or to go through mediation so again it's designed to really expedient that process to bring resolution to the issues and develop a full record which the agency has applied to expertise looking at the supreme court's recent precedent and try the court recognized that there are those other statutes which protect the rights of kids but that the central issue of the issue that a court must at the claims brought in this case among other things they challenge the district's id evaluation of eighty saying that it was not based upon correct information and then it mis identified or classified related age such as text to speech or reading or speech to text for writing and as you can imagine when the focus in kandahar new greatest to teach children to read and write fundamental alteration of assignments objectives and goals that require specialized instruction and so those are all things that need to be parsed out through the administrative process and determine with the expertise of an agency what is the appropriate education on struction accommodation council on the opt out point that opposing counsel makes that's that's really his strongest argument his his point is when a parent they have the unconditional ri to withdraw from the id and so it's unfair it's it's crazy why would i have to go through a process that i said i don't want to go through this process and so what's your i mean what's your argument against that issue in this case because it is undisputed that after the parents refused services under i d e a the district did not implement the ip that had to been developed for e g they didn't try and force those services on g they continue to offer the same accommodations that the parents requested including his ip but we never required the parents to confirm their acting out i d s services with an administrative hearing rather i think the issue is whether or not they could have gotten relief in in this case because if you look at their complaint which i just detailed it most definitely speaks to issues that could have been resolved a ministry to process the evaluation identification of a student with a disability whether or not the content of an ip was appropriate and the appropriate educational accommodations for a student and so i think that's the reason why they need to go through the administrative process and why the ministry of process could have afforded them appropriate relief in addition the specific relief that they seek including educational commendations educational modifications compensatory services attorney's fees were all available in that administrator's process had they gone through the process plaintiff would have this court right into the i d e a an additional exception that provides that if parents choose not to consent to id a services then they're not required to exhaust basic than that which is if i opt out of the i d e a i opt out of the whole idea and that includes the requirement to follow its procedures i think that's the argument they're making and i would say that the statute the idea exception that is not there and has not been recognized by any other court that plaintiffs have pointed out what do you do with a supposed how do you handle a i think those are extremely difficult situations i think school districts that i've worked with would continue to try and work with that family communicate with that family express to them you know the reasons why think that and i additionally services and support would be appropriate and help their child in the absence of consent from from a family that you can't implement and i but you could continue to provide support destruction all support to a child you know we differentiate instruction for every child so i think we would continue to try to do our best to implement good educational practices as well as work with and communicate with the fam briefly summarize i think based on the grab a man in the substance the substance of the plaintiff's complaint in this case the district court finding that they required to plaintiff's claims did not seek redress for a violation of that testimony would be irrelevant so i believe that opposing striking a limit he met testimony is telling on the gravel their complaint additionally fry two questions that the court instructed us to look at specifically whether the claims could be brought by an adult or whether the claims could be brought by or against another facility aso listened to a finding that this is about these claims could only be brought by a child in the educational setting as the court correctly found out i'd like to ask you one quick question about the record in the complaint and in the argument today  record at a p p one twenty seven three one thirty seven and just to clarify the factual issues in this case while parents have said that they did not participate in the process they most certainly  they indicated to the school district and brought eighty's disability to the school district initially before he even came into kandahar and saying hey we think we have a child who qualifies as a student with a disability under both id and iowa or so the school district started that process as it's required to do under the statutes the parents expressly consented to an id valuation they provided their own private medical records including records from the mayo clinic and that process they  alternately prior to kindergarten refused consent to service so that after the district in the team that in fact he was a student with a disability then we went through the process again after struggled in kindergarten and wasn't making sufficient academic support he was again referred by a teacher this time his kindergarten teacher the parents again participated in that process to determine whether or not edi with the student with a disability under  each and what accommodations and services he may need again providing medical records in their own private information they participated in each of the meetings and in fact they even wrote on you know marked out certain accommodations modifications and added other to the draft i see that is if the court doesn't have any other questions for me i would just quickly note that in addition to the exhaustion of administrative permit which is required in this case there is a one question about what you just said the section one thousand eight hundred three point there are substantive due process claim seems to be that you're interfering with their parental rights and that seems to me to be something that is not available to be litigated under the id and i may ask opposing counsel about this as well but is that how do you exhaust that that's a constitutional claim that you're interfering with my products so maybe i'm wrong about that maybe that's not their claim and you can tell me it's not but how do you exhaust that i think plaintiffs are trying to the practical difference is this there was always refuse when i point you know there is that there was an ip drafted by the district but it was at a p p one twenty six before that was even presented again a refusal was indicated what's the difference that's the same question my clients would have why not just the section five of four plan my clients ask for section five for evaluation and the answer to that was you need an ip so they were rebuffed at every turn when they said all we want is a five a four and so again this comes back to the statutory construct of parental rights and that is paramount not what the school district choosing what the school to strict chooses to force your honor yes it was here i don't but i want that constitutional claim i just i meant to ask this during your first party argument i just want to know what you're asking why the constitutional clay yeah i mean that is that that subset of due process for choice that's right that again their right to control the medical and the educational decisions of the student here medical from the standpoint of therapy