[00:00:05] Speaker 04:
If you want to reserve time, just watch your clock.

[00:00:18] Speaker 01:
Good morning, Your Honors.

[00:00:21] Speaker 02:
Good morning, your honors, and if it please the court, I am Kim Sherman, the attorney for student JS, and I would like to reserve three minutes of my time for rebuttal.

[00:00:32] Speaker 02:
This case is about a young child born with disabilities that affected his abilities to manage his mental health and behavioral challenges and interfered in his abilities to interact safely and appropriately with peers and adults.

[00:00:48] Speaker 02:
When dysregulated, this child was unable to engage in academic learning.

[00:00:54] Speaker 02:
The Oregon District Court committed four reversible errors of law related to discrimination under Section 504, placement in the least restrictive environment during the 2018-2019 school year, which includes the IDEA requirement to maintain a continuum of placement options.

[00:01:17] Speaker 02:
whether removal of key program components of mental health and behavioral services was a change in placement, and a parent's right to receive transcription of the due process hearing at no cost.

[00:01:31] Speaker 02:
At the end of the arguments, I will ask this court to decide the issue of IDEA, Free Appropriate Public Education, and Section 504, Free Appropriate Public Education separately

[00:01:43] Speaker 02:
from the Section 504 discrimination question at heart.

[00:01:48] Speaker 02:
And I asked that the court rule that an hour a day of education was discriminatory, even if the district implemented a student's IEP during the one hour per day of instruction.

[00:02:03] Speaker 02:
Even if this court decides that the district's IEP was appropriate during September to November of 2018, or through December 18th of 2018, when the parents requested more time in education or enrollment in a daycare program so he would have access to peers,

[00:02:24] Speaker 02:
This court must find that for the great majority of the seven months this child waited on a wait list for placement in the appropriate setting of a day treatment center, that homebound instruction for one hour per day was discriminatory under the ADA and under Section 504.

[00:02:44] Speaker 04:
I had one factual question.

[00:02:47] Speaker 04:
I think in your briefs you say the student could study for 90 minutes at a time.

[00:02:54] Speaker 04:
But the district court said the student could study 90 minutes per day.

[00:03:00] Speaker 04:
What's in the record?

[00:03:01] Speaker 04:
Is it 90 minutes a day, 90 minutes at a time you could take a break?

[00:03:06] Speaker 02:
You're correct, Your Honor.

[00:03:07] Speaker 02:
On November 16th at the IEP meeting that placed the child on the wait list, parents said at that time that he was so dysregulated that he could only handle 90 minutes at a time of direct instruction.

[00:03:22] Speaker 04:
So does that mean per day, or it means he needs a break and they could do it?

[00:03:26] Speaker 02:
90 minutes at a time.

[00:03:27] Speaker 02:
The district offered five hours spread out over, I think it was three days.

[00:03:33] Speaker 02:
So less than two hours a day, but not every day.

[00:03:38] Speaker 02:
It was the first offer.

[00:03:41] Speaker 02:
Later it was amended to be six hours a week over three or four days.

[00:03:51] Speaker 02:
So at that time, the student's dysregulation from his engagement in the Fox Hollow 4J program, after the removal of the mental health and behavioral support services,

[00:04:04] Speaker 02:
He began self-harming.

[00:04:05] Speaker 02:
He was depressed.

[00:04:08] Speaker 02:
He was self-loathing.

[00:04:10] Speaker 02:
He felt like he didn't deserve to go to school.

[00:04:16] Speaker 02:
And the parents were worried about his mental health and his physical health at that point.

[00:04:29] Speaker 02:
Under the Section 504 and the ADA, school districts are required to provide access to their program in a way that is comparable to the access provided to non-disabled students.

[00:04:46] Speaker 02:
Under Section 504, the requirement for a free appropriate public education begins to overlap with the IDEA's free appropriate public education.

[00:04:59] Speaker 02:
But IDEA's free appropriate public education is defined in a document called the IEP, the Individualized Education Program, which defines a portion of a school day.

[00:05:14] Speaker 02:
under which the district has said, here are the goals and objectives that will help this child gain skills in the academic or functional deficits for so many minutes of the day.

[00:05:30] Speaker 02:
And it defines who will be providing those specially designed instruction minutes.

[00:05:36] Speaker 02:
So an IEP might represent only 10 or 20 percent of a school day where Section 504 represents the entire school day.

[00:05:45] Speaker 02:
Discrimination happens when either the IEP is inappropriate, as we claim here,

[00:05:52] Speaker 02:
or and or the rest of the school day is not available to the student.

[00:05:59] Speaker 02:
That's the issue here and that's the issue that both the administrative law judge and the Oregon District Court misanalyzed when the district court said because the child has an IEP there is no discrimination under 504.

[00:06:15] Speaker 02:
Ignoring

[00:06:17] Speaker 02:
Office of Civil Rights guidance that even 10 minutes a day of excusing children early or letting them come late represented discriminatory practice against children with disabilities.

[00:06:32] Speaker 02:
The second issue relates to the least restrictive environment.

[00:06:40] Speaker 02:
Under the IDEA,

[00:06:49] Speaker 02:
Excuse me.

[00:06:52] Speaker 02:
The Oregon District Court error of law was in determining that the district was not required to have available at the time of the placement decision, so in November of 2018, a full range of alternative placement options.

[00:07:07] Speaker 02:
That's called the Continuum of Placement requirement under IDEA at section 300.115.

[00:07:15] Speaker 02:
This requirement is to have that

[00:07:18] Speaker 02:
That continuum is the least restrictive environment.

[00:07:21] Speaker 02:
On November 16th, when the parents had a choice of either returning their child to the Fox Hollow 4J program without the needed mental health and behavioral support services, or be on a wait list until the actual placement was available, which is placement in a day treatment center.

[00:07:44] Speaker 02:
They had no real choice because their child was self-harming and had suicidal ideations at that point.

[00:07:52] Speaker 02:
So they chose the wait list.

[00:07:56] Speaker 02:
The district will claim that that placement on the wait list during the homebound instruction was the least restrictive environment because the student made progress on academic goals.

[00:08:08] Speaker 02:
However, the issue here actually relates the specially designed instruction in behavioral, social, and emotional goals

[00:08:17] Speaker 02:
And those goals required access to peers, required the student to learn to wait his turn when another peer was seeking attention from a teacher, and required interaction with peers for social skills and turn-taking and just managing himself in the environment of a classroom.

[00:08:40] Speaker 02:
None of those goals could be addressed sitting across the table in his grandfather's house from a one on one tutor.

[00:08:49] Speaker 02:
Yes, he made academic goals.

[00:08:51] Speaker 02:
He had none of those other things interrupting his ability to focus on academics.

[00:08:58] Speaker 02:
But the IDEA, Section 504, and the ADA don't look at just academic access.

[00:09:05] Speaker 02:
They look at the whole child and the child's access to the whole school program, which includes lunch, recess, music, passing from class to class, after school sports or drama.

[00:09:19] Speaker 02:
All of those pieces of a school program

[00:09:23] Speaker 02:
or should be available to children with disabilities, but for this child, because of his disability, he was denied access to that full day of school.

[00:09:33] Speaker 04:
What's the significance of the fact that perhaps maybe the parents didn't agree with what the school was proposing, but in the end, for many of these complaints, the parents agree to them in the IEP?

[00:09:45] Speaker 04:
How do we treat that?

[00:09:46] Speaker 02:
I'm not sure I heard you.

[00:09:47] Speaker 04:
Sure.

[00:09:48] Speaker 04:
What is the significance of the fact that the parents may have agreed with many things you complain of now in the IEP?

[00:09:56] Speaker 04:
How should we treat that fact?

[00:09:59] Speaker 02:
Well, Your Honor, in March at an IEP meeting, parents wrote on the placement page that although they agree with the goals in the IEP, they did not agree that the placement and homebound instruction was providing the child full access to a full day of school and his rights under Section 504.

[00:10:25] Speaker 02:
It's possible, Your Honor, to have an IEP that has appropriate goals written.

[00:10:30] Speaker 02:
And the parents can agree to those goals.

[00:10:32] Speaker 02:
And the goals on this child's IEP included academic as well as social, emotional, and behavioral goals.

[00:10:40] Speaker 02:
In fact, the IEP in April stated that because of this child's mental health and emotional disabilities, that he could not be

[00:10:52] Speaker 02:
educated in a general education classroom and that when he was dysregulated, he was unable to engage in academic instruction.

[00:11:03] Speaker 02:
So an IEP might look great and parents will agree with the goals.

[00:11:09] Speaker 02:
And during the one hour a day or five hours a week of instruction, a tutor might be able to instruct the student appropriately on the academic goals.

[00:11:23] Speaker 02:
But because of this setting, the child didn't have access to peers and wasn't able to develop skills in those social, emotional, and behavioral goals.

[00:11:38] Speaker 02:
The third area of disagreement was when the Oregon District Court determined that the change from the mental health program, which included embedded mental health and behavioral supports in the Fox Hollow Education Service District program during second and third grade, that removing those supports was not a change in placement.

[00:12:04] Speaker 02:
The district argued that

[00:12:08] Speaker 02:
case law allows a change of staffing.

[00:12:11] Speaker 02:
This was not a change of staffing.

[00:12:13] Speaker 02:
This was a removal of services.

[00:12:16] Speaker 02:
It wasn't that there was mental health service from Miss Smith on third grade and Miss Jones in fourth grade.

[00:12:24] Speaker 02:
Instead, it removed Miss Smith totally.

[00:12:27] Speaker 02:
There is evidence that this child required mental health and behavioral support services because of the change in his abilities from first grade, then in second and third grade with those supports, improvement, then fourth grade without those supports, dysregulation and regression in those skills.

[00:12:50] Speaker 02:
And finally, the fourth area...

[00:12:53] Speaker 04:
two and a half minutes.

[00:12:54] Speaker 04:
Okay.

[00:12:55] Speaker 02:
Thank you.

[00:12:57] Speaker 04:
If you want to continue, you can, but I just want to alert you to that.

[00:13:00] Speaker 02:
I'll address the transcription costs on the rebuttal.

[00:13:03] Speaker 04:
Great.

[00:13:03] Speaker 04:
Thank you.

[00:13:04] Speaker 02:
Thank you.

[00:13:21] Speaker 03:
Good morning, and may it please the court.

[00:13:23] Speaker 03:
I am Joel Hungerford, and I represent the defendant Eugene School District in this case.

[00:13:27] Speaker 03:
With me today is my co-counsel, Taylor Kinch, along with the representative of the Eugene School District, Dr. Catherine Lange.

[00:13:34] Speaker 03:
I would like to begin my argument by addressing Judge Lee's two previous questions about how the factual record plays into this case.

[00:13:41] Speaker 03:
I would like to begin by starting the question about whether the parent represented during the November 2018 meeting

[00:13:49] Speaker 03:
IEP meeting how much time the student could tolerate academically at that point in time.

[00:13:55] Speaker 03:
The record is uncontested that the parent shared with other members of the IEP team that at that point in time she did not believe the student could maintain more than 90 minutes of academic instruction at a time.

[00:14:07] Speaker 03:
The IEP team took that to mean 90 minutes per day.

[00:14:10] Speaker 03:
At the administrative due process hearing, the administrative logist specifically asked

[00:14:15] Speaker 03:
individuals who attended that IEP meeting, why the team did not decide more than one hour per day?

[00:14:22] Speaker 03:
Why not eight hours per day?

[00:14:23] Speaker 03:
Why not four minutes per day?

[00:14:26] Speaker 03:
Four hours per day.

[00:14:27] Speaker 03:
And staff consistently testified.

[00:14:30] Speaker 03:
One example I can think of is Dr. Linder, one of the expert witnesses for the school district, testified that it was the team's understanding that the student could not do more than 90 minutes per day.

[00:14:41] Speaker 04:
Yeah, but if it's 90 minutes per day, that would still be seven and a half hours a week.

[00:14:45] Speaker 03:
And you only provided five hours a week and that's that's not that much at all Yes judge If the team had done 90 minutes per week, it would have been more than what ultimately the team decided However, it's not uncommon for IEP teams to decide to start with a slower approach and then ramp up rather than to set a student up for failure by trying to

[00:15:09] Speaker 03:
over tax a student, a school district might, as was the case here, start with a lower number and then increase as time goes on.

[00:15:17] Speaker 03:
And that's precisely what happened here.

[00:15:20] Speaker 03:
So in the November IEP meeting, the team decided rather than starting with 90 minutes a day, we'll start with one hour a day.

[00:15:26] Speaker 03:
Ten days later, the student's father emailed the school district noting that he believed that amount of time was addressing all of the student's academic needs, though he did have concerns about whether the student's behavioral and social needs were still being met.

[00:15:40] Speaker 03:
So the school district reconvened the IEP team in December, at which point in time the amount of time was increased to six hours per week as opposed to five hours per week.

[00:15:52] Speaker 03:
I then want to segue into Judge Lee's question about how a parent's agreement at the time of an IEP meeting is relevant, whether it's relevant or not.

[00:16:05] Speaker 03:
And I would argue that it is highly relevant under both this Court's previous precedent and also under our U.S.

[00:16:11] Speaker 03:
Supreme Court precedent.

[00:16:13] Speaker 03:
This court on multiple occasions, including Anchorage School District VMP 689, F3rd 1047, which is the Ninth Circuit case from 2012, noted that the decisions of an IEP team should not be judged with the benefit of hindsight.

[00:16:32] Speaker 03:
Rather, the IEP team's actions should be judged by whether the decision was reasonable at the time it was made based on the information that the team had.

[00:16:41] Speaker 03:
And courts since then have noted that whether a team reaches unanimous agreement or consensus, whether the parents agree at that point in time, does weigh heavily into the conclusion that the IEP team's decision was reasonable at that point in time.

[00:16:56] Speaker 03:
The U.S.

[00:16:57] Speaker 03:
Supreme Court has reiterated on multiple occasions that under the IDEA, reviewing courts should conduct a two-factor analysis first, where the procedures of the IDEA followed.

[00:17:09] Speaker 03:
In this situation, there is no allegation that those IEP teams were not convened appropriately, that services were predetermined, that the IEP team did not contain all of the relevant

[00:17:20] Speaker 03:
and necessary team members, that notice was not sufficiently provided, that the IEP was not sufficiently documented, et cetera.

[00:17:27] Speaker 03:
And then the second factor that the Youth Supreme Court has noted that reviewing courts should take into consideration was again, was the IEP reasonably drafted to confer a meaningful benefit to the student at the time it was written?

[00:17:40] Speaker 03:
And again, parent agreement with the plan moving forward is a large indicator that such a plan was reasonable at the time it was drafted.

[00:17:49] Speaker 00:
I assume you're headed there, but I have some questions about the transcription cost issue.

[00:17:57] Speaker 00:
The way that I read the proceedings below, it seems like all the students' Section 504 claims were based on the denial of a FAPE.

[00:18:06] Speaker 00:
So I'm trying to figure out why under that situation there should have been any cost for a transcript.

[00:18:12] Speaker 00:
I don't understand the basis for the apportionment.

[00:18:16] Speaker 03:
Certainly, Your Honor.

[00:18:17] Speaker 03:
So one thing that is uncontested in this case is under the IDEA, plaintiffs have the right to receive a copy of the transcript at no cost.

[00:18:25] Speaker 03:
Also not contested in this case is under Section 504, plaintiffs have no such right.

[00:18:31] Speaker 03:
What this Court is addressing today is what happens in a situation where a plaintiff brings both IDEA claims and Section 504 claims, as was the situation here.

[00:18:43] Speaker 03:
In that situation, I would say that it becomes a review of whether the administrative law judge abused his or her or their discretion in coming up with a calculation to address that issue.

[00:18:55] Speaker 03:
It may very well be that an administrative law judge might

[00:18:59] Speaker 03:
review the specific facts of the case and note the section 504 claims are FAPE claims that are so intertwined with the IDEA FAPE claims that it does not make sense to have the plaintiff pay for any of the federal regulation is clear that There can't be a transcription cost for a transcript under the IDEA.

[00:19:22] Speaker 00:
So if the claims are entirely coextensive

[00:19:27] Speaker 00:
which it seems they are here.

[00:19:32] Speaker 00:
It seems to me it would be an abuse of discretion to hold that there could be a cost for the Section 504 portion.

[00:19:37] Speaker 00:
There is no Section 504 portion that's freestanding in these circumstances.

[00:19:41] Speaker 00:
So I guess what it would be helpful to know is if you think that there are any 504 claims here that were not premised on the denial of the faith.

[00:19:48] Speaker 03:
Note that's a contested issue.

[00:19:50] Speaker 03:
It's the school district's argument that all Section 504 claims were, in fact, Section 504 FAPE claims.

[00:19:57] Speaker 03:
But I do understand from plaintiff's briefing that they are taking a different argument in this case.

[00:20:03] Speaker 03:
And so I want to talk through a few different hypotheticals for how an administrative law judge might address a situation such as this.

[00:20:12] Speaker 03:
And then my administrative law judge may very well take the approach that Your Honor has noted, noting that the claims are so interwoven, so intertwined, it would not be – it would not serve the purposes of the IDA or Section 504 to have the plaintiff cover any of those costs.

[00:20:28] Speaker 03:
an administrative law judge might also say I will take the entirety of the record under advisement and I will consider all of the evidence and all of the testimony and in my final order I will try and parse out what percentage of the case was focused

[00:20:45] Speaker 03:
exclusively on the 504 claims.

[00:20:47] Speaker 03:
Because if a plaintiff brings both IDEA and Section 504 FAIP claims, the plaintiff not only needs to meet the IDEA standard to be successful, but then the plaintiff must, in essence, show a mens rea standard in order to meet the Section 504

[00:21:03] Speaker 03:
threshold, which is deliberate indifference.

[00:21:07] Speaker 03:
So an ALJ might note, well, even if the Section 504 FAPE claims are duplicative of the IDA claims, some of the testimony related to what staff knew or didn't know, why they were not providing the services that they needed to provide, et cetera, et cetera.

[00:21:24] Speaker 03:
And so in that situation, because most of the testimony really was driven at proving the IDA claims, but, you know,

[00:21:31] Speaker 03:
portion of the testimony related to what was the mens rea of the school district administrators at this point in time that a smaller percentage should be covered.

[00:21:42] Speaker 03:
So again, in this situation, the administrative judge looked at the number of 504 claims, the number of IDEA claims, and came up with a calculation

[00:21:51] Speaker 03:
for, well, how can I come up with a percentage where the school district bears the entirety of the cost for the IDEA claims and evenly splits the cost for the Section 504 claims.

[00:22:03] Speaker 03:
Again, another administrative law judge might have done it differently, but the question for this court is whether the administrative law judge abused her discretion in coming up with the calculation that she did.

[00:22:19] Speaker 03:
I would like to move on.

[00:22:22] Speaker 03:
I think that that's a logical step into talking about whether or not the Section 504 claims were FAPE claims in this case, or whether they were discrimination claims found outside Section 504's FAPE provision.

[00:22:36] Speaker 03:
As I've noted previously, the school district's position is that all of the Section 504 claims were in fact FAPE claims, not standalone separate discrimination claims.

[00:22:49] Speaker 03:
And there are a few different ways that the court could get there.

[00:22:52] Speaker 03:
First, I want to note how the plaintiff is describing the Section 504 discrimination claim.

[00:22:59] Speaker 03:
And I would point to the most recent brief filed with this court, the reply brief at page 15, where the plaintiff includes a subsection titled, districts placement in a shortened day was discriminatory.

[00:23:12] Speaker 03:
And then immediately goes on to state, here students Section 504 discrimination claims related to a shortened school day.

[00:23:20] Speaker 03:
are distinct claims related to the sufficiency of the district's IEP.

[00:23:25] Speaker 03:
Again, there are multiple ways that the court could come to the conclusion that that Section 504 claim was in fact a FAPE claim, not a separate and standalone discrimination claim.

[00:23:35] Speaker 03:
I am going to put forth three different ways that the Court could come to that conclusion.

[00:23:40] Speaker 03:
One, comparing that claim against the IDEA FAPE claims.

[00:23:43] Speaker 03:
Two, looking at the claim language of Section 504's FAPE standard.

[00:23:47] Speaker 03:
And then three, applying the analysis previously provided by the Supreme Court in Fry v. Napoleon Community Schools.

[00:23:55] Speaker 03:
Looking at the administrative complaint itself on pages 24 to 25, where the plaintiff is setting forth the IDEA FAPE claims, there's paragraph 112, which reads, district further failed to provide student a free, appropriate public education, FAPE.

[00:24:10] Speaker 03:
in the least restrictive environment during the 2018-2019 school years, when after students' IEP team determined that the 4J Fox Hollow program did not meet students' needs, district failed to have available an alternative full-day school placement designed to serve students with behavioral challenges and instead required students to attend home instruction for five to six hours per week while being placed on a waitlist for the Child Center."

[00:24:36] Speaker 03:
So even comparing the language of how the plaintiff characterizes the Section 504, quote, discrimination claim against the IDEA FAPE claim, they are virtually identical, which makes for an illogical conclusion that although the same nucleus of facts, same description of the action from the school district is under the IDEA FAPE allegation, but under Section 504 is not a FAPE allegation.

[00:25:04] Speaker 03:
Next, turning to the plain language of Section 504.

[00:25:09] Speaker 03:
Section 504's FAPE requirement is found at 34 CFR 104.33, and if you read Subsection B, Subsection 1, it defines an appropriate education.

[00:25:22] Speaker 03:
for a free, appropriate public education, and states, for the purpose of this part, the provision of an appropriate education is the provision of regular or special education and related aids and services that are designed to meet individual educational needs of handicapped persons as adequately as the needs of non-handicapped persons are met, and two, are based upon adherence to the procedures that satisfy the requirements of sections 104.34, 104.35, and 104.36.

[00:25:50] Speaker 03:
So, again, Section 504 itself notes that FAPE relates to the, quote, provision of regular or special education, end quote.

[00:26:00] Speaker 03:
And here, that's precisely what plaintiff is arguing.

[00:26:04] Speaker 03:
The student wasn't denied when the student received fewer hours of regular education instruction while attending homebound instruction.

[00:26:13] Speaker 04:
If I could just go back and mention the child center.

[00:26:15] Speaker 04:
and the question of whether the government complied with its obligation to provide a full continuum of alternative placements.

[00:26:27] Speaker 04:
According to the record, the Child Center had a well-known history of long wait lists.

[00:26:33] Speaker 04:
It may be one thing if, you know,

[00:26:35] Speaker 04:
At certain points the child center has waitlist because a lot of students but seems like this is a perennial problem.

[00:26:41] Speaker 04:
Everybody knows this that there's a huge waitlist.

[00:26:46] Speaker 04:
I mean why does that satisfy the government's obligation when you know this child center is always overbooked and there'll always be a waitlist.

[00:26:55] Speaker 03:
I would like to address that in two parts.

[00:26:58] Speaker 03:
First, I would like to kind of note that it's well established that IDEA courts are courts of equity.

[00:27:05] Speaker 03:
Here, both the administrative law judge and the district court noted that the wait list was not an issue caused by the school district itself.

[00:27:15] Speaker 03:
The administrative law judge in particular noted that she would have a hard time finding that the district violated its obligations when it could not change the wait list.

[00:27:24] Speaker 04:
Yeah, but maybe they look at other alternatives.

[00:27:26] Speaker 04:
That's the problem.

[00:27:27] Speaker 04:
If you know something that's huge, wait list, let's see other alternatives.

[00:27:30] Speaker 03:
And I think that that segues into the second part I want to address, which is the facts of this case.

[00:27:36] Speaker 03:
Here, the school district did not just make an application to the Child Center.

[00:27:41] Speaker 03:
The evidence in the record is that the parents came to the November IEP meeting saying, we've already talked to the Child Center.

[00:27:49] Speaker 03:
We would like the student to go there.

[00:27:51] Speaker 03:
And the school district said, we can move forward with that.

[00:27:55] Speaker 03:
But we know historically they've had a wait list of six to 12 months.

[00:27:59] Speaker 03:
So what the school district said was, if we are going to go down that path, which we can do, but if we are going to do that, it's going to be a two step process of an interim placement until that becomes available.

[00:28:10] Speaker 03:
Secondly, the school district did not make an application just to the child center.

[00:28:15] Speaker 03:
There were two other day treatment programs within a reasonable driving distance of the Eugene school district that they also made applications to.

[00:28:23] Speaker 03:
And so here in this situation, the school district said there are three day treatment programs that are

[00:28:29] Speaker 03:
practically available to the student, we will make applications to all of them.

[00:28:33] Speaker 03:
If the child center is the first one that becomes available, that's the parents preferred, we'll go there.

[00:28:38] Speaker 03:
But if one of the other two become available first, we are happy to place the student there as well.

[00:28:44] Speaker 03:
And I see beyond my time, I'd be happy to answer any follow-up questions you might have, though.

[00:28:48] Speaker 03:
Great.

[00:28:48] Speaker 04:
Thank you.

[00:28:49] Speaker 03:
Thank you.

[00:29:07] Speaker 02:
I'd like to start with the last question first.

[00:29:11] Speaker 02:
Yes, the school district knew that not only the child center but the other two programs that Mr. Hungerford just referenced had wait lists.

[00:29:20] Speaker 02:
And instead of creating a program as they had when the student was in first grade and also on a wait list for one of those three programs,

[00:29:30] Speaker 02:
when the district created this program with the ESD to embed mental health and behavioral supports into a school district program and made that available to the student, they could have done the same thing in fourth grade.

[00:29:47] Speaker 02:
They could have taken some of the resources that they admitted still existed within the district, mental health providers, behavioral support service providers,

[00:29:57] Speaker 02:
and embedded those back into the program.

[00:30:01] Speaker 02:
Everybody at the November 16th meeting agreed that the child center or a program like that was appropriate because of the mental health and embedded behavioral support services.

[00:30:14] Speaker 02:
The district failed to have that continuum of placement options available.

[00:30:19] Speaker 02:
Section 504 doesn't permit a district to absolve itself of its responsibilities just because a contracted program is full or discriminatory.

[00:30:31] Speaker 02:
The district has that obligation.

[00:30:34] Speaker 02:
Regarding the transcription costs,

[00:30:38] Speaker 02:
Mr. Hungerford spoke about the ALJ's right to make decisions in equity, and that she made a reasoned calculation of what the transcription costs.

[00:30:53] Speaker 02:
The ALJ does not have, however, the opportunity to subvert federal statutes.

[00:30:59] Speaker 02:
The federal statutes state that under IDEA, nothing under the IDEA can be

[00:31:08] Speaker 02:
can deny the parent a right under any of the other federal laws like the ADA and Section 504.

[00:31:17] Speaker 02:
And our own Oregon administrative rules in the section that describes the rights of parents in a due process hearing talk about two things that are not available.

[00:31:29] Speaker 02:
One is a transcription at no cost to the parents, and the other is a stay put order.

[00:31:36] Speaker 02:
So if a parent has a claim under both the IDEA and a separate but related claim under Section 504, Mr. Hungerford's reasoning would be that stay put is not available to a child who brings a claim under a due process hearing.

[00:31:55] Speaker 02:
That can't be the way that that statute is read.

[00:32:01] Speaker 02:
In addition, because the IDEA requires parents to exhaust at the administrative level all related claims, these parents were required to bring their 504 claims.

[00:32:14] Speaker 02:
If we maintain the ruling of the administrative law judge and the district court, parents who have claims under both

[00:32:23] Speaker 02:
IDEA and Section 504 ADA must now separate their 504 claims from their IDEA claims and face an exhaustion dismissal later when they bring their 504 claims or fork over almost $10,000 or more for transcription costs.

[00:32:44] Speaker 02:
Again, that can't be the way that that statute is read.

[00:32:50] Speaker 04:
I think you've exceeded your time.

[00:32:51] Speaker 04:
Great.

[00:32:52] Speaker 04:
Thank you.

[00:32:52] Speaker 02:
Thank you.

[00:32:53] Speaker 02:
Oh, red.

[00:32:54] Speaker 02:
Sorry.

[00:32:54] Speaker 02:
Thank you.

[00:32:55] Speaker 04:
Thank you both for the helpful argument.

[00:32:56] Speaker 04:
The case has been submitted.