thank you your honor please the court my name is mark rochelle there represent the appellant central school district in this matter this case involved as a lower court noted basically two issues one of those issues actually goes to the subject matter jurisdiction of the fact the state review officer and the courts to determine whether a claim outside of due process complaint can be adjudicated by the state review case provided for counseling support that's at page two seventy one of the appendix which is the page of the due process complaint due process complaint also noted that the dispute that was being raised was not about whether the counseling support recommendation was specific enough or where it was located in the ip because in this case we have a place where it was a reference where it shouldn't and i didn't have details in terms of frequency of a single counseling session or how long that will last but the complaint in this case is a process quite wasn't about those issues whose about whether in terms of due process complaint a complaint that there was too small an amount of counseling the s r o found that nonetheless by the school district in its opening statement going into the defense of that claim about the being too small amount of counseling going within the scope of the due process complaint somehow they had opened the door to the student claiming that in fact contrary to the language of their own due process complaint there was no counseling support component well was the testimony that was offered explaining what that counseling support reference to the due process complaint and the ip was all about whether explaining that and giving what the details were is retrospect young teenager diagnosed with attention deficit disorder his brand new special education his parents in fact at the c d c meeting held on june twenty fourth twenty fourteen arguing that he shouldn't be classified at all the school psychologist dr anon presses for his classification and the parents make clear to the c a c that this is a student who's not going to cooperate he's going to resist he's going to because he's concerned and i understand that being a father and grandfather he's concerned about the potential quote stigma close quote that can attach to a student who is receiving special education services on go back to the kind of references we had when i was a kid to kids who are deemed special education but i understand the stigma that can attach certainly in the mind of a thirteen year old student so this is question during this during these meetings about holding counseling sessions with the student weekly it becomes clear during this meeting that that's not going to work because we have this student who's going to resist so as dr anon explained in her testimony it's going to have to be a flexible approach and that approach is going to be you know and she explains that that recommendation this flexible approach was consistent with the recommendation made by the students or the parents hired psychologist who had they see that the school district pay for the course of the student's education for that twenty four thousand nine hundred fifteen school year at that school in idaho so the record also reflects the parents declined to take advantage of the resolution period provided by law because they declined to return for reconstituting of the committee a special occasion they never bring to the attention of the school district or its committee of special education that they are now claiming at some point claiming that there was actually no counseling support they don't even tell them that the counseling support was inadequate they just never communicate that they have an objection to that in the  we know to defend the ip and the services that are being offered especially since they're claiming one of those services the counseling service is inadequate because it's too small an amount so he mentions in his opening that that there was a counseling support recommendation made in order to reflect the sensitivity to the students desire to not appear different from other  that's pretty much what his opening is on the subject counsel for the parents then takes the position that the i prefer boys for go counseling support services whatsoever it's an interesting point they make the education other cases from it is finished my point this court has stated that if it's listed if it's in the ip knowledge it's in the ip then merely explaining how the service says quote a list to close was insufficient from the first filing by the parents to the school district in august of two thousand and fourteen there was a request for additional information from the school district that came in on september the fifth of two thousand and fourteen asking that the parents further elaborate upon their concerns and the parents responded on september twelfth of two thousand and fourteen and informed the school district's chairperson dr menotti that the only special education services contained in the student's i e p was the daily resource room program that writing occurs at page three hundred ninety one of the appendix thereafter in mid september late september the school district offered for the first time to reconvene the committee on special education and to reconsider any concerns that the parent had or any any additional services that the student may or may not need however there was no additional evaluative material no additional information that anybody had about the student that was not available in june of two thousand and fourteen when the committee had first met their after the parents filed the due process complaint in that due process complaint that was filed that initiated the impartial hearing  the appeal were before you know the parents claim that the counseling support services were not sufficient to address the student's need during his opening statement counsel for the school district stated that the i e p provided for counseling support and then stated that there was an additional related service of counseling that the department that the committee on special education would have provided for the child this was objected to during the opening statement for the parents and then the school district presented testimony from three different witnesses three different school district employees who had participated in the meeting about what their students special education program would have a stance of the looked like had he attended the district program each of those witnesses was unable to refer to the i e p to identify what the counseling services would have actually been and each of those witnesses had a different understanding of what those services would have been menotti testified that he believed that it was a very minimal level of services that he believed it may have been once per week of direct service between the school district psychologist and the child there was some sort of clerical error right this school district has claimed that it was a clerical error that resulted in the specifics that is the frequency of the duration and the intensity of these special education service to be provided to the child with what effect with what effect the clerical error is that the school district claims was a clerical error to not identify the fact that the child would be receiving counseling services as a direct service or an indirect service whether it was a consultation of service which miss anon testified she was not actually going to be working directly with the child rather she would be working with school staff to see what she could do to assist them to assist the student the testimony of dr menotti that there would have been a weekly once per week scout celing session with the student and the testimony of the student's guidance counselor from the prior school year who said he believed that it was through cecilia not i can't believe if it was weekly every i don't remember the extent of it but it was through cecilia anon cecelia anon testified that it was merely a psychological consultation once monthly for an hour she believed and that was at page two hundred two of the appendix dr menotti at page two hundred ten that it was maybe once a week for thirty minutes and mr nelson the guidance counselor testified to page one hundred eighty seven of the appendix he couldn't recall he believes it may have been once weekly so what that did is it left the parents and the school district personnel with no idea of what level of therapeutic support the student would have received the parents when they received the ip document all that they knew was that he would receive resource room services once per day one period per day in a small group of approximately four students this was almost identical to the at risk services that the school district had been providing to the child during the prior year and which had proved to be insufficient to address his needs so the parents raised this concern to this district they provided the appropriate and required regulatory notice to the school district that they were withdrawing the child because they did not believe that the program offered to them in writing in that i e by the school district was appropriate to address the child's needs the school district six eleven days later said to them will tell us more about your concerns the parents wrote back and said all that you gave him was a resource room he's had this before it's not appropriate to address his needs he needs more than that and then the district's director of special education di a meeting which is what the regulation says that the school district is supposed to do it says that the ten day notice provides the school district with the opportunity to reconvene in i e p t a him and to address those concerns he the school district's director of special education instead scheduled a meeting with the parents and they sat down and they discussed this and the parents shared with them that they were concerned that the only support that was provided for the child was a resource room the school district then we went to hearing and at some point in the hearing they were asked on direct examination about how it is that there was no counseling support provided and they said that they thought it was a clerical error and you know they said that they had referred back to the minutes dr menotti said i referred back to the minutes and it was once weekly those minutes were never entered into the record at the hearing before the state review officer or in the district court when they had the opportunity to supplement the record and provide additional information nyssa none of the school district psychologist testified that she thought that it was a different recommendation again nothing was ever provided no corrected i e p was provided no minutes were provided nothing contemporaneous established what it is a fact estridge what the provide that exactly the school district if it had that information had the opportunity to present that into the record the parents were not provided with anything other than a writing from the school district that said we will provide your child with resource room services once per day we will provide there was a comment that said that the child requires counseling support this is not like any of the cases cited by the school district in its argument here today which were all cited in its brief and which we explained none of these cases that is relied upon by the school district supports the proposition that a school district can blank at least say we'll provide some level of support and then come to hearing and provide testimony from three different witnesses who don't have a clear recollection of what it is that the child would have received and who have been differing understanding of what that support would receive the parents have to rely upon the e p that's what the case law makes clear that's why federal law says that the school district is legally required to inform the parents of the frequency the duration and the intensity of the special education services that are to be provided to the child so that parents can rely upon that and make a determination about whether it is sufficient or appropriate to address their trials to address a child's individualized special education needs the parents were clear he needed more than the resource room that they understood the school district was recommending for him there is never anything in writing from the district that said we will provide direct service to your child that will provide indirect service to your child we will provide consul tape of services to your child it's simply said are going to provide him with resource room services at this frequency and at this to ration comments sure but that's not what these of the cases deal with all of the other cases that have been cited by the school district consists of cases were a child was receiving special education services year over year and there was an understanding between the parents and the family about those services or where the i e p identified the specifics of the services to be provided to the child at someplace other then exactly where you know it's supposed to  that didn't happen here the ip is silent as to the type of support they used to be provided with the school district i don't want to cut you off i'm sorry we're asking ok the school district is asking that this panel you know that you rely upon an impartial hearing officers decision that is premised on a specific counseling service and a specific counseling mandate actually being provided to the child the impartial hearing officer didn't grapple with the evidence he didn't ask didn't look at the contrary evidence from the other two witnesses from the school district that had a different recollection than miss and on did in fact he says that it relied upon i'm sorry the impartial hearing officers decision relies upon the school district providing a psychological consultation as well as direct services to the child which was not testified to by the school district witness that he relies upon the state review officer considered all of this considered the testimony of the different witnesses that the school district presented  under rect and found that the school district had failed to identify the services consistent with the law and that there was insufficient support that it would have provided the child with appropriate services given the lack of specificity on the e p given the fact that the school district presented testimony that tried to rehabilitate the deficient and it was constrained from doing so under the holdings of this court and federal law thirty questions i'm happy to answer them otherwise i thank you for your time reiterate at page two seventy one of the appendix to process complaint from the parents council the c s e review team recommended a program of resource from a group of five for forty five minutes per day as well as counseling support and classroom modifications so obviously i knew there was a classroom support component to this position that there was inconsistent testimony there were two three witnesses who testified one great detail dr none who designed the program and two others who each said they counseling knowledge that they never raise these disputed issues concerning either where the counseling support is located or its lack of specificity in the due process  and it wasn't raised in a way of opening the door and consequently since this is only testimony to explain what the program was designed to do for this student who was going to resist it it's not retroactive testimony these are all legal issues based upon the record in the case and i think the court is fully capable of addressing those issues based on the record thank you thanks very much reserve decision and