[00:00:00] Speaker 00:
But this case Mata Yanez versus Bondi will be submitted.

[00:00:06] Speaker 00:
And we've previously submitted the case of Anthony Ray Lopez versus the city of Ontario.

[00:00:17] Speaker 00:
So we will take up LB versus San Diego Unified School District.

[00:00:49] Speaker 00:
Who's representing?

[00:00:52] Speaker 00:
Ms.

[00:00:52] Speaker 00:
Nunes?

[00:00:53] Speaker 00:
You're representing appellant?

[00:00:57] Speaker 00:
Okay.

[00:00:57] Speaker 00:
Council, I can't hear you.

[00:00:59] Speaker 00:
She's not at the microphone yet.

[00:01:00] Speaker 00:
Yes, you may proceed.

[00:01:04] Speaker 02:
Good morning, Your Honors.

[00:01:05] Speaker 02:
Can you hear me, Judge Gold?

[00:01:07] Speaker 02:
Yes, now I can.

[00:01:14] Speaker 02:
Good morning, may it please the court.

[00:01:16] Speaker 02:
Megan Nunez on behalf of the plaintiff appellants.

[00:01:20] Speaker 02:
I'm joined by my associate Peter Cuevas and I'd like to reserve three minutes of my time for rebuttal if I may.

[00:01:31] Speaker 02:
Okay.

[00:01:31] Speaker 02:
We're here today your honors because the administrative court created a brand new legal standard that was erroneously upheld by the district court.

[00:01:42] Speaker 02:
That standard held that LB's parents who placed him in a private school in a time of crisis at enormous financial hardship and then attended six IEP meetings over a 15-month period did not have any right to an offer of an appropriate education at any of those IEP team meetings.

[00:02:07] Speaker 02:
We are not asking that this court

[00:02:10] Speaker 03:
answer the question of whether the district... The parents unilaterally placed their child in a wilderness therapy camp and then placed him in an academy in North and South Carolina without the school district's knowledge, correct?

[00:02:26] Speaker 03:
That's not correct.

[00:02:27] Speaker 03:
They told him after the fact that we're moving him here.

[00:02:32] Speaker 03:
This is the September 29, 2020 email.

[00:02:35] Speaker 03:
There have been some recent developments with L. You should know about he will be going to a wilderness therapy camp starting tomorrow.

[00:02:42] Speaker 02:
Yes, so they did only give one day notice about the camp and that's because frankly they were in crisis and only knew that he would be leaving around that time.

[00:02:51] Speaker 03:
But immediately thereafter, they requested a... It didn't take any time to put a placement in a wilderness therapy camp in North Carolina.

[00:02:59] Speaker 03:
It was a very... They gave the plane tickets and everything, they just did it.

[00:03:02] Speaker 03:
They just were surprised and shocked and did it within a day.

[00:03:05] Speaker 03:
It was a very quick turnaround process, yes.

[00:03:09] Speaker 03:
And then they moved Elle to Whetstone Academy in December of 2020, but didn't tell the school district until

[00:03:19] Speaker 03:
March.

[00:03:20] Speaker 02:
That's actually also not true.

[00:03:22] Speaker 02:
What happened is that when they notified the district that LB would be attending trails, they made it very clear, it's in the letter that they sent, that trails could only last up to 90 days.

[00:03:33] Speaker 02:
And so they then attended the October 9, 2020 IEP meeting, the November 5, 2020.

[00:03:40] Speaker 03:
But they never said he's moved to Whetstone.

[00:03:42] Speaker 03:
The April 26, 2021 letter that says to whom it may concern,

[00:03:47] Speaker 03:
Luke, or sorry, LB is currently a student at Whetstone Academy.

[00:03:51] Speaker 03:
That's the first time the district learned that he was placed at Whetstone Academy.

[00:03:56] Speaker 02:
That's actually not correct, Your Honor, so.

[00:03:59] Speaker 03:
Okay, cite me to the, I have all of the emails.

[00:04:01] Speaker 03:
Tell me which of the emails tell the school district that LB has been placed at Whetstone Academy before ER 354.

[00:04:12] Speaker 02:
Sure.

[00:04:12] Speaker 02:
This is not in an email, but it is very well substantiated on the record through parents Testimonium was never contradicted by anybody that at the November 13th 2020 IEP meeting the parents attended that meeting and they said to the IEP team look He's finishing at trails as you know.

[00:04:31] Speaker 02:
It's only a 90-day program unfortunately trails has said he is not able to return and

[00:04:38] Speaker 02:
home, he's going to need a residential treatment center.

[00:04:41] Speaker 02:
They asked the district to place him in a residential treatment center.

[00:04:47] Speaker 02:
The district refused and so the parents had no option but to place him in a residential treatment center when the wilderness program ended.

[00:04:58] Speaker 02:
When did they tell the school district that LB was at Whetstone Academy?

[00:05:03] Speaker 02:
They sent a discharge summary to the school district in March.

[00:05:10] Speaker 02:
So in March 2021, the parents sent the district an independent evaluation and said, here's a new evaluation of LB.

[00:05:18] Speaker 02:
Please reconsider your decision not to fund the residential treatment center.

[00:05:23] Speaker 03:
At that time... What was included in that document?

[00:05:26] Speaker 02:
That was the independent evaluation.

[00:05:28] Speaker 02:
Did it say that LB was at Whetstone?

[00:05:29] Speaker 02:
No.

[00:05:30] Speaker 03:
Okay, so the question is, when did the school district learn that LB was at Whetstone Academy?

[00:05:36] Speaker 03:
Very shortly thereafter.

[00:05:38] Speaker 03:
Is it the April 26, 2021 letter?

[00:05:41] Speaker 02:
No.

[00:05:41] Speaker 02:
In response to the independent evaluation email, Sue Solario, the lead teacher, sent parents a release of information to speak with Trails, which parents signed immediately, and parent sent her the discharge summary from Trails

[00:05:59] Speaker 02:
that said that LB had left trails when everybody knew he would at the end of December and that wet stone was the recommended next placement Let's go back.

[00:06:13] Speaker 00:
I mean it's so he in 2019 to 20 he was first at the Korea middle school and and then the district

[00:06:27] Speaker 00:
created an IEP for him in December of 2019, right?

[00:06:32] Speaker 00:
Correct.

[00:06:32] Speaker 00:
You're going to assume that was a request for an IEP meeting or a request that he be given a fair and appropriate public school education?

[00:06:43] Speaker 02:
The December 2019 IEP?

[00:06:48] Speaker 00:
Yeah, but how did that come about?

[00:06:50] Speaker 02:
Yeah, so that came about because in about October of 2019, he started to demonstrate pretty severe mental health issues.

[00:06:59] Speaker 02:
So the school district decided they, I believe, decided themselves to evaluate him.

[00:07:06] Speaker 02:
And that took quite a while because he was in and out of hospitalizations.

[00:07:11] Speaker 02:
So it wasn't finalized until December of 2019.

[00:07:13] Speaker 02:
That IEP, therefore, did have quite a bit of outdated information in it because by the time it was finalized, the information had been gathered primarily in October of 2019.

[00:07:25] Speaker 02:
So it was really by the time it was offered to the parents, it was already outdated.

[00:07:30] Speaker 00:
So that resulted in the request for a due process hearing.

[00:07:38] Speaker 02:
What happened after that is that the parents attended two more IEP meetings and there's a stipulation that those IEPs were identical to the December 2019 IEP and the district told parents if you would like a residential treatment center,

[00:07:54] Speaker 02:
you need to file for due process.

[00:07:56] Speaker 02:
That's what the IEP team told them.

[00:07:58] Speaker 02:
So unrepresented, they filed their own due process complaint and negotiated without an attorney with the district in I believe it was May of 2020.

[00:08:11] Speaker 02:
OK.

[00:08:13] Speaker 00:
And so then in August, he began attending the Riley Alternative School for Mental Health.

[00:08:23] Speaker 00:
Correct.

[00:08:24] Speaker 00:
But then the schools were closed due to COVID, I'm going to assume.

[00:08:29] Speaker 00:
Correct.

[00:08:30] Speaker 00:
Yeah.

[00:08:30] Speaker 00:
Okay.

[00:08:31] Speaker 00:
And he had problems with the online learning.

[00:08:35] Speaker 00:
And so then they notified the district that he would be attending Trails End.

[00:08:46] Speaker 00:
That's when that happened.

[00:08:48] Speaker 02:
Yes, so he did stay at Riley for a month, but his mental health needs just drastically increased.

[00:08:55] Speaker 02:
I mean, prior to that, he had been hospitalized seven times within one year, so he wasn't in a great place to begin with.

[00:09:01] Speaker 02:
But that unstructured home-based option just did not work.

[00:09:06] Speaker 02:
I mean, the record's pretty clear.

[00:09:08] Speaker 02:
He was threatening to hurt himself, hurt his brother.

[00:09:12] Speaker 02:
He physically assaulted his mother and brother.

[00:09:14] Speaker 02:
Parents had to lock away knives.

[00:09:18] Speaker 02:
So they really were in crisis.

[00:09:20] Speaker 02:
And that's why they placed him at the Trails Program.

[00:09:23] Speaker 02:
immediately after they placed him there, they requested a formal IEP and were attempting to work with the district to develop an IEP for him that could work.

[00:09:37] Speaker 00:
So what was the point of all these meetings except to get an IEP developed that would work?

[00:09:45] Speaker 02:
That was the point of the meetings.

[00:09:47] Speaker 02:
The parents testified

[00:09:50] Speaker 02:
Convincingly and without contradiction that they were trying very hard to cooperate with the district To work with the district to come up with a plan that could meet LB's needs they they could see that the placement at the home-based day treatment program didn't work and so they were meeting time and time again and

[00:10:11] Speaker 02:
And really cooperating at every stage, I mean, filling out every release of information that they were provided, providing the discharge summary from trails, inviting their independent evaluator to speak to the team at the April 2021 IEP meeting.

[00:10:29] Speaker 02:
regarding his needs, signing the assessment plan, cooperating in the assessment.

[00:10:36] Speaker 02:
And I think it's important to note, because the record is unclear on this, he was enrolled in the district at the time of all six IEP meetings.

[00:10:44] Speaker 02:
So parents placed him

[00:10:48] Speaker 02:
because he needed to be placed somewhere safe.

[00:10:50] Speaker 02:
He could not access his education without a therapeutic component that just wasn't available at the time they placed.

[00:10:58] Speaker 02:
But they didn't, they weren't unwilling to consider other options.

[00:11:02] Speaker 02:
They weren't wed to that program alone.

[00:11:04] Speaker 02:
The district just didn't offer them any viable option.

[00:11:08] Speaker 00:
So that's different than the Capistrano case where,

[00:11:13] Speaker 00:
The parents said, we're going to put our kid in private placement for two years and we're not going to work with you to develop an IEP.

[00:11:19] Speaker 02:
Exactly, really this case is the inverse of Capistrano because in Capistrano there was no IEP meeting and parents were saying you should have held an IEP meeting as an annual IEP even though we never requested one and even though we told you we were going to take our child out for two years and keep him in private school.

[00:11:39] Speaker 02:
Here the parents never made any such comments and they did go to IEP meetings.

[00:11:44] Speaker 02:
It's not that they're arguing that IEP meetings should have been held

[00:11:47] Speaker 02:
six IEP meetings were held over 15 months.

[00:11:51] Speaker 02:
They're just saying that in those IEP meetings, the district had an obligation to offer FAPE.

[00:11:58] Speaker 02:
And the lower court's analysis that that obligation doesn't exist at certain IEP meetings is nowhere in the law or case law.

[00:12:08] Speaker 00:
Yeah.

[00:12:08] Speaker 00:
I don't know where the, where do you suspect the district court came up with that requirement that you have to request an IEP document?

[00:12:17] Speaker 02:
I don't know.

[00:12:18] Speaker 02:
I think, you know, the administrative law judge said that the parents hadn't requested an IEP meeting.

[00:12:25] Speaker 02:
So we worked very hard to explain to the district court judge that they had in fact explicitly and constructively requested meetings.

[00:12:33] Speaker 02:
So the district court judge conceded, okay, they requested a meeting but they didn't request an IEP document or the development of an IEP.

[00:12:42] Speaker 02:
And that's really a distinction without a difference.

[00:12:46] Speaker 02:
that kind of difference doesn't exist anywhere in the law or anything, any case law, any statutory law.

[00:12:55] Speaker 03:
So if we look at, so they did the settlement with this, with the school district for $10,000 in May of 2020.

[00:13:02] Speaker 03:
LB begins attending Riley Alternative School August of 31.

[00:13:07] Speaker 03:
September 29th, there's no request for IEP, there's no request for a different program.

[00:13:13] Speaker 03:
It just says there have been some recent developments with L you should know about.

[00:13:17] Speaker 03:
He will be going to a wilderness therapy camp starting tomorrow.

[00:13:21] Speaker 03:
I wanna make sure we have everything in place and everyone notified so we're all on the same page.

[00:13:25] Speaker 03:
I can be reached at this number.

[00:13:28] Speaker 03:
Is that in any way to you say, let's collaborate and work on a new program to get him a FAP education?

[00:13:39] Speaker 03:
Where in that at all says, I'm reaching out to you, let's revise the IEP, let's figure out how this, this is telling you, he is going to wilderness therapy camp tomorrow.

[00:13:52] Speaker 03:
I'm letting you know so everyone's on the same page.

[00:13:55] Speaker 02:
Yes, and I would say it wasn't until the day later that they did engage in that collaborative process.

[00:14:01] Speaker 02:
So the next day, the father had a long conversation with Mr. Means, the case manager, and explained part of the issue here is that LB came to Riley with a long history from the same school district.

[00:14:15] Speaker 02:
So these parents believed that Riley had read

[00:14:18] Speaker 02:
all of his history.

[00:14:19] Speaker 02:
They had signed numerous releases of information.

[00:14:23] Speaker 02:
And so they understood that when they were saying he's having trouble, he's decompensating, there was a background knowledge on the part of the Riley staff that may have not been there.

[00:14:33] Speaker 02:
They then spent quite a bit of time after placing LB at trails, explaining to them, you know, what LB's needs were and then immediately requesting an IEP meeting.

[00:14:43] Speaker 02:
And, you know, I think you can make an argument.

[00:14:45] Speaker 03:
And they do concede, I do agree that Eric and I, the father, unilaterally placed Luke at the Wilderness Treatment Program.

[00:14:52] Speaker 03:
And then their next request is requesting funding for the placement that they have unilaterally done.

[00:14:58] Speaker 02:
Well, actually, they never even made the request.

[00:15:00] Speaker 02:
The district unilaterally denied that request before parents had even made it.

[00:15:05] Speaker 02:
But I think when you're looking at a question of reimbursement under the Supreme Court Burlington Carter test, typically what you're doing at that last prong is weighing the equities and saying, did the parents act equitably?

[00:15:17] Speaker 02:
Did they give enough notice before placing?

[00:15:19] Speaker 02:
They're supposed to give 10 days notice.

[00:15:22] Speaker 02:
There is an exception if there's a safety issue here.

[00:15:25] Speaker 02:
I would argue there was.

[00:15:26] Speaker 02:
But again, a judge might say, you know what, I'm not going to reimburse you until that October meeting because they just didn't have enough information.

[00:15:34] Speaker 02:
You didn't explain that to them.

[00:15:36] Speaker 02:
But really, we never got to any of that here because these judges said that there was no entitlement to FAPE at any IEP meeting.

[00:15:47] Speaker 03:
So this letter, the March 6, 2021 letter with,

[00:15:51] Speaker 03:
the plaintiff's attorney says, I refer to your letter of October 1, 2020 refusing to fund a placement for our son LB.

[00:15:58] Speaker 03:
And it is requesting funding.

[00:16:02] Speaker 03:
With an attorney CC'd at, you know, paul at SDEducationsAttorney.com.

[00:16:10] Speaker 03:
I guess it seems to me from looking at these emails is that the parents knew what they wanted to do.

[00:16:17] Speaker 03:
They thought the online education during COVID was not working and that he needed wilderness therapy and then a residential program and that's what they were going to do.

[00:16:27] Speaker 03:
There doesn't seem anything that's saying do you think this is the right way to get his educational needs met, his emotional needs met, this is what he's going to do.

[00:16:37] Speaker 03:
And so it just seems to me looking at all of these emails that this is requesting reimbursement after the fact.

[00:16:45] Speaker 03:
And I guess one question I have for you is we're trying to glean from all of these communications, the testimony, what was actually requested here.

[00:16:58] Speaker 03:
And that to me is a factual question, not a legal question.

[00:17:02] Speaker 03:
Do you agree that we're trying to parse through all the testimony of all the parties involved and all of these emails of what was requested?

[00:17:10] Speaker 03:
Whether it was a document or whether it was a meeting almost doesn't matter.

[00:17:13] Speaker 03:
We're trying to glean a fact

[00:17:15] Speaker 03:
What was requested?

[00:17:17] Speaker 02:
I don't think that that actually matters.

[00:17:19] Speaker 02:
I think the fact that they held the IEP team meetings is what matters.

[00:17:25] Speaker 02:
I mean, you can say that that email wasn't a request, but the very next day, the school principal said, I will schedule an IEP meeting.

[00:17:32] Speaker 02:
And then they attended the IEP meetings.

[00:17:34] Speaker 03:
So, what you'd have... And what were all the IEP meetings that fall were just to get him off the rolls and disenrolled at San Diego Unified because he was getting D's and F's because he wasn't attending Riley.

[00:17:47] Speaker 02:
No.

[00:17:47] Speaker 03:
That's the only thing that happened during that whole fall.

[00:17:50] Speaker 03:
That's actually not true.

[00:17:51] Speaker 03:
If you look at all these emails, it's because they didn't want him to fail at Riley because he was actually not attending school there.

[00:17:59] Speaker 02:
If I may, Your Honor, I'd like to provide a few more facts about those meetings that I think make it very clear that they were actually held to develop an IEP for LB.

[00:18:07] Speaker 02:
So first, in preparation for the October 2020 meeting, the case manager asked parents if they would like to meet formally or informally.

[00:18:17] Speaker 02:
Parents said formally.

[00:18:19] Speaker 02:
Then the case manager sent the team an email titled IEP meeting.

[00:18:23] Speaker 02:
And in that email, in the description of the meeting said, from my conversation with the family, we need to discuss further how better to support LB, what worked and did not work in his experience at Riley.

[00:18:35] Speaker 02:
Had nothing to do with disenrollment.

[00:18:37] Speaker 02:
That was a very big surprise when we heard that from the ALJ.

[00:18:42] Speaker 03:
They asked parents to... But there are lots of emails about we need to get him disenrolled because he's getting D's and F's at Riley.

[00:18:48] Speaker 03:
Are you saying those emails don't exist or don't say what they say?

[00:18:52] Speaker 02:
I think Riley wanted to disenroll him but I think that's a separate process from attending an IEP meeting.

[00:18:57] Speaker 02:
Nobody has to attend an IEP meeting to disenroll a student from school.

[00:19:01] Speaker 02:
It's like a two-minute process.

[00:19:03] Speaker 02:
They then created an IEP document.

[00:19:05] Speaker 03:
Okay, I'm looking at this November 1, 2020 email from the mother.

[00:19:08] Speaker 03:
Sue, I'm not sure I understand all of this with his grades.

[00:19:12] Speaker 03:
Please can we schedule an IEP meeting this week ASAP?

[00:19:15] Speaker 03:
Then the meeting is also please let me know if you would like to schedule another IEP to discuss.

[00:19:20] Speaker 03:
At this time Lucas, oh I'm so sorry, is enrolled full time with us and is at risk of receiving a D or an F or two or more of his classes for non-attendance and not completing work since September 30th of 2020.

[00:19:32] Speaker 03:
Yes, these congress... We'll need to hold an IEP to discuss this as well.

[00:19:35] Speaker 03:
I understand that school districts is very loose with what they refer to as an IEP, but the whole purpose of this was to get him disenrolled so he would not be shown as failing.

[00:19:44] Speaker 02:
It's actually not true, Your Honor.

[00:19:46] Speaker 02:
Really, when you look at the records, yes, part of what they were talking about throughout these emails was disenrollment.

[00:19:52] Speaker 02:
But that was separate and apart from what was occurring at these IEP meetings.

[00:19:55] Speaker 02:
And you can tell that because the district's own contemporaneous notes from those IEP meetings make that very clear.

[00:20:02] Speaker 02:
So for example, the November 5, 2020 IEP meeting, the district's own therapist's notes, contemporaneous notes say, IEP meeting with parents and staff to discuss progress, needs, current placement.

[00:20:16] Speaker 02:
So it was not a meeting to disenroll him.

[00:20:19] Speaker 02:
He then describes the November 13th meeting as the part two, and the team discussed progress towards IEP goals, services offered during COVID.

[00:20:30] Speaker 02:
So while they were meeting to attempt to develop an IEP, or at least the parents understood they were meeting to attempt to develop an IEP for LB, there was a parallel conversation about how to disenroll LB, but the purpose of the IEP meetings

[00:20:45] Speaker 02:
was not to disenroll him.

[00:20:47] Speaker 02:
They were IEP meetings.

[00:20:49] Speaker 02:
IEP documents were created from those meetings.

[00:20:52] Speaker 02:
IEP notes are written from the meetings.

[00:20:54] Speaker 02:
Again, they asked the parent to waive the general education teacher prior.

[00:20:57] Speaker 00:
I think I'm running low on time and I... I just, what section of the act are you pointing to that entitles you to reimbursement

[00:21:14] Speaker 00:
or client for reimbursement for the private placement?

[00:21:19] Speaker 02:
Sure.

[00:21:20] Speaker 02:
So the law from that comes from Florence County versus Carter Supreme Court case and then Burlington town.

[00:21:30] Speaker 02:
I can get you the exact site but another Supreme Court case that say, that articulate a three-pronged test that say that when the parent, if the parent is asking for reimbursement, they must first show that the district did not offer an appropriate placement.

[00:21:45] Speaker 02:
then show that the parent's placement was appropriate and then they look at the equities to determine the amount of reimbursement.

[00:21:54] Speaker 02:
And there is statutory law regarding the 10-day rule and the exception for safety and I can get that for you on rebuttal.

[00:22:04] Speaker 02:
I just don't have it in front of me.

[00:22:05] Speaker 00:
Okay, you can do that on rebuttal.

[00:22:08] Speaker 00:
And is LB, where is LB currently placed?

[00:22:12] Speaker 02:
So LB is currently a freshman in a four-year college.

[00:22:16] Speaker 02:
He graduated from a public district high school after returning from these programs that we argue were appropriate and necessary.

[00:22:26] Speaker 02:
Was no longer classified as emotionally disabled he Thrived in his regular public high school and has done extremely well ever since I mean what the parents did worked Which you know, I think shows that the programs were were appropriate All right.

[00:22:46] Speaker 00:
Thank you council.

[00:22:47] Speaker 00:
We'll hear from your

[00:22:49] Speaker 00:
around on the other side.

[00:22:50] Speaker 02:
Okay, and I know I went over my time.

[00:22:52] Speaker 02:
May I have a bit of time?

[00:22:54] Speaker 00:
Yes, you can.

[00:22:54] Speaker 00:
I think the questioning took you over your time.

[00:23:03] Speaker 01:
Good morning, Your Honours.

[00:23:05] Speaker 01:
Good morning.

[00:23:06] Speaker 01:
If it may please the court, my name is Jonathan Reed.

[00:23:08] Speaker 01:
I'm representing San Diego Unified School.

[00:23:11] Speaker 01:
I can't hear you.

[00:23:13] Speaker 01:
Okay, is that better?

[00:23:15] Speaker 01:
If you get the mic.

[00:23:16] Speaker 01:
All right.

[00:23:20] Speaker 01:
I think both of them are live, but please let me know if you can't hear me.

[00:23:24] Speaker 00:
I think that's better.

[00:23:26] Speaker 00:
It is?

[00:23:26] Speaker 01:
Okay, good.

[00:23:29] Speaker 01:
You know, Council presented a number of facts as unrebudded when, in fact, they were a number of facts that were re-budded and that were in dispute.

[00:23:41] Speaker 01:
The fact that, you know,

[00:23:44] Speaker 01:
When council said that the parents asked for placement in a residential treatment facility, district members of the IEP teams said that that did not exist, that there was no request to change the IEP, no request to develop the IEP, no request for reimbursement.

[00:24:01] Speaker 01:
It simply appeared that there was a parent who wanted to place the child in a wilderness program for a finite period of time and then come back.

[00:24:11] Speaker 01:
And the evidence did disclose that the IEP were convened with the admittedly misunderstanding that for a special education student, in order to disenroll the student, that had to be done through the IEP process.

[00:24:26] Speaker 01:
There was also an assertion that the home-based option didn't work.

[00:24:31] Speaker 03:
But if the school district kept using the word IEP, how was the parent to know that that was not what was occurring in an actual IEP meeting for the purpose of revising an IEP?

[00:24:44] Speaker 01:
Well, IEPs can be convened for a multitude of reasons.

[00:24:50] Speaker 01:
What the law says is that an IEP is developed initially upon the initial assessment.

[00:24:57] Speaker 01:
In this case, that started in December of 2019.

[00:25:00] Speaker 01:
And then the IDEA states that the IEP team needs to convene at least annually to update the IEP with new information or any information as indicated.

[00:25:14] Speaker 01:
And so there was always an IEP here.

[00:25:17] Speaker 01:
There are quite often IEPs for various reasons, you know, changing one service.

[00:25:25] Speaker 00:
There were meetings to develop and modify the IEP to make it effective in providing a FAPE for LB.

[00:25:35] Speaker 01:
That's true.

[00:25:36] Speaker 00:
So that's what all these meetings were about, was to see if the school

[00:25:41] Speaker 00:
could develop and maybe it just couldn't because of the requirement imposed by the state during COVID of virtual learning that any IEP may not have been, the school could provide would be inadequate for an emotionally disabled child who had these issues.

[00:26:09] Speaker 00:
when the learning was all virtual?

[00:26:12] Speaker 01:
Well, I should clarify, it was not the district's position that these IEP teams needed to be convened to fix an IEP or to develop something to address a need.

[00:26:25] Speaker 01:
The staff members believed that the child was in an appropriate placement.

[00:26:30] Speaker 01:
He was offered Riley School, which is a school especially designed for children with emotional difficulties.

[00:26:38] Speaker 01:
They offered mental health support.

[00:26:40] Speaker 01:
They offered behavioral support.

[00:26:42] Speaker 03:
But those services were not in place yet, right?

[00:26:45] Speaker 03:
I mean, the email that notifies

[00:26:48] Speaker 03:
the school district that LB is going to the wilderness program says the impetus for doing so was his behavior, which includes inability to successfully participate in school.

[00:27:01] Speaker 01:
Right.

[00:27:01] Speaker 03:
And that his one-on-one therapy had not started yet as of the time he left to placement at wilderness.

[00:27:07] Speaker 01:
and district staff articulated and testified disagreement with that notion.

[00:27:12] Speaker 01:
There were only 21 days.

[00:27:14] Speaker 01:
This is a student who the district had not seen since 2019.

[00:27:19] Speaker 01:
He started in school.

[00:27:21] Speaker 01:
He was making progress on his goals.

[00:27:23] Speaker 01:
He was attending some classes.

[00:27:25] Speaker 01:
There was testimony that his behavior and his struggles were very similar to what other children were

[00:27:32] Speaker 01:
facing in September of 2020 when districts were implementing distance learning often for the first time.

[00:27:41] Speaker 01:
And so the fact that he was making progress, he was on an upward trajectory, the mental health therapist said he needed to establish rapport with the student, but district staff felt confident that they were on the right plat.

[00:27:54] Speaker 03:
So he attended a local private school, San Diego Center for Children, what, the 2018-29 academic year?

[00:28:01] Speaker 01:
2019-20.

[00:28:04] Speaker 03:
Oh, so through the fall of 2019 and the spring of 2020?

[00:28:06] Speaker 03:
Yes.

[00:28:07] Speaker 03:
And so he only, okay, that's when he went back into the public school system was August 31 of 2020.

[00:28:14] Speaker 01:
Yes, that was pursuant to the settlement agreement.

[00:28:16] Speaker 01:
So in the settlement agreement, there was a dispute over the district's off replacement.

[00:28:22] Speaker 01:
The parents waived claims related to those IEPs developed, whether they constituted a fate either procedurally or substantively and agreed to bring him back at the beginning of the 2020-2021 school year.

[00:28:37] Speaker 01:
And so that lasted only 21 days, but all district staff testified consistently that he was on the right path

[00:28:44] Speaker 01:
that he was operating in a manner very consistent with how other students both in general education and special education were operating at that time.

[00:28:55] Speaker 03:
Where in Capistrano does the court make any distinction between IEP documents and IEP meetings?

[00:29:05] Speaker 01:
What in Capistrano, what the court said was that essentially there's

[00:29:12] Speaker 01:
under the plain reading of section 1412 of the IDA, there's two classes of students.

[00:29:18] Speaker 01:
They're public school students and under 1412 they're entitled to an IEP and they're private school students and under 1412 they're entitled to a proportionate share of federal funding.

[00:29:31] Speaker 01:
And in Capistrano what the plaintiff argued was a third class was parents who place their children privately because they dispute

[00:29:41] Speaker 01:
an offer of fate, and the Capistrano court said that the intent is irrelevant.

[00:29:46] Speaker 01:
The question is, you're either a public school student or a private school student, and you're a private school student if you're placed there.

[00:29:53] Speaker 01:
What the Ninth Circuit did in Capistrano, though, is they included a sentence that said, of course, if the parents want an IEP, all they have to do is ask and the district has to prepare one.

[00:30:06] Speaker 01:
There's no statutory authority for that notion and there has been opinions in the past that a bright line rule is more consistent with the law and consistent.

[00:30:22] Speaker 03:
But doesn't that sentence actually mean IEP?

[00:30:27] Speaker 03:
I see, you're saying that means IEP document?

[00:30:30] Speaker 01:
It could mean to prepare an IEP, could mean that,

[00:30:36] Speaker 01:
It's an IEP document if there's already an IEP prepared.

[00:30:40] Speaker 01:
It could be that a child's been in private school for a long time and there is no active IEP document.

[00:30:47] Speaker 01:
If a child has been out of school since second grade and the child's in high school, you know, they're not going to implement.

[00:30:54] Speaker 00:
Right, but the situation here was that parents kept meeting to get an

[00:30:59] Speaker 00:
an adequate IEP in this case.

[00:31:02] Speaker 00:
They had six meetings.

[00:31:04] Speaker 00:
What's the purpose of having the meetings except to try to create a plan that will meet the child's needs?

[00:31:13] Speaker 01:
The first three meetings were with the purpose, for the purpose of disenrolling the student.

[00:31:19] Speaker 00:
Why does it take three meetings to disenroll a student?

[00:31:21] Speaker 01:
Because the parents would not consent to the IEPs and so the district was trying to get them in to discuss that.

[00:31:27] Speaker 00:
And they wouldn't consent because they didn't think it was adequate.

[00:31:30] Speaker 01:
I don't know why they didn't consent to disenrollment.

[00:31:34] Speaker 01:
I don't know why they didn't consent to that.

[00:31:37] Speaker 00:
Okay.

[00:31:37] Speaker 00:
Well, we'll have to find that out.

[00:31:39] Speaker 00:
But do you agree that the requirement that the district court had here that you have to, that they,

[00:31:46] Speaker 00:
Parents did not make a request for an IEP because they only requested meetings and not documents isn't the law.

[00:31:54] Speaker 01:
Well, I would say they only requested one meeting and that was in November of 2020 when they requested the meeting to clarify the issue with respect to goals.

[00:32:04] Speaker 01:
There's no evidence that they requested another meeting.

[00:32:07] Speaker 01:
And that's a factual issue that both the administrative law judge who heard and evaluated testimony from witnesses and the district court felt and agreed that there was no request other than that one in November.

[00:32:21] Speaker 03:
But what should we make of the note of the therapist that says IEP, this is for November 5th meeting, IEP meeting with parents and staff to discuss progress, needs, discuss current out of state placement.

[00:32:33] Speaker 03:
That sounds more than just disenrollment.

[00:32:37] Speaker 01:
Okay.

[00:32:38] Speaker 01:
Well, an out-of-state placement occurred, which would require the disenrollment.

[00:32:42] Speaker 01:
And I would say also just Council said that the child was enrolled at all times.

[00:32:48] Speaker 01:
The parents actually affirmatively agreed to disenrollment in their last email in November.

[00:32:56] Speaker 01:
And so prior to those IEP meetings, the special education teacher had sent out a letter to all parents saying that this is how we're implementing distance learning.

[00:33:09] Speaker 01:
If you have any questions, you're welcome to discuss that either informally or through an IEP process.

[00:33:17] Speaker 03:
And so... So what is the situation here?

[00:33:19] Speaker 03:
The school district is just really sloppy with how it uses the word IEP?

[00:33:23] Speaker 03:
Is that the conclusion here?

[00:33:26] Speaker 03:
Just use it anytime they meet with a parent.

[00:33:29] Speaker 03:
It's just it, the record here is confusing.

[00:33:33] Speaker 01:
I'd say that.

[00:33:36] Speaker 01:
Okay.

[00:33:37] Speaker 01:
Perhaps, you know, I'm not sure, I mean an IEP is a formal meeting.

[00:33:42] Speaker 01:
And the IDEA contemplates that, you know, they need to be reviewed at least annually, but it also contemplates that IEP teams can convene throughout the year.

[00:33:55] Speaker 01:
And one of the reasons could be a change of placement or enrollment.

[00:34:03] Speaker 01:
What the administrative law judge found was that Capistrano was decided on December 31st, 2021.

[00:34:13] Speaker 01:
And so the team did not have the benefit of the guidance of Capistrano.

[00:34:20] Speaker 00:
Capistrano's requirement that you have to request a document, not request a meeting.

[00:34:25] Speaker 00:
I mean, what the IDEA requires is that there's an individualized education program that is developed, reviewed, and revised for each child with a disability.

[00:34:40] Speaker 00:
And that's the purpose of the IEP meetings under this statute.

[00:34:46] Speaker 00:
So if the parents are attending six IEP meetings, what are they doing except trying to get an appropriate education for their kid?

[00:34:55] Speaker 00:
If the San Diego School District could have provided that, then the parents would have accepted it.

[00:35:07] Speaker 00:
They needed a residential placement.

[00:35:11] Speaker 01:
Okay, well, they didn't behave as if they would have requested it because they notified the district that they were enrolling in a wilderness program, not a residential placement, the following day.

[00:35:21] Speaker 01:
They did not provide the requisite 10 days notice, which in that circumstance would have given the district the opportunity to address any concerns they had prior

[00:35:33] Speaker 01:
to the placement.

[00:35:35] Speaker 01:
And so by the time they had these meetings, he was already in North Carolina and the district was trying to prevent him from getting failing grades in high school where those credits matter.

[00:35:48] Speaker 00:
The other.

[00:35:50] Speaker 00:
Doesn't the IDEA also require reimbursement with parents who for no reason put their child in a, maybe for, because they think that their child is better off in a private placement than

[00:36:04] Speaker 00:
what the school district is offering in terms of an IEP.

[00:36:08] Speaker 00:
It requires reimbursement.

[00:36:10] Speaker 00:
It has provisions for children in private schools.

[00:36:14] Speaker 00:
Yes.

[00:36:15] Speaker 00:
And children and they have sections for children in private schools because the district has decided and they have a section for children in private schools because the parents have decided.

[00:36:26] Speaker 00:
And as I read the statute, they get less reimbursement

[00:36:31] Speaker 00:
if they've decided on their own to put their kid in the private school.

[00:36:35] Speaker 00:
And they get more if the district has decided.

[00:36:38] Speaker 01:
Or they might get none.

[00:36:40] Speaker 00:
Depending on, right, but not depending on whether or not they requested an IEP document.

[00:36:46] Speaker 00:
I mean, that's, they had one.

[00:36:50] Speaker 00:
So they were having meetings to develop them or evolve as the needs of the child evolved.

[00:36:58] Speaker 00:
And you have to admit during COVID,

[00:37:00] Speaker 00:
There was a lot of additional work in making that happen.

[00:37:04] Speaker 01:
My reading of the plain language of 1412 is that consistent with Capistrano, if a child is enrolled in the district, we're placed by a district IEP team in a private place.

[00:37:17] Speaker 01:
They're a public school student.

[00:37:19] Speaker 01:
They have a full entitlement to an IEP.

[00:37:21] Speaker 01:
If they're placed by their parents,

[00:37:23] Speaker 01:
in a private school, they're a private school student and their only entitlement is to a proportionate share of federal funding.

[00:37:31] Speaker 03:
And then at the end of that... But there's some requirement as to whether the private placement is appropriate, right?

[00:37:36] Speaker 01:
There's some... No, no.

[00:37:39] Speaker 01:
Even when the parent places them unilaterally, there's no... Any parent can place their child in private school unilaterally.

[00:37:47] Speaker 01:
There's no requirement that that has any kind of standard.

[00:37:52] Speaker 01:
So if they're either a public school student or they're placed by their parent in private school, they're a private school student.

[00:37:58] Speaker 01:
And then what Capistrano said was at the end of 1412, where they talk about parental placements where FAPE is in dispute, that doesn't create another class of students.

[00:38:12] Speaker 01:
That just identifies a remedy for parents if they can prove that prior

[00:38:17] Speaker 01:
to the unilateral placement the district failed to offer a FAPE and if they prove that their private placement was appropriate and if they provided the requisite notice.

[00:38:28] Speaker 01:
And here, both the administrative law judge and the district court found that prior to the removal, the district had offered a free appropriate public education.

[00:38:37] Speaker 01:
Part of that was the parents stipulating to that in the previous settlement agreement, but there was an affirmative finding that the district had offered a faith prior to the unilateral removal.

[00:38:47] Speaker 01:
And it was undisputed that there was no notice as specifically required in 1412A10C.

[00:38:54] Speaker 00:
Now, your counsel on the other side is talking about a safety exception to the 10-day notice requirement.

[00:39:03] Speaker 00:
Do you know what she's referring to?

[00:39:05] Speaker 01:
Yes.

[00:39:06] Speaker 00:
OK.

[00:39:06] Speaker 01:
If there needs to be an emergency placement, but there was test, there were questions about that.

[00:39:13] Speaker 01:
And that's, they simply didn't prove that that exists.

[00:39:16] Speaker 01:
It wasn't an argument that they made in the underlying briefing.

[00:39:22] Speaker 01:
Essentially what you had is an IEP that's working in a very similar manner to any other student and the parents who have decided to unilaterally place the child in a wilderness program.

[00:39:33] Speaker 03:
When did the school district become aware that LB had been placed at Whetstone Academy?

[00:39:38] Speaker 01:
On the day of the April IEP.

[00:39:43] Speaker 03:
And was there any notice between August 31 when LB began attending Riley and September 29th when the school district receives a letter that he would be starting the wilderness camp the next day?

[00:39:54] Speaker 03:
Was there any time in that period where any of the dissatisfaction with Riley was raised by the parents?

[00:40:04] Speaker 01:
I'm not aware of any communication regarding dissatisfaction.

[00:40:08] Speaker 01:
I am aware of constant communication between staff and parents.

[00:40:13] Speaker 01:
to try to make this transition work.

[00:40:19] Speaker 03:
So why shouldn't there be a bright line rule and why shouldn't that rule put the burden on the school district so that, you know, in future cases people are not having to divine what's in a deposition testimony and emails about what's exactly being requested?

[00:40:38] Speaker 03:
You know, if parents are not always, I mean, these parents are sophisticated and educated, but if other parents are not well informed, not educated, why shouldn't the burden be on the school district to have, when it's more ambiguous in these situations, or the favor to be given to the parents?

[00:41:03] Speaker 01:
I'm not clear.

[00:41:03] Speaker 01:
The burden on the school district to do what?

[00:41:05] Speaker 03:
Well, we're saying, it seems like you're imposing on parents a requirement that says explicitly, I request an IEP document.

[00:41:14] Speaker 03:
You're saying, just saying, I request an IEP is not sufficient.

[00:41:18] Speaker 01:
Right.

[00:41:20] Speaker 01:
And so what I would submit the bright line rule is, is that if the child is enrolled in private school, they're a private school student.

[00:41:28] Speaker 01:
and they don't get an individual entitlement to a free appropriate public education until they're enrolled in a public school program.

[00:41:37] Speaker 01:
That's the bright line.

[00:41:38] Speaker 00:
That's what I don't understand because under the facts here, he started at Riley in 83120 as an eighth grader and so he was attending Riley virtually.

[00:41:55] Speaker 00:
when his parents decided to move him to the private school.

[00:42:01] Speaker 00:
So he had an IEP, right?

[00:42:04] Speaker 00:
He was a public student person with an IEP.

[00:42:07] Speaker 00:
And then they decided the thing wasn't working and they had an emergency apparently and they needed to enroll him somewhere else where it would work.

[00:42:19] Speaker 01:
Yes, so from August 31st until September 29th he was a public school student.

[00:42:24] Speaker 01:
He was entitled to his IEP.

[00:42:26] Speaker 01:
Once parents placed him on September 30th in the wilderness program, he was a private school student with no individual entitlement to special education.

[00:42:34] Speaker 00:
But to some reimbursement for proportion.

[00:42:37] Speaker 01:
Potentially, the right to a remedy of reimbursement if they can show that the district fails.

[00:42:43] Speaker 03:
So is the only thing they're entitled to is reimbursement of the private school tuition?

[00:42:48] Speaker 03:
They don't get any other services if they're a full-time private school student?

[00:42:53] Speaker 01:
No, if you read the middle of 1412, what it says is for children who are, for private school students.

[00:43:02] Speaker 03:
Can you give me the section number I have that statute in?

[00:43:04] Speaker 01:
Oh, let me see.

[00:43:05] Speaker 03:
Okay, it's 10, right?

[00:43:06] Speaker 03:
It's 10.

[00:43:07] Speaker 01:
4A10, and I can give you the precise number.

[00:43:14] Speaker 01:
It would be 4A101, A1 I believe.

[00:43:21] Speaker 01:
But what it says is what districts need to do is count the number of private school students in their jurisdiction and then take the amount of federal funding that they receive for special education and divide that number by the amount of federal funding to determine each child's proportionate share of federal funding.

[00:43:41] Speaker 01:
and then the U.S.

[00:43:43] Speaker 01:
Department of Education has articulated that those children are entitled to services consistent with their proportionate share of federal funding under an individualized services plan, not an IEP.

[00:43:55] Speaker 00:
I want to go back to a question that Judge Koh asked, which is

[00:44:02] Speaker 00:
Why shouldn't we put the burden on the school to be clear?

[00:44:06] Speaker 00:
Isn't it incorrect to do what the district court did here and apparently the ALJ and place the burden on the parents.

[00:44:13] Speaker 00:
No matter how sophisticated they allegedly are given.

[00:44:17] Speaker 00:
This is my little wrinkle on this because I've studied the statute over and over and over and it's difficult.

[00:44:24] Speaker 00:
I mean it's a very sophisticated complicated statute with a lot of different provisions and you almost need

[00:44:31] Speaker 00:
a special expertise to understand how all the pieces work.

[00:44:37] Speaker 00:
And given that and given that the school districts have to deal with it almost on a daily basis and parents do not and also the goal of the IDEA to have full parent participation, why shouldn't the burden be on the school district to say,

[00:44:55] Speaker 00:
Well, what do you want us to do here?

[00:44:56] Speaker 00:
Do you want us to continue revising the IEP?

[00:45:00] Speaker 00:
Why are we having six meetings?

[00:45:03] Speaker 01:
Because districts are obligated to consider the input of the parents in the IEP process.

[00:45:09] Speaker 01:
But ultimately, they owe a duty to the child to offer what they believe to be a free, appropriate public education in the least restrictive environment.

[00:45:16] Speaker 00:
Now you just added another wrinkle of layer of complexity to this.

[00:45:22] Speaker 00:
But you're right, you're right, in the least restrictive environment is correct.

[00:45:27] Speaker 01:
But I believe that 1412 is simple and Capistrano recognized that it is simple, that there's two classes of students, public school students and private school students.

[00:45:39] Speaker 01:
Where the lack of a bright line exists is from that one statement in Capistrano that was cited without authority that says,

[00:45:46] Speaker 01:
all the parents have to do is request an IEP.

[00:45:48] Speaker 00:
We should take Capistrano and Bong to delete the one sentence.

[00:45:52] Speaker 01:
I would submit that even if there was statutory authority for that statement, there is nothing difficult about requesting an IEP meeting, requesting a change, requesting something, and typically that request will end with a question mark.

[00:46:12] Speaker 00:
They requested meetings or the school requested meetings or somebody requested something.

[00:46:17] Speaker 01:
The district scheduled meetings in October and November and the one in November was following the parent's email asking to discuss grades.

[00:46:30] Speaker 01:
The meeting in April was following their submission of an independent educational evaluation.

[00:46:37] Speaker 01:
And there is a separate requirement also listed in two separate places of 1412 that's called child find where districts have to identify, locate, and evaluate students.

[00:46:49] Speaker 01:
That doesn't mean that they have to develop an IEP for them.

[00:46:53] Speaker 01:
They just have to continue to put out feelers to see if children are there and to continue to evaluate them if they qualify.

[00:47:01] Speaker 03:
So I'm sorry, I just want a clarification.

[00:47:04] Speaker 03:
So for if you're a child who's in private school placed by your parents and not by the school district, the purpose of IEPs at that point are what?

[00:47:13] Speaker 03:
To determine the amount of reimbursement of federal funding and potentially a reintegration back into public school?

[00:47:21] Speaker 03:
What is the purpose of the IEPs in that situation where a parent unilaterally places their child in private school?

[00:47:28] Speaker 01:
Had Capistrano existed, there likely would not have been IEP meetings because the parents had not requested one, right?

[00:47:36] Speaker 01:
If the parents were to request an IEP, what the Department of Education said is it would be to make a FAPE available.

[00:47:45] Speaker 01:
And so that may be talking about the IEP that exists.

[00:47:51] Speaker 01:
But the actual entitlement to special education related services under the plain language of the statute,

[00:47:58] Speaker 01:
is based on whether the child's in public school or whether the child's in private school.

[00:48:05] Speaker 01:
There is ambiguity.

[00:48:06] Speaker 00:
There's three categories.

[00:48:09] Speaker 01:
No, there's two categories.

[00:48:10] Speaker 00:
There's three.

[00:48:11] Speaker 00:
Oh, well, you're saying if they're placed in private school as a result of the... I'm just thinking of the recent Lofman opinion I wrote.

[00:48:18] Speaker 00:
Oh.

[00:48:19] Speaker 00:
And going through all the statutory, it seems to me there were three... Okay.

[00:48:23] Speaker 00:
...categories.

[00:48:24] Speaker 03:
Well, one might be private school placed by parents, one might be private school placed by school district, and third is like... Thinking.

[00:48:30] Speaker 01:
And I would collapse private school students placed by school districts into the class of public school students.

[00:48:38] Speaker 01:
That's just the placement that they've offered through the IEP.

[00:48:42] Speaker 00:
All right.

[00:48:42] Speaker 00:
Does anyone, Judge Cole, do you have any questions?

[00:48:48] Speaker 00:
Okay.

[00:48:50] Speaker 00:
No, thank you.

[00:48:50] Speaker 00:
Okay.

[00:48:51] Speaker 00:
All right.

[00:48:51] Speaker 00:
Thank you very much, Council.

[00:48:53] Speaker 00:
You're welcome.

[00:48:56] Speaker 00:
Ms.

[00:48:57] Speaker 00:
Nunes.

[00:49:00] Speaker 02:
Thank you, Your Honors.

[00:49:02] Speaker 02:
I do want to clarify the law a little bit because what 1412 is saying is that if you are in a private school, you don't get special education services from your school district.

[00:49:15] Speaker 02:
That's been clear for a very long time.

[00:49:17] Speaker 02:
It is not saying that if you're enrolled in private school, you can't go to your district of residence and request an offer of FAPE.

[00:49:25] Speaker 02:
And that's done all the time.

[00:49:26] Speaker 02:
So kid who goes to the Catholic school down their street suspects dyslexia, they go to their local school, their local school evaluates and produces an IEP.

[00:49:37] Speaker 02:
The child does not have to enroll in order to get that offer.

[00:49:41] Speaker 02:
Now, in order to access the offer, yes, the child would have to go to the school and enroll, but there has always been a right for a child, and there's a lot of law, and I was just trying to find the citation, but out of this court that says it is

[00:49:55] Speaker 02:
residency, not enrollment, that provides that right to an offer of FAPE.

[00:50:01] Speaker 02:
So it's, I think, very important to understand that even private school students are entitled to an offer of FAPE.

[00:50:07] Speaker 02:
They can go to their school and see what's available for them in the public school system.

[00:50:11] Speaker 02:
And that is what the parents were doing here.

[00:50:13] Speaker 03:
What should we look, think about the language in Capistrano which says, we hold that if the student has been enrolled in private school by her parents, then the district need not prepare an IEP even if a claim for reimbursement has been filed.

[00:50:27] Speaker 03:
To be sure when parents withdraw a student from public school and place her in private school, all they have to do is ask for an IEP and then the district must prepare one.

[00:50:36] Speaker 03:
It does seem to,

[00:50:38] Speaker 03:
support a document versus meeting distinction, which we make of that language.

[00:50:44] Speaker 02:
I don't think that's what they meant.

[00:50:46] Speaker 02:
I mean, there's really no distinction in the statute at all.

[00:50:48] Speaker 02:
And what I think Capistrano was saying, so prior to Capistrano, the common wisdom was that there were these three categories of students, the ones who had been privately placed never to return, those who had been privately placed with a request, an active request for reimbursement, and those who either went to public school or were placed by the public school system.

[00:51:09] Speaker 02:
And there was a belief that if you were in the category of people who were asking for reimbursement, that the district continued to have a freestanding obligation to offer FAPE on an annual basis, just like it would if you were in the private school.

[00:51:24] Speaker 02:
And Capistrano said no.

[00:51:26] Speaker 02:
You took your kid out of school.

[00:51:29] Speaker 02:
you know, in that case said they'd be gone for two years and now you're upset because we didn't call you to schedule an annual IEP meeting when you weren't planning to even come back.

[00:51:40] Speaker 02:
There's no freestanding obligation for your school of residence to continue to have IEP meetings just because the law requires them annually if you have left to a private school even though you've told them you want reimbursement.

[00:51:54] Speaker 03:
I guess in this situation where the parents unilaterally take LB out of Riley without telling the school until the day before and he's already flown to North Carolina and then doesn't tell the school that he switched out to a different school in December until March.

[00:52:14] Speaker 03:
I guess I'm not clear on how the school thought he definitely wants to come back this year.

[00:52:20] Speaker 03:
I mean, if you don't even tell the school district where LB is from the end of December until April, how is the school supposed to know that actually the parents want LB back in the home?

[00:52:35] Speaker 03:
and want LB attending online school from home.

[00:52:39] Speaker 02:
I'm not sure that's clear from this.

[00:52:40] Speaker 02:
Well, that is not what the parents wanted.

[00:52:42] Speaker 02:
They did not want him to come home and return to that program.

[00:52:45] Speaker 03:
They wanted the district to... It sounds like they didn't want him at home, period, right?

[00:52:49] Speaker 02:
Correct.

[00:52:50] Speaker 02:
I mean, that's... And he doesn't have to come home for the district to make an offer?

[00:52:54] Speaker 03:
Because the one time he came home, even when he was at the wilderness camp, he had a meltdown.

[00:53:00] Speaker 03:
That's what's in the record, so that there was a lot of things going on within the family that

[00:53:05] Speaker 03:
exacerbated some of his emotional challenges.

[00:53:12] Speaker 02:
He had a lot of mental health issues, but I think what's really important to focus on is that November 13, 2020 meeting, because the parents went to that meeting and said, look, Trails is about to end.

[00:53:24] Speaker 02:
We've all known it's a 90-day program.

[00:53:26] Speaker 02:
They are recommending not that LB come home but that he continue to a residential placement.

[00:53:32] Speaker 02:
Now at that time, the school district has not only the option but the obligation to consider the full continuum of services including residential placement.

[00:53:42] Speaker 02:
But the IEP team didn't do any of that.

[00:53:44] Speaker 02:
They just cut.

[00:53:45] Speaker 02:
gave them the same cut and paste at IEP from December of 2019.

[00:53:50] Speaker 03:
So the parents... They didn't even know, they didn't have information from what kind of services he was getting at therapy.

[00:53:56] Speaker 03:
So it's a little bit hard to say, oh you should have been inputting this information when they didn't even know what school he was at, they didn't know what his services he was getting.

[00:54:04] Speaker 02:
At this time they did.

[00:54:05] Speaker 02:
In November of 2020, they knew he was at Trails.

[00:54:09] Speaker 02:
Parents had given them all information they wanted.

[00:54:11] Speaker 02:
They had attended an October and a November 5th IEP meeting to discuss.

[00:54:15] Speaker 00:
They signed a lot of releases too so that they could get information.

[00:54:18] Speaker 02:
At that point, I don't know whether the district had asked them to sign the releases yet, but as soon as the district sent them the releases of information, they immediately signed them and returned them.

[00:54:29] Speaker 02:
So at that November meeting, the district knew he's at Trails.

[00:54:33] Speaker 03:
They knew he has his... Is there anything in the record why he didn't go to a program that was closer to San Diego, why he had to go all the way to North and South Carolina for these private programs?

[00:54:44] Speaker 02:
I don't recall in the record.

[00:54:46] Speaker 02:
I don't recall if it's on the record, but this was during covid and most places were not accepting new students at that time.

[00:54:52] Speaker 02:
South Carolina did have a much more lenient.

[00:54:58] Speaker 02:
Returned to school program than California, so I believe that that was why but I don't recall if there's nothing in the record on that But I do want to speculate.

[00:55:09] Speaker 03:
Thank you.

[00:55:10] Speaker 02:
Oh sure, but just it's important Maybe to note that the California Department of Education does contract with many many residential treatment centers outside of the state of California and

[00:55:19] Speaker 02:
And that's because California can't keep students against their will.

[00:55:23] Speaker 02:
So it's really common actually for kids to go to other states.

[00:55:27] Speaker 02:
It's not more costly typically or anything like that.

[00:55:32] Speaker 00:
That's also my Loughman opinion about where California sends a lot of the kids to some pretty crazy schools.

[00:55:41] Speaker 02:
If I may, if I have enough time, I wanted to just kind of summarize

[00:55:47] Speaker 02:
something that I think may have been missed which is that we're not asking this court in any way to say whether the district offered LB FAPE.

[00:55:56] Speaker 02:
We are asking that the district just say that the district had an obligation to offer him FAPE so that we can litigate that in the lower court which is much closer to the facts.

[00:56:08] Speaker 00:
And the reason that the district court found that they didn't, that the school district did not have an obligation to offer FAPE

[00:56:16] Speaker 00:
is because the parents did not request a document.

[00:56:21] Speaker 02:
It seems to be that, yes.

[00:56:24] Speaker 00:
So what role would you prefer to see?

[00:56:28] Speaker 00:
That participation in the IEP meetings is tantamount to a request for the FAPE?

[00:56:37] Speaker 02:
What I think happened is that the courts got a little bit tangled up in the precise language used in Capistrano.

[00:56:45] Speaker 02:
When Capistrano said all a parent in a private school needs to do is request an IEP and they can

[00:56:52] Speaker 02:
create one, what they were saying was, as long as they make it clear they want to come back to the table and get an offer, then of course you have to make an offer.

[00:57:01] Speaker 02:
So I don't know that we need to parse exactly how that request is made.

[00:57:05] Speaker 02:
I think if you've made it to the IEP meeting, it's pretty clear you're requesting to participate in the IEP process.

[00:57:13] Speaker 02:
And then all those rights that are given to any person who attends an IEP meeting should remain.

[00:57:19] Speaker 00:
OK.

[00:57:21] Speaker 00:
I think we've gone over time on both sides of this.

[00:57:25] Speaker 00:
Thank you very much, Your Honors.

[00:57:27] Speaker 00:
Thank you very much.

[00:57:29] Speaker 00:
Do you want to take a few minute break before we take up the next case?

[00:57:35] Speaker 03:
Sure.

[00:57:37] Speaker 00:
Okay.

[00:57:37] Speaker 00:
We're going to be in recess for about five minutes.

[00:57:39] Speaker 00:
Thank you both for a very excellent argument and educational one as well.

[00:57:45] Speaker 00:
Thank you.