[00:00:03] Speaker 01:
Good morning.

[00:00:04] Speaker 04:
Good morning.

[00:00:06] Speaker 01:
Timothy Adams for Appellant DA on behalf of MA.

[00:00:11] Speaker 01:
May it please the court.

[00:00:13] Speaker 01:
Your honors, this case is about a student that was incessantly bullied in the Newport Unified School District.

[00:00:21] Speaker 01:
While he was in their programs, he spent months and months struggling to catch up and to

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address various concerns that were plaguing him by his fellow students.

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These concerns included having his lunch stolen and being made fun of on the playground.

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He has diagnoses including autism and severe depression.

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His depression worsened so much so that his medications were doubled.

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And by the end of December of 2017, his parents met with the school district's IEP team, the Individualized Education Program team, to talk about how to address these concerns.

[00:01:04] Speaker 04:
Council, your clients had a hearing before an administrative hearing officer, and all of these

[00:01:12] Speaker 04:
That's correct, Your Honor.

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All right, so tell us why the district court erred in accepting the ruling of the hearing officer on most of those claims.

[00:01:24] Speaker 01:
Well, with respect to issue one, Your Honor, that was the district denying him his right to a free, appropriate public education.

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In developing her opinion, the court discounted Dr. Marta Shin.

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And Dr. Shin was student's expert through the due process hearing.

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Now with most experts, they have an opportunity to review documents that are available to them at the time.

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They may not have been in attendance at various IEP meetings, but when she came on as the expert, she had an opportunity to review

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the IEPs, the assessments, the information that was available to her.

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And she rendered an opinion.

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Because she wasn't physically present at the IEPs that were at issue, her expert testimony was severely discounted.

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And she was deemed... But what is your view that the hearing officer was required to accept her expert opinion over the expert opinion of the districts?

[00:02:22] Speaker 01:
No, Your Honor, but I think she presented very persuasive information.

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She reviewed all the documents, reports available to her.

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We just think it was unreasonable that she would have completely discounted her opinions after having assessed students and provided information that was relevant at the time.

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For her to, like I said, she's a competent expert.

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We qualified her as an expert.

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She reviewed all the information available.

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And for her to be completely discounted, we believe is error.

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What specific opinions of hers do you think should have been credited?

[00:02:55] Speaker 01:
Well, she testified as to the mental health concerns that the district was addressing or not addressing.

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She talked about the severe depression, the counseling that was required, the social, emotional concerns that she had regarding student, and the services that would have been required.

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You know, essentially, she was completely discounted, and the school district's experts or witnesses, including the teachers and the staff, were primarily given really all the weights.

[00:03:32] Speaker 04:
You're talking about Dr. Shen?

[00:03:34] Speaker 01:
That's correct.

[00:03:35] Speaker 04:
But didn't the ALJ state that Dr. Shen's testimony was based upon evidence of the mental state in 2017, and she didn't meet the student until 2020?

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her opinion was less persuasive because she did not encounter the student at the time when those symptoms were being manifested.

[00:03:58] Speaker 01:
But Your Honors, you have to understand that there's lots of very specific information that's documented in IEPs.

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And so there's a very robust record that she would have access to, including interviews of staff, interviews of parents, all the information that would have been available to the IEP team at the time.

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She had access to all that information.

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So regardless of whether she had met student at the time she offered her opinion,

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She already had access to a pretty detailed record as to some of this just kind of in how you characterize the record because it seems there's Sort of two narratives your clients, which is that the child was suffering?

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Socially and otherwise at the school and the school's narrative, which is that you know, he was progressing Consistent with his capabilities and that socially things were not as bad as your clients were alleging that seems to be there seems to be two strains here and it seems that the ALJ

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favored the school districts based on its witnesses?

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She did, and we think that was error, Your Honor.

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I think there was plenty of information available to her, and she disregarded it.

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If a student is suffering so severely from depression that their medication has to be doubled, and then all of a sudden they move out of that environment and he's off the medication, there's clearly something happening before that move occurred.

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And that's the move from the public school system to the private school.

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Do you think, is it your position that the student needed this one-on-one teaching that he had at the Fusion Academy?

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Do you believe that was essential?

[00:05:30] Speaker 01:
Yes, your honor.

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It was also essential for him.

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So a student like MA required a very direct, individualized instructional approach.

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The large group was problematic for him.

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So one of the reasons why the private school worked so well was because he did receive that one-to-one approach.

[00:05:48] Speaker 04:
But isn't that a little bit

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inconsistent with the goal of the IDEA, which is to the extent possible, have the student in a general learning environment.

[00:06:01] Speaker 01:
Well, yes, but that's the least restrictive environment, Your Honor, is different for every student.

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So to the extent that a student is like MA, suffering so severely that his medication had to be doubled by his psychiatrist before he moved, we have to consider alternatives.

[00:06:18] Speaker 04:
There are several- Where is that in the record, that he was suffering so severely that his medication had to be doubled?

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Was that presented to the hearing officer?

[00:06:25] Speaker 01:
Yes, that is correct, Your Honor.

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I do not have the- it is in our briefs for- Well, not the brief.

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Yeah.

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Where in the record was that evidence presented to the hearing officer?

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The administrative record.

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Do you not have the specific citation to the record in my notes, Your Honor, to have to dig for it?

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I apologize.

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Is there, what are the differences between your claims on the 2017 IEP and then the 2019?

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Are they overlapping substantively or do you think there's some differences that the passage of time created some changes?

[00:07:03] Speaker 01:
There were some changes, Your Honor.

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Certainly there was some improvements to the fact that he had been in the fusion program for a period of time.

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We still felt like he needed

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significant intervention, but parents were clearly interested in having an IEP, hence the request in September of 2018 for a trineal assessment.

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They were engaging in discussions with the school district, including written correspondence back and forth to the school district about MA's needs.

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The complicating factor in this is that he was placed into a private school

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in the interim, and it was unclear whether the parents were intending to place him in public school again.

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And so whether or not there was an obligation to provide an IEP during the time he was in private school is somewhat uncertain.

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Well, if they had no interest, then they wouldn't have sent back the training assessment request.

[00:08:04] Speaker 01:
Um, and certainly there was correspondence, uh, back and forth between the school district about Matthew, excuse me, um, and my needs specifically.

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So, um, they, they wanted to receive an offer, but the condition that the district continued to present was that, uh, they wanted him to enroll.

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in the school district, which your average parent would interpret as send them to the public school.

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And at that time, based on discussions they had at the December 2017 IEP, they knew that that public school system, at least as it was, and that IEP as it was formulated, was not going to address its needs.

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Council, going to Dr. Shan,

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The ALJ made a finding that she failed to review the data collected in support of the November 2017 progress report and failed to contact anyone at the district regarding students' goals.

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What's your response to that finding by the ALJ?

[00:09:06] Speaker 01:
So with respect to data review, Dr. Shen had an opportunity, again, to review the record that was available to her.

[00:09:14] Speaker 04:
Well, the ALJ said she failed to review the data

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collected in support of the November 2017 progress report.

[00:09:22] Speaker 01:
You take issue with that statement?

[00:09:26] Speaker 01:
There was opportunity for her to review a number of different, if she didn't feel it was necessary to make an informed opinion about students' needs, she wouldn't necessarily have to review every aspect of the record.

[00:09:40] Speaker 01:
you know, every expert has discretion on what they are going to formulate their opinion based on.

[00:09:45] Speaker 04:
I agree, but if the ALJ discounted the opinion for lack of review of pertinent documents, how can that be error?

[00:09:54] Speaker 01:
Well, that was the A.L.J.'

[00:09:57] Speaker 01:
's opinion, of course, Your Honor, and we will give some deference to an opinion except that Dr. Shin had plenty of other information that she offered testimony based on.

[00:10:06] Speaker 03:
But you agree we have to give some deference to the A.L.J.'

[00:10:09] Speaker 03:
's conclusions, right?

[00:10:10] Speaker 01:
Well, some, but not complete deference because you can't, just because they didn't review one piece, discount the rest of her

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opinion saying that one piece was so significant that she shouldn't be, you know, what she says shouldn't be taken as true.

[00:10:26] Speaker 02:
Can I ask, you've raised a lot of claims, some about the substance of the IEP, some that are procedural.

[00:10:33] Speaker 02:
Are there any parts in this where you think the law of this circuit is unclear?

[00:10:37] Speaker 02:
I gather you practiced in this area with some regularity, so what is your view on that?

[00:10:43] Speaker 01:
Well, I think this case is very much distinguishable from the Capistrano case that's cited.

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And the reason why it is, because there's no permanency with respect to parents' intent to privately place.

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In fact, they specifically asked the district for an assessment, which showed that they intended to consider school district offers.

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So the difference between this case, for example, and

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is that in Capistrano, and that was also my case, so I know that case very well, the parents had said that they were going to be privately placing an email for two grades.

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These parents never said that.

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In fact, they reached out to the district and specifically asked in response to a triennial assessment request

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that was sent to the parents that was not completed right in that and like I said earlier in my argument your honor that certification of intent from our position is that your average parent would read that as a condition to have an IEP you must enroll in the district.

[00:11:46] Speaker 01:
So that was the confusing part, I think, for most families that are reading that.

[00:11:50] Speaker 01:
If school district is saying the condition of an IEP is enrollment, there is nothing in Capistrano or anything in the law that indicates that enrollment, which is specifically indicated on the certification of intent form.

[00:12:02] Speaker 04:
Well, perhaps, but that coupled with the payment of tuition at the private school

[00:12:08] Speaker 04:
could support an influence that there was no intent to return to the public school.

[00:12:13] Speaker 01:
I'm not aware of anything in the law that says if a parent pays for a private school, then they don't have a right to an IEP.

[00:12:18] Speaker 04:
Well, not as a matter of law, but as a matter of a finding by the hearing officer.

[00:12:23] Speaker 04:
Couldn't that support a reasonable conclusion from the hearing officer that the parents

[00:12:29] Speaker 04:
had no intent to enroll the student in a public school for that year.

[00:12:34] Speaker 01:
From our perspective, Your Honor, there are lots of parents, and we see this in many cases, many parents that look at a number of options.

[00:12:43] Speaker 01:
They may tour three or four different schools.

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They may even place a deposit on a private school in the event that

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Like what happened in December of 2017, this is not going to be an appropriate program.

[00:12:57] Speaker 01:
They were hopeful that moving into a different school from where he was before in Newport Mason Unified, there could be a different program that could meet his needs.

[00:13:07] Speaker 04:
But this wasn't a deposit.

[00:13:09] Speaker 04:
It was a payment of the full tuition.

[00:13:12] Speaker 01:
They did make a payment for tuition, Your Honor.

[00:13:15] Speaker 01:
Again, there's nothing that indicates that they wouldn't want to consider the school district's program.

[00:13:21] Speaker 01:
They had a certification of intent form that was not clear, and they specifically requested an assessment.

[00:13:29] Speaker 04:
They had every intent to consider the district's program.

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Did they request an assessment for the 2017-2018 year?

[00:13:35] Speaker 01:
They didn't know, because they were in the district in December 17, they were still in the district.

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He didn't move into Fusion until January of 2018.

[00:13:44] Speaker 01:
That was when notice was given.

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And he didn't move into Fusion.

[00:13:46] Speaker 02:
The one piece of this where you prevailed in front of the ALJ was the April 2018 IEP meeting.

[00:13:51] Speaker 02:
Correct.

[00:13:52] Speaker 02:
But so how was the school district supposed to know your clients wanted the meeting if they didn't respond to the notices?

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Your position, I guess, is the notices were defective?

[00:14:02] Speaker 01:
Well, the notices are very much defective, Your Honor.

[00:14:04] Speaker 01:
In fact, the district, in their brief, and in our brief to district court, we specifically snapshot, screenshot, you know, picture of what the notice looked like, which specifically said, and the district bolds it in their opposing brief to this court,

[00:14:20] Speaker 01:
that they must ask for an IEP or do they want an IEP, but the preceding sentence indicates very specifically that they want to enroll in the district and they'd like to have an IEP.

[00:14:30] Speaker 01:
That's the confusing part.

[00:14:31] Speaker 01:
That is a defective notice, Your Honor.

[00:14:33] Speaker 01:
And districts prepare these notices.

[00:14:35] Speaker 01:
Parents don't know, even sophisticated parents don't know what that means.

[00:14:40] Speaker 01:
They don't understand necessarily.

[00:14:41] Speaker 01:
They assume, like I think most people would assume, that I've got to send my kid in order to get an IEP.

[00:14:47] Speaker 02:
And the consequence, if you're right, is what?

[00:14:50] Speaker 02:
What do your clients gain from this is a procedural issue, right?

[00:14:55] Speaker 02:
Just not having this meeting in April 2018.

[00:14:57] Speaker 02:
So what's the remedy for that?

[00:14:59] Speaker 01:
They would receive what the ALJ actually ordered, which was about $50,000 in reimbursement for private school tuition.

[00:15:06] Speaker 04:
But how would they be damaged if they already had their child enrolled in a private school?

[00:15:11] Speaker 04:
That's the problem I have with the decision is that there was no prejudice.

[00:15:19] Speaker 04:
because he was already enrolled, the child was already enrolled in a private school.

[00:15:24] Speaker 01:
Well, there is, because the damage is that they had to pay for it.

[00:15:27] Speaker 01:
It's a free, appropriate public education.

[00:15:30] Speaker 04:
They already decided to pay for it.

[00:15:32] Speaker 01:
Right.

[00:15:32] Speaker 04:
Before the notice, before they... Because they had to.

[00:15:36] Speaker 01:
Okay.

[00:15:37] Speaker 01:
Because as of December 17, there was no appropriate offer.

[00:15:41] Speaker 01:
This is why they specifically gave notice that they intended to privately place in that IEP meeting.

[00:15:47] Speaker 04:
Right.

[00:15:48] Speaker 04:
We understand your argument.

[00:15:49] Speaker 04:
You've exceeded your time, but we'll give you a minute or two for rebuttal.

[00:15:52] Speaker 04:
Thank you, Counsel.

[00:15:55] Speaker 04:
Counsel, when you come back, would you be prepared to address the notice regarding the school closure?

[00:16:05] Speaker 00:
Good morning, Your Honors.

[00:16:05] Speaker 00:
My name is Dan Harbottle.

[00:16:07] Speaker 00:
May it please the Court?

[00:16:08] Speaker 00:
I represent Newport Mesa.

[00:16:10] Speaker 00:
I want to start briefly with the Capistrano analysis, and I think it's probably the only available argument that Council has to say that the certifications of intent were defective, but number one, they weren't.

[00:16:23] Speaker 00:
Number two, even if they were, there was a later March 15, 2018 letter directly from one of the coordinators in special ed.

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And that letter, we've quoted it in the brief.

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That letter itself says the following, if you would like us to hold MA's annual IEP and the transition, please contact me at your earliest convenience.

[00:16:50] Speaker 00:
So by this, this was March 15, 2018.

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The family had already paid the tuition.

[00:16:55] Speaker 00:
The three certifications of intent in January and February of 2018 had already gone to the parent unanswered.

[00:17:03] Speaker 00:
The district followed up with a March 15, 2018 letter.

[00:17:08] Speaker 00:
further inviting an IEP, and none of that was responded to.

[00:17:13] Speaker 02:
And your point with the March 15th letter is that to the extent the earlier ones could be read to be tied to enrollment, you think the March 15th one was not?

[00:17:22] Speaker 00:
Correct.

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And the other thing to keep in mind is that the record

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contains an email from the parents in November of 2017.

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The November 2017 IEP was not an annual.

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It was a parent-requested IEP.

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So we have established, without any dispute or any availability of dispute, that these parents knew how to request an IEP if they wanted one.

[00:17:48] Speaker 00:
That's in, I think, Student Zone excerpts.

[00:17:51] Speaker 00:
They wrote an email to the district.

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That's all they had to do.

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They didn't need to enroll the student.

[00:17:55] Speaker 00:
They didn't need to do anything else.

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They knew what they had to do before that.

[00:18:00] Speaker 00:
Was he enrolled, though, at that point?

[00:18:01] Speaker 00:
He was enrolled at that point.

[00:18:03] Speaker 00:
But they certainly were invited multiple times.

[00:18:05] Speaker 00:
And they knew precisely.

[00:18:06] Speaker 00:
They were very experienced by this point.

[00:18:09] Speaker 00:
They knew how to invite an IEP.

[00:18:11] Speaker 00:
They knew how to request an IEP.

[00:18:13] Speaker 02:
Is there any record from this idea that maybe the parents were confused?

[00:18:17] Speaker 02:
No.

[00:18:17] Speaker 02:
No.

[00:18:18] Speaker 00:
And I think it's important for me to start to make sure it's clear.

[00:18:26] Speaker 00:
And it's clear in the record, obviously, that the ALJ listened to six days of testimony.

[00:18:32] Speaker 00:
Both parents testified at length.

[00:18:35] Speaker 00:
this information, if they had evidence that would have persuaded the ALJ that they were indeed awaiting some further, that the four notifications were not enough.

[00:18:49] Speaker 00:
Besides, keep in mind, too, if you look at the December 17 IEP, which appears both in our and Council's excerpts, parents are invited then, they announced they were leaving,

[00:19:04] Speaker 00:
They announced they went to private, they were going to private school.

[00:19:07] Speaker 00:
They were invited in the IEP document itself to call any time if they wanted to come back or call any time if they wanted an IEP.

[00:19:16] Speaker 00:
So there's really no meaningful dispute.

[00:19:19] Speaker 02:
I guess the question I would ask is, was there a reason to develop this point at the time?

[00:19:24] Speaker 02:
Because this was all pre-Capistrano and they won on this point in front of the ALJ.

[00:19:30] Speaker 00:
Well, because we wanted to make sure if they wanted to come back, they could.

[00:19:33] Speaker 00:
If they wanted an IEP, they could.

[00:19:34] Speaker 00:
And there was the practice, and this is why we're in the dispute.

[00:19:38] Speaker 00:
There was the practice, and it is, as upheld by Capistrano, the proper practice for private school kids under 1414 of the IDEA.

[00:19:48] Speaker 00:
that they don't have the same rights.

[00:19:49] Speaker 00:
If you look at 34, 300, 137A, it says as explicitly as it can be written.

[00:19:56] Speaker 00:
Private school students do not have all the rights for special education related services that public school students have.

[00:20:02] Speaker 00:
Capistrano interpreted that and interpreted 1414A10A.

[00:20:10] Speaker 00:
to explicitly and clearly state that the facts, the differential between the facts between CAPO and this case are, they're inconsequential, but the truth is the only fact that really matters, two facts, the student was enrolled in private school and did not make a request for an IEP.

[00:20:30] Speaker 00:
The Capistrano decision is extraordinarily clear on this point.

[00:20:35] Speaker 00:
Of course, the Capistrano Ninth Circuit panel addressed

[00:20:41] Speaker 00:
the facts that were underlying that case, but they're very similar.

[00:20:44] Speaker 00:
They're not identical, but they're similar enough.

[00:20:46] Speaker 00:
There were plenty of opportunities afforded by the district for this family to come back and ask for an IEP.

[00:20:52] Speaker 00:
There were plenty of opportunities in the Capistrano case.

[00:20:55] Speaker 00:
We were both, Council and I, were both on both of these cases.

[00:20:59] Speaker 04:
Council, the intent form, is that still being used by the school district?

[00:21:05] Speaker 00:
something like it probably your honor I think that one of the things that that is I think it's a technical sort of a the hyper technical attempt to create confusion where there really isn't any these fit this family was in direct communication with the district

[00:21:24] Speaker 00:
remained in direct communication, knew how to ask for the triennial IEP or an assessment, knew how to ask for an IEP if they wanted one, and just failed to do it during the relevant time.

[00:21:36] Speaker 00:
That's really all that matters, and Cavistrano just nailed that down.

[00:21:39] Speaker 03:
In the 27 IEP, the school recommended 5% special education time, and in the 2019 IEP, it jumped to 40% special education.

[00:21:50] Speaker 03:
What explains that eightfold increase?

[00:21:52] Speaker 00:
Yeah, that's a great question.

[00:21:54] Speaker 00:
I think the key thing that changed between when MA left and we did our assessment in 2019 was there were some real decreased skills.

[00:22:08] Speaker 00:
The record shows that there were decreased skills in several areas.

[00:22:11] Speaker 00:
We've put some in our supplemental excerpts.

[00:22:14] Speaker 04:
So is it your position that

[00:22:16] Speaker 00:
His ability is deteriorated while he was going to they certainly didn't get any better and we put in some evidence that In key areas he had reduced his skills had reduced against same-age peers

[00:22:30] Speaker 00:
The other thing to keep in mind, two things.

[00:22:32] Speaker 00:
One, as you, I think, Your Honor, Judge Rawlinson pointed out that this is Fusion was a purely a private school.

[00:22:42] Speaker 00:
It's not what's called a non-public school in California.

[00:22:45] Speaker 00:
Non-public schools are private schools that are certified by the California Department of Ed to provide special ed.

[00:22:52] Speaker 00:
They exist for the sole purpose, for the main purpose at least, of providing special education services that are appropriate if they are credentialed or certified by the California Department of Ed.

[00:23:06] Speaker 00:
Fusion is not.

[00:23:07] Speaker 00:
It is a purely private school.

[00:23:10] Speaker 00:
Both the OHALJ and the district were prohibited by law under the California Education Code from placing MA there.

[00:23:21] Speaker 00:
Could have placed him in a non-public school if he needed it, but he didn't need it.

[00:23:26] Speaker 03:
I mean, how often is it that the IEP recommendation for special education, that there's such a dramatic difference?

[00:23:35] Speaker 03:
I mean, does this suggest that 27 IEP was inadequate?

[00:23:38] Speaker 00:
No, no.

[00:23:39] Speaker 00:
What it suggests is that, think about it this way, by in April of 2017, that was the annual IEP.

[00:23:48] Speaker 00:
By December, there were only two points of consideration at the December IEP.

[00:23:54] Speaker 00:
And then the parents pulled in, and Capistrano and the IDEA indicate no need for an annual in 2018 unless parent has asked.

[00:24:02] Speaker 00:
By 2019, your two years

[00:24:04] Speaker 00:
after the 2017 IEP.

[00:24:08] Speaker 00:
So every student changes.

[00:24:11] Speaker 00:
And we're talking about a student who's in the midst of his early years.

[00:24:18] Speaker 00:
So the other thing to keep in mind is that the team listens to parents.

[00:24:24] Speaker 00:
And when that annual came around and the triennial came around in May of 2019, they listened to the parents' concerns.

[00:24:32] Speaker 00:
frankly tried to bring MA back with a program they thought would be appealing to the parents.

[00:24:39] Speaker 00:
The ALJ was very clear.

[00:24:40] Speaker 00:
I think it was the ALJ.

[00:24:41] Speaker 00:
And I think the district court also reiterated this point that the teacher that counsel brought from Fusion to testify on behalf of Fusion's appropriateness and propriety was not credentialed.

[00:24:56] Speaker 00:
He had no special ed training.

[00:24:58] Speaker 00:
And so the parents have every right to place their student there.

[00:25:03] Speaker 00:
Even if he was doing brilliantly, that's not a reflection on the district's offer.

[00:25:08] Speaker 00:
Even if he were doing brilliantly, it wouldn't have a bearing on the FAPE question under the Gregory K case.

[00:25:15] Speaker 00:
That doesn't really matter.

[00:25:17] Speaker 00:
But he wasn't doing brilliantly.

[00:25:18] Speaker 00:
There were some real continuing social skills problems.

[00:25:21] Speaker 00:
And I think both the district court and the ALJ identified those.

[00:25:27] Speaker 02:
And why wasn't the school required to file a due process complaint?

[00:25:35] Speaker 00:
CAPO addresses that too, and here's the reason.

[00:25:37] Speaker 00:
Under section 56, 346 of the California Education Code, section E, that's one of the, I think it's the only statute in the country that permits this.

[00:25:48] Speaker 00:
It could be wrong, but this is what that provision says.

[00:25:52] Speaker 00:
That says, if a parent consents to receipt, meaning I want your special education program, some of it,

[00:26:00] Speaker 00:
If a parent consents to receipt of special education and related services, some components of the IEP, but not others, then the district is required to implement those to which the parent consented and not to implement those that the parent declined.

[00:26:19] Speaker 00:
That puts the district on the horns of a dilemma.

[00:26:22] Speaker 00:
Here's your FAPE, 100%.

[00:26:24] Speaker 00:
This is what we're offering you.

[00:26:25] Speaker 00:
You only want 50% of it.

[00:26:27] Speaker 00:
then the district has to decide, and by want I mean, you're going to bring your student to school, you're going to have that IEP implemented to the extent I consent to it, but I don't want the other stuff.

[00:26:40] Speaker 00:
The district then has to decide in California, is that truncated IEP still FAPE or not?

[00:26:50] Speaker 00:
And if it's not, and the district determines that it's not,

[00:26:54] Speaker 00:
then and only then is the district required to file for due process.

[00:26:59] Speaker 00:
In a situation like this, Capistrano explicitly holds that the IR case, it's the earlier Ninth Circuit case, did not mean that every time there's a dispute, the district has to file, especially when there's no consent to any component of an IEP.

[00:27:17] Speaker 02:
And this has nothing to do with the quality of the education he was receiving at Fusion?

[00:27:21] Speaker 00:
Nothing.

[00:27:24] Speaker 00:
It's just a matter of whether they, if they consent to bring in, let's say they bring the student in and they want, they don't want, and this happens sometimes, they don't want the special education classroom that is absolutely necessary for the student.

[00:27:37] Speaker 00:
But they do want the speech and language therapy.

[00:27:40] Speaker 00:
But we know the student can't function properly without this special ed classroom.

[00:27:44] Speaker 00:
So we have them to file to establish the appropriateness of that special ed classroom.

[00:27:48] Speaker 00:
But here we don't have any of that.

[00:27:50] Speaker 00:
We don't have consent to anything, so we don't have that potential mishmash and inappropriate application or implementation of programming.

[00:28:02] Speaker 04:
Did you address the notice of the school closure, please?

[00:28:06] Speaker 00:
Yeah, that's a great question, too.

[00:28:09] Speaker 00:
Both courts, OAH and the district court both, addressed that properly.

[00:28:15] Speaker 00:
The case that really, I think, matters here is that Cape Henlopen case, the Nile circuit case.

[00:28:20] Speaker 00:
Essentially what that says is, and the statute itself is clear,

[00:28:25] Speaker 00:
Priority notice is required when a parent makes a request and a school district responds or a district wants to do something and has to notify the parent but it's only applicable to those students that will be affected by whatever change that is and it's I think I think the

[00:28:48] Speaker 00:
It's either the statutory itself, statute itself, or the regulation that specifically says the change has to be a change for or to that student, and both OEH.

[00:29:03] Speaker 00:
And by the way, OEH, this judge has heard numerous, numerous cases, knows how private notices work, and understands that if there isn't proposed to be a change,

[00:29:17] Speaker 00:
in a program applicable and affecting that student.

[00:29:22] Speaker 00:
And of course, all private students, all private school students were not subject to the COVID closure by the district, then there's no need for a private note.

[00:29:30] Speaker 04:
What's the case you're citing for that?

[00:29:31] Speaker 00:
That's CHV Cape Henlopen.

[00:29:35] Speaker 00:
That's a third circuit case, right?

[00:29:37] Speaker 00:
Oh, I'm sorry.

[00:29:37] Speaker 00:
Is it third?

[00:29:38] Speaker 00:
You're right.

[00:29:39] Speaker 00:
It's 606, that's third, 59.

[00:29:40] Speaker 00:
You're right.

[00:29:41] Speaker 00:
OK.

[00:29:41] Speaker 00:
But the principle was there, that unless the change is affecting this particular student, there's no point.

[00:29:49] Speaker 00:
There's no statutory obligation to provide notice, because there's nothing to notice.

[00:29:55] Speaker 00:
There's no notice to be given, because there's nothing changing.

[00:30:01] Speaker 04:
Thank you, Council.

[00:30:02] Speaker 00:
Thank you, Your Honors.

[00:30:07] Speaker 04:
All right, let's give two minutes for rebuttal.

[00:30:14] Speaker 01:
Your Honor, I do have that administrative record citation.

[00:30:17] Speaker 01:
You'd like to have it now, regarding the medication.

[00:30:19] Speaker 01:
Yes, please.

[00:30:21] Speaker 01:
So it's 3ER250, 7 to 8, 7.

[00:30:25] Speaker 04:
250?

[00:30:27] Speaker 01:
Correct.

[00:30:28] Speaker 01:
7, pages 7 and 8.

[00:30:30] Speaker 04:
Pages seven and eight, okay.

[00:30:32] Speaker 04:
Thank you.

[00:30:32] Speaker 01:
Thank you, Your Honor.

[00:30:34] Speaker 01:
So I think you made a very good point.

[00:30:37] Speaker 01:
All this predates Capistrano.

[00:30:39] Speaker 01:
So I think the analysis could potentially, or the thought about what districts should and shouldn't have done are sort of in the backdrop now, you know, and in light of that decision.

[00:30:53] Speaker 01:
But it doesn't change this family's right to have an IEP regardless.

[00:30:59] Speaker 01:
And again, because this family never said they were going away on a permanent basis, and they specifically requested in response to a district notice the assessment.

[00:31:10] Speaker 01:
So if there was no interest in having an IEP, why would they even ask for an assessment?

[00:31:13] Speaker 01:
What would be the point?

[00:31:16] Speaker 04:
Council, we do have to apply the law as it exists at the time.

[00:31:21] Speaker 04:
of our decision.

[00:31:22] Speaker 04:
So you're not saying that we should not apply Capistrano, are you?

[00:31:25] Speaker 01:
I'm saying we should not apply Capistrano to this set of facts, Your Honor, and it does predate this case.

[00:31:31] Speaker 04:
Right, but that doesn't matter because we are bound by the law as it exists at the time we make our decision.

[00:31:38] Speaker 04:
So if we apply Capistrano to the facts of this case, do you lose?

[00:31:47] Speaker 01:
I don't think that, I think the facts are distinguishable, as I mentioned before, because there's no permanency.

[00:31:53] Speaker 01:
You know, when a parent says that they're going to leave the school district and they're off the grid and there's no communication, I think that shows permanency.

[00:32:04] Speaker 01:
That was not the case here.

[00:32:05] Speaker 01:
Regardless of how many certifications of intent that were confusing, again, to your average parent, in fact, very sophisticated parents, regardless if they sent four or 10 or 12 or 20 of them,

[00:32:17] Speaker 01:
it's the same certification of intent that says you must enroll and then you can have an IEP.

[00:32:23] Speaker 01:
That's essentially what it said and there's a you know again we had a picture of that and it's quoted in the district's opposing brief.

[00:32:30] Speaker 02:
So what should this district have done here just held the meeting

[00:32:34] Speaker 02:
and told the parents this meeting is happening?

[00:32:36] Speaker 01:
They should have notified the parents like they normally do and like they have done to school districts for many years.

[00:32:41] Speaker 01:
And I've been in this practice doing this specifically for many years that we are we were due for an annual.

[00:32:46] Speaker 01:
We're going to propose these three dates for an annual review.

[00:32:51] Speaker 01:
And this is a common practice.

[00:32:53] Speaker 01:
Districts would propose dates, especially with parents that they were in relatively recent communication with.

[00:32:59] Speaker 01:
It hadn't been years.

[00:33:01] Speaker 01:
You know, parents, you know, as far as they knew,

[00:33:03] Speaker 01:
You know, parents, there was, obviously, continued to be an interest.

[00:33:08] Speaker 01:
The last communication they had with parent was essentially in that same, roughly the same year.

[00:33:14] Speaker 01:
So we're talking about, you know, winter, spring, and then fall, they responded back to the district's request or notice regarding the trineal assessment, saying, hey, we're due for an assessment.

[00:33:28] Speaker 01:
It happens every three years.

[00:33:29] Speaker 01:
Parents said, sign me up.

[00:33:31] Speaker 01:
Let's do this assessment.

[00:33:33] Speaker 02:
But why did they ask for that assessment but not the April 2018 meeting?

[00:33:38] Speaker 01:
Because, you know, they had conditions.

[00:33:41] Speaker 01:
You must enroll your child and then you can have an IEP.

[00:33:45] Speaker 01:
Again, this was the response that they were given or options they were given regarding those certifications of intent.

[00:33:53] Speaker 01:
If it said, if there was no condition, I think there would have been a very different response.

[00:33:59] Speaker 04:
Council, I'm looking at page 250 of 3ER, and I don't see.

[00:34:05] Speaker 01:
3ER, 250, 7 and 8.

[00:34:09] Speaker 04:
Line 7 and 8?

[00:34:12] Speaker 04:
Yes.

[00:34:12] Speaker 01:
Line 7 and 8.

[00:34:13] Speaker 04:
Yeah, by this time, his antidepressant dose had dealt.

[00:34:17] Speaker 01:
My apologies, Your Honor.

[00:34:19] Speaker 04:
Yeah, OK.

[00:34:19] Speaker 04:
It was line 7.

[00:34:20] Speaker 01:
Line 7 out of page.

[00:34:21] Speaker 01:
OK.

[00:34:24] Speaker 04:
Any other questions?

[00:34:26] Speaker 04:
Council, would you please wrap up?

[00:34:28] Speaker 01:
So in short, your honor, I think, again, emphasizing that this is a very different case from the Capistrano case.

[00:34:37] Speaker 01:
We know those facts really well because we litigated that myself and district council.

[00:34:44] Speaker 01:
So we do see and I do see the differences.

[00:34:47] Speaker 01:
They aren't trivial.

[00:34:49] Speaker 01:
You've got a family that continue to engage in a family that

[00:34:52] Speaker 01:
engaged less with the school district.

[00:34:54] Speaker 01:
So there were a lot of families, it is true, that went off the grid.

[00:34:57] Speaker 01:
It may be confusing, but these families, and this is a relatively, a family that probably knows more than your average family, but they still, there was still a lot of confusion.

[00:35:07] Speaker 01:
Imagine if we've got less, much less sophisticated parents receiving you must enroll to get an IEP, how much more confusing it could be for those families.

[00:35:17] Speaker 01:
So it's a slippery slope from our perspective.

[00:35:19] Speaker 01:
If you're not telling parents,

[00:35:21] Speaker 01:
what their rights are and what the district's obligations are.

[00:35:26] Speaker 04:
Understood.

[00:35:26] Speaker 04:
Thank you, counsel.

[00:35:28] Speaker 04:
Thank you to both counsel for your helpful argument.

[00:35:31] Speaker 04:
The case just argued is submitted for decision by the court.