[00:00:00] Speaker 04:
We thank council on both sides for your argument.

[00:00:03] Speaker 04:
The next case up for argument is JR versus Ventura Unified School District.

[00:00:42] Speaker 04:
Go ahead, counsel.

[00:00:44] Speaker 03:
Morning.

[00:00:45] Speaker 03:
If it would please the court, Molly Thurman on behalf of Ventura Unified School District Appellant.

[00:00:49] Speaker 03:
I'd like to reserve two minutes for rebuttal, please.

[00:00:52] Speaker 03:
The issues on this appeal are simple and straightforward, but they have become confusing and complicated due to findings which fall so far outside the range.

[00:01:02] Speaker 03:
The broad range of permissible conclusions has to be beyond the pale of reasonable justification under the circumstances.

[00:01:09] Speaker 03:
And this isn't a matter of insufficient evidence.

[00:01:12] Speaker 03:
This is a question of no evidence at all or findings that directly contradict the undisputed evidence.

[00:01:19] Speaker 03:
And yet the decision is published.

[00:01:21] Speaker 03:
And so students rely on this decision to make arguments that the statute of limitations does not begin to run until an

[00:01:28] Speaker 03:
a diagnosis is obtained that satisfies them.

[00:01:31] Speaker 03:
And district courts are thereby forced to address those arguments and to try to distinguish facts that don't necessarily need to be distinguished under the circumstances.

[00:01:42] Speaker 03:
A great example is the case that follows this one, TMJ, in which that student argued that the statute of limitations did not begin to run until nine years after he left the school district and obtained a diagnosis.

[00:01:55] Speaker 03:
And that district court was forced to

[00:01:58] Speaker 03:
distinguish findings that, again, just have no basis.

[00:02:04] Speaker 03:
The first issue is when did the statute of limitations begin to run?

[00:02:09] Speaker 03:
And this court has been clear from MM versus Lafayette to Avila versus Spokane and most recently to Alba Hathaway versus Santa Barbara Unified School District.

[00:02:20] Speaker 03:
The statute of limitations begins to run when the parent knows or has reason to know that the student's education is inadequate.

[00:02:27] Speaker 03:
The district court, however, said it was not convinced that the statute of limitations begins to run when the parent knows or should know that the student's education is inadequate.

[00:02:37] Speaker 03:
It's impossible to reconcile those two.

[00:02:40] Speaker 03:
But the district court went even further and said the statute of limitations does not begin regardless of the parent's knowledge.

[00:02:46] Speaker 03:
the parent does not have knowledge of the diagnosis that might explain why the student's education.

[00:02:51] Speaker 04:
So the standard is new or should have known, and the should have known part is very tricky.

[00:02:56] Speaker 04:
It's highly fact specific.

[00:02:58] Speaker 04:
So in your view, how does that apply to the facts of this case?

[00:03:03] Speaker 03:
So the should have known applies to the education was inadequate.

[00:03:07] Speaker 03:
And in this case, the parents had the undisputed evidence establishes that the parents knew had knowledge of JR's

[00:03:16] Speaker 03:
academic deficiencies, his behavioral issues, his cognitive problems.

[00:03:21] Speaker 03:
They repeatedly requested more assistance for him.

[00:03:25] Speaker 03:
They requested more assessments.

[00:03:27] Speaker 03:
They repeatedly said they were not getting the support they needed.

[00:03:32] Speaker 03:
Mom threatened a lawsuit

[00:03:36] Speaker 03:
Mom hired a private.

[00:03:39] Speaker 04:
Well that was in 2018.

[00:03:40] Speaker 03:
That was 2018 but mom said he specifically told the district at one point he had not made any progress in reading since second grade.

[00:03:51] Speaker 03:
The parents were actively participants in IEPs.

[00:03:55] Speaker 04:
Right, that's why I want to make sure that I understand what your position is.

[00:03:59] Speaker 04:
It can't be from the very beginning because just because a child's not doing well, it can't be that the statute of limitations is triggered for

[00:04:07] Speaker 04:
you know, struggles that may take some time to resolve, as they often do in these sort of cases.

[00:04:15] Speaker 04:
So in your view, was it in 2018 when mom expressed dissatisfaction and said she was contemplating a lawsuit?

[00:04:24] Speaker 04:
Is that the timeframe that you'd like us to fix on?

[00:04:27] Speaker 03:
That would be the very, very latest because it is absolutely indisputable at that point that mom was threatening legal action

[00:04:37] Speaker 03:
There's no question after 2018, but even before 2018, and it goes beyond the student isn't doing well, students often make that argument.

[00:04:45] Speaker 03:
It can't be that they just weren't doing well.

[00:04:47] Speaker 03:
That is not the standard.

[00:04:49] Speaker 04:
The standard is... So what before 2018 would have told the parents that their child was not receiving a FAPE?

[00:04:56] Speaker 03:
In the IEP meetings, the mom repeatedly

[00:05:00] Speaker 03:
She asked for more assistance.

[00:05:01] Speaker 03:
She asked for more assessments.

[00:05:04] Speaker 03:
In 2015 and in 2018, both those last two triennial, there's a lot of discussion about his failure to progress.

[00:05:17] Speaker 03:
The things that the VUSD are doing are not working.

[00:05:21] Speaker 03:
This isn't just a kid is struggling.

[00:05:23] Speaker 03:
This is a kid whose mom believes the education is inadequate and he is not making adequate progress.

[00:05:29] Speaker 01:
I guess, yeah, this is kind of getting to the nub of the issue which is just kind of how inadequate does it need to be.

[00:05:35] Speaker 01:
I take your point that by 2018, what I hear you to be arguing is that whatever the standard is, it was met.

[00:05:43] Speaker 01:
But in terms of trying to identify what the rule should be for these kinds of cases, this is an important issue.

[00:05:50] Speaker 01:
You know, there are times where a child struggles, even a child who's not disabled struggles, and we don't expect people to immediately file lawsuits.

[00:05:56] Speaker 01:
And I imagine that students who have some of the disabilities like this child did here have many days of struggles, and we don't want them to be thinking every day, do I need to file this lawsuit now?

[00:06:06] Speaker 01:
But at some point, your position would be, at some point, you're going to have to do that, short of getting a new diagnosis.

[00:06:12] Speaker 01:
So what would be the test you would advocate?

[00:06:15] Speaker 01:
I know you say inadequate education, but are there

[00:06:17] Speaker 01:
Modifiers you would put alongside that to help guide this in this case and future ones?

[00:06:23] Speaker 03:
Well, we can fall back to the definition of free appropriate public education and the cases that say when a student is denied access to a FAPE.

[00:06:33] Speaker 03:
that that would trigger or that would be a violation of the IDEA.

[00:06:38] Speaker 03:
So it would be the same type of standard that is, you know, I think it's Paradise Valley.

[00:06:45] Speaker 03:
I mean, there's a litany of cases all the way back that discuss the access to a FAPE.

[00:06:55] Speaker 03:
That would be the standard.

[00:06:56] Speaker 01:
meaning the education is so inadequate that it violates the statute.

[00:07:00] Speaker 03:
Yes.

[00:07:01] Speaker 01:
What about the tolling exceptions?

[00:07:05] Speaker 03:
The statute provides for two very specific tolling exceptions and the district court in this case relied on JR's expert's opinions, which is fine, but in order to support those conclusions the district court

[00:07:19] Speaker 03:
relied primarily on the 2015 and 2018 psychoeducational reports and the VUSD employees who prepared those and who testified at hearing.

[00:07:29] Speaker 03:
As the 2015 report prepared by Katie Bailey, the district court found that she did not provide parents with a diagnostic considerations page from the BASC 2.

[00:07:39] Speaker 03:
That is not a statutorily required document.

[00:07:43] Speaker 03:
Even JR's own expert did not testify that that document should have been provided to parent, much less that it must have been provided to parent.

[00:07:51] Speaker 03:
There is no evidence as to what information on that document was necessary for parent to know to file a due process complaint.

[00:08:00] Speaker 03:
So the court just chose this random document and said this needed to be provided to parents.

[00:08:10] Speaker 03:
The court also said that Katie Bailey's report was inadequate and that it said simply that JR sometimes behaves in ways that appear strange.

[00:08:20] Speaker 03:
It says that in that multi-page, very comprehensive report, but it's not attributed to data or assessments or Ms.

[00:08:27] Speaker 03:
Bailey's conclusions.

[00:08:28] Speaker 03:
It's attributed to one of JR's teachers who told her that.

[00:08:32] Speaker 03:
And yet the district court relied on this to find that either a misrepresentation or that statutorily required

[00:08:39] Speaker 03:
information was not provided to parents.

[00:08:42] Speaker 01:
In the 2018 assessment... So was there any statutorily required information that was not provided?

[00:08:47] Speaker 03:
No.

[00:08:49] Speaker 03:
And the district court acknowledged that.

[00:08:51] Speaker 03:
In its decision, the district court said, well, that may be true, but there's information that parents would want to have, basically.

[00:08:59] Speaker 03:
And that's, you know, the IDEA says the statutorily provided information.

[00:09:04] Speaker 03:
There's statutorily required information.

[00:09:06] Speaker 01:
What about the 2018 statement that JR does not appear to meet the eligibility criteria for autism?

[00:09:13] Speaker 03:
That is a great point.

[00:09:18] Speaker 03:
Jenna Woodruff in the 2018 report very clearly laid out why she considered autism and why she did not suspect autism.

[00:09:26] Speaker 03:
And the district court seems to have replaced the word suspected autism

[00:09:31] Speaker 03:
with a standard of considered autism.

[00:09:34] Speaker 03:
And that is not in the code.

[00:09:36] Speaker 03:
It's not consistent with definitions of language.

[00:09:38] Speaker 03:
There's a big difference between consideration of something and a suspicion of something.

[00:09:44] Speaker 03:
And any professional would have to consider a broad array of diagnoses or of disabilities before they narrow down to those that are suspected and finally come to conclusions.

[00:09:58] Speaker 03:
And yet the district court

[00:10:01] Speaker 03:
used the consideration of and appears to have used that as a suspicion of which it simply was not and she explained why she did not suspect it and why she considered it.

[00:10:13] Speaker 01:
So it was not a specific misrepresentation that the school district had resolved the problem forming the basis of the complaint because why?

[00:10:22] Speaker 03:
That's a great question because there's absolutely no evidence anywhere.

[00:10:28] Speaker 03:
that anybody represented that JR had been assessed for autism.

[00:10:31] Speaker 03:
No one believed he had been assessed for autism.

[00:10:34] Speaker 03:
Mom didn't even testify that anybody told her he had been assessed for autism.

[00:10:39] Speaker 03:
So where the district court got that conclusion is almost impossible to know.

[00:10:43] Speaker 03:
There's simply not in the record anywhere.

[00:10:47] Speaker 01:
What if, it seems reading between the lines that maybe the district court believed that that statement was just a reckless statement that the district had to have had a suspicion that he had autism and it was it was reckless to tell the parents that he doesn't meet the eligibility criteria when they had not done a sufficient investigation.

[00:11:07] Speaker 01:
I'm kind of paraphrasing but I think that's kind of what the district court judge was trying to get at.

[00:11:13] Speaker 03:
District Court used the term Woodruff summarily concluded he did not meet the criteria for autism.

[00:11:20] Speaker 03:
There is nothing summarily about Jana Woodruff's 2018 psycho-ed assessment report.

[00:11:26] Speaker 03:
She goes into great detail.

[00:11:28] Speaker 03:
She lays out every assessment that was given.

[00:11:30] Speaker 03:
She lays out in great detail why she considered autism, lays out in great detail why she didn't suspect autism.

[00:11:39] Speaker 03:
There's nothing reckless.

[00:11:43] Speaker 03:
about that the district court may have disagreed with her but she explains why she considered it and why she did not suspect it.

[00:11:52] Speaker 03:
And nobody else suspected the term reckless or a finding of reckless as to a suspicion is simply not supported anywhere in the record.

[00:12:02] Speaker 03:
JR was assessed by several individuals over the many years he attended school in the district.

[00:12:08] Speaker 03:
He was taught by even more individuals over those many years.

[00:12:11] Speaker 03:
And he was provided services and supports by even more individuals over those many years.

[00:12:17] Speaker 03:
Not one of those individuals suspected autism.

[00:12:21] Speaker 01:
Is it disputed though that today that it's agreed he has autism or you dispute that?

[00:12:26] Speaker 03:
He was found eligible under at his new school in Texas.

[00:12:32] Speaker 03:
He was found eligible in 2021.

[00:12:36] Speaker 03:
I don't think that that was ever argued or disputed and I don't think there's adequate.

[00:12:41] Speaker 03:
I think that's in the record.

[00:12:44] Speaker 00:
It's not.

[00:12:45] Speaker 00:
The very first, Ms.

[00:12:46] Speaker 00:
Thurman, the very first reference to autism is in the 2018 report, correct?

[00:12:51] Speaker 03:
Correct.

[00:12:52] Speaker 00:
And so would a reasonably diligent parent challenge that in terms of having then retaining an expert at that point in time?

[00:13:00] Speaker 03:
Not only would a reasonably diligent parent have challenged that, but this parent did retain an expert to privately assess JR.

[00:13:08] Speaker 03:
And that expert did not suspect autism either.

[00:13:11] Speaker 00:
Ultimately, in 2021, an expert did suspect autism at that point in time.

[00:13:16] Speaker 03:
That's correct.

[00:13:17] Speaker 04:
A different expert.

[00:13:18] Speaker 00:
A different expert.

[00:13:19] Speaker 04:
Diagnosed shopping.

[00:13:20] Speaker 04:
In 2018, I know the expert that the parent hired did not suspect autism, but did that expert test him for autism, apply the test that would have uncovered that condition?

[00:13:32] Speaker 03:
I don't know what test that expert

[00:13:35] Speaker 03:
assessed him for, he was not assessed for autism because no one suspected autism.

[00:13:42] Speaker 03:
Had that expert on the data on his evaluations and based on JR's experts' opinions and conclusions, the data they had based on other assessments should have led them to assess for autism.

[00:13:56] Speaker 03:
So that expert or that psychologist did assess him.

[00:14:00] Speaker 04:
never mentioned autism, never suspected he should be assessed for autism, so whether he did or not... Right, no, I know that was the result, but it wasn't clear to me from the record whether he was actually tested for that condition and then the expert concluded that he wasn't artistic or whether he just wasn't tested for it at all.

[00:14:20] Speaker 03:
I think the record would be, as the district court made clear, that

[00:14:25] Speaker 03:
Parents had all this huge body of information and facts except for the diagnosis of autism.

[00:14:32] Speaker 03:
So the conclusion probably is that nobody said pay test for autism or we think he has autism because the district court several times noted, you know, well, even though parents knew this, that, and the other thing, knew everything, they did not know autism.

[00:14:51] Speaker 01:
What's the status of this matter in terms of the funding of the trust?

[00:14:56] Speaker 01:
So I understand there is an order to fund the trust.

[00:14:59] Speaker 01:
Has your client paid into the trust?

[00:15:01] Speaker 03:
No, and that's the subject of the second appeal, the appeal of the July 30th order.

[00:15:06] Speaker 03:
The propriety of a special needs trust for the deposit of compensatory education funds and disbursement of those funds is a great issue.

[00:15:17] Speaker 03:
It's new.

[00:15:18] Speaker 03:
It's really interesting.

[00:15:19] Speaker 03:
There's not a lot of case law in that, but the case law that is out there, coupled with the difficulty the parties in this case had coming up with a document that satisfied or met the requirements of

[00:15:34] Speaker 03:
special needs trust and the IDEA and also applied with the court's order would certainly dictate in favor of a finding that it's not a proper vehicle for the disbursement, for the deposit and disbursement.

[00:15:47] Speaker 01:
You're saying a trust can never be used?

[00:15:49] Speaker 03:
Not a special needs trust, not a special needs trust which has its own requirements and restrictions is not, would not be the proper vehicle.

[00:15:59] Speaker 01:
What would be the proper vehicle?

[00:16:02] Speaker 03:
Blocked account in a bank,

[00:16:04] Speaker 03:
a simple compensatory education trust or compensatory education fund.

[00:16:09] Speaker 03:
There's any number, but what became clear when we got the document was the requirements of the special needs trust.

[00:16:17] Speaker 03:
JR's attorney very specifically in all capital letters said there can be no limitations on the trustee's discretion in dispersing funds.

[00:16:30] Speaker 03:
And yet this is compensatory education funds under the IDEA.

[00:16:33] Speaker 03:
They have to be used for what the court ordered specifically.

[00:16:37] Speaker 03:
You can't just say, here's a bunch of money, disperse it for his needs.

[00:16:42] Speaker 03:
And that's at the heart of the issue.

[00:16:45] Speaker 04:
So one has been created, but just hasn't been funded.

[00:16:48] Speaker 04:
And I know you've preserved your objections to that.

[00:16:50] Speaker 03:
Yes, we have.

[00:16:51] Speaker 03:
One's been created, but it has not been funded.

[00:16:56] Speaker 03:
Did you want to save the remainder of your time?

[00:16:57] Speaker 04:
I do.

[00:16:58] Speaker 03:
Thank you.

[00:17:13] Speaker 02:
Good morning, Your Honors.

[00:17:14] Speaker 02:
May it please the court, Andrea Marcus for JR.

[00:17:16] Speaker 02:
I would like to say that I guess what I'd like to do first is just address some of the things my friend from the other side just mentioned and then open it right up for questions.

[00:17:33] Speaker 02:
I would like to say that this case is really about known or should have known initially and then we get to the exceptions.

[00:17:41] Speaker 02:
The primary exception applying here is

[00:17:43] Speaker 02:
misrepresentations that the issue had been resolved.

[00:17:49] Speaker 02:
In this case, that JR had been assessed in all areas of suspected disability and specifically for autism.

[00:17:56] Speaker 02:
and that in deciding this case, the district court created an incredibly robust record of his findings.

[00:18:08] Speaker 02:
They were primarily based on the findings by the ALJ.

[00:18:11] Speaker 02:
He did not reverse any credibility findings, but he addressed some of the factual underpinnings of the findings of known or should have known and misrepresentations that the ALJ did not address, and those include

[00:18:26] Speaker 02:
that the BASC scores specifically said that autism was likely or even very likely in some of the testing measures used by the school district.

[00:18:39] Speaker 00:
In 2018?

[00:18:41] Speaker 02:
No, throughout, beginning in 2012.

[00:18:45] Speaker 02:
And in fact, the BASC was given in 2012, 2015, 2018, and then again.

[00:18:50] Speaker 01:
But what does this go to?

[00:18:52] Speaker 01:
To the misrepresentation?

[00:18:54] Speaker 01:
How does this affect the new or should have known?

[00:18:56] Speaker 02:
Well, it affects the new or should have known because this court has recognized since Amanda Jay in 2001 that a parent can't meaningfully participate in educational decision-makings or even an IEP without being fully informed about autism.

[00:19:13] Speaker 02:
Now, how can we decide that and then correspondingly decide that they should know or should have known that they disagreed

[00:19:21] Speaker 02:
with the IEP based on the knowledge that they didn't have, to the point where they should then bring action.

[00:19:27] Speaker 01:
The district court seemed to say that this really turned on when the parents received the diagnosis of autism and that essentially everything that had happened up to that point was not enough to meet the new or should have known standard.

[00:19:41] Speaker 01:
Do you think that should be the law?

[00:19:44] Speaker 02:
In this case, it should be, because in this case, there was no mention of autism, save the one assessment done by the school in 2018, where it was said it was ruled out, basically.

[00:20:00] Speaker 02:
In 2018, the school assessed, and the assessor, Ms.

[00:20:06] Speaker 02:
Woodward, gave extensive

[00:20:10] Speaker 02:
analysis of why she didn't Find autism and even cited to two assessments that she gave that didn't she conceded and Testimony didn't actually assess for what she said they did and and she didn't actually assess for autism you'd have to have a level of expertise that's very unreasonable to hold a parent to to know that not only

[00:20:33] Speaker 02:
had she not actually ruled out and assessed autism, given her extensive report.

[00:20:37] Speaker 04:
I think my struggle with this case is that in focusing so much on the parent's actual knowledge when they got the diagnosis of autism in 2021, I think the district court seems have gutted the should have known portion of the test, right?

[00:20:54] Speaker 04:
Because no one had suspected autism and even the expert hired by

[00:21:00] Speaker 04:
the parents in 2018 didn't suspect autism.

[00:21:05] Speaker 04:
So how do we apply the should have known part in this particular case?

[00:21:09] Speaker 02:
Well, the should have known is, well, let me talk a little bit about that independent assessment that she saw in 2018.

[00:21:22] Speaker 02:
The mother was repeatedly told at each IEP that he was making progress.

[00:21:27] Speaker 02:
From the very beginning, VUSD established the level of progress to be expected to be quite low because he had a significant learning disability and speech impairment.

[00:21:36] Speaker 02:
It's also important to note that although behaviors that indicated autism symptoms were prevalent throughout his records, he was never a behavior problem in the sense of being aggressive or disrespectful or anything.

[00:21:48] Speaker 02:
he had autistic behaviors and symptoms of autism.

[00:21:52] Speaker 02:
So going back to the assessment that was sought, the mother, the one thing that she was concerned about was the lack of reading.

[00:22:00] Speaker 02:
So she didn't have reason to disagree with the district's assessment.

[00:22:05] Speaker 02:
She sought a second opinion.

[00:22:06] Speaker 02:
She went to an independent psychologist, not a school psychologist, who she asked to address his dyslexia and possible ADHD.

[00:22:14] Speaker 02:
That's all that assessor did.

[00:22:16] Speaker 02:
That assessor's not held to the same standard of suspecting a disability and therefore comprehensively assessing it that the school district is under Timothy O. Right, but I mean, the issue here is not what the school district should have suspected.

[00:22:30] Speaker 01:
It's whether the plaintiffs knew or should have known, right?

[00:22:36] Speaker 01:
So I mean, it seems that some of your argument is blurring

[00:22:39] Speaker 01:
the merits of an ultimate IDEA claim with the question here, which is, is this timely?

[00:22:45] Speaker 02:
Well, without the information that the parent would have gleaned had it been properly assessed, they were left in the dark, not only as the ALJ decided and the district court upheld for the purposes of participating in an IEP meeting, but for participating in an IEP that they would then disagree with.

[00:23:03] Speaker 01:
But doesn't the statute kind of give us the standards for that, right?

[00:23:06] Speaker 01:
It recognizes there's this possibility, but it's very specific.

[00:23:09] Speaker 01:
It talks about specific misrepresentations,

[00:23:12] Speaker 01:
or the withholding of information that you're statutorily required to provide.

[00:23:16] Speaker 01:
It's not a broader tolling rule.

[00:23:19] Speaker 02:
Right.

[00:23:19] Speaker 02:
But I'm talking about before we get to the exceptions.

[00:23:23] Speaker 02:
How can we decide that a parent doesn't have enough information to participate in an IEP meeting and, correspondingly, decide that they have enough information to file a complaint because they disagree with it?

[00:23:37] Speaker 04:
Well, we asked your opposing counsel what the rule should be, the principle that we need to enunciate to guide the district courts and the litigants in these sort of situations.

[00:23:49] Speaker 04:
And counsel said that the rule is when the facts are sufficient for the parent to realize that there's a failure to provide a free and appropriate education.

[00:24:00] Speaker 04:
So at that point,

[00:24:01] Speaker 04:
that's when the parents should have essentially filed a due process claim.

[00:24:05] Speaker 04:
Do you agree that that's the principle?

[00:24:08] Speaker 02:
Well, no.

[00:24:08] Speaker 02:
I would cite to the more recent Andrew F. Supreme Court case, which identified what a FAPE is, which is

[00:24:21] Speaker 02:
services and IEP reasonably calculated to provide educational benefit to the child given their circumstances.

[00:24:30] Speaker 04:
Right, so at the point that whatever a FAPE is depends on the needs of an individual child, but at a point where the parents with reasonable diligence realize

[00:24:41] Speaker 04:
that a fape is not being provided by the school district.

[00:24:45] Speaker 04:
Does the statute get triggered from that point on?

[00:24:48] Speaker 02:
Well, they have to understand the circumstances to know that a fape is not being provided.

[00:24:53] Speaker 02:
As I said, in this case, my client was repeatedly told that her

[00:24:58] Speaker 02:
son was making progress, even great progress, but that it was going to be slow given his disability.

[00:25:04] Speaker 02:
She didn't understand the circumstances that he had unidentified autism, that the symptoms were of autism.

[00:25:12] Speaker 01:
It seems that then the standard you would be advocating for would be the parents have to know of the correct diagnosis and the difficulty with that position in addition to running into the should have known part of the statute is that

[00:25:26] Speaker 01:
We have a case, including this one, where we're talking about years after the fact.

[00:25:31] Speaker 01:
We're talking about filing claim nine years.

[00:25:34] Speaker 01:
He's in high school.

[00:25:34] Speaker 01:
We're talking about his education in kindergarten.

[00:25:37] Speaker 01:
This is going to create a lot of difficulties for litigating a case like this if you can do that.

[00:25:42] Speaker 01:
Every time somebody gets a new diagnosis, it would essentially restart the clock.

[00:25:46] Speaker 02:
Well, no.

[00:25:47] Speaker 02:
All the school has to do is actually assess the child in all areas of suspected disability and do so comprehensively as the IDEA contemplates.

[00:25:55] Speaker 02:
Now, one thing that I did note in VUSD's briefing on this case, they claimed that it would be, you know,

[00:26:03] Speaker 02:
a huge burden to have to assess, to have had to assess in all possible areas of suspected disability.

[00:26:10] Speaker 02:
They actually promised to do that virtually in JR's case.

[00:26:13] Speaker 02:
In every assessment plan his mother signed, almost every possible area that to assess.

[00:26:19] Speaker 04:
Right, so test in every area of suspected disability.

[00:26:22] Speaker 04:
The problem is no one suspected autism.

[00:26:25] Speaker 02:
But under Timothy O, the district had a responsibility to assess given the symptoms.

[00:26:32] Speaker 02:
So they suspected, the mother did not.

[00:26:35] Speaker 02:
Under Timothy O, under these circumstances.

[00:26:38] Speaker 02:
You're saying on these facts the school district did in fact suspect autism but failed to test?

[00:26:43] Speaker 02:
According to the legal definition of suspicion, yes.

[00:26:48] Speaker 02:
Under Timothy O. I just have a couple of other quick

[00:26:55] Speaker 02:
Also that when an education is inadequate is actually qualified in each of the cases cited by the district to include cases just like this where there was additional knowledge.

[00:27:10] Speaker 02:
In Avila, for example, this court said even where there was a diagnosis that wasn't enough, sent it back to the district court and the district court said, well, wait, there were three and the family had the opportunity to discuss it with an IEP team.

[00:27:25] Speaker 02:
had, you know, if the family needs to have the opportunity to review this possible disability with the district, in this case, if the, by the way, there is no record

[00:27:45] Speaker 02:
And there's nothing in the record that shows that the 2018 consideration of autism was discussed in IEP.

[00:27:52] Speaker 02:
It was included in an assessment.

[00:27:59] Speaker 02:
But the, I'm sorry, let's see.

[00:28:03] Speaker 02:
Also, upon JR being diagnosed by the independent evaluator in 2021,

[00:28:15] Speaker 02:
JR's mother came to me with concerns about getting more literacy support.

[00:28:22] Speaker 02:
And I looked at the record, when I reviewed the records, I recommended that he be assessed for autism.

[00:28:27] Speaker 02:
This is the first time the mother ever suspected autism.

[00:28:31] Speaker 02:
But... Can I ask you about the tolling?

[00:28:35] Speaker 01:
So you mentioned at the beginning that

[00:28:37] Speaker 01:
that this party argument was more about the specific representation prong but just to start with the withholding of information prong are you arguing that that the school district withheld information that it was required to provide under the idea under the idea yes but what what what information where the statutory required to provide that they didn't

[00:29:01] Speaker 02:
They're statutorily required to provide assessment in all areas of suspected disability and then have... But I mean the statute sort of talks about withholding of information that

[00:29:13] Speaker 01:
Is there information that they had that you contend that they didn't, that they were required to provide to you under the statute?

[00:29:18] Speaker 01:
I understand your merits position that they should have suspected autism.

[00:29:22] Speaker 01:
The issue is that if that's always, that that would make the statute extend all the time.

[00:29:26] Speaker 01:
So I'm not sure that can be the test.

[00:29:28] Speaker 02:
Well, this court decided in Amanda Jay that where protocols that said suspected autism on them were not shared with the family and it prevented the family from seeking out assessment for autism.

[00:29:41] Speaker 02:
that was information that was required to be provided, and it wasn't, and it denied them a FAPE.

[00:29:46] Speaker 02:
And in fact, even the ALJ in this case decided that without assessment of autism and pragmatic speech, the mother was prevented from meaningfully participating in the IEPs, and that was the basis for denial of FAPE.

[00:30:04] Speaker 01:
How about the specific, I'm still not sure, I'm clear, by the way,

[00:30:08] Speaker 01:
I asked your opposing counsel this, was there information that was required to be provided under the statute that was not, and her answer was a flat no.

[00:30:14] Speaker 01:
And so I take it you disagree with it, but I'm trying to probe what is the basis for that disagreement.

[00:30:20] Speaker 02:
Well, we've never disagreed that they were provided the procedural guidelines or anything like that.

[00:30:25] Speaker 02:
It's that they were prevented from being informed through assessment.

[00:30:30] Speaker 02:
That's the basis of our withholding.

[00:30:31] Speaker 01:
Because the school district should have done more to assess.

[00:30:35] Speaker 02:
They should have assessed in all areas of suspected disability as they are required to do, and this court has defined suspected disability to include when there are symptoms of autism.

[00:30:44] Speaker 01:
Okay, so your claim is that their failure to do that work and then to give your client the results of that assessment was a withholding of information?

[00:30:53] Speaker 02:
Yes.

[00:30:54] Speaker 02:
But then misrepresentations are extensive.

[00:30:56] Speaker 02:
And that's one important distinction that's actually factual between the ALJ and the district court, which I believe is owed, you know, review for clear error.

[00:31:07] Speaker 02:
The ALJ did not decide, did not acknowledge the

[00:31:15] Speaker 02:
in her decision that the BASC scores actually indicated that autism was likely and that was concealed.

[00:31:24] Speaker 02:
She just found that the BASC scores were not required to be provided to the family.

[00:31:28] Speaker 02:
Then also the ALJ did not address in her decision the fact that with JR's first IEP staff were

[00:31:37] Speaker 02:
told not to share with his mother the significance of their concerns in 2012, which the district court just did address.

[00:31:46] Speaker 02:
The ALJ did not address the fact that in 2013, staff without telling JR's mother said that he should be referred to Tri-County's regional center, quote, ASAP.

[00:31:59] Speaker 02:
This was never shared with the mother.

[00:32:00] Speaker 02:
We received those records in preparation for hearing.

[00:32:04] Speaker 02:
There are also the

[00:32:06] Speaker 02:
uh... and

[00:32:14] Speaker 04:
I have to say I'm still struggling with the same question that Judge Breast asked you because there's two different exceptions, right?

[00:32:22] Speaker 04:
Misrepresentation and withholding of statutorily mandated disclosures and I'm not clear on what facts you're relying on with regard to the second exception.

[00:32:34] Speaker 04:
It seems to me from the briefing and the district court's analysis that's really the failure to explain the scores

[00:32:42] Speaker 04:
I don't see that requirement in the statute.

[00:32:45] Speaker 04:
Is that the basis of your claim for the statutory disclosure exception?

[00:32:53] Speaker 04:
That it's the failure to provide an explanation of the scores?

[00:32:58] Speaker 02:
I don't think that the failure to disclose is one of the stronger arguments, honestly, under the exceptions rule.

[00:33:11] Speaker 02:
I think that it does go to understanding that the mother had no reason to know, nor should she have known.

[00:33:17] Speaker 04:
Right, so it goes back to kind of the pre-exception analysis.

[00:33:20] Speaker 04:
I understand your argument there.

[00:33:22] Speaker 04:
I'm not sure, though, what documents

[00:33:25] Speaker 04:
the statute mandates that school district provide that really wasn't provided.

[00:33:30] Speaker 04:
So it doesn't seem like there's a basis for that exception.

[00:33:34] Speaker 02:
I think what the district court really got right and what is of most importance was the misrepresentation prong.

[00:33:43] Speaker 02:
They kept representing and even at the top of each assessment plan in 2012, 2015, 2018, or each assessment that was done, each triennial, it says we are assessing for eligibility

[00:33:57] Speaker 02:
And it cites to the Title 34 Code of Federal Regulation 300, which specifies that they are comprehensively assessing, which then also refers you specifically to the definition of autism eligibility.

[00:34:14] Speaker 02:
And the mother assigned the assessment plans, which said almost every possible area, usually it left out transition plans that aren't even applicable until he's older.

[00:34:27] Speaker 02:
So I don't know how a mother could know that he wasn't being assessed comprehensively in all areas.

[00:34:36] Speaker 00:
Well, that goes to the standard of new or should have known, but I'm not sure how, if that's a misrepresentation, that just blows a hole in the whole structural standard as to two years.

[00:34:45] Speaker 00:
I mean, there may just be reasonable disagreements on that, but does it rise to the level of misrepresentation as one of the exceptions?

[00:34:53] Speaker 02:
Absolutely in this case, because in this case the mother's claim was that they failed to assess in all areas of suspected disability.

[00:35:03] Speaker 02:
So when they claim to every three years and they don't, even though their own assessment measures tell them that they should, that's a misrepresentation for the facts of this case.

[00:35:17] Speaker 01:
But didn't she know that they or should have known that they had not assessed for autism?

[00:35:21] Speaker 01:
I mean, they never told her that they did assess for autism.

[00:35:24] Speaker 02:
Well, no, because the underlined symptoms of autism were checked off there.

[00:35:30] Speaker 02:
The social, emotional, developmental, and speech and language

[00:35:38] Speaker 02:
sections of the assessment plans, each of those were checked.

[00:35:41] Speaker 02:
The assessment plans don't list categories of eligibility.

[00:35:44] Speaker 02:
They list the symptoms of them.

[00:35:46] Speaker 02:
And in each of those assessment plans, all of those applying to autism were checked.

[00:35:54] Speaker 02:
So I think that the standard really needs to, as Judge Lynn mentioned beginning, address the unique facts of each case.

[00:36:09] Speaker 02:
And I think that Judge Vera did an excellent job of combing through an extensive decision by the ALJ and addressing each of those facts.

[00:36:19] Speaker 02:
What he did was he

[00:36:22] Speaker 02:
he decided some facts that the ALJ had left out.

[00:36:26] Speaker 02:
I do want to really, unless you have more questions about this, I want to address the trust just real briefly.

[00:36:32] Speaker 02:
All right.

[00:36:34] Speaker 02:
And that is simply that my friend on the other side took this comment, no limitations on the SPED funds can be

[00:36:48] Speaker 02:
can be made out of context.

[00:36:50] Speaker 02:
First of all, that was way back when we were first discussing how the trust could be made, and we were informed by the trust attorney that if there were limitations on the SPED funds, that he would lose access to public benefits in Texas.

[00:37:06] Speaker 02:
So that was that limited purpose of that.

[00:37:09] Speaker 02:
We now have a signed trust that the parties have consented to

[00:37:17] Speaker 02:
where it only applies for specific, it only provides funding.

[00:37:22] Speaker 02:
No money or funds go directly to JR or his family.

[00:37:26] Speaker 02:
It is specifically for four areas of compensatory education, ABA, speech and language, literacy and then the needed transportation to those services.

[00:37:40] Speaker 02:
It is only good for three years of services and any unused funds revert back to the school district.

[00:37:46] Speaker 01:
So this trust hasn't been funded yet?

[00:37:48] Speaker 02:
No, the district has been ordered to.

[00:37:52] Speaker 02:
They've repeatedly litigated to oppose that order that's been denied.

[00:37:59] Speaker 02:
They have been ordered to and they are frankly just ignoring the district court's order at this point.

[00:38:08] Speaker 01:
Well, that's why I was wondering, are the parties awaiting the outcome of this?

[00:38:11] Speaker 01:
And there is a stay motion pending.

[00:38:13] Speaker 02:
Well, VUSD appears to be, JR is not, JR is hoping that the district court's order and this court's order will be complied with so that he could start.

[00:38:25] Speaker 02:
And it's also important to note that the trust is only to be funded over three different years.

[00:38:34] Speaker 02:
So he could start.

[00:38:39] Speaker 02:
There's no windfall here.

[00:38:40] Speaker 02:
It's simply the education that he should have been provided all along.

[00:38:47] Speaker 02:
you know, the amount for the trust is a large amount.

[00:38:54] Speaker 02:
That is what these services cost, and there was no objection to the hourly rate that was established for each of those services below.

[00:39:09] Speaker 02:
Right.

[00:39:10] Speaker 02:
Thank you, Council.

[00:39:11] Speaker 04:
Thank you, Your Honors.

[00:39:19] Speaker 03:
Judge Bennett, I think, hit the nail on the head by kind of obliquely, but recognizing that if the district court's judgment is affirmed, it would require a substantial revision of the IDEA, as well as modifying, great modification of this court's precedent.

[00:39:39] Speaker 03:
If the question of newer should have known is of autism no doubt the statute did not begin to run nobody knew or suspected autism but if the standard is should have

[00:39:53] Speaker 03:
then there is nothing to support that VUSD should have.

[00:39:58] Speaker 03:
These people are not incompetent.

[00:39:59] Speaker 03:
Nobody suspected it.

[00:40:01] Speaker 03:
It's a standard, as this court has said, is the parent's knowledge of the facts.

[00:40:04] Speaker 03:
Those are undisputed.

[00:40:06] Speaker 03:
Parents clearly had knowledge of all the facts.

[00:40:09] Speaker 03:
An interesting thing that Ms.

[00:40:11] Speaker 03:
Marcus commented on, first, the BASC scores, both the district court and Ms.

[00:40:17] Speaker 03:
Marcus misstated what that diagnostic considerations page.

[00:40:21] Speaker 03:
It said that simply that JR's scores were relatively high compared to the general population for autism and for seven other diagnostic disabilities.

[00:40:35] Speaker 03:
It did not say it was likely or very likely or had a high probability of having autism.

[00:40:40] Speaker 03:
That is simply not what that one page said.

[00:40:42] Speaker 03:
Moreover, even JR's own expert did not say there was anything on that page that parents needed to know.

[00:40:49] Speaker 03:
But an interesting thing that

[00:40:53] Speaker 03:
Council mentioned is the court's recognition of some miscommunication back in kindergarten and that's it found at footnote 21 of the court's decision where the court relied on students exhibit four which was an assessment report multi pages a common assessment report not for autism intact at the end of that report are two typed pages to Kelly and Robin and in those type pages it complains about

[00:41:20] Speaker 03:
the district's failure to communicate with parents about a considered placement in special day class in kindergarten.

[00:41:27] Speaker 03:
And then there's typed Sharon.

[00:41:29] Speaker 03:
That document is not dated.

[00:41:32] Speaker 03:
There is no evidence taken on that document.

[00:41:34] Speaker 03:
None of those people, Sharon, Kelly, or Robin, none of them testified.

[00:41:38] Speaker 03:
The only evidence was mom said, no, I didn't get that document until 2020.

[00:41:44] Speaker 03:
So we don't know when that document was written, who, if anybody, it was given to, what, if anything, any of those people did with the document.

[00:41:53] Speaker 03:
And yet this district court took that unauthenticated document that utterly lacked foundation and had zero indicia of reliability.

[00:42:01] Speaker 03:
and took the matter stated therein, accepted as truth, the matter stated therein to find a higher level of center in its conclusions of misrepresentation.

[00:42:13] Speaker 03:
That's at best remiss in analysis.

[00:42:17] Speaker 01:
Going back to the 2015 BASC, this is what the district court said.

[00:42:23] Speaker 01:
According to that, JR's probability of autism was relatively high.

[00:42:28] Speaker 01:
However, Beeley wrote in her 2015 report that JR's scores only indicated that he sometimes behaves in ways that seem strange.

[00:42:36] Speaker 01:
This statement was objectively false and misleading.

[00:42:39] Speaker 01:
So can you explain why you think the district court was wrong on this?

[00:42:43] Speaker 03:
Yes, because the diagnostic considerations page says only that JR's scores are relatively high compared with the rest of the population for autistic disorder.

[00:42:53] Speaker 03:
and as well as seven other disorders.

[00:42:55] Speaker 03:
Moreover, Bailey did not attribute that document or any of her assessments or any of her conclusions.

[00:43:03] Speaker 03:
The statement that JR sometimes behaves in ways that seem strange, she attributed to one of JR's teachers who told her that.

[00:43:11] Speaker 03:
And she said, JR's teacher said he sometimes behaves in ways that seem strange.

[00:43:15] Speaker 03:
Her report is comprehensive.

[00:43:18] Speaker 03:
She addresses everything in great detail.

[00:43:21] Speaker 03:
and the district court took that one statement way out of context and attached it to a misstatement of the diagnostic considerations.

[00:43:34] Speaker 03:
So there's no more questions.

[00:43:35] Speaker 03:
I'll be done.

[00:43:36] Speaker 03:
Thank you, counsel.

[00:43:36] Speaker 04:
Thank you to both sides for your very helpful arguments this morning.

[00:43:40] Speaker 04:
The matter is submitted.