autism and a secondary disability of a ph d when this case began in november two thousand and twelve she was retained in the first grade because she was not weeping and her mother desperate to see progress on the single goal and so thought you paid arrange for private their p services and then moved her into a private school placement after giving written notice to the school district is it the case is i understand from the briefs that although your was difficulty in reading that she was doing well enough in the other subjects well enough is relative because her grades were in the low seventy's across the board reading was the unbelievably the school district or felt her claim to the hearing officer in the district court that her absences for private therapy services was the difference to her lack of progress the district court ignored clear texas code on this point the district court the hearing officer to the district court ignored the clear standard of the u s supreme court rally case which definitively definitively stands for the view that appropriate is tied to progress from grade to grade were tension by definition cannot meet that standard this is a substantive defend deficiency last the court erred in its analysis of the michael up standard especially the lack of an individualized program  had the same single goal as everyone else in her class and lack of progress from grade to grade which cannot equal academic meant if it as you know the district court's review of administrative proceeding  appropriate at the public school was inappropriate but first you have to define that that he was inappropriate and then you go to the next step which is that the private school was appropriate ok i'm not trying to s is yes or however that is not at the appropriate standard of review in an appeal of an id a case the appropriate standard every view is essentially asked the district court to decide the case based on the administrative record although the hearing officer spying should be accorded due way the district court myself timidly return independent decision based on the preponderance of the  disagreed with why at the end of our art papers are our documentation and there's a signature page and you either signed agree or you check agree or disagree and she chucked disagree on every ar yes some of the our documents say she disagreed with the ip or she disagreed with the eligibility the eligibility was the biggest concern she wanted she had to leave and the evidence shows that we had a reading disability there is also a leading a writing a written expression in the mouth but the school district kept saying she didn't have an educational need for those disabilities because and they believed it was a lack of instruction because she was going to private autism which was an october twenty sixth yes there was two are did not tobar the first one just found her eligible for a d h d and it was the second one that found her for autism her disability was autism said she had to master the regular curriculum at seventy percent so she wanted more services in the reading she was provided thirty minutes of inclusion with the teacher who would go into the classroom and work with her wasn't thirty minutes we asked and up and that the standard she was measured against was not a regular at students at seventy percent which the regular students had the same standard they only had to master all the she wasn't making progress she wasn't reading when she had her eye pay was developed she could only read the words a and end and this is after your candor garden summer school and going into the first grade she could write her first name but not her last but at the time of the withdrawal from the district the grades in the academic classes honor say right from eighty five to ninety six and acceptable to exceptional performance  and they do not adopt educational curriculum and they're not accredited by the talk to the education they do adopt that they do adopt the curriculum there's more than one certified teacher there and after the whole here she had come from the reading level a to c when she entered the second here first grade she was at level see that was the mastery level for those first nine weeks so she had been on grade level you know essentially left yeah so she didn't even know what summer school she went to a level day but after the first nine weeks she went back to a level sleep typically when a child leaves the first grade there's supposed to be a level i but there was something about that she didn't finish summer school was that she had therapy during the summer to her mother had already planned out the therapies she did attend i believe it was six of the twelve days well that's not true she attended more the days but she was counted absent she wasn't there when they took attendance so her mother had already set the therapy schedule and she told that to the arch she asked them for extended school year services but they are declined that  her mother believes she needed more individualized attention than a summer school which would go back to the regular curriculum and without the inclusion support i don't think she was ordered for inclusion support but her mother says she never received it and actually the mother the teacher never received her i e pay goal during the time she was in summer school there was twenty two kids and her public school classroom she had between one for student to teacher ratio in the private school and many times it was one to one there was maybe like two and a half hours well one to one and even with that one in one intensive reading it took her like six or seven months to get to a level jeanne what has happened in the private school she's now reading with all the intensive therapy she's ready but that's all we're no longer period time i'm not sure that i'm showing me in this record whether her progress in the private school is proceeding at a better place than it was in the public school at the beginning it didn't when she made it actually when they tested her when she went to the private school she was her reading level was back to a pre k level and then they worked with her intensively she  repeating the first grade in the private school she had to repay it took them a while to get her moving and reading i believe it was about a year and a half before she got through the first year  individualized to her needs they assessed her and realized where her gaps were where her deficiencies worked and did that when she wasn't in the public school it was still the same she had to meet the regular curriculum standards that everybody write but if her id pay had been appropriate to begin with she should not have been retained and i'm paying that's appropriate would have met her needs and she would have made progress and would not have been retained know it's not a learning disability or in specific or areas like math reading written expression those are the three specific learning disabilities that a child can be eligible for special lead services because the present situation she is now back in the public school her mother is teaching them to a neighboring district so she took her there and she is receiving a lot of special ed services there she would be in the fifth grade please the court counsel and as you saw them and remove me and i represent the clean independent school districts and so it's important to note first and foremost your honour's that it's not the school districts job or burden to show that the hundred seven for the michael f case and that sets forth whether the ip was appropriate or in this case about how to show inappropriate and not just simply means that the student was provided educational benefit so we get these four factors that tell us whether that occurred or whether it didn't and the michael left case was not unlike this case it was a student whose parents unilaterally withdrew him and put him into private school and then the parents went back and requested reimbursement by public appropriate or how wonderful the public school was and so that's that's the michael off case and of course it's the foundation of the case that we're talking about that and so the school district the hearing officer affirmatively found the school district proved that they met the michael factors so we carried a burden that we didn't even have we show that we provided the student with faith and the district court also said the same and went through a very detailed i thought well thought out analysis of how we did  that how we met the michael i factors and so just to kind of go through some of those individual eyes to that's the first factor individualized while the student perceived to seven evaluations in the short period that she was with us i believe two years and just to kind of let you know how unusual that is under the i d e a are required to do one re evaluation every three years so in two years we did seven evaluations and they said all different kinds of things so never once in nearly any of those evaluations because you're asking about learning that this disability earlier not on sub learning disability even the very last and independent evaluation that was done never made a conclusive diagnosis of a learning disability so this was purely the mother's perspective or her opinion but none of the seven evaluators who are professionals ever found that and so aside from that we had eight art and to show you how unusual that is the idea requires that we have an annual are we had eight in two years and forced to be fair for subject to the statute of limitations and there was a lot of talk in argument and a lot of talk in the brief about an hour that occurred on october twenty sixth two thousand and eleven and the arts before that and both  hearing officer and the district court recognized that there's a statute of limitations that applies here and it's a year from the date of the filing of the due process section and the due process wasn't filed until november fourteenth two thousand and eleven so anything hearing officer didn't consider them and neither did the district court and that was why and so how else to be individualized while the district court set out really like i said a good analysis of what happened to the district looked at student evaluations we looked at her student testing both formal and informal along the way parent and put teacher input all of those things are included whenever we had in our meeting the eight that we have and so there's been some talk about well the hearing officer never recognized that the student had autism he used the word alleged and so what effect does that have well the effect of that has if the student had autism then yes under state law the district was required to excuse the student's absences and we did that we excused absences but that's not we're here to litigate today and nothing in the idea says the court asked to completely not consider absences or not you know if the student has autism and just to tell you you know how significant those absences are because you did allude to them earlier in the two thousand and eleven school year the student me missed sixty five days or parts of days one hundred seventeen days out of one hundred eighty instructional days and those are days or parts of days she missed largely the test mission testimony shows during language arts and in our committee meeting the mother agreed they are not going to polar out any more for private their piece during language art she needs to be able to think progress on her reading and yet it continued so then we go to summer school and what happened there while the student messick stopped six out of twelve so it's not very surprising if she's not there to receive the educational content that maybe she's not making progress and you know what she was making progress she was reading this was left out earlier she was reading at a reading level d over the summer so she made progress over the summer think of what she could have done if she came for all the days rather than fifty percent and then you go to the twelve thirteen school year the year that she withdrew of the fifty two days that she was in rolled in our school district she came for thirty seven days or she was an excuse me she was absent for thirty seven days or parts of it and so you're looking at sixty five percent of occupational therapy we were excused to go to that we were providing occupational therapy at the school at the district that was provided as one of her services you look at a b a therapy none of the seven evaluations said the a therapy was necessary required of any of the of any of the evaluators who are professionals so this was again a unilateral determination by mom but these are pests that that the that these therapy appointments were necessary and that's her right to to take her child to these therapy appointments however you can't then say the district denied the child fake and the corpus cristi case that we quote in our brief is very clear on that they say a parent cannot be rewarded in due process for failing to access services and programs that are provided for students and so it's it's very clear it you can't just completely ignore and take out of the equation the fact that we were missing sixty five percent fifty percent seventy one percent of school days even the best of teachers would struggle to teach a child to read under those circumstances and so she was making market progress and you mentioned earlier judge that at the time a student was withdrawn that's the relevant time making a it's making be teachers are saying she's a joy to happen class she's wonderful they wished all her kids were like her and so you know this is an important decision today because the question is going to be to take a child who's thriving who's an a and b student who's teachers are saying she's a joy boy i know behavior play up behavioral problems i think one of her teacher says she walks in and every day ready to help that's a student we all wish we had and because the mother you know laterally believes that private school is superior a better that doesn't raise an obligation under the idea for the public school to pay for it a public expense and so the mother has the right to put her in that private placement doesn't raise the obligation under the idea for reimbursement so second requirement you look at under michael at least restrictive least restrictive environment and that simply means educated to the greatest extent possible with non disabled peers and so how do we do that the student was in the general education environment the student had inclusion support and so as as a district required to provide a continuum of services and under the burlington case the court the u s supreme court said we have to start in the general out environment of the public school and we move from there if that's not possible we move up the continu m resulting finally with the ideas the idea does provide for private school at public expense when that's not possible when all these steps in the continuum are not possible so what are some of those steps one of those look like well she was in the general education environment and as your honor mentioned earlier you know plain iowa state had eleven percent disabled students at all at all times never over eleven percent during the time of the student was in our district and so a forty percent argument even if that was valid even if that was the test for you know for a percent just a pure percentage i mean obviously more and more disabled students at this private placement and so we went from this this least restrictive environment from the general environment with inclusion support and by the end we were recommending sixty minutes i believe in math and english inclusion support so we had opted at that last our thoughts what we had recommended and it was not accepted by the mother but that's what we had recommended and we moved to the very most restrictive environment with no stop in between we moved to private school it with request with a request for public expense that would be paid at public expense and that's directly contrary to what burlington and all the idea cases  the coordinate in collaborative environment would have been a pretty hard task to find much more of a cordon needed or collaborative environment than the one we provided we had eight art meetings in two years like i said every time the parent requested an  independent evaluation it was granted when you know we had advocates on our meetings we had attorneys come for the parent to represent the parents for the meetings they all had their say they all had their input into the ip and then you have you that but i think it was the second to last start we haven't said hey let's put together a collaboration plan let's collaborate with these outside experts at the mother's house and let's try to let's see if we can all get on the same page for the student and the mom to decide to punish and she would allow the school district to consult with their experts or with her outside but outside specialists and so the district really did make a bona fide attempt to be collaborative and coordinated to the greatest extent we could i think it's important to recognize though the over says defendant case says you know collaborative uncoordinated means that the parent was afforded a meaningful opportunity to participate in the i p t collaborative in coronated doesn't mean that the district just submit stored hears to a laundry list of demands and so that's a standard and then you move to the last the last requirement and that's the student show academic benefit and nonacademic benefit academic benefit i heard is that the type that you know the relevant time is when this child was pulled out of our school district it's not an october two thousand and eleven art that was white that was outside of the statute of limitations and aside from not that argument fails anyways because if you look at the record even at that time if we're going to say the statute of limitations never even applied if you look at that time period the student was making progress educators testified in spite of the fact that she was missing sixty five fifty seventy one percent of the days and i think especially at one of her special education teacher said just a lot in the record i was surprised at how much progress she was able to make and spite of how little she was at school and so you know the time of the student was withdrawn is a student a joy to have in class she's getting marks of excellent nonacademic benefits she's getting marks of excellence and sitting in her c raising her hand you know we we were you grade those things in first grade she's getting along with her peers so she's showing on academic benefits as well and so that's the bottom line is that the district was able to show that they affirmed a blame of the michael factors we were a firm and affirmatively able to show that we provided an appropriate i e pete's not our burden but we were able to show it on the last we the effect would change all that much judge because as i mentioned the hearing officer applied it to the district court applied it i think they gave the procedural background because we all saw how convoluted that record was so i think they gave it just you know as an aide this what's happened for this child but i'm not sure the outcome is much different because number one ever at every level that it's been applies to applied and even if it wasn't applied i don't think the outcome would be different because the student was showing progress the that we heard about earlier that certainly doesn't apply the october twenty six piece i think you know probably to some extent they had to just because it builds on history and so i think they said it doesn't apply even if a dead student shall still show the stud making progress you know a seventy percent mastery goal when the students passing all of her classes and has to sixty eight slots to two points away from seventy so we don't pass it we don't set the goal you know where the student is of course that's not a you know i think that the district corps and the hearing officer definitely primarily focused the the analysis the inquiry on what happened at the time the student was removed from her school and it makes sense because why would you hold this you know why would you go back and look to at a claim that the ip was inappropriate over a year before the student was withdrawn from our school if that was so inappropriate why did it was it a year and a half before the student was withdrawn from our school and when the student was withdrawn from our school it was a student and so any of the issues that were brought up that were supposed mistakes of fact that the hearing officer made and appellant did focus primarily on the hearing officer i think they allege mistakes of fact were primarily for not all against the hearing officer she doesn't really whole lot against the district court making mistakes of fact but even you know for the sake of argument let's say you know let's consider those let's consider them they don't make any difference and i would contend that the hearing officer side of the record pilot so of course there is no reversible error for a hearing officer to consider an exhibit that was put in front of them by their opponent it wasn't us the put that into the record and he cited it correctly another example was  so that's not reversible error that doesn't raise a material issue and so nothing that's been raised has any and we talked about the autism in the state law that doesn't have any effect on whether idea was violated or whether the school district provided faith and so there's that there there's really nothing that's been raised as a supposed mistake of fact that would have any material issue them graze any kind of essential element and the essential elements here of the michael left it's are the michael f factors and so those are the essential elements do any of those supposed mistake vioxx have any have any bearing or any any end result on those michael i factors can it show that we didn't meet one of them no none of them have any material effect on the michael f actors and so because of that as i said this is just an important case because it's really going to set the stage for whether if a parent prefers a private school their puppet a school district is required to pay for it effective until the very next october of two thousand a while ago so it doesn't you know whenever the the statue of limitation goes does are those are you pains were still in a fact the school district wasn't they couldn't just say oh it's beyond a year i'm not going to implement those are your peers anymore they were still there your position is that nothing in this case is board limitation no that's not true  it does go back here but there were no i didn't pay is in kindergarden so there you know they never found her eligible in kindergarten after several attempts by the mother  are no good but that's not true not in special those are those evaluations carry over and each year the child there until the third year until a new evaluations done just like i i also want to address them a couple of things she mentioned the district court panel to address the reality standard that the student has to achieve passing marks an advance from grade to grade this child clearly did not and or advance from great to gray that's a big material fact that the district ignored it went straight to the michael f doctors i disagree with her analysis of the michael factors and that's what i was go regular child in her classroom she had the same standard now she did have additional modifications but those are modifications that any child and teacher would tell you i do things anyway for my kids and those modifications were the same modification she had when she was eligible as an a d h child they did not change when she got the eligibility of autism which is the difference in disability a big difference and it remained the same all the way until an adequate she didn't receive sufficient instruction in reading she didn't read and ok i mean where you say i missed because she didn't get enough time the teacher failed the teacher was inadequate the teacher was incompetent i mean what did you say yeah she didn't get enough time so there is a continuum of services she should have been pulled to resource a room and worked a one on one with reading that she got at the private school and about her mother  for right and exactly but she wasn't successful in her what the district was calling the least restrictive environment and even in retaining her then she was a year older than all of her peers or at least restrictive environment would be with her peers her same age peers that didn't happen i also want to clarify there were several evaluations that showed learning disabilities or your read by being taken from a class of students and given how much instruction we should be given and reading room whatever the the ard was to determine it wasn't just reading it was also math eventually they agreed to meet with the mouth but they still didn't provide sufficient services but it was available for them to provide us for all the children i'm assuming yes they have to offer continuum of services ok thank you very much we have