Legal Case Summary

In 30164, Seth B. versus Orleans Paris School Board. Mr. Las Finato. We're here on the matter of whether the school district should have paid for the IEE. You can, that's okay, Council. But the question of whether this student received a FAPE is not for us in any way, right? As correct, right. And it was ruled again, I gather that the parents criticism of the program, the IED, was rejected, is that right? There was a hearing in 2012 where the parents did not prevail on their claim that the services in program offered by the school district were appropriate. That's correct. May I please the court? My name is Ronald Las Finato and I represent the plaintiff's Don Cheryl and Seth B. This case concerns a district court decision affirming the refusal of the defendant to ensure that an independent education evaluation that the parents had attained with its approval was provided at public expense. The regulation of issue was the United States Department of Education Regulation 34 CFR Section 300.502, which was promulgated under the individual with disabilities education act or IDEA. The guarantees parents are publicly funded independent educational evaluation or IEDs, I'll refer it to it during this argument, under appropriate circumstances when they disagree with the school district's evaluation of the child. At the time this case arose, Seth B. was 15 years old and was identified as a student with autism. We contend that the district court committed reversible error in three respects. First, the court failed to address the failure of the school district to comply with the clear procedural requirements of 34 CFR Section 300.502B. The court did not require a school district to either provide an IED public expense or request a hearing to show that it is not required to do so. Second, the district court aired and rejecting the argument that the defendant's expansive agency criteria coupled with its after the fact determination that it would not pay for plaintiff's IED are impermissible under the IDEA. Secondly, the court did not require an inconsistent with the right to obtain an IED public expense

. Finally, since there was significant credible evidence that plaintiff's IED complied with bulletin 508, the district court aired and not either permitting the case to trial or remanding the case to the administrative law, the Louisiana's division of administrative law for an evidentiary hearing. On the first issue, the IEDA's procedural requirements are explicit on what a defendant is required to do upon receiving a request for an IED or once an issue of regarding the agency criteria has been established. It must either provide the IED public expense or obtain a ruling in an administrative hearing that it was not obligated to fund the IED. The district had three chances to provide an IED public expense or seek an administrative ruling. Let me ask you a question. This was a very long record. We did not get into all of it before our argument. I looked at bulletin 508, which is I thought was sort of the heart of the compliance issue here and it looks to me unless I misread it as if all it does is copy the regulation, the federal regulations. I think that it goes into significantly more detail than the school district evaluations. What I would point out is that it is a 144-page document that applies to how a school district should conduct its evaluations and re-evaluations of students. It does build on the federal regulations, but it goes beyond them as well. What does it say? I thought the parents here got some kind of document from two experts. They did. They got a 45-page. Well, they ended up with ultimately in April of 2012. They got an IED report. It was a report that was created by a number of experts, including a psychologist, an occupational therapist, a physical therapist, an educator. It was a combined report of 45 pages. They provided that with the school district. That is what the school district rejected. Right

. But my understanding is that it didn't explicitly comply with the requirements of bulletin 508, but you say it substantially complied. Well, we say, well, two things that we say. We say in a minimum it substantially applied. There were some things that were missing. For example, an adaptive physical education evaluation was never done. We didn't think that was necessary. The parents never thought that was necessary. They didn't disagree with the school district's prior evaluation in that area. There are some other issues that the IED wasn't signed. Obviously, signing an IED is important and can be easily accomplished, but certainly not the basis for withholding payment for an IED. It would have been a lot more helpful for both sides if you had told us. Other than saying it doesn't comply in 31 respects. Yes, it does, to have been a little more precise in the briefing because I was very frustrated in trying to figure out exactly what the problem was. Well, it was good enough for the person to use in the hearing on the IED individualized education plan, right? Because they introduced it. Oh, you mean the IED report? Yes, that's right. That's correct. They did introduce the report. Now, you have to understand that that report was completed after that hearing had been initiated. And to the extent that there was any discussion of that report at the hearing, it was before, well, some of it was before and some of it was after the school district issues issued its decision. The point of making is that whether the IED complied with bulletin 1508 was never an issue at that hearing in any meaningful sense. It was just simply referenced in our group

. And I think that it was a great deal, but if it's not even ready until after the hearing. Well, it was, it was, it was presented at the hearing. The point of it was really to provide the, I mean, the point of an IED generally is to provide the school district with information that it can use in helping to improve the education of the child. And for that purpose, the parents submitted it and expected the school district to consider it. They also attempted to use it at the hearing. Obviously, that didn't, didn't work out well for them, but that sort of, that is irrelevant to this claim. And the reason is- Just told me it wasn't even ready for the hearing. Well, that's correct. It was, it was completed after the hearing was initiated. But before the hearing began, it was reviewed, it was reviewed by the district after the hearing began. And then somewhere in the middle of that hearing in March of 2012, the school district issued a decision basically saying it doesn't comply. And this is why it doesn't comply. But it was never, but the point I'm making is that in terms of the IED requirements, the 2012 hearing had nothing to do with that. I understand your argument on that point. I just don't quite understand. Why did you bother to continue to go after this if your clients, well, whoever's clients was at the time, or lawyer got the substance of the report in at the hearing? Wasn't that the important thing? No, the important thing was that the school district received the report and actually do something about it. And all that they, all they did was simply say, it doesn't meet our criteria and we're not going to pay for it. I understand that, but I'm just asking is, I don't want to waste all your time. I was just asking what's the practical bottom line here? Well, the practical bottom line is if the school district had done what it was supposed to do, which is that they either paid for the evaluation and considered it or went to a hearing officer and said, this report doesn't comply with agency criteria. Then that issue would have been resolved when Seth was probably 15 or 16 years old. And for example, if the hearing officer had ultimately said, we think that it substantially complies with agency criteria

. The IED regulations require the school district to consider that report. And that was never done in this case. But they did consider the substance of the report in the hearing because the same experts testify. That's right. A hearing officer ultimately did consider it to some degree. I'm still a little unsure whether you request whether your clients requested limited IED or a comprehensive IED. Now, the parents said that the parent, the document you're referring to, the parents basically made the statement that the, the the the law requires that parents have a right to a comprehensive IED. But the parents generally speaking had a couple of complaints with the school district's prior evaluation evaluation that was completed in 2010. And there are complaints concerned and occupational therapy evaluation that they said was inadequate. There were some complaints that they had regarding the students social functioning. And then there was not to what's there something about an additional learning disability? Well, that didn't actually come up. The record is a little muddy on that, but, but be honest, the issue of the learning disability did not come up until the report was completed. And at that point, the examiner basically said, we think this, this kid has an learning disability and the school district ought to do something about it. But because the school district, you know, because of the posture it was in, that report, basically that part of the report basically fell on deaf ears. But it didn't, it shouldn't have influenced what, you know, whether the school district paid for it in the least. It was just a responsible thing for evaluators to do. I see this problem. The school district should address it. What about the fact that you're, I mean, another frustrating thing is that one party says we had such and such stipulations. The hearing examiner said so and so and so and so and so, and then the other party says, no, that's not true. And for the benefit of the audience, it's very frustrating when you don't have any idea what the record says because the briefs so violently disagree

. But the school board does say that the, that when this IEE came out, the school board said it doesn't look right or somebody for the school said it doesn't look right. But you call our expert and she'll tell your expert how to modify the report. But, but the parents never did that. That part is correct and they didn't do it for three reasons. The first reason is they didn't think that the report did comply with bulletin 508. The second reason is that they had spent a lot of money on the evaluation and it was going to cost them more money to go back to their experts a third time. And then the last thing, and I think which is important to consider, that it really, it was incumbent on the school district to take action not upon the parents. The regulations are very clear. It basically says that if a school district believes that a report does not need agency criteria, then it should request a hearing to make that to resolve that issue. And they didn't do that. The parents just say, say those things and say, why couldn't they call a hearing? Why do they sit back for two years until there's a hearing? Well, they made, they made a request. I know, but they wanted the money. So why didn't they call the here? It's a school board won't call it. We want it. Ultimately, that's what they did. I mean, they were two, there was, there was, there was a demand letter that was written in, and if you get December 2012. And a response to that later and following that response, basically the school district said no and the parents requested a hearing. They did it is, you know, they, they, they did what they needed to do. And the school district, the school, it was really up to the school district. The parents located the expert. Well, that's all, if you look at the affidavit of Cheryl B, they really had a search high and low to find people who would do the evaluation and do it for that amount of money

. They had to, they had a search high and low. It was a very, it was a very exhaustive search. And ultimately they found people, but it wasn't, but they had to go through quite a, quite a bit of effort to make that happen. The school did an avenue recommendations of experts. The, the system itself, the school system, provide any resource for identification of experts out there that consist parents. Well, in this case, they named two entities that potentially could do the evaluations. But neither of those were suitable for the parents. One was an employer of the, of the, of the plane of the father in the case. And another is one that was consulting with the school district that they are. They didn't feel that those people were sufficiently independent to conduct the evaluation. So the parents did what they were had a right to do under this to try to find evaluators who could meet the school district's criteria under the evaluation. I'm just trying to understand the, you know, how that, how this actually operates and works. Most parents in front of this are not going to have a media at their hands, a list of experts. That's correct. And that's why, that's cool on the other hand, when ordinarily have people they work with and identify and so forth. Yeah. I mean, well, that was, I mean, that was definitely a problem. I mean, the school district, as I said, had a very limited list. And neither of those were suitable. And that just sort of then fell back on the parents to sort of come up with people who could do this evaluation. One of the, one of the agencies that does this type of work or

. Or institutions that does this type of work was actually the employer of the plane of father. That's correct, Your Honor. So why didn't you get it for free? Good question, Your Honor. He just said he just felt that it was, that was not a very comfortable position to be in. So he didn't feel like he could get an independent evaluation. Well, the suggestion was that he may have some expertise himself. How would he work in some other group? Yeah, he's a teacher. No, that's correct. He, you know, he's knowledgeable about education and teaching. Not necessarily knowledgeable about all the ins and outs of the special education system, although he certainly has learned. You know, you're thrown into the fire, you just have to deal with it the best you can. Well, they better equipped and navigate this terrain than most people. Well, that's correct. And in fact, that's what sort of an interesting aspect of this is that, is that these are parents that are educated and committed and interested in their child. And there are so many parents out there who. Most of these cases are all, sad cases, difficult cases because it's really the dedicated parents who are in there fighting for the kid most of the time. That's correct, Your Honor. That's correct. And that's what happened in this case. That's correct. Anyway, the school district had three opportunities to request a hearing

. The first time was at the time of the request, which was in August of 2011. The second was at the time the parents indicated they were unable to meet the $3,000 limit and that was in November of 2011. And then lastly, they could have made the decision, they could have taken action in May of 2012 when they issued a determination that the IED did not meet agency criteria. In the first instance, the school district explicitly elected not to argue that its evaluations were appropriate. Oh. You have time for a battle. Thank you. Mr. Stewart. Exactly in what respects was this report not aside from the money, not compliant with bulletin 1508? For your Honourous Good Morning. Please the Court. My name is Wayne Stewart. Council for the defendant of Pelley, Orleans, Paris. Do you want to give you who I saw up? The coup sticks good. Yes, sir. Where's Eric here in this courtroom? To answer your question specifically, Judge Jones, is if you would make reference to the record at 1702 through 1705, it makes explicit reference to the 31 issues of noncompliance. The parents have also submitted those 31 areas of noncompliance at 1667 to 1670. And so those 31 areas, I mean when council for the parents indicated that, oh, well, there was just a missing signature and there was a missing APE evaluation. Well, that's two. That's two of 31 issues. Well, now there's issues and then there's issues and you listed them in your brief somewhere, right? You identified them in general several generic categories in your brief, didn't you? Yes, Your Honourous Faras, as far as making reference to the record

. They don't do the right tests. No, Your Honourous Faras, looking back to 1508 criteria is that 1508 criteria are the agency criteria under which every school system in Louisiana must conduct evaluations. Under section 107A5 of those regulations, these regulations in 1508 with regard to conducting evaluations, both initial and reavow, now apply to independent evaluators. Many times school systems either by not having available staff or making a determination that cost is prohibitive will contract with private evaluators and the private evaluators must meet the same. I understand that and I'm very sympathetic to that, but I did not see we were looking at chapter 5 and chapter 7. So we were I guess looking at the wrong part of bulletin 1508, is that right? Yes, ma'am, bulletin 1508. And what to address a couple issues that were raised in the parent's argument is first, the judge Smith's question is, did the parent actually request a comprehensive evaluation? And the answer is yes, if you look at the record at 1230, it says quote, they requested a comprehensive IE at public expense. So there's no mencing of words there. Contrary to what parents counsel indicated is that they never expressed in their request for evaluation what their specific concerns were about the evaluation. So the school board takes at face value, they want a comprehensive evaluation at public expense. The school system within a week said we will provide it at public expense as long as it meets agency criteria, which is bulletin 1508. And including a limited cost, right? Yes, sir, there's a limited cost, however, if the parents demonstrate unique the commentary to the IDEA regulations in 2006 by the US Department of Education, allow the parents to demonstrate unique circumstances, which may allow that cap to increase. And so under these circumstances, the threshold issue is, is it compliant? The school system has not denied the parent reimbursement for an evaluation that is compliant. If you go on, you pay this kind of money to an expert who specializes in this field that they wouldn't know the operative requirements at all, as to what they're supposed to comply with. The reason I asked the question is that the implication of that is that, look, this expert knows what complies, but they were asked to do something else for more. Now, I don't guess I don't follow what happened. Well, you're on a high on an expert to help me and the lower requires that it's supposed to include AB and C, and they don't give me AB and C. And I think they don't know what they're doing. Unless I tell them that I don't want AB and C, I also want to do an E&L. Well, you're on a, with regard to what the independent evaluator knew or did not know, the school system provided notice, and it's reflected in the record, undisputed, that the school system provided notice to the parents when they made the request for the comprehensive IDE that it meet 1508 criteria. Presumptively, when the parents contacted their chosen evaluators, they indicated the school system said they will pay for an evaluation as long as it meets 1508 criteria

. The evaluation that was submitted to the school system on the eve of the 2012 due process hearing indicated that it was compliant with bulletin 1508, but as the school system demonstrated, and the key term there is demonstrate. Parents, counsel, indicated that the school system is required to request a hearing. That is not true. The express language of that provision, the regulation says, the school system must demonstrate at a hearing, which it did in 2012, which it did again at the administrative level below. It did again at the district court level. What were the substantive failings of the report? Is the board's problem that the report covered more than it should, or that it covered less than it should? It covered less than it should. Well, you were saying they improperly asked for a comprehensive report, and it was an initial evaluation, not a re-evaluation. So how can it be less than it should, and also be a comprehensive report? Your Honor, respectfully disagree with your characterization to say that the school system said it shouldn't be comprehensive. The parent requested that bulletin 1508 requires it to be comprehensive. Bulletin 1508 of the state regulations that are promulgated by- You said that there's a difference between an initial evaluation and a re-evaluation, is there not? There is, Your Honor, however, as explained in the briefing, both at the district court level, as well as at the administrative level, and here in our reply brief, is that even if this were considered a re-evaluation, that if a new exceptionality, that is a new disability, is suspected bulletin 1508 requires that you comply with the initial criteria for that disability. Okay, then their response is that we didn't do, I think part of their response is, we didn't do all of the 1508 things because we did not disagree with the way the school district had evaluated some of those. Okay, and your Honor, even given that for the sake of argument? That is not art, that's what they said. Well, that's what they said, but assuming that they didn't want everything, even though they said they wanted a comprehensive evaluation, is that counter to what parents' counsel is indicated, is that if you look at the record at 908, as well as the district court noting it at 1230, is that I quote. At the time the IEE was conducted, SB was identified as a student with autism, the parents also suspected that he might also have a learning disability. End quote. So to say that they did not know that he had a learning disability or even suspect that he had a learning disability until after they received the evaluation, is completely counter to their admission. But is it not possible because frankly this is so in specific about what the additional learning disability, we never know what the additional learning disability was suspected to be. But so given that, they're still saying, suppose it was dyslexia, and they weren't going to test them for some kind of site difficulty. I mean dyslexia, but not a vision impairment like being functionally blind. I mean the assessment of itself has to address, and the independent evaluator. Why does it have to address things that aren't even possible for this particular student? Is that part of the disagreement? No, Your Honor. It's... Yeah, I mean you've never... What's... I'm trying to... Let me... Tell us why in the report was deficient. Exactly. The report was deficient. One, two, three, and say out of the jargon, just tell us why it was..

. It's... Yeah, I mean you've never... What's... I'm trying to... Let me... Tell us why in the report was deficient. Exactly. The report was deficient. One, two, three, and say out of the jargon, just tell us why it was... The report was deficient in multiple areas, 31 areas, with regard to the initial evaluation criteria for specific learning disability. It also did not have... You know, done a good website code to me. Where was it deficient? Your Honor, as we've referenced within, I don't have that right here in front of me as far as the 31 areas make reference to the record at 1702 through 1705. The 31 various areas, that is what the school system is required to do under the regulations, under 1508. When it receives any evaluation from an outside source, whether it's an independent evaluation, it must review it. We're trying to understand that... You're here because the school says that the report's deficient. And the other side says it's not. And we haven't heard anybody articulate how it's deficient, other than saying well under 1508, they have to have it. You talk about use word like comprehensive. If you can, you can give us any more than that. Well, your Honor, as far as the initial evaluation must include a review of existing information. Review of existing information. Parents Council had already admitted that an adaptive physical education evaluation was not included. There were multiple other areas in which the evaluation did not comply with 1508. And as basically a checklist, as Judge Jones had asked Council for the parents, is it basically parroting what the federal regulation is known? Where in do you disagree as to whether there were two deficiencies? Well, there is some agreement that the report was deficient in some respects

. The report was deficient in multiple areas, 31 areas, with regard to the initial evaluation criteria for specific learning disability. It also did not have... You know, done a good website code to me. Where was it deficient? Your Honor, as we've referenced within, I don't have that right here in front of me as far as the 31 areas make reference to the record at 1702 through 1705. The 31 various areas, that is what the school system is required to do under the regulations, under 1508. When it receives any evaluation from an outside source, whether it's an independent evaluation, it must review it. We're trying to understand that... You're here because the school says that the report's deficient. And the other side says it's not. And we haven't heard anybody articulate how it's deficient, other than saying well under 1508, they have to have it. You talk about use word like comprehensive. If you can, you can give us any more than that. Well, your Honor, as far as the initial evaluation must include a review of existing information. Review of existing information. Parents Council had already admitted that an adaptive physical education evaluation was not included. There were multiple other areas in which the evaluation did not comply with 1508. And as basically a checklist, as Judge Jones had asked Council for the parents, is it basically parroting what the federal regulation is known? Where in do you disagree as to whether there were two deficiencies? Well, there is some agreement that the report was deficient in some respects. Yes, sir. They have already admitted at multiple levels. At multiple levels, and even here in oral argument, that there are areas which do not meet. There are elements that are missing. There are 31 areas. The school system does not have the discretion to say, hey, we're going to waive this requirement. These are regulations that are promulgated by the state of Louisiana in compliance with IDEA. And it's the standard. It is a fair, consistent application of the regulations which are promulgated under IDEA. And so it is true in some circumstances where if a parent just were to request a functional behavioral assessment, an FBA, that that and of itself, if they requested that particular evaluation, that could constitute an IDE. However, given the fact that the parent requested the comprehensive IDE, rejected the evaluators that the school system offered as Judge Jones had pointed out and Council had admitted, is that the parents did not come back to the school system. The school system could have provided other individuals or other school systems that could have done the evaluation. I know this young man had been evaluated for autism for some years, right? Yes, ma'am. He had been a basically an ongoing process. And I also infer, although it's not clear to me that the purpose of the hearing in March of 2012 was to refine certain areas of his IDE, right? Well, you're out of the hearing that the parents had requested in 2012 was one where they were challenging the IEP. They said it was a denial of faith. And at the end of the day, at the end of the hearing, after the school system demonstrated the IEP, it was not a denial of faith that the school system had provided faith. There has never been a judicial determination at any level. I understand that, but what I'm saying, and so far as I know, we don't have an appeal of the faith, but determination, but fine. But what I'm saying is why it is, why does it, is there have to be wrote compliance with 1508, which I gather is 140 page bulletin, when you're 10 years into the educational process and presumably the parents had focused concerns about what the IEP was doing. What about the deficiencies in the educational program? Well, your honor, as far as the stating what the school system is required to do, the agency criteria are defined at 3404 CFR, 300

. Yes, sir. They have already admitted at multiple levels. At multiple levels, and even here in oral argument, that there are areas which do not meet. There are elements that are missing. There are 31 areas. The school system does not have the discretion to say, hey, we're going to waive this requirement. These are regulations that are promulgated by the state of Louisiana in compliance with IDEA. And it's the standard. It is a fair, consistent application of the regulations which are promulgated under IDEA. And so it is true in some circumstances where if a parent just were to request a functional behavioral assessment, an FBA, that that and of itself, if they requested that particular evaluation, that could constitute an IDE. However, given the fact that the parent requested the comprehensive IDE, rejected the evaluators that the school system offered as Judge Jones had pointed out and Council had admitted, is that the parents did not come back to the school system. The school system could have provided other individuals or other school systems that could have done the evaluation. I know this young man had been evaluated for autism for some years, right? Yes, ma'am. He had been a basically an ongoing process. And I also infer, although it's not clear to me that the purpose of the hearing in March of 2012 was to refine certain areas of his IDE, right? Well, you're out of the hearing that the parents had requested in 2012 was one where they were challenging the IEP. They said it was a denial of faith. And at the end of the day, at the end of the hearing, after the school system demonstrated the IEP, it was not a denial of faith that the school system had provided faith. There has never been a judicial determination at any level. I understand that, but what I'm saying, and so far as I know, we don't have an appeal of the faith, but determination, but fine. But what I'm saying is why it is, why does it, is there have to be wrote compliance with 1508, which I gather is 140 page bulletin, when you're 10 years into the educational process and presumably the parents had focused concerns about what the IEP was doing. What about the deficiencies in the educational program? Well, your honor, as far as the stating what the school system is required to do, the agency criteria are defined at 3404 CFR, 300.502E. And it's saying specifically, and if an independent educational evaluation is at public expense, the criteria under which the evaluation is obtained, including the location of the evaluation and qualifications of the examiner, must be the same criteria that the public agency uses when it initiates an evaluation to the extent that those criteria are consistent with the parents right to the independent evaluation. Basically, you're saying if every other year the parents want a hearing on the IEP, then and they want an independent educational evaluation to which they're entitled by law at expense of the district, then they have to go through the entire rigmarole as if the student had just come into the district again. Is that what you are saying that bulletin 1508 requires? No, ma'am. I would not characterize it as a rigmarole. The parent is entitled by law to one independent... But you keep saying they did not comply with the entire evaluation, and that's why they don't get a dime, but they can agree to something less. Yes, I... You're honor... just as far as the general rule looking at textual reasoning here with regard to IDA. I think criteria, but you know, they could say my kid is in a wheelchair, and the PE that they provide for him with that limitation, we're not disagreeing with. We are disagreeing about whether he has access to the art classroom or whether he has access to a proper science classroom consistent with his abilities. If that were the case, and I have no idea based on the vagueness of these briefs, but if that were the case, the district would not require the parents to go back and get the PE evaluation all over again when they weren't even disagreeing with it. Potentially, Your Honor. I mean, once again

.502E. And it's saying specifically, and if an independent educational evaluation is at public expense, the criteria under which the evaluation is obtained, including the location of the evaluation and qualifications of the examiner, must be the same criteria that the public agency uses when it initiates an evaluation to the extent that those criteria are consistent with the parents right to the independent evaluation. Basically, you're saying if every other year the parents want a hearing on the IEP, then and they want an independent educational evaluation to which they're entitled by law at expense of the district, then they have to go through the entire rigmarole as if the student had just come into the district again. Is that what you are saying that bulletin 1508 requires? No, ma'am. I would not characterize it as a rigmarole. The parent is entitled by law to one independent... But you keep saying they did not comply with the entire evaluation, and that's why they don't get a dime, but they can agree to something less. Yes, I... You're honor... just as far as the general rule looking at textual reasoning here with regard to IDA. I think criteria, but you know, they could say my kid is in a wheelchair, and the PE that they provide for him with that limitation, we're not disagreeing with. We are disagreeing about whether he has access to the art classroom or whether he has access to a proper science classroom consistent with his abilities. If that were the case, and I have no idea based on the vagueness of these briefs, but if that were the case, the district would not require the parents to go back and get the PE evaluation all over again when they weren't even disagreeing with it. Potentially, Your Honor. I mean, once again... What is your argument about 1508? My argument regarding 1508 is that the general rule is that it must meet the agency criteria. The agency criteria, bulletin 1508, which every other school system in Louisiana must follow, that every team within a school system must follow. And the parent requested the IEEE, they sought out the evaluators, and so it said it must meet 1508 criteria, only those areas, only within autism, and the evaluator, the school system did not say you have to do the LD criteria, they chose an evaluator decided to look at an LD issue because that's what the parents requested. The school system provided no further constraints upon that to say, here are the regulations, private evaluator, as an expert, you can read this document and follow the recipe to be able to do this evaluation. And as I understand it, the reason why the school districts can impose the same criteria on the parents, even though it's sort of a big term in context, but the reason why it can impose the same criteria so that everybody's on the same page with regard to the student, right? Exactly, Your Honor. Fine, so what was the biggest substantive deficiency in this expert report, vis-a-vis what the school district was trying to do? Well, as far as saying the largest 1508 does not make a ranking of what is the most important or not, but to answer your question just from a perspective is that it did not contain, I mean since the child was determined by their private evaluators having a learning disability, they would have to have been a specific intervention process to determine whether the child, and there is a very comprehensive system of evaluating for specific learning disability that is prescribed by IDEA, which is replicated in detail in 1508, and that process was not followed. The most important from my perspective, having been an evaluator in a school system previously and extremely familiar with 1508 as a lawyer and a practitioner, is that there was no intervention requirement. Intervention means basically the IDEA congressional intent was that we are not going to have school systems identified children where the fault is not on the child, that perhaps the child does not receive defective instruction. And so they want to be able to rule out that it is not cultural factors, it is not socioeconomic factors, it is not that the child did not receive effective instruction, that somehow the child had some type of sensory impairment, there has to be an intervention within that process, there was no intervention. And is that a meeting? No, your honor, an intervention would be let's say the child is suspected, and in this case the parents had concerns about the child's math ability, and now let's just say the young man has problems with math. So the intervention would have specifically addressed math, or the child had issues in reading, reading comprehension, or decoding, or those various areas in reading that there would have been an intervention that specifically addressed that concern. And intervention, a description, what is an intervention? No, an intervention is actually a process whereby you would collect information as to the child's performance on particular skills, make some kind of screening or diagnostic based upon what he's doing in the curriculum or not, and then design through an empirically based intervention, as is required by no... What we're saying is that we started off with an autistic child, and that has a particular regimen for determining an appropriate program for the child, but then we went to learning disability, and that has a distinct regimen or discipline for determining the response. Your honor, they both within if you look at the... Yes, sir, you both look at those areas of 1508

... What is your argument about 1508? My argument regarding 1508 is that the general rule is that it must meet the agency criteria. The agency criteria, bulletin 1508, which every other school system in Louisiana must follow, that every team within a school system must follow. And the parent requested the IEEE, they sought out the evaluators, and so it said it must meet 1508 criteria, only those areas, only within autism, and the evaluator, the school system did not say you have to do the LD criteria, they chose an evaluator decided to look at an LD issue because that's what the parents requested. The school system provided no further constraints upon that to say, here are the regulations, private evaluator, as an expert, you can read this document and follow the recipe to be able to do this evaluation. And as I understand it, the reason why the school districts can impose the same criteria on the parents, even though it's sort of a big term in context, but the reason why it can impose the same criteria so that everybody's on the same page with regard to the student, right? Exactly, Your Honor. Fine, so what was the biggest substantive deficiency in this expert report, vis-a-vis what the school district was trying to do? Well, as far as saying the largest 1508 does not make a ranking of what is the most important or not, but to answer your question just from a perspective is that it did not contain, I mean since the child was determined by their private evaluators having a learning disability, they would have to have been a specific intervention process to determine whether the child, and there is a very comprehensive system of evaluating for specific learning disability that is prescribed by IDEA, which is replicated in detail in 1508, and that process was not followed. The most important from my perspective, having been an evaluator in a school system previously and extremely familiar with 1508 as a lawyer and a practitioner, is that there was no intervention requirement. Intervention means basically the IDEA congressional intent was that we are not going to have school systems identified children where the fault is not on the child, that perhaps the child does not receive defective instruction. And so they want to be able to rule out that it is not cultural factors, it is not socioeconomic factors, it is not that the child did not receive effective instruction, that somehow the child had some type of sensory impairment, there has to be an intervention within that process, there was no intervention. And is that a meeting? No, your honor, an intervention would be let's say the child is suspected, and in this case the parents had concerns about the child's math ability, and now let's just say the young man has problems with math. So the intervention would have specifically addressed math, or the child had issues in reading, reading comprehension, or decoding, or those various areas in reading that there would have been an intervention that specifically addressed that concern. And intervention, a description, what is an intervention? No, an intervention is actually a process whereby you would collect information as to the child's performance on particular skills, make some kind of screening or diagnostic based upon what he's doing in the curriculum or not, and then design through an empirically based intervention, as is required by no... What we're saying is that we started off with an autistic child, and that has a particular regimen for determining an appropriate program for the child, but then we went to learning disability, and that has a distinct regimen or discipline for determining the response. Your honor, they both within if you look at the... Yes, sir, you both look at those areas of 1508. So that what you're saying is that the deficiency here is that the parents, when they went to their expert, they asked for or the expert came back with recommendations for learning disability, and it had not gone through that discipline. Your honor, may I answer your question? Is that yes, sir? The evaluator did not... You talk about intervention as a distinct process or discipline for responding to that discipline. To learning disability, but then there's an intervention requirement generally, there would not have been an intervention required if it should remain... The intervention means a minute... That is such a misuse, ball of polarization of English. I just don't even understand that. The way intervention I know of is when I... The kid's not an alcoholic, I mean. That's exactly what I know of. In the terms of education and in psychology, intervention has a specific meaning. Let me just.

. So that what you're saying is that the deficiency here is that the parents, when they went to their expert, they asked for or the expert came back with recommendations for learning disability, and it had not gone through that discipline. Your honor, may I answer your question? Is that yes, sir? The evaluator did not... You talk about intervention as a distinct process or discipline for responding to that discipline. To learning disability, but then there's an intervention requirement generally, there would not have been an intervention required if it should remain... The intervention means a minute... That is such a misuse, ball of polarization of English. I just don't even understand that. The way intervention I know of is when I... The kid's not an alcoholic, I mean. That's exactly what I know of. In the terms of education and in psychology, intervention has a specific meaning. Let me just... We will look it up and your time has expired, but let me just suggest that when you follow brief these kinds of cases to us again, you need to give us a glossary, because we do not... We are very sympathetic to both sides in these cases, but without an understanding of what the fundamental terms mean in plain English, we're... I'm at sea. And your honor, we would be glad to be able to provide some supplemental briefing if you would request that. I'm going to do that in a 28J letter, do whatever you want. That would be fine. I'll just file it within about seven days, please. One of the difficulties of being a specialist, as you obviously are, is the same true in tax specialists and some other specialists, the lawyers are highly... They're talking to each other and they're talking their own jargon, and the judges are generally said best, so you have to get it down to where they can understand it. And apologize, Your Honor. I mean, with the oldest experience in the IDEA cases, I would have... Well, as you know, there's hardly any case on this, who's going to pay for the rules for paying for an IE

.. We will look it up and your time has expired, but let me just suggest that when you follow brief these kinds of cases to us again, you need to give us a glossary, because we do not... We are very sympathetic to both sides in these cases, but without an understanding of what the fundamental terms mean in plain English, we're... I'm at sea. And your honor, we would be glad to be able to provide some supplemental briefing if you would request that. I'm going to do that in a 28J letter, do whatever you want. That would be fine. I'll just file it within about seven days, please. One of the difficulties of being a specialist, as you obviously are, is the same true in tax specialists and some other specialists, the lawyers are highly... They're talking to each other and they're talking their own jargon, and the judges are generally said best, so you have to get it down to where they can understand it. And apologize, Your Honor. I mean, with the oldest experience in the IDEA cases, I would have... Well, as you know, there's hardly any case on this, who's going to pay for the rules for paying for an IE. We have a little familiarity with the IDEDs and the FAPES at this point in time. Thank you, Your Honor. Thank you. First of all, with respect to the 31 violations. During the course of the proceedings in the district court, the plaintiff submitted a document, and it's found at 924 of the record, that essentially lines up each of the complaints that the school district had with the IE in our response. And so there's a side-by-side response that basically says that none of the 31 areas that they identified are grounds for denying reimbursement. What do you do with the one that we discussed about the learning disability and the intervention? I'm glad Your Honor mentioned that. The Office of Special Education programs of the Department of Education is actually rendered a decision which I think this court ought to take into account when it makes that decision. We contended all along that the learning disability issue was no basis for denying reimbursement, that it was information, and this really goes to the different function that an IE plays versus the school district's obligation to do a complete evaluation. What the evaluators are doing are providing information to the school district upon which they can make decisions. The IE people are not decision makers. In a ruling in the in the roll. Let it back up a minute. I'm not sure you've directly addressed my question. So I'll try again. Okay. Did the IE specifically propose any kind of intervention for any learning disability problem? It made a number of proposals and recommendations regarding addressing the learning disability issue. What did I say? To be honest with you, I don't have the evaluation in front of me and I don't recall the specifics. Are you answering yes to my question, which is did it propose an intervention for a learning disability? Correct. It made recommendations regarding specific services that the child should receive for the learning disability. Correct

. We have a little familiarity with the IDEDs and the FAPES at this point in time. Thank you, Your Honor. Thank you. First of all, with respect to the 31 violations. During the course of the proceedings in the district court, the plaintiff submitted a document, and it's found at 924 of the record, that essentially lines up each of the complaints that the school district had with the IE in our response. And so there's a side-by-side response that basically says that none of the 31 areas that they identified are grounds for denying reimbursement. What do you do with the one that we discussed about the learning disability and the intervention? I'm glad Your Honor mentioned that. The Office of Special Education programs of the Department of Education is actually rendered a decision which I think this court ought to take into account when it makes that decision. We contended all along that the learning disability issue was no basis for denying reimbursement, that it was information, and this really goes to the different function that an IE plays versus the school district's obligation to do a complete evaluation. What the evaluators are doing are providing information to the school district upon which they can make decisions. The IE people are not decision makers. In a ruling in the in the roll. Let it back up a minute. I'm not sure you've directly addressed my question. So I'll try again. Okay. Did the IE specifically propose any kind of intervention for any learning disability problem? It made a number of proposals and recommendations regarding addressing the learning disability issue. What did I say? To be honest with you, I don't have the evaluation in front of me and I don't recall the specifics. Are you answering yes to my question, which is did it propose an intervention for a learning disability? Correct. It made recommendations regarding specific services that the child should receive for the learning disability. Correct. Correct. But the issue of whether this was an initial evaluation or re-evaluation is an important issue because the school district and its 31 issues, basically the vast majority of those deal with whether this was an initial evaluation rather than a re-evaluation. And in the office of special education programs in letters of BOUST and that's spelled B-A-U-S rule that when a school district conducts an evaluation and the parent disagrees with the evaluation because it was not assessed in a particular area, the parent has a right to request an IE to assess the child in that area to determine whether the child has a disability and the child's educational needs. OCEP also held that an IE in this contact is a re-evaluation not an initial evaluation. And so if you look at the side by side analysis, we provided each of the areas of noncompliance. We point out that many of these things were simply not required in an IE report because they concerned initial evaluations, not re-evaluations. And what we feel was really important, and this is why parents need an independent educational evaluation, is that that 45 page report provided the school district with valuable information that they could have taken and made some different decisions. It's substantively in the hearing in March. That's correct, Ron. That's right. And so it was an important document. Unfortunately the hearing officer didn't see it. The way we wanted to see it, I mean I was involved in the case, but you know, but that's, you know, the way it goes. There's no guarantee when you get an independent evaluation to the school district, do anything. All they have, all they have, their only obligation is to consider it. So, so the other, the other, I'm sorry, my time is up. I'm afraid you're time is up, but we have your briefing. Thank you, Your Honor. Very much. The Court will stand in recess.

In 30164, Seth B. versus Orleans Paris School Board. Mr. Las Finato. We're here on the matter of whether the school district should have paid for the IEE. You can, that's okay, Council. But the question of whether this student received a FAPE is not for us in any way, right? As correct, right. And it was ruled again, I gather that the parents criticism of the program, the IED, was rejected, is that right? There was a hearing in 2012 where the parents did not prevail on their claim that the services in program offered by the school district were appropriate. That's correct. May I please the court? My name is Ronald Las Finato and I represent the plaintiff's Don Cheryl and Seth B. This case concerns a district court decision affirming the refusal of the defendant to ensure that an independent education evaluation that the parents had attained with its approval was provided at public expense. The regulation of issue was the United States Department of Education Regulation 34 CFR Section 300.502, which was promulgated under the individual with disabilities education act or IDEA. The guarantees parents are publicly funded independent educational evaluation or IEDs, I'll refer it to it during this argument, under appropriate circumstances when they disagree with the school district's evaluation of the child. At the time this case arose, Seth B. was 15 years old and was identified as a student with autism. We contend that the district court committed reversible error in three respects. First, the court failed to address the failure of the school district to comply with the clear procedural requirements of 34 CFR Section 300.502B. The court did not require a school district to either provide an IED public expense or request a hearing to show that it is not required to do so. Second, the district court aired and rejecting the argument that the defendant's expansive agency criteria coupled with its after the fact determination that it would not pay for plaintiff's IED are impermissible under the IDEA. Secondly, the court did not require an inconsistent with the right to obtain an IED public expense. Finally, since there was significant credible evidence that plaintiff's IED complied with bulletin 508, the district court aired and not either permitting the case to trial or remanding the case to the administrative law, the Louisiana's division of administrative law for an evidentiary hearing. On the first issue, the IEDA's procedural requirements are explicit on what a defendant is required to do upon receiving a request for an IED or once an issue of regarding the agency criteria has been established. It must either provide the IED public expense or obtain a ruling in an administrative hearing that it was not obligated to fund the IED. The district had three chances to provide an IED public expense or seek an administrative ruling. Let me ask you a question. This was a very long record. We did not get into all of it before our argument. I looked at bulletin 508, which is I thought was sort of the heart of the compliance issue here and it looks to me unless I misread it as if all it does is copy the regulation, the federal regulations. I think that it goes into significantly more detail than the school district evaluations. What I would point out is that it is a 144-page document that applies to how a school district should conduct its evaluations and re-evaluations of students. It does build on the federal regulations, but it goes beyond them as well. What does it say? I thought the parents here got some kind of document from two experts. They did. They got a 45-page. Well, they ended up with ultimately in April of 2012. They got an IED report. It was a report that was created by a number of experts, including a psychologist, an occupational therapist, a physical therapist, an educator. It was a combined report of 45 pages. They provided that with the school district. That is what the school district rejected. Right. But my understanding is that it didn't explicitly comply with the requirements of bulletin 508, but you say it substantially complied. Well, we say, well, two things that we say. We say in a minimum it substantially applied. There were some things that were missing. For example, an adaptive physical education evaluation was never done. We didn't think that was necessary. The parents never thought that was necessary. They didn't disagree with the school district's prior evaluation in that area. There are some other issues that the IED wasn't signed. Obviously, signing an IED is important and can be easily accomplished, but certainly not the basis for withholding payment for an IED. It would have been a lot more helpful for both sides if you had told us. Other than saying it doesn't comply in 31 respects. Yes, it does, to have been a little more precise in the briefing because I was very frustrated in trying to figure out exactly what the problem was. Well, it was good enough for the person to use in the hearing on the IED individualized education plan, right? Because they introduced it. Oh, you mean the IED report? Yes, that's right. That's correct. They did introduce the report. Now, you have to understand that that report was completed after that hearing had been initiated. And to the extent that there was any discussion of that report at the hearing, it was before, well, some of it was before and some of it was after the school district issues issued its decision. The point of making is that whether the IED complied with bulletin 1508 was never an issue at that hearing in any meaningful sense. It was just simply referenced in our group. And I think that it was a great deal, but if it's not even ready until after the hearing. Well, it was, it was, it was presented at the hearing. The point of it was really to provide the, I mean, the point of an IED generally is to provide the school district with information that it can use in helping to improve the education of the child. And for that purpose, the parents submitted it and expected the school district to consider it. They also attempted to use it at the hearing. Obviously, that didn't, didn't work out well for them, but that sort of, that is irrelevant to this claim. And the reason is- Just told me it wasn't even ready for the hearing. Well, that's correct. It was, it was completed after the hearing was initiated. But before the hearing began, it was reviewed, it was reviewed by the district after the hearing began. And then somewhere in the middle of that hearing in March of 2012, the school district issued a decision basically saying it doesn't comply. And this is why it doesn't comply. But it was never, but the point I'm making is that in terms of the IED requirements, the 2012 hearing had nothing to do with that. I understand your argument on that point. I just don't quite understand. Why did you bother to continue to go after this if your clients, well, whoever's clients was at the time, or lawyer got the substance of the report in at the hearing? Wasn't that the important thing? No, the important thing was that the school district received the report and actually do something about it. And all that they, all they did was simply say, it doesn't meet our criteria and we're not going to pay for it. I understand that, but I'm just asking is, I don't want to waste all your time. I was just asking what's the practical bottom line here? Well, the practical bottom line is if the school district had done what it was supposed to do, which is that they either paid for the evaluation and considered it or went to a hearing officer and said, this report doesn't comply with agency criteria. Then that issue would have been resolved when Seth was probably 15 or 16 years old. And for example, if the hearing officer had ultimately said, we think that it substantially complies with agency criteria. The IED regulations require the school district to consider that report. And that was never done in this case. But they did consider the substance of the report in the hearing because the same experts testify. That's right. A hearing officer ultimately did consider it to some degree. I'm still a little unsure whether you request whether your clients requested limited IED or a comprehensive IED. Now, the parents said that the parent, the document you're referring to, the parents basically made the statement that the, the the the law requires that parents have a right to a comprehensive IED. But the parents generally speaking had a couple of complaints with the school district's prior evaluation evaluation that was completed in 2010. And there are complaints concerned and occupational therapy evaluation that they said was inadequate. There were some complaints that they had regarding the students social functioning. And then there was not to what's there something about an additional learning disability? Well, that didn't actually come up. The record is a little muddy on that, but, but be honest, the issue of the learning disability did not come up until the report was completed. And at that point, the examiner basically said, we think this, this kid has an learning disability and the school district ought to do something about it. But because the school district, you know, because of the posture it was in, that report, basically that part of the report basically fell on deaf ears. But it didn't, it shouldn't have influenced what, you know, whether the school district paid for it in the least. It was just a responsible thing for evaluators to do. I see this problem. The school district should address it. What about the fact that you're, I mean, another frustrating thing is that one party says we had such and such stipulations. The hearing examiner said so and so and so and so and so, and then the other party says, no, that's not true. And for the benefit of the audience, it's very frustrating when you don't have any idea what the record says because the briefs so violently disagree. But the school board does say that the, that when this IEE came out, the school board said it doesn't look right or somebody for the school said it doesn't look right. But you call our expert and she'll tell your expert how to modify the report. But, but the parents never did that. That part is correct and they didn't do it for three reasons. The first reason is they didn't think that the report did comply with bulletin 508. The second reason is that they had spent a lot of money on the evaluation and it was going to cost them more money to go back to their experts a third time. And then the last thing, and I think which is important to consider, that it really, it was incumbent on the school district to take action not upon the parents. The regulations are very clear. It basically says that if a school district believes that a report does not need agency criteria, then it should request a hearing to make that to resolve that issue. And they didn't do that. The parents just say, say those things and say, why couldn't they call a hearing? Why do they sit back for two years until there's a hearing? Well, they made, they made a request. I know, but they wanted the money. So why didn't they call the here? It's a school board won't call it. We want it. Ultimately, that's what they did. I mean, they were two, there was, there was, there was a demand letter that was written in, and if you get December 2012. And a response to that later and following that response, basically the school district said no and the parents requested a hearing. They did it is, you know, they, they, they did what they needed to do. And the school district, the school, it was really up to the school district. The parents located the expert. Well, that's all, if you look at the affidavit of Cheryl B, they really had a search high and low to find people who would do the evaluation and do it for that amount of money. They had to, they had a search high and low. It was a very, it was a very exhaustive search. And ultimately they found people, but it wasn't, but they had to go through quite a, quite a bit of effort to make that happen. The school did an avenue recommendations of experts. The, the system itself, the school system, provide any resource for identification of experts out there that consist parents. Well, in this case, they named two entities that potentially could do the evaluations. But neither of those were suitable for the parents. One was an employer of the, of the, of the plane of the father in the case. And another is one that was consulting with the school district that they are. They didn't feel that those people were sufficiently independent to conduct the evaluation. So the parents did what they were had a right to do under this to try to find evaluators who could meet the school district's criteria under the evaluation. I'm just trying to understand the, you know, how that, how this actually operates and works. Most parents in front of this are not going to have a media at their hands, a list of experts. That's correct. And that's why, that's cool on the other hand, when ordinarily have people they work with and identify and so forth. Yeah. I mean, well, that was, I mean, that was definitely a problem. I mean, the school district, as I said, had a very limited list. And neither of those were suitable. And that just sort of then fell back on the parents to sort of come up with people who could do this evaluation. One of the, one of the agencies that does this type of work or. Or institutions that does this type of work was actually the employer of the plane of father. That's correct, Your Honor. So why didn't you get it for free? Good question, Your Honor. He just said he just felt that it was, that was not a very comfortable position to be in. So he didn't feel like he could get an independent evaluation. Well, the suggestion was that he may have some expertise himself. How would he work in some other group? Yeah, he's a teacher. No, that's correct. He, you know, he's knowledgeable about education and teaching. Not necessarily knowledgeable about all the ins and outs of the special education system, although he certainly has learned. You know, you're thrown into the fire, you just have to deal with it the best you can. Well, they better equipped and navigate this terrain than most people. Well, that's correct. And in fact, that's what sort of an interesting aspect of this is that, is that these are parents that are educated and committed and interested in their child. And there are so many parents out there who. Most of these cases are all, sad cases, difficult cases because it's really the dedicated parents who are in there fighting for the kid most of the time. That's correct, Your Honor. That's correct. And that's what happened in this case. That's correct. Anyway, the school district had three opportunities to request a hearing. The first time was at the time of the request, which was in August of 2011. The second was at the time the parents indicated they were unable to meet the $3,000 limit and that was in November of 2011. And then lastly, they could have made the decision, they could have taken action in May of 2012 when they issued a determination that the IED did not meet agency criteria. In the first instance, the school district explicitly elected not to argue that its evaluations were appropriate. Oh. You have time for a battle. Thank you. Mr. Stewart. Exactly in what respects was this report not aside from the money, not compliant with bulletin 1508? For your Honourous Good Morning. Please the Court. My name is Wayne Stewart. Council for the defendant of Pelley, Orleans, Paris. Do you want to give you who I saw up? The coup sticks good. Yes, sir. Where's Eric here in this courtroom? To answer your question specifically, Judge Jones, is if you would make reference to the record at 1702 through 1705, it makes explicit reference to the 31 issues of noncompliance. The parents have also submitted those 31 areas of noncompliance at 1667 to 1670. And so those 31 areas, I mean when council for the parents indicated that, oh, well, there was just a missing signature and there was a missing APE evaluation. Well, that's two. That's two of 31 issues. Well, now there's issues and then there's issues and you listed them in your brief somewhere, right? You identified them in general several generic categories in your brief, didn't you? Yes, Your Honourous Faras, as far as making reference to the record. They don't do the right tests. No, Your Honourous Faras, looking back to 1508 criteria is that 1508 criteria are the agency criteria under which every school system in Louisiana must conduct evaluations. Under section 107A5 of those regulations, these regulations in 1508 with regard to conducting evaluations, both initial and reavow, now apply to independent evaluators. Many times school systems either by not having available staff or making a determination that cost is prohibitive will contract with private evaluators and the private evaluators must meet the same. I understand that and I'm very sympathetic to that, but I did not see we were looking at chapter 5 and chapter 7. So we were I guess looking at the wrong part of bulletin 1508, is that right? Yes, ma'am, bulletin 1508. And what to address a couple issues that were raised in the parent's argument is first, the judge Smith's question is, did the parent actually request a comprehensive evaluation? And the answer is yes, if you look at the record at 1230, it says quote, they requested a comprehensive IE at public expense. So there's no mencing of words there. Contrary to what parents counsel indicated is that they never expressed in their request for evaluation what their specific concerns were about the evaluation. So the school board takes at face value, they want a comprehensive evaluation at public expense. The school system within a week said we will provide it at public expense as long as it meets agency criteria, which is bulletin 1508. And including a limited cost, right? Yes, sir, there's a limited cost, however, if the parents demonstrate unique the commentary to the IDEA regulations in 2006 by the US Department of Education, allow the parents to demonstrate unique circumstances, which may allow that cap to increase. And so under these circumstances, the threshold issue is, is it compliant? The school system has not denied the parent reimbursement for an evaluation that is compliant. If you go on, you pay this kind of money to an expert who specializes in this field that they wouldn't know the operative requirements at all, as to what they're supposed to comply with. The reason I asked the question is that the implication of that is that, look, this expert knows what complies, but they were asked to do something else for more. Now, I don't guess I don't follow what happened. Well, you're on a high on an expert to help me and the lower requires that it's supposed to include AB and C, and they don't give me AB and C. And I think they don't know what they're doing. Unless I tell them that I don't want AB and C, I also want to do an E&L. Well, you're on a, with regard to what the independent evaluator knew or did not know, the school system provided notice, and it's reflected in the record, undisputed, that the school system provided notice to the parents when they made the request for the comprehensive IDE that it meet 1508 criteria. Presumptively, when the parents contacted their chosen evaluators, they indicated the school system said they will pay for an evaluation as long as it meets 1508 criteria. The evaluation that was submitted to the school system on the eve of the 2012 due process hearing indicated that it was compliant with bulletin 1508, but as the school system demonstrated, and the key term there is demonstrate. Parents, counsel, indicated that the school system is required to request a hearing. That is not true. The express language of that provision, the regulation says, the school system must demonstrate at a hearing, which it did in 2012, which it did again at the administrative level below. It did again at the district court level. What were the substantive failings of the report? Is the board's problem that the report covered more than it should, or that it covered less than it should? It covered less than it should. Well, you were saying they improperly asked for a comprehensive report, and it was an initial evaluation, not a re-evaluation. So how can it be less than it should, and also be a comprehensive report? Your Honor, respectfully disagree with your characterization to say that the school system said it shouldn't be comprehensive. The parent requested that bulletin 1508 requires it to be comprehensive. Bulletin 1508 of the state regulations that are promulgated by- You said that there's a difference between an initial evaluation and a re-evaluation, is there not? There is, Your Honor, however, as explained in the briefing, both at the district court level, as well as at the administrative level, and here in our reply brief, is that even if this were considered a re-evaluation, that if a new exceptionality, that is a new disability, is suspected bulletin 1508 requires that you comply with the initial criteria for that disability. Okay, then their response is that we didn't do, I think part of their response is, we didn't do all of the 1508 things because we did not disagree with the way the school district had evaluated some of those. Okay, and your Honor, even given that for the sake of argument? That is not art, that's what they said. Well, that's what they said, but assuming that they didn't want everything, even though they said they wanted a comprehensive evaluation, is that counter to what parents' counsel is indicated, is that if you look at the record at 908, as well as the district court noting it at 1230, is that I quote. At the time the IEE was conducted, SB was identified as a student with autism, the parents also suspected that he might also have a learning disability. End quote. So to say that they did not know that he had a learning disability or even suspect that he had a learning disability until after they received the evaluation, is completely counter to their admission. But is it not possible because frankly this is so in specific about what the additional learning disability, we never know what the additional learning disability was suspected to be. But so given that, they're still saying, suppose it was dyslexia, and they weren't going to test them for some kind of site difficulty. I mean dyslexia, but not a vision impairment like being functionally blind. I mean the assessment of itself has to address, and the independent evaluator. Why does it have to address things that aren't even possible for this particular student? Is that part of the disagreement? No, Your Honor. It's... Yeah, I mean you've never... What's... I'm trying to... Let me... Tell us why in the report was deficient. Exactly. The report was deficient. One, two, three, and say out of the jargon, just tell us why it was... The report was deficient in multiple areas, 31 areas, with regard to the initial evaluation criteria for specific learning disability. It also did not have... You know, done a good website code to me. Where was it deficient? Your Honor, as we've referenced within, I don't have that right here in front of me as far as the 31 areas make reference to the record at 1702 through 1705. The 31 various areas, that is what the school system is required to do under the regulations, under 1508. When it receives any evaluation from an outside source, whether it's an independent evaluation, it must review it. We're trying to understand that... You're here because the school says that the report's deficient. And the other side says it's not. And we haven't heard anybody articulate how it's deficient, other than saying well under 1508, they have to have it. You talk about use word like comprehensive. If you can, you can give us any more than that. Well, your Honor, as far as the initial evaluation must include a review of existing information. Review of existing information. Parents Council had already admitted that an adaptive physical education evaluation was not included. There were multiple other areas in which the evaluation did not comply with 1508. And as basically a checklist, as Judge Jones had asked Council for the parents, is it basically parroting what the federal regulation is known? Where in do you disagree as to whether there were two deficiencies? Well, there is some agreement that the report was deficient in some respects. Yes, sir. They have already admitted at multiple levels. At multiple levels, and even here in oral argument, that there are areas which do not meet. There are elements that are missing. There are 31 areas. The school system does not have the discretion to say, hey, we're going to waive this requirement. These are regulations that are promulgated by the state of Louisiana in compliance with IDEA. And it's the standard. It is a fair, consistent application of the regulations which are promulgated under IDEA. And so it is true in some circumstances where if a parent just were to request a functional behavioral assessment, an FBA, that that and of itself, if they requested that particular evaluation, that could constitute an IDE. However, given the fact that the parent requested the comprehensive IDE, rejected the evaluators that the school system offered as Judge Jones had pointed out and Council had admitted, is that the parents did not come back to the school system. The school system could have provided other individuals or other school systems that could have done the evaluation. I know this young man had been evaluated for autism for some years, right? Yes, ma'am. He had been a basically an ongoing process. And I also infer, although it's not clear to me that the purpose of the hearing in March of 2012 was to refine certain areas of his IDE, right? Well, you're out of the hearing that the parents had requested in 2012 was one where they were challenging the IEP. They said it was a denial of faith. And at the end of the day, at the end of the hearing, after the school system demonstrated the IEP, it was not a denial of faith that the school system had provided faith. There has never been a judicial determination at any level. I understand that, but what I'm saying, and so far as I know, we don't have an appeal of the faith, but determination, but fine. But what I'm saying is why it is, why does it, is there have to be wrote compliance with 1508, which I gather is 140 page bulletin, when you're 10 years into the educational process and presumably the parents had focused concerns about what the IEP was doing. What about the deficiencies in the educational program? Well, your honor, as far as the stating what the school system is required to do, the agency criteria are defined at 3404 CFR, 300.502E. And it's saying specifically, and if an independent educational evaluation is at public expense, the criteria under which the evaluation is obtained, including the location of the evaluation and qualifications of the examiner, must be the same criteria that the public agency uses when it initiates an evaluation to the extent that those criteria are consistent with the parents right to the independent evaluation. Basically, you're saying if every other year the parents want a hearing on the IEP, then and they want an independent educational evaluation to which they're entitled by law at expense of the district, then they have to go through the entire rigmarole as if the student had just come into the district again. Is that what you are saying that bulletin 1508 requires? No, ma'am. I would not characterize it as a rigmarole. The parent is entitled by law to one independent... But you keep saying they did not comply with the entire evaluation, and that's why they don't get a dime, but they can agree to something less. Yes, I... You're honor... just as far as the general rule looking at textual reasoning here with regard to IDA. I think criteria, but you know, they could say my kid is in a wheelchair, and the PE that they provide for him with that limitation, we're not disagreeing with. We are disagreeing about whether he has access to the art classroom or whether he has access to a proper science classroom consistent with his abilities. If that were the case, and I have no idea based on the vagueness of these briefs, but if that were the case, the district would not require the parents to go back and get the PE evaluation all over again when they weren't even disagreeing with it. Potentially, Your Honor. I mean, once again... What is your argument about 1508? My argument regarding 1508 is that the general rule is that it must meet the agency criteria. The agency criteria, bulletin 1508, which every other school system in Louisiana must follow, that every team within a school system must follow. And the parent requested the IEEE, they sought out the evaluators, and so it said it must meet 1508 criteria, only those areas, only within autism, and the evaluator, the school system did not say you have to do the LD criteria, they chose an evaluator decided to look at an LD issue because that's what the parents requested. The school system provided no further constraints upon that to say, here are the regulations, private evaluator, as an expert, you can read this document and follow the recipe to be able to do this evaluation. And as I understand it, the reason why the school districts can impose the same criteria on the parents, even though it's sort of a big term in context, but the reason why it can impose the same criteria so that everybody's on the same page with regard to the student, right? Exactly, Your Honor. Fine, so what was the biggest substantive deficiency in this expert report, vis-a-vis what the school district was trying to do? Well, as far as saying the largest 1508 does not make a ranking of what is the most important or not, but to answer your question just from a perspective is that it did not contain, I mean since the child was determined by their private evaluators having a learning disability, they would have to have been a specific intervention process to determine whether the child, and there is a very comprehensive system of evaluating for specific learning disability that is prescribed by IDEA, which is replicated in detail in 1508, and that process was not followed. The most important from my perspective, having been an evaluator in a school system previously and extremely familiar with 1508 as a lawyer and a practitioner, is that there was no intervention requirement. Intervention means basically the IDEA congressional intent was that we are not going to have school systems identified children where the fault is not on the child, that perhaps the child does not receive defective instruction. And so they want to be able to rule out that it is not cultural factors, it is not socioeconomic factors, it is not that the child did not receive effective instruction, that somehow the child had some type of sensory impairment, there has to be an intervention within that process, there was no intervention. And is that a meeting? No, your honor, an intervention would be let's say the child is suspected, and in this case the parents had concerns about the child's math ability, and now let's just say the young man has problems with math. So the intervention would have specifically addressed math, or the child had issues in reading, reading comprehension, or decoding, or those various areas in reading that there would have been an intervention that specifically addressed that concern. And intervention, a description, what is an intervention? No, an intervention is actually a process whereby you would collect information as to the child's performance on particular skills, make some kind of screening or diagnostic based upon what he's doing in the curriculum or not, and then design through an empirically based intervention, as is required by no... What we're saying is that we started off with an autistic child, and that has a particular regimen for determining an appropriate program for the child, but then we went to learning disability, and that has a distinct regimen or discipline for determining the response. Your honor, they both within if you look at the... Yes, sir, you both look at those areas of 1508. So that what you're saying is that the deficiency here is that the parents, when they went to their expert, they asked for or the expert came back with recommendations for learning disability, and it had not gone through that discipline. Your honor, may I answer your question? Is that yes, sir? The evaluator did not... You talk about intervention as a distinct process or discipline for responding to that discipline. To learning disability, but then there's an intervention requirement generally, there would not have been an intervention required if it should remain... The intervention means a minute... That is such a misuse, ball of polarization of English. I just don't even understand that. The way intervention I know of is when I... The kid's not an alcoholic, I mean. That's exactly what I know of. In the terms of education and in psychology, intervention has a specific meaning. Let me just... We will look it up and your time has expired, but let me just suggest that when you follow brief these kinds of cases to us again, you need to give us a glossary, because we do not... We are very sympathetic to both sides in these cases, but without an understanding of what the fundamental terms mean in plain English, we're... I'm at sea. And your honor, we would be glad to be able to provide some supplemental briefing if you would request that. I'm going to do that in a 28J letter, do whatever you want. That would be fine. I'll just file it within about seven days, please. One of the difficulties of being a specialist, as you obviously are, is the same true in tax specialists and some other specialists, the lawyers are highly... They're talking to each other and they're talking their own jargon, and the judges are generally said best, so you have to get it down to where they can understand it. And apologize, Your Honor. I mean, with the oldest experience in the IDEA cases, I would have... Well, as you know, there's hardly any case on this, who's going to pay for the rules for paying for an IE. We have a little familiarity with the IDEDs and the FAPES at this point in time. Thank you, Your Honor. Thank you. First of all, with respect to the 31 violations. During the course of the proceedings in the district court, the plaintiff submitted a document, and it's found at 924 of the record, that essentially lines up each of the complaints that the school district had with the IE in our response. And so there's a side-by-side response that basically says that none of the 31 areas that they identified are grounds for denying reimbursement. What do you do with the one that we discussed about the learning disability and the intervention? I'm glad Your Honor mentioned that. The Office of Special Education programs of the Department of Education is actually rendered a decision which I think this court ought to take into account when it makes that decision. We contended all along that the learning disability issue was no basis for denying reimbursement, that it was information, and this really goes to the different function that an IE plays versus the school district's obligation to do a complete evaluation. What the evaluators are doing are providing information to the school district upon which they can make decisions. The IE people are not decision makers. In a ruling in the in the roll. Let it back up a minute. I'm not sure you've directly addressed my question. So I'll try again. Okay. Did the IE specifically propose any kind of intervention for any learning disability problem? It made a number of proposals and recommendations regarding addressing the learning disability issue. What did I say? To be honest with you, I don't have the evaluation in front of me and I don't recall the specifics. Are you answering yes to my question, which is did it propose an intervention for a learning disability? Correct. It made recommendations regarding specific services that the child should receive for the learning disability. Correct. Correct. But the issue of whether this was an initial evaluation or re-evaluation is an important issue because the school district and its 31 issues, basically the vast majority of those deal with whether this was an initial evaluation rather than a re-evaluation. And in the office of special education programs in letters of BOUST and that's spelled B-A-U-S rule that when a school district conducts an evaluation and the parent disagrees with the evaluation because it was not assessed in a particular area, the parent has a right to request an IE to assess the child in that area to determine whether the child has a disability and the child's educational needs. OCEP also held that an IE in this contact is a re-evaluation not an initial evaluation. And so if you look at the side by side analysis, we provided each of the areas of noncompliance. We point out that many of these things were simply not required in an IE report because they concerned initial evaluations, not re-evaluations. And what we feel was really important, and this is why parents need an independent educational evaluation, is that that 45 page report provided the school district with valuable information that they could have taken and made some different decisions. It's substantively in the hearing in March. That's correct, Ron. That's right. And so it was an important document. Unfortunately the hearing officer didn't see it. The way we wanted to see it, I mean I was involved in the case, but you know, but that's, you know, the way it goes. There's no guarantee when you get an independent evaluation to the school district, do anything. All they have, all they have, their only obligation is to consider it. So, so the other, the other, I'm sorry, my time is up. I'm afraid you're time is up, but we have your briefing. Thank you, Your Honor. Very much. The Court will stand in recess