[00:00:04] Speaker 02:
Hello.

[00:00:06] Speaker 02:
May it please the court, I'm Charlotte Cassidy, and I'm appearing on behalf of JH and DH, the parents and guardians of PH.

[00:00:14] Speaker 02:
I would like to reserve five minutes for rebuttal.

[00:00:20] Speaker 02:
I have three primary points to make today.

[00:00:23] Speaker 02:
First, Judge Becker's decision met all the criteria for particular deference under this court's standard of review.

[00:00:30] Speaker 02:
Second, Judge Becker's credibility determinations underpin the rulings the federal court reversed.

[00:00:37] Speaker 02:
Third, ordering recruitment of reimbursement is inconsistent with congressional intent in IDEA.

[00:00:45] Speaker 02:
My first point needs little discussion.

[00:00:48] Speaker 02:
Even the district court acknowledged by words, not by actions, that Judge Becker's credibility determinations were due deference.

[00:00:58] Speaker 02:
As to my second point, that the federal court could not rule as she did and defer to the administrative court's credibility determinations, I turn first to the federal court's Rachel H. based reversal.

[00:01:12] Speaker 02:
The witnesses who Judge Becker found most credible, Drs.

[00:01:16] Speaker 02:
Osterling and Jones, CBC and Bans,

[00:01:19] Speaker 02:
all testified residential placement was necessary for PH to learn.

[00:01:25] Speaker 02:
Because this made residential placement the only appropriate placement for PH, Judge Becker did not need to further consider Rachel H. Factors, but de facto she did.

[00:01:39] Speaker 02:
Concerning PH's receipt of academic benefit in the school district's program, the first racial age factor, Dr. Jones testified after extensive review of past IEPs that PH had not made academic progress over many years.

[00:01:55] Speaker 02:
Dr. Osterling testified that lack of foundational learning skills drove PH's school refusal.

[00:02:02] Speaker 02:
As to PH's receipt of non-academic benefits from interacting with his peers,

[00:02:07] Speaker 02:
The effect of his presence and the effect of his presence on the teacher and other children in the classroom, the second and third Rachel H. factors, the federal court referred to PH interacting with other children, having two friends, and disrupting the class infrequently.

[00:02:23] Speaker 02:
However, extrinsic facts identified by the ALJ, such as ABC data, emails from the school district, etc., show pH's interactions with classmates consisted largely of assaulting them.

[00:02:37] Speaker 02:
Classroom disturbances were frequent and severe.

[00:02:41] Speaker 02:
pH assaulted teachers trying to teach, threw things around the classroom, and forced entire classrooms to be cleared by masturbating in front of his classmates.

[00:02:51] Speaker 02:
The fourth factor in Rachel H. is the cost to mainstream the student, not the cost of the private school, as the federal court mistakenly believed.

[00:03:02] Speaker 02:
Notwithstanding, Judge Becker asked many questions about the cost of PH's residential school and noted it was on the list of schools approved by the state of Washington for delivery of special education.

[00:03:14] Speaker 04:
Could I?

[00:03:15] Speaker 04:
Yes.

[00:03:15] Speaker 04:
As I understand your argument, even though the ALJ actually didn't, I don't think she cited

[00:03:22] Speaker 04:
Rachel H. in her decision.

[00:03:24] Speaker 04:
Your whole point is that if you look carefully at the record, everything that one would need to consider the Rachel H. factors is there.

[00:03:32] Speaker 02:
Yes, and also, Your Honor, to recap, you often don't see Rachel H. discussed in residential placement cases because the standard for residential placement is higher than for other kinds of educational placement.

[00:03:46] Speaker 02:
So you have to determine that it's necessary.

[00:03:49] Speaker 02:
And under IDEA, if a case is necessary... Rachel H. is a little bit different.

[00:03:56] Speaker 04:
rose in the context of more of a mainstreaming kind of issue.

[00:03:59] Speaker 02:
Yes, it does.

[00:04:00] Speaker 02:
And there is no mainstreaming issue between an appropriate and an inappropriate placement.

[00:04:06] Speaker 02:
It only comes up when you're looking at two appropriate placements.

[00:04:09] Speaker 02:
So if residential was appropriate and the school districts was not appropriate, then mainstreaming doesn't really come up as an issue.

[00:04:18] Speaker 04:
Could I direct you to a couple of other issues?

[00:04:22] Speaker 04:
Sure.

[00:04:22] Speaker 04:
Yeah.

[00:04:25] Speaker 04:
So the district court found the two factual findings by the ALJ were not supported by the evidence.

[00:04:38] Speaker 02:
Is that right?

[00:04:39] Speaker 02:
That's correct.

[00:04:40] Speaker 02:
What's your response to that?

[00:04:41] Speaker 02:
Yes.

[00:04:42] Speaker 02:
Well, one of her findings was that

[00:04:47] Speaker 02:
The ALJ believed that the district's forensic witness, Allison Brooks, had agreed that the BIP was not appropriate.

[00:04:57] Speaker 02:
And if you read it carefully, and this is discussed in my brief, the ALJ Becker clearly knew that Dr. Brooks, and said several times, thought the BIP was appropriate.

[00:05:08] Speaker 02:
What she said was in the situation that Dr. Brooks had described for a BIP to not be appropriate,

[00:05:17] Speaker 02:
which would be, you know, school districts, which would be the failure of the interim steps, and which would also be just a complete deterioration of behavior in the home.

[00:05:29] Speaker 02:
Judge Becker applied the criteria to, at Brooke's name, to her own factual findings.

[00:05:36] Speaker 02:
The second is, I mean, frankly, Judge Becker had more education, had expertise in educational matters,

[00:05:43] Speaker 02:
And the district court equated the dates on the document with the date that it was implemented and believed that Judge Becker believed that.

[00:05:57] Speaker 02:
And that's discussed in my case.

[00:05:59] Speaker 02:
And educational records bear different dates.

[00:06:02] Speaker 02:
I mean, it could be the date of the PWN or the date of implementation.

[00:06:06] Speaker 02:
There's one other Judge Piaz, I don't know if you remember all of them.

[00:06:09] Speaker 04:
So let's just say the date was, what was the date in April when it was?

[00:06:13] Speaker 02:
April was the date of the document implementation began on May 25th.

[00:06:18] Speaker 04:
So let me ask you this, why did the parents shortly after that move the child to the residential school?

[00:06:33] Speaker 02:
The short period of time, right?

[00:06:36] Speaker 02:
Well, it was a short period of time that the BIP was failing.

[00:06:41] Speaker 02:
But it was not a short period of time in which the BIPs, the provisions, the targets of the BIP.

[00:06:49] Speaker 04:
You mean the BIP.

[00:06:51] Speaker 04:
You have your own lingo.

[00:06:53] Speaker 02:
Yeah, the BIP.

[00:06:55] Speaker 02:
Behavior Intervention Plan.

[00:06:58] Speaker 02:
But in terms of the components of the BIP,

[00:07:02] Speaker 02:
Those had been trialed.

[00:07:04] Speaker 02:
I mean, Dr. Osterling and Dr. Jones, who Judge Becker found more credible, both testified that, and it sort of makes sense practically, that the aggressive behavior supported the school refusal.

[00:07:25] Speaker 02:
And those had been trialed throughout the fourth grade year, the exact same one, physical escalation.

[00:07:30] Speaker 02:
And they had been trialing

[00:07:32] Speaker 02:
BIPs for years trying to target physical aggression by pH.

[00:07:37] Speaker 02:
I mean, you know, Montessori School had to have an aid because of, or not Montessori School, pardon me, preschool, because of, you know, behaviors.

[00:07:48] Speaker 02:
Also,

[00:07:50] Speaker 02:
I think that both Dr. Osterling and Dr. Jones emphasized that a BIP is based on a functional behavioral analysis or FBA, and essentially that

[00:08:06] Speaker 02:
They both felt that the district did not go far enough back to understand all the interventions that had been trialed or that had been used unsuccessfully with pH.

[00:08:19] Speaker 02:
So for example, you know, he, you know, the one in question, the BIP in question had been in operation one element since the beginning of the year, the physical aggression, another, you know,

[00:08:36] Speaker 02:
in effect at a later point.

[00:08:40] Speaker 02:
But the point is that the school district only looked at one year of data.

[00:08:44] Speaker 02:
They only looked at the fourth grade.

[00:08:46] Speaker 02:
This student had behavior issues for years, and that's discussed in my brief.

[00:08:53] Speaker 02:
Another issue is

[00:08:57] Speaker 02:
Christopher Jones, who again Becker found credible, testified that the strategies in the bill had also been in place for a long time.

[00:09:08] Speaker 02:
In other words, they started sending Graydon Agar, who was not

[00:09:12] Speaker 02:
I'm not great.

[00:09:13] Speaker 02:
Sorry.

[00:09:13] Speaker 02:
Sorry.

[00:09:14] Speaker 02:
They started sending Darien Higgins, who was not a BT.

[00:09:17] Speaker 02:
I mean, you know, but they started sending him to the home right after the March IEP meeting.

[00:09:23] Speaker 02:
And so it was really in effect for a long time.

[00:09:28] Speaker 01:
Let me ask you this in that respect.

[00:09:31] Speaker 01:
Why was not, or maybe you don't know, but can you give me any ideas as to why Rachel H. was not discussed by the ALJ?

[00:09:38] Speaker 01:
The ALJ was a very careful business.

[00:09:41] Speaker 01:
It surprised me that Rachel H. was not mentioned.

[00:09:45] Speaker 01:
Was Rachel H. not argued to the ALJ?

[00:09:49] Speaker 02:
Your Honor, I'm trying to recall about that, but it may not have been... Well, it was argued in the sense that we argued that residential was the least... No, no, no.

[00:10:00] Speaker 01:
I mean Rachel H. by name.

[00:10:02] Speaker 01:
Was Rachel H. by name argued to the ALJ?

[00:10:06] Speaker 02:
I hate to say I can't answer that question, Your Honor, but I really cannot.

[00:10:10] Speaker 01:
I think... Were you participating in those prior proceedings?

[00:10:15] Speaker 02:
I was, Your Honor, I briefed to them.

[00:10:17] Speaker 02:
But I mean a long time ago.

[00:10:19] Speaker 01:
Yes.

[00:10:20] Speaker 01:
Because it surprised me that if it had been briefed that the ALJ, who appears to be very careful, very capable, didn't even mention it.

[00:10:27] Speaker 02:
Well, I can answer that, Your Honor.

[00:10:29] Speaker 02:
Again, I cannot emphasize enough.

[00:10:33] Speaker 02:
Well, first of all, in my brief, I did lay out how she basically went through

[00:10:37] Speaker 02:
the process involved in Rachel H. No, I totally get that.

[00:10:42] Speaker 02:
But also, Your Honor, again, I cannot emphasize enough that once you decide that one placement is appropriate, in other words, it will meet the kids' needs educationally, and another placement, in this case the school district's

[00:10:58] Speaker 02:
Placement and placement is a term of art their program their placement once you determine that you don't really have to look at whether or not the school district's Program is the least restrictive environment because it doesn't matter it I don't need to hear all that I was just wondering if it had been argued previously to the ALJ and you you're not sure okay, so

[00:11:23] Speaker 01:
Well, I believe it was argued... By name is what my was my question.

[00:11:26] Speaker 01:
By name, no.

[00:11:27] Speaker 01:
That's my question.

[00:11:28] Speaker 01:
By name, no.

[00:11:28] Speaker 03:
Any objections to just remanded to the ALJ for this type of more formal consideration of the Rachel H. Fackers?

[00:11:36] Speaker 02:
We have no objection to remanding it to the administrative court.

[00:11:39] Speaker 01:
Is there any need meaning... The factual findings are here.

[00:11:43] Speaker 01:
I don't think she's going to tell us anything that we don't already know in terms of what happened.

[00:11:47] Speaker 02:
I agree, Judge Fletcher, and I'll also add that I did cite one or two cases that talked about how a court is not even required to specifically reference Rachel H., as long as the factors are considered.

[00:12:03] Speaker 01:
I will also say that I think our review of the legal conclusions of the ALJ are de novo.

[00:12:11] Speaker 01:
Meaning, so if the application of Rachel H. is the issue, that's a legal issue.

[00:12:16] Speaker 01:
We can do that de novo.

[00:12:19] Speaker 01:
I don't think we need to send it back so that we then defer or not defer.

[00:12:23] Speaker 03:
Yes.

[00:12:24] Speaker 03:
Thank you.

[00:12:25] Speaker 03:
Do you want to reserve the rest of your time?

[00:12:27] Speaker 02:
How much time do I have left?

[00:12:29] Speaker 03:
You have two minutes and 40 seconds.

[00:12:31] Speaker 03:
Okay.

[00:12:33] Speaker 03:
Let me hang on a minute, Your Honor.

[00:12:42] Speaker 02:
I cannot remember, Judge Bumate, is 2 minutes 27 seconds the time for my 10 minutes or is it?

[00:12:51] Speaker 02:
You have 10 minutes total which includes your rebuttal time.

[00:12:53] Speaker 02:
Let me stop asking you questions about the clock.

[00:12:59] Speaker 02:
Also, as I said, you've actually covered a lot of... Your questions have covered a lot of what I wanted to talk about.

[00:13:07] Speaker 02:
I would just say as to my... This is eating into your rebuttal time.

[00:13:10] Speaker 03:
I don't know if you understand.

[00:13:12] Speaker 03:
That's eating into my rebuttal time.

[00:13:13] Speaker 03:
Yes.

[00:13:14] Speaker 03:
You have 10 minutes total, including your rebuttal.

[00:13:16] Speaker 02:
Okay.

[00:13:16] Speaker 02:
I will skip it then.

[00:13:18] Speaker 02:
Thank you, Judge, for your time.

[00:13:18] Speaker 02:
Thank you.

[00:13:36] Speaker 00:
Good morning, Your Honors.

[00:13:37] Speaker 00:
May it please the court, my name is Sam Schalfont, here on behalf of Seattle Public Schools.

[00:13:42] Speaker 00:
I'd like to begin by addressing the central issue in this case, which is whether the school district's response to the students' school refusal in the spring of 2022 was appropriate under the IDA.

[00:13:53] Speaker 00:
And I think that the most critical point to beginning that analysis is recognizing the limited time frame that was involved.

[00:14:00] Speaker 00:
The student first began refusing to attend school in March, and the school year ended in mid-June.

[00:14:07] Speaker 00:
So we're talking about a three and a half month period of time that's at issue.

[00:14:11] Speaker 00:
During that compressed time frame, the record shows that the district promptly responded to the students.

[00:14:16] Speaker 01:
Talking when the student was in fourth grade or third grade.

[00:14:19] Speaker 00:
This is the spring of 2022, so I believe that is fourth grade.

[00:14:24] Speaker 01:
So you're talking about the very end of the time that he was in Seattle Public Schools?

[00:14:28] Speaker 00:
That's correct.

[00:14:29] Speaker 00:
That's correct.

[00:14:30] Speaker 00:
So upon learning that the student was refusing to attend school in March of 2022, the district promptly held an IEP team meeting.

[00:14:39] Speaker 00:
At that meeting, the team offered parents immediate interventions to address the school refusal behavior, which included offering to conduct a functional behavior assessment,

[00:14:48] Speaker 00:
and to conduct or to develop a behavior intervention plan.

[00:14:53] Speaker 04:
At that point... Well, just to... I mean, those are fancy words, but practically, what did that mean?

[00:14:58] Speaker 00:
Yeah, that is the best way under the IDA to address a behavior.

[00:15:04] Speaker 00:
In this case, a behavior of school refusal.

[00:15:07] Speaker 00:
And so the process of an FBA, which is an evaluation under the IDA, is to

[00:15:12] Speaker 00:
have the opportunity to observe the behavior, to apply different standardized tests to understand the behavior.

[00:15:19] Speaker 00:
And in this case, it ultimately included interviewing the parents to also understand and have input.

[00:15:24] Speaker 00:
And that's critically important when we're talking about behavior that's occurring in the student's home, as the record indicates.

[00:15:31] Speaker 04:
Had the parents ever brought that to the school district's attention?

[00:15:36] Speaker 00:
I'm sorry, brought what?

[00:15:37] Speaker 04:
They brought the school refusal problem

[00:15:40] Speaker 04:
The parents notified the school.

[00:15:42] Speaker 04:
Did they bring it to the school's attention?

[00:15:44] Speaker 00:
The parents notified the school district, I believe on March 2nd of 2022.

[00:15:47] Speaker 04:
They just discovered that he was having refusal issues.

[00:15:51] Speaker 00:
That was the first day that the student refused to attend school.

[00:15:55] Speaker 00:
If you may recall from the record, in the fall of that school year, around November and December of 2021,

[00:16:03] Speaker 00:
There were three or four days where the student chose not to get on the bus.

[00:16:08] Speaker 00:
The parent informed the teacher of that, but she theorized the student didn't want to get on the bus because he wanted to ride in a carpool with his older brother, and so she did that.

[00:16:18] Speaker 00:
So the teacher was not aware at that time that it was a school refusal behavior.

[00:16:22] Speaker 00:
And so upon learning of the actual school refusal in March, the team came together immediately, offered these interventions, and at that point the parents declined those interventions.

[00:16:32] Speaker 01:
So what do you, the ALJ found, I'm just reading from ER 72, the BIP did not contain any interventions that the parents and their private therapists had not already implemented.

[00:16:44] Speaker 01:
In other words, according to the ALJ, nothing new here in terms of what's being proposed as a treatment or a response.

[00:16:51] Speaker 01:
How do you respond to that statement?

[00:16:54] Speaker 00:
The ALJ is incorrect in multiple ways.

[00:16:56] Speaker 00:
The parents argued

[00:16:58] Speaker 00:
Uh, that the student had that the behavior interventions has already been applied through Chrissy behavioral consulting, which as you will recall from the brief Chrissy behavioral consulting only served 10% of the actual jargon.

[00:17:12] Speaker 01:
What are you talking about?

[00:17:13] Speaker 00:
What kind of consulting is this?

[00:17:15] Speaker 00:
Thank you.

[00:17:15] Speaker 00:
In the fall of 2021, the student had an outside ABA provider that parents were utilized named Chrissy behavioral consulting.

[00:17:23] Speaker 00:
That intervention group... Well, actually, that was the name of the... That's correct.

[00:17:27] Speaker 00:
That group, as the record shows, completely failed to serve the student, and so the reliance by the parents on that service is not applicable because they only provided 10% of the overall services that were required.

[00:17:43] Speaker 00:
The other component that's really important to recognize is that the two BIPs at issue are very distinct.

[00:17:49] Speaker 00:
We had a behavior intervention plan that addresses the

[00:17:53] Speaker 00:
students' assaultive or aggressive behavior, that was designed to sustain appropriate behavior over time through different reinforcements.

[00:18:03] Speaker 04:
In contrast... And when was that BIP, I don't know what's the correct word to use, adopted or implemented?

[00:18:10] Speaker 00:
That BIP was adopted and implemented beginning in October of 2021.

[00:18:16] Speaker 00:
And that again was focusing on trying to reduce the frequency of students' aggressive behavior in the classroom.

[00:18:21] Speaker 04:
Now, was that BIP

[00:18:23] Speaker 04:
adopted in connection with an IEP?

[00:18:28] Speaker 00:
By Washington law, any BIP is automatically part of the IEP.

[00:18:33] Speaker 04:
Well, I understand that, but my question is when was it adopted in relation to the IEP at the same time or in steps?

[00:18:44] Speaker 00:
I think, sorry, I spoke over you and I think I missed part of your question, but there was an IEP already in place that was running in October of 2021.

[00:18:51] Speaker 00:
Then the team completed an FBA and developed that BIP and adopted that BIP in October of 2021.

[00:18:58] Speaker 04:
And that became part of the IEP?

[00:19:01] Speaker 04:
Correct.

[00:19:01] Speaker 04:
Okay.

[00:19:02] Speaker 00:
And then there was that IEP continued.

[00:19:05] Speaker 00:
And as the record shows, it was modified again in May of 2025.

[00:19:13] Speaker 00:
So the sorry, 2022.

[00:19:14] Speaker 03:
Yeah, the LJ found that bit to be inappropriate.

[00:19:17] Speaker 03:
not sufficient, correct?

[00:19:20] Speaker 03:
And one of the arguments you're saying is that the ALJ should have focused on the IEP, but if it's automatically incorporated into the IEP, and if the BIP is inappropriate, why wouldn't that automatically make the IEP inappropriate?

[00:19:33] Speaker 00:
So our argument is twofold there.

[00:19:35] Speaker 00:
Our first argument is that the BIP was not inappropriate.

[00:19:39] Speaker 03:
But that's a high deference standard you have to overcome, I assume.

[00:19:43] Speaker 00:
Well, I believe, Judge, that is de novo standard, because that's a determination of law.

[00:19:49] Speaker 00:
And so the question is whether that BIP satisfied the IDEA.

[00:19:53] Speaker 00:
And as we've identified, the BIP

[00:19:55] Speaker 00:
agreed to by both parents expert Dr. Jones and the district's expert was evidence-based, utilized the appropriate standards of behavioral intervention, and met all standards applicable under the IDA.

[00:20:08] Speaker 00:
Okay.

[00:20:09] Speaker 03:
And so the district maintains... Assuming that we disagree and we think that the ALJ properly found the BIP inappropriate, then why doesn't that automatically prove the IEP inappropriate?

[00:20:19] Speaker 00:
Well, this becomes the second error that the ALJ made, which is that the ALJ found that the IEP was appropriate.

[00:20:27] Speaker 00:
And so she found the IEP was appropriate, yet the BIP was inappropriate.

[00:20:33] Speaker 00:
And those two things can't coexist.

[00:20:34] Speaker 03:
But temporarily, they were different times, right?

[00:20:36] Speaker 03:
So couldn't the IEP have been appropriate?

[00:20:39] Speaker 03:
It was earlier in that year, in that school year.

[00:20:41] Speaker 03:
I think right in the fall.

[00:20:44] Speaker 00:
The IEP is in place for the entire year.

[00:20:46] Speaker 00:
And so the IEP that was at issue at this stage of the ALJ's analysis was the March of 2022 IEP.

[00:20:55] Speaker 00:
She found that that IEP was appropriate.

[00:20:57] Speaker 00:
She found that the district did not violate the IDA in regard to that IEP.

[00:21:02] Speaker 00:
At the same time, she found that the bit, which by law is part of the IEP, was inappropriate.

[00:21:07] Speaker 00:
The district's position is that that is untenable.

[00:21:11] Speaker 00:
One of the key elements to recognizing that, that's not just a legal technicality, but the IEP provides the actual service minutes that implement the BIP.

[00:21:21] Speaker 00:
The BIP contains no service minutes.

[00:21:23] Speaker 00:
It doesn't assign staff to do anything.

[00:21:25] Speaker 00:
The ALJ found that that BIP was inappropriate because it was not applied in the mornings for a long enough duration.

[00:21:35] Speaker 00:
the time that the BIP was applied in the mornings was governed by the IEP, which she found appropriate.

[00:21:49] Speaker 00:
I agree there's tension in her decision, and that's why we believe it's legally incorrect.

[00:21:54] Speaker 00:
But again, I draw you back to, I think it's really critical to assess how she came to the conclusion that the BIP was inappropriate.

[00:22:01] Speaker 00:
And we believe the record simply doesn't support that.

[00:22:05] Speaker 04:
I want to make sure I understand one thing about the IEP.

[00:22:07] Speaker 04:
So the IEP identifies what the issues are with the child, and then it

[00:22:16] Speaker 04:
proposes educational achieve goals for achievement, correct?

[00:22:20] Speaker 04:
Correct.

[00:22:21] Speaker 04:
And then, if the child, I guess, has some sort of emotional or physical issue, they identify ways of dealing with that to ensure that the child receives the change or attainment of the education.

[00:22:36] Speaker 00:
Is that correct?

[00:22:37] Speaker 00:
Is that how it works?

[00:22:39] Speaker 00:
And that you're referring to the BIP?

[00:22:41] Speaker 00:
The BIP in the...

[00:22:43] Speaker 00:
So the IEP also includes behavioral components.

[00:22:49] Speaker 00:
So for instance, this student's IEP had specific goals around behavior.

[00:22:54] Speaker 00:
And so it addressed those.

[00:22:55] Speaker 00:
It allocated service minutes to address those.

[00:22:58] Speaker 00:
And as I mentioned, the IEP team specifically amended that IEP in March 24 to include service minutes dedicated towards addressing the student's school refusal.

[00:23:09] Speaker 00:
The BIP is designed to

[00:23:11] Speaker 04:
informed staff of the specific interventions they should use to achieve the goals.

[00:23:30] Speaker 00:
Yes, correct.

[00:23:31] Speaker 00:
That becomes part of the IEP.

[00:23:33] Speaker 04:
This is what I don't understand.

[00:23:36] Speaker 04:
If that's the case, why isn't the ALJ simply just saying this was so critical to the achievement of the educational goals that it's just inadequate?

[00:23:47] Speaker 04:
It doesn't do the trick.

[00:23:50] Speaker 00:
The ALJ could have ruled that, but she did not.

[00:23:53] Speaker 00:
That's essentially what she did.

[00:23:55] Speaker 00:
I respectfully disagree, because she... Let me ask you this.

[00:23:58] Speaker 04:
In our independent de novo review, could we conclude that?

[00:24:04] Speaker 00:
I think there is one potential problem on the technicality elements, and then there's a substantive problem.

[00:24:11] Speaker 00:
But on the technical application of the law, the ALJ concluded that the district's IEP did not deny FAPE.

[00:24:19] Speaker 00:
The parents never appealed that issue.

[00:24:21] Speaker 00:
The bigger piece, though, that I want to emphasize is that in order to reach that conclusion, you would have to determine that the BIP was inappropriate.

[00:24:28] Speaker 00:
And the district's position is that there is no evidence to support that.

[00:24:32] Speaker 00:
Both experts testified that that BIP was appropriate.

[00:24:35] Speaker 00:
It used best practices.

[00:24:36] Speaker 00:
Dr. Jones said he was impressed by it.

[00:24:39] Speaker 04:
Let me ask you this.

[00:24:39] Speaker 04:
Let's get back to what Judge Fletcher was talking about, which is our standard of review.

[00:24:47] Speaker 04:
When you look at, as I understand it, our review is de novo.

[00:24:52] Speaker 04:
But we can't just ignore what the ALJ did and hear the ALJ, and our caseload acknowledges this, you know, we're supposed to give it due regard, given the thoroughness and the completeness of the ALJ's decision.

[00:25:08] Speaker 04:
And, you know, I can't tell you that we see these cases all the time, but the ones that I do see,

[00:25:16] Speaker 04:
It's rare that you see an 85-page decision by the ALJ that's thorough following, what was this, a 10-day hearing?

[00:25:28] Speaker 00:
I believe nine.

[00:25:29] Speaker 04:
Nine-day hearing with experts on each side and the ALJ in a position to decide, you know, to take all this into consideration to come up with a conclusion.

[00:25:38] Speaker 04:
That's pretty, you don't see that a lot.

[00:25:43] Speaker 00:
I agree the decision was long, but that does not change that the ALJ made multiple factual errors and inappropriately applied the law.

[00:25:51] Speaker 00:
And that's the critical element here.

[00:25:53] Speaker 00:
that I want to just emphasize again on the BIP, the evidence showed that the student's attendance at school improved while the BIP was implemented during the brief period of time.

[00:26:02] Speaker 00:
In addition... Wait a minute.

[00:26:03] Speaker 01:
Improved in what sense?

[00:26:05] Speaker 01:
There were the four days when the student went to school.

[00:26:07] Speaker 01:
Otherwise, the student refused.

[00:26:09] Speaker 00:
That's correct.

[00:26:09] Speaker 01:
So we've got to... How long was that period of the implementation?

[00:26:12] Speaker 00:
It's only 16 days before the parents residentially placed the student.

[00:26:15] Speaker 01:
No, no, no.

[00:26:16] Speaker 01:
But the school year lasted longer than that.

[00:26:18] Speaker 00:
The school year did last longer than that.

[00:26:20] Speaker 00:
The student began refusing to attend school in March, but there was no BIP in place.

[00:26:25] Speaker 00:
There were no, contrary to what parents' argument just was, there were no interventions that were reasonably akin to the BIP that were occurring prior to it being implemented.

[00:26:33] Speaker 00:
As the record shows, the behavioral aid was only going to the outside of the house for all of March.

[00:26:39] Speaker 00:
Then the behavioral aid entered the house in April, but the student's room was in his basement and the IEP team made an informed decision that it was not safe

[00:26:48] Speaker 00:
or reasonable to send a behavior aid into the student's most personal space without having had an FBA to determine whether that would actually elicit more aggressive behavior from the student.

[00:26:59] Speaker 00:
I also want to just emphasize one other element of the BIP's appropriateness and the data that supports that.

[00:27:05] Speaker 03:
Before you get, is that, whether or not the BIP was working, is that a factual question that we have to defer to ALJ or is that something we could review de novo?

[00:27:14] Speaker 00:
I believe that's de novo review because you're determining as a matter of law

[00:27:18] Speaker 00:
whether the BIP is appropriate.

[00:27:21] Speaker 03:
Well, whether it worked or not seems a little different than whether or not it's appropriate, right?

[00:27:26] Speaker 03:
That seems more like a factual matter.

[00:27:28] Speaker 00:
I believe the factual matter is determining the actual facts around what was happening with the BIP.

[00:27:33] Speaker 00:
And those are in the record, right?

[00:27:35] Speaker 00:
So we have the actual data on the students in school, 12% going to 25% attendance rate.

[00:27:41] Speaker 00:
The other one, though, that I do encourage the court to review is the

[00:27:45] Speaker 00:
Data taken by the parents themselves, their self-report, that's in the record at ER 1403 through 1430.

[00:27:54] Speaker 00:
The parents took data prior to the BIPs implementation in May and then to the end of the school year.

[00:28:00] Speaker 00:
If you may recall from the record, the BIPs first goal was the student getting dressed before school.

[00:28:06] Speaker 00:
in those days prior to the BIP being implemented, he did that, I believe, on two out of 12 days.

[00:28:12] Speaker 00:
Once the BIP was implemented, he did it on 12 out of 16.

[00:28:16] Speaker 00:
And so as the record shows and as the experts testified, it is a slow behavioral shaping process where you're moving the student progressively towards school attendance.

[00:28:25] Speaker 00:
So his school attendance went up and his steps towards attending school also improved, and that's only in 16 days.

[00:28:32] Speaker 03:
I know that some of your objections are factual, but the legal ones all seem to be somewhat formalistic about whether or not she evaluated the IEP versus the BIP and whether or not all the Rachel H. factors.

[00:28:47] Speaker 03:
What would be your objection to just remand it to the ALJ so that it could be done more formal and compliance with the law?

[00:28:55] Speaker 00:
The district's objection to that would be that is what is on appeal is the district court's decision and the district court appropriately did all those things and reached the correct conclusion.

[00:29:05] Speaker 00:
And so I don't believe that it'd be appropriate to sidestep the district court's decision and send it back to the ALJ.

[00:29:11] Speaker 01:
What if we disagree with the district court's finding?

[00:29:15] Speaker 01:
For example, that sentence that the district judge relies on seems to me the district judge inappropriately relied upon.

[00:29:22] Speaker 01:
Can we direct the district court to send it back to the ALJ?

[00:29:26] Speaker 00:
I'm sorry, could you clarify which sentence?

[00:29:32] Speaker 01:
It was discussed in the previous argument.

[00:29:36] Speaker 00:
Are you talking about the testimony of Dr. Brooks?

[00:29:39] Speaker 01:
Yes, yes.

[00:29:40] Speaker 00:
Thank you.

[00:29:41] Speaker 00:
The district's position is that that was not inappropriately, that the district court correctly found that the ALJ inappropriately used Dr. Brooks' testimony to say that the bid was inappropriate.

[00:29:52] Speaker 01:
And so what if I disagree with the district judge, which I do?

[00:29:55] Speaker 01:
That is to say, what I'm asking is, should we be able to direct the district judge simply to send it to the ALJ?

[00:30:05] Speaker 01:
I understand your point that we have to send it back to the district court.

[00:30:08] Speaker 01:
I get that.

[00:30:09] Speaker 00:
I think you have the authority to do that.

[00:30:12] Speaker 00:
Thank you, counsel.

[00:30:19] Speaker 02:
First thing I want to say about this is there was conflicting testimony at hearing.

[00:30:24] Speaker 02:
Judge Becker saw the witnesses heard it and resolved those credibility determinations.

[00:30:30] Speaker 02:
And they don't need to be revisited now, but I am going to deal with some of these facts.

[00:30:35] Speaker 02:
First of all, the definition of school refusal by the expert that Allison Brooks relied on, a gentleman named Kearney, he defines, and it's in my brief, he defined school refusal much more broadly than when the student doesn't go to school.

[00:30:52] Speaker 02:
So did Dr. Jones, so did Dr. Osterling.

[00:30:55] Speaker 02:
In fact, in the fall and early winter of 21 and 22,

[00:31:01] Speaker 02:
The student was fighting with his parents to go to school about going to school.

[00:31:06] Speaker 02:
And for example, he assaulted his mother in the car when she was driving him to school and had to be taken to Children's Hospital.

[00:31:12] Speaker 02:
The experts said this counts as school refusal.

[00:31:15] Speaker 02:
And when you look at it that way, it goes a lot farther back.

[00:31:18] Speaker 02:
As far as the notification on March 2nd, where

[00:31:22] Speaker 02:
Mr. Chalfont said the parents started refusing, refused to accept interventions.

[00:31:27] Speaker 02:
Judge Becker specifically found that was not true.

[00:31:30] Speaker 02:
In fact, their own staff admitted about that IEP meeting that the parents did not reject it.

[00:31:38] Speaker 02:
Phyllis Campano said it was an auto, this classroom teacher on auto population on the IEP.

[00:31:45] Speaker 02:
So they did not decline interventions.

[00:31:51] Speaker 02:
I should also just mention that the judge did find that the IEP was inappropriate.

[00:31:55] Speaker 02:
She found it was inappropriate as of the end of the school year.

[00:32:01] Speaker 02:
Under IDEA's reimbursement notification statute, and the side is in my brief, that is the test for whether reimbursement is awarded.

[00:32:13] Speaker 02:
And if a school district's IEP is inappropriate as of the time the student leaves the school district, then it is a denial of faith if they give notification.

[00:32:28] Speaker 02:
And these parents gave notification

[00:32:30] Speaker 02:
Two times, the district had 10 days to try to correct its program.

[00:32:35] Speaker 02:
That's the policy.

[00:32:36] Speaker 02:
And it did not do that.

[00:32:37] Speaker 02:
You have to ask yourself, why did it not offer an IEP?

[00:32:41] Speaker 02:
Why did it not implement an IEP until May 28?

[00:32:44] Speaker 02:
Why did it not, even the so-called supervisor, and their ABA program was completely out of compliance with Washington regulations.

[00:32:55] Speaker 02:
But you have to ask yourself, why did Kevin Bascom,

[00:32:58] Speaker 02:
of Brooks Powers not even show up to observe the student until May 28th, or May 25th, the day they claimed the IEP was implemented.

[00:33:11] Speaker 02:
That was the first day he was even there to observe the student, and he was supposed to be their big guy on the ground developing this program.

[00:33:32] Speaker 02:
Again, I would just say, Your Honor, as one final point, that they mentioned that CB's staff could not keep him safe.

[00:33:47] Speaker 02:
I want to point out that CB staff, or they didn't work with him very long, CB staff couldn't deliver the minutes.

[00:33:54] Speaker 02:
They testified to this because he was so violent that it required such a high level of supervisory staff that it was taking up all the time of the person who owned CBC and that, in fact, she was worried about her staff getting hurt.

[00:34:12] Speaker 02:
That and you have to ask yourself the district's program did not even include So counsel you're two minutes over your time, but so if you want to wrap up.

[00:34:25] Speaker 02:
I did that's in negative time very well Thank you your honor.

[00:34:30] Speaker 02:
I appreciate your time on all of this.

[00:34:32] Speaker 03:
Thank you counsel.

[00:34:33] Speaker 03:
Thank you both this case is submitted and