[00:00:00] Speaker 04:
Case number 15-7120, KP by her next friends and parents at L Appellants versus District of Columbia.

[00:00:07] Speaker 04:
Mr. Nabors for the appellants, Mr. Love for the appellee.

[00:00:51] Speaker 03:
Good morning.

[00:00:52] Speaker 03:
Good morning, Your Honor.

[00:00:53] Speaker 03:
Stevie Nabors on behalf of the Appellates.

[00:00:56] Speaker 03:
I'd like to reserve two minutes for rebuttal, okay?

[00:01:00] Speaker 03:
In June of 2015, an IDEA hearing officer found that the District of Columbia denied KP a faith by forcing her into an inappropriate educational placement that could not meet her needs.

[00:01:12] Speaker 03:
The hearing officer ordered remedial action, but the district refused to comply with that order and instead returned KP to that inappropriate placement where she has remained for the last 14 months.

[00:01:24] Speaker 03:
This court should find that KP is protected by state put and entitled to a placement that can meet her needs during the pendency of her open actions in district court.

[00:01:35] Speaker 03:
The IDEA state put provision is intended to strip school districts of the unilateral authority to deny disabled students appropriate placements during the pendency of their appeals.

[00:01:47] Speaker 05:
I guess I'm surprised that this case hasn't moved along in the district court to final.

[00:01:53] Speaker 05:
judgment.

[00:01:53] Speaker 05:
What's going on on that front?

[00:01:56] Speaker 05:
It stayed pending the outcome of this appeal, Your Honor.

[00:01:58] Speaker 05:
And that was done by the district court?

[00:02:00] Speaker 05:
Yes, Your Honor.

[00:02:02] Speaker 05:
But the district court has, as I understand it, correct me if I'm wrong, discretion to keep moving forward on the merits while the state put is litigated on appeal?

[00:02:11] Speaker 03:
It can, Your Honor, but it will not.

[00:02:13] Speaker 03:
And the reason why is the district court said that it does not have jurisdiction to hear the appeal portion.

[00:02:19] Speaker 03:
there's an enforcement portion and an appeal portion.

[00:02:21] Speaker 03:
It says it can't hear either, but it won't hear the appeal portion because of the discretionary rightness doctrine.

[00:02:30] Speaker 03:
Right.

[00:02:31] Speaker 05:
Right.

[00:02:33] Speaker 05:
Okay.

[00:02:34] Speaker 05:
Well, that's just my, I guess, angst, which has nothing to do with the legal positions, that this case hasn't moved along to a final resolution.

[00:02:42] Speaker 05:
But in any event, we've got to resolve the issue that we have.

[00:02:46] Speaker 02:
Are you still, is your client still asking for, if DCPS said we will reconstitute the program that KP was in in 2014 before the disputed shift, your client is still asking for that, no?

[00:03:04] Speaker 03:
We would take it in a heartbeat, Your Honor.

[00:03:06] Speaker ?:
Okay.

[00:03:08] Speaker 03:
That goes to the fundamental issue here.

[00:03:10] Speaker 03:
We're not actually asking for a non public school or private school.

[00:03:13] Speaker 03:
We're asking for that appropriate placement.

[00:03:16] Speaker 04:
But was that program that you're wanting to have any existence?

[00:03:22] Speaker 04:
Was it ever outlined in an IEP that we could say should stay put?

[00:03:26] Speaker 03:
No, Your Honor, it was not.

[00:03:36] Speaker 04:
they put with it?

[00:03:38] Speaker 03:
No, Your Honor, it's not.

[00:03:40] Speaker 03:
And the reason why is that an IEP is just a written document.

[00:03:43] Speaker 03:
It's just a piece of paper.

[00:03:44] Speaker 03:
And the IDEA mandates that that piece of paper describe what the placement is.

[00:03:50] Speaker 03:
Placement and IEP are two different things.

[00:03:52] Speaker 03:
Thankfully, the IDEA hearing officer applied her specialized knowledge and expertise of special education and educational policy to outline exactly what components comprise the pre-October placement.

[00:04:05] Speaker 03:
That is all of those details that should have been on that IEP, but were not.

[00:04:09] Speaker 02:
Now, did your client agree that your client and DCPS agreed before the shift occurred in 2014 that the placement she was in was an appropriate placement?

[00:04:22] Speaker 03:
Yes, Your Honor, and the hearing officer also found it.

[00:04:24] Speaker 02:
Exactly.

[00:04:25] Speaker 02:
So the parties agree and the hearing officer found that that placement was appropriate.

[00:04:30] Speaker 03:
Yes, ma'am.

[00:04:31] Speaker 02:
The IEP does not

[00:04:33] Speaker 02:
is not in conflict with that, but doesn't adequately specify or require it.

[00:04:38] Speaker 02:
That's your client's position.

[00:04:40] Speaker 03:
Well, that's the hearing officer's position, and that the lack of that information further denies KP of faith.

[00:04:46] Speaker 03:
And that's your position before us.

[00:04:47] Speaker 03:
Yes, Your Honor.

[00:04:48] Speaker 02:
So what if

[00:04:50] Speaker 02:
there were just a truly astounding educational program that let's say some philanthropist offered and said I'm going to try to eliminate the problems for children with disabilities in DC and I'm going to give basically every kid everything they need and DCPS says that's fantastic and they accept that for a year and the

[00:05:14] Speaker 02:
the city thinks that's great, the parents think that's great, the hearing officer thinks that's great, but then the philanthropist pulls out.

[00:05:23] Speaker 02:
What, under the rule you advocate, what would prevent, in that situation, a state put from requiring DCPS to fund what the philanthropists used to fund?

[00:05:31] Speaker 03:
In the scenario you've described, Your Honor, the placement wouldn't be pursuant to the IDEA.

[00:05:36] Speaker 03:
The IDEA only requires that a student receive educational benefit from their placement.

[00:05:41] Speaker 03:
Even if the district said, we think that's fantastic.

[00:05:44] Speaker 03:
And you know what?

[00:05:44] Speaker 03:
Now you're going to be a straight-A student in college.

[00:05:48] Speaker 03:
That's not an IDEA placement.

[00:05:50] Speaker 02:
Well, so that's a little bit

[00:05:51] Speaker 02:
metaphysical for my taste because the state put, as you've argued, the analysis of the placement for purposes of the state put has to precede any kind of merits adjudication of what the IDEA ultimately requires.

[00:06:09] Speaker 02:
So we have to have some benchmark that is somewhat distinct from what the IDEA ultimately has found in the circumstances to require, no?

[00:06:19] Speaker 03:
You're right, Your Honor, and that's how we get some of those decisions like Oliver Vineyard-Windish, where the student actually isn't in a fake placement, but they're in a placement that a hearing officer has found was appropriate under the Act.

[00:06:30] Speaker 03:
Those are reimbursements under Florence County School System versus Carter, a Supreme Court case.

[00:06:37] Speaker 03:
But the hypothetical that you proposed, Your Honor,

[00:06:41] Speaker 03:
We're not saying that at any point in time that KP is in a perfect placement, that that's going to be the stay put placement.

[00:06:48] Speaker 03:
What we had in this particular case is that she was inside of a public high school, and she had a program that was working for her.

[00:06:55] Speaker 03:
Now we know that the district has fully eliminated that program, and the next best option was expressly rejected by the hearing officer because it cannot meet her needs, despite that fact.

[00:07:06] Speaker 02:
And she's still in that program.

[00:07:08] Speaker 02:
Exactly, Your Honor.

[00:07:09] Speaker 02:
And there's nothing in the record telling us how she's doing in that program today.

[00:07:14] Speaker 02:
It's just the nature of the litigation context, right?

[00:07:16] Speaker 03:
That's right, Your Honor.

[00:07:17] Speaker 03:
But if the court would like a supplemental pleading, I'd be happy to update the court.

[00:07:21] Speaker 03:
I have some details now if you'd like them.

[00:07:26] Speaker 05:
It's up to Judge Pillard whether we want them now.

[00:07:28] Speaker 05:
But I'm happy to have the supplemental pleading.

[00:07:31] Speaker 05:
Yes, Your Honor.

[00:07:32] Speaker 05:
I'm not sure.

[00:07:33] Speaker 05:
Well, keep going.

[00:07:35] Speaker 05:
Sure.

[00:07:36] Speaker 05:
So we'll hear what the district says about the supplemental pleading also.

[00:07:39] Speaker 02:
Let me ask you this, it's related.

[00:07:41] Speaker 02:
If we were to find that the hearing officer's description of the placement were inadequately specific, which I gather is what the district court and the magistrate judge thought, to form a basis for a leap, would it be appropriate for us to remand to the district court to conduct an evidentiary hearing to determine the characteristics of that pre-October 2014 placement?

[00:08:04] Speaker 03:
Absolutely, Your Honor, because the other option is to keep KP in a placement that a hearing officer has already said cannot meet her needs, will not ever provide her a favor, and she's going to have to stay there until we can resolve the issue on appeal.

[00:08:19] Speaker 03:
That certainly contravenes the purposes of the IDEA and definitely stay put.

[00:08:26] Speaker 05:
My goal is to expedite this thing to final conclusion.

[00:08:31] Speaker 05:
This is a off-ramp that will be very temporary, I assume, because the District Court, let's say you win this appeal, the District Court presumably is going to resolve the merits very quickly.

[00:08:43] Speaker 03:
No, Your Honor.

[00:08:44] Speaker 03:
Why?

[00:08:44] Speaker 03:
There's a question of whether or not parents can enforce an HOD.

[00:08:48] Speaker 03:
That was before the court in BD.

[00:08:50] Speaker 03:
There's an open question about that.

[00:08:52] Speaker 03:
That hasn't even been briefed yet.

[00:08:54] Speaker 05:
And that's one of the reasons why state... But you're seeking to the extent, and correct me if I'm wrong, to the extent you're saying that a public education wasn't good enough.

[00:09:02] Speaker 05:
That issue will be resolved.

[00:09:06] Speaker 03:
No, Your Honor, I would frame it as saying that the districts.

[00:09:09] Speaker 05:
Didn't you have multiple claims?

[00:09:11] Speaker 05:
We did, Your Honor.

[00:09:12] Speaker 05:
One of them was that no public school setting was good enough, correct?

[00:09:16] Speaker 05:
That's right, Your Honor.

[00:09:17] Speaker 05:
The district court's gonna have to resolve that, correct?

[00:09:19] Speaker 05:
Yes, Your Honor.

[00:09:20] Speaker 05:
Okay.

[00:09:20] Speaker 05:
That can be resolved very quickly.

[00:09:23] Speaker 05:
I hope so, Your Honor.

[00:09:24] Speaker 05:
And then, so once that's resolved, that part of the case is over, and then there will be the separate issue on the 1983 to enforce the hearing officer determination.

[00:09:34] Speaker 05:
The district court says you can't do that.

[00:09:36] Speaker 05:
Then that also ends the case, correct?

[00:09:41] Speaker 03:
until it comes here your honor and then we would argue that even though this court is previously held in Anderson by Anderson that state put does not apply to appeals here that recent decisions and the updated CFR that the Department of Education have issued would give this court a great reason to revisit Anderson and determine whether or not... I assume we're not going to revisit the case.

[00:10:05] Speaker 05:
What is the language of the state put provision

[00:10:08] Speaker 05:
does not suggest you would be able to stay put in the circumstance that I described, would it?

[00:10:16] Speaker 03:
The statute is unclear.

[00:10:17] Speaker 03:
The regulations says during the pendency of all administrative and judicial proceedings, and it was based on that that the third Second Third Circuit in M. R. Versus Ridley School District held that state would applies in all appeals, even up to the Supreme Court.

[00:10:34] Speaker 05:
Okay, so then your point is, even if it's resolved quickly, then that will be appealed, and the state put would still apply during that appeal.

[00:10:43] Speaker 05:
Yes, your honor.

[00:10:44] Speaker 05:
I see.

[00:10:45] Speaker 05:
So the hope of quick resolution seems aspirational at best.

[00:10:53] Speaker 02:
Mr. Ebers, you?

[00:10:54] Speaker 02:
What's your position on the enforcement of the favorable HOD?

[00:11:00] Speaker 02:
You seem to concede that the HOD was favorable on page seven of your brief.

[00:11:05] Speaker 02:
It was favorable to you, and I mean, also had the unfavorable aspect, which was declining to order, private placement.

[00:11:13] Speaker 02:
Tell me your position on why the bar against appealing or enforcing an unfavorable HOD is not a bar against the relief you're seeking here.

[00:11:24] Speaker 03:
Your Honor, it's only a partially favorable HOD and very recently Judge Sullivan in Wimbish versus District of Columbia allowed an appeal to go through that was just in a partial appeal of an HOD.

[00:11:36] Speaker 03:
It's happened repeatedly throughout both cases in this district and other districts as well.

[00:11:42] Speaker 03:
And I think the reason why is just a matter of equity.

[00:11:45] Speaker 03:
If the hearing officer commits a plain error like we think that she did in this, and it would bar the student from receiving a FAPE otherwise, the purposes of the IDEA are not served by saying, well, I mean, you kind of won, but sorry, the student's still not going to get a FAPE, even though you pretty much proved your case.

[00:12:06] Speaker 02:
And what's your position on the adequacy or not of the state administrative

[00:12:11] Speaker 02:
Avenue.

[00:12:12] Speaker 03:
Not only that it's inadequate, particularly in this case, due to the facts, but that parents are not required to re exhaust or to engage in a secondary exhaustion through the state complaint process.

[00:12:27] Speaker 03:
The Department of Justice articulated that position

[00:12:30] Speaker 03:
in its brief in the Ninth Circuit case regarding enforcement of the HOD, and it argued quite vociferously that parents don't have to use state complaints, but state complaints are optional.

[00:12:45] Speaker 02:
And that Ninth Circuit case that you're referring to is the KD Hawaii case?

[00:12:51] Speaker 03:
No, Your Honor.

[00:12:53] Speaker 03:
I'm sorry, it's actually in our pleadings that's before the district court.

[00:12:57] Speaker 03:
I apologize.

[00:13:00] Speaker 03:
I see that I'm out of time.

[00:13:01] Speaker 03:
It's okay.

[00:13:02] Speaker 03:
I will give you some time for a bottle.

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

[00:13:05] Speaker 03:
Thank you.

[00:13:13] Speaker 00:
Good morning.

[00:13:14] Speaker 00:
May it please the court.

[00:13:14] Speaker 00:
Richard Love for the District of Columbia.

[00:13:17] Speaker 00:
Appellants mistakenly rely on ideas state put provision to obtain what no IEP has provided and no hearing officer or court has ordered.

[00:13:26] Speaker 00:
Indeed, they both appeal the hearing officer's decision because they didn't order the placement that they desire and they ask this court to issue a state put order based on a patchwork of statements and findings in that same hearing officer's decision.

[00:13:42] Speaker 00:
The magistrate judge I would submit correctly found that this approach is not supported by case authority.

[00:13:49] Speaker 05:
The then current placement though was a, and I'm going to paraphrase, was a smaller classroom setting with

[00:14:01] Speaker 05:
people with the same disability, whereas the newer placement, and again, using that term loosely here, the newer placement was a larger classroom with more students with multiple disabilities.

[00:14:14] Speaker 00:
No, I would respectfully disagree.

[00:14:17] Speaker 00:
Unquestionably, the classroom setting changed, as you described, but I don't think there's any IEP

[00:14:25] Speaker 00:
or a hearing officer decision that established that classroom setting as her then current educational placement.

[00:14:35] Speaker 00:
That's the problem with this case.

[00:14:37] Speaker 00:
When you compare this case to the cases that the plaintiffs identified in their reply brief, in every single one of those cases there was a hearing officer decision that identified the placement

[00:14:51] Speaker 00:
In fact, ordered the placement, they all were private school placements, ordered the placement and ordered the district to fund those placements.

[00:14:59] Speaker 00:
I mean, they were unquestionably established as the current educational placement because case law has identified that hearing officer decision as an agreement.

[00:15:15] Speaker 02:
Mr. Love, this is a strange position for the city to be taking.

[00:15:19] Speaker 02:
So there are many cases in which a hearing officer, a family asked for and a hearing officer ordered private placement.

[00:15:28] Speaker 02:
In this case, both the hearing officer and the family are actually more willing to work with the city or more willing to believe that the city has something reasonable to offer, presumably at lower cost if

[00:15:43] Speaker 02:
you know, general experiences and you got and because that was the case, this student is in worse shape than someone who a hearing officer said we're just giving up on the public school and sending sending you to private school.

[00:15:58] Speaker 02:
So here they're saying there was we do want to be within the public

[00:16:02] Speaker 02:
school we are willing to accept the placement that was working for our daughter in the public school and that puts them in a situation where there's no stay put that's going to work for this child?

[00:16:17] Speaker 00:
I think the record shows that actually twice they asked the hearing officer for a private school placement, both in 2013 and both in 2015, and in both hearing officers denied that request.

[00:16:31] Speaker 02:
And in 2014, the hearing officer opinion says the public school placement was working for her and the parents thought it was too.

[00:16:41] Speaker 02:
So the only thing that's, I mean the most efficient thing for the district in terms of providing education for this child, the most efficient within the system is off the table for state put purposes in your view?

[00:16:58] Speaker 00:
Well, I think that the UCPS did not refuse the hearing officer's order to

[00:17:08] Speaker 00:
convene an IEP team and develop a new IEP.

[00:17:13] Speaker 00:
That IP was developed and DCPS made the decision that the services that it called for could be provided in the post-October 2014 placement.

[00:17:29] Speaker 00:
And the hearing officer disagreed?

[00:17:30] Speaker 00:
Yes, it's slightly larger.

[00:17:31] Speaker 00:
Yes, there is more interaction with non-disabled students and the composition may be a little different.

[00:17:39] Speaker 02:
But didn't you, Mr. Love, lose that issue before the hearing officer?

[00:17:44] Speaker 00:
in the city yes and and we do not dispute you know the plane and recognize the plaintiff has a right to litigate her entitlement to a placement but absent i e p that requires the aura h o d that orders the uh... placement she seeks through state but it shouldn't be ordered at the outset of the case what that is the whole point of state is apart from

[00:18:12] Speaker 02:
I mean for example the rule so maybe this is a way of sharpening it the rule that you are proposing

[00:18:21] Speaker 02:
would give great incentive to schools to write IEPs in very general terms that would not specify the critical features that are both costly to the school and helpful to the student.

[00:18:39] Speaker 02:
And that way, the IEP would not be a basis for a state put.

[00:18:47] Speaker 00:
What's your response to that?

[00:18:50] Speaker 00:
One, the parent and the student always have the option to challenge that IEP is insufficiently descriptive.

[00:19:00] Speaker 02:
Which they did, but we're talking about the state put the congressional purpose of which is to say children's school years are fleeting and critically important.

[00:19:10] Speaker 02:
we need to have a baseline educational situation for this child while the family litigates.

[00:19:19] Speaker 00:
The flip side is as we pointed out and I think your question initially the council also raised the concern and that is whether it's a great disincentive to any school district to offer anything that goes beyond the strict terms of an IEP before the fear that

[00:19:40] Speaker 00:
required to maintain those services through stake put throughout any judicial proceeding.

[00:19:47] Speaker 00:
I mean, in this case, the problem is

[00:19:50] Speaker 00:
you know when it's not specified in the IEP, it's not ordered by an HOD, the district had no opportunity to challenge, they didn't have the opportunity to challenge statements or findings in the HOD.

[00:20:02] Speaker 02:
They will in the litigation, same answer that you're giving to the other side, that you're saying should satisfy them, you will have every, this is just the interim situation, it's not the ultimate situation, DC has its full

[00:20:17] Speaker 02:
prerogative to litigate these questions to the end of the case.

[00:20:21] Speaker 00:
Right.

[00:20:21] Speaker 00:
And the district, as an institution, is faced with state put requests of all kinds and all manners.

[00:20:28] Speaker 00:
And without to be able to administer that state put, I think you need some clarity.

[00:20:34] Speaker 00:
This is a very powerful provision, dispenses with the normal injunction standards.

[00:20:41] Speaker 00:
And so it was meant to, and when you look at it like honing feet dog, don't

[00:20:46] Speaker 00:
K.P.

[00:20:47] Speaker 00:
wasn't excluded from school.

[00:20:49] Speaker 00:
She wasn't expelled.

[00:20:50] Speaker 00:
She wasn't subject to an indefinite suspension.

[00:20:53] Speaker 00:
She was moved to a slightly larger program.

[00:20:56] Speaker 00:
And mainstreaming indeed is a priority, not to the detriment of a child.

[00:21:01] Speaker 00:
Right.

[00:21:02] Speaker 02:
The less restrictive, but we all know, and you know this better probably than many people in this room, that when a child has the kind of

[00:21:11] Speaker 02:
disabilities that many of these children have, that pushing them a little too far, a little too fast, into a very overstimulating environment, into an environment where they don't have continuity, into an environment where they're frightened, it's extremely disruptive.

[00:21:28] Speaker 02:
And it is as bad, if not worse, than expelling them.

[00:21:31] Speaker 02:
So it's, I mean, I understand absolutely

[00:21:34] Speaker 02:
the difficulty institutionally for the district.

[00:21:37] Speaker 02:
We're just trying to make sense of the statutory feature and your position on it.

[00:21:43] Speaker 00:
Well, I would suggest that, you know, particularly given the powerful nature of this provision, it should be strictly applied.

[00:21:52] Speaker 00:
And our position is that, you know... Well, why?

[00:21:56] Speaker 05:
I'm not going to stop you there.

[00:21:58] Speaker 05:
I'm not sure the logic of that.

[00:22:00] Speaker 05:
It's powerful.

[00:22:02] Speaker 05:
Why don't we just apply it?

[00:22:05] Speaker 05:
moderately, neither leniently nor strictly.

[00:22:08] Speaker 05:
I don't understand, strictly applied.

[00:22:11] Speaker 00:
I think to construe the current educational placement from statements or findings in an HOD, particularly an HOD that neither ordered these services, neither ordered the maintenance of this student in this program, and in fact denied placement in a similar private setting,

[00:22:33] Speaker 00:
is inconsistent with the state book provision itself.

[00:22:39] Speaker 00:
It makes the application extremely difficult to administer because of the vagaries.

[00:22:47] Speaker 05:
Consistent with my questions to your opposing counsel, how quickly can this get resolved?

[00:22:54] Speaker 05:
Because this is taking too long.

[00:22:57] Speaker 05:
And part of that's our court's fault, I think, for getting here.

[00:23:02] Speaker 00:
We definitely agree with your concern.

[00:23:08] Speaker 00:
We did not ask the court to rule on rightness and to deny a state put on that basis.

[00:23:16] Speaker 00:
So we made similar arguments, I think, to what I'm making now.

[00:23:21] Speaker 00:
I believe the merits can and should be addressed.

[00:23:24] Speaker 00:
I don't know why the question of the enforceability of a favorable HOD.

[00:23:35] Speaker 02:
They want the public placement that both parties agreed was an adequate placement, and they only want private school if they can't get that.

[00:23:48] Speaker 02:
So they did not get private school, so they're appealing because they don't have a FAPE.

[00:23:54] Speaker 02:
And it seems to me the two issues are very intertwined.

[00:23:57] Speaker 02:
The notion that they're appealing a favorable HOD seems a little fictional when the HOD said no to private placement and the adequate placement is the pre-October 2014.

[00:24:13] Speaker 00:
Nobody challenged, one I don't agree, that there was an agreement to the classroom setting that was

[00:24:22] Speaker 00:
the pre-October 14th classroom setting.

[00:24:27] Speaker 00:
There was no agreement to that.

[00:24:29] Speaker 02:
You were providing it and they were accepting it.

[00:24:33] Speaker 02:
And then the hearing officer said it was adequate, and you did not appeal that aspect.

[00:24:40] Speaker 00:
Well, we couldn't appeal that there.

[00:24:42] Speaker 00:
That was not a part of the order.

[00:24:44] Speaker 00:
That was a statement and a finding in the hearing officer's decision.

[00:24:49] Speaker 00:
We had no necessity to appeal from an order that required a new IEP to address specific issues, which were done.

[00:24:58] Speaker 00:
But we don't challenge the jurisdiction of the court to address the contention that the hearing officer erred in finding that a private school placement was not the least restricted environment.

[00:25:16] Speaker 00:
certainly can proceed the court as jurisdiction to address it.

[00:25:22] Speaker 00:
The district court found it wasn't right because it was tied up with issues in terms of enforceability.

[00:25:28] Speaker 00:
But I think given the time that has passed, there's no reason the court can't make a determination as to whether the hearing officer is here.

[00:25:36] Speaker 02:
So your view, just let me clarify what's before us and what's not.

[00:25:40] Speaker 02:
The state put is what's before us.

[00:25:43] Speaker 02:
That's all that's... And your view is that what she gets as a state put is what the district wants to give her.

[00:25:52] Speaker 00:
No, I'm saying that she has failed to satisfy her burden to determine, you know, the educational, her then current educational placement because they've identified no IEP that has required it.

[00:26:09] Speaker 02:
Because the district brought a very general one, okay, the no IEP and what else?

[00:26:15] Speaker 00:
No IEP that required it or HOD or court that ordered it.

[00:26:21] Speaker 00:
But I was trying to get to Judge Kavanaugh's question in terms of the merits.

[00:26:26] Speaker 00:
I believe the case can proceed quickly to address the merits, but also, you know, there's no reason.

[00:26:36] Speaker 00:
I disagree with the end of, I think it's towards the end of the appellant's reply brief, that they somehow, collaterally, have stopped from attacking her current placement.

[00:26:49] Speaker 00:
There was a 2015 IEP, it's a part of this record.

[00:26:54] Speaker 00:
They could have filed a new due process challenge to that 2015 IEP.

[00:26:59] Speaker 00:
There's a 2016 IEP.

[00:27:01] Speaker 00:
And they could have challenged that as well.

[00:27:04] Speaker 00:
So I think there were a variety of mechanisms to get this case moving.

[00:27:09] Speaker 00:
But nonetheless, we certainly do not advocate slowing this down.

[00:27:16] Speaker 00:
There's no, you know, we certainly

[00:27:21] Speaker 05:
In your view, what will happen if you win this, what's going to happen in the district court, and how quickly can that happen?

[00:27:29] Speaker 00:
I think it should be remanded for the court to address the merits issue, and that is whether or not the least restrictive environment issue, which is tied up with this classroom setting.

[00:27:45] Speaker 00:
And as I said, we didn't

[00:27:49] Speaker 00:
advocate the rightness issue before the district court and we haven't defended it here.

[00:27:55] Speaker 00:
So I think it should go back.

[00:27:56] Speaker 05:
And if you were to lose here on the state put the same, really, you think the merits can be quickly resolved?

[00:28:03] Speaker 00:
That's right.

[00:28:12] Speaker 05:
The state would apply pending appeal in your view?

[00:28:17] Speaker 00:
No, I think that the court is ruled on that.

[00:28:20] Speaker 05:
Yeah.

[00:28:22] Speaker 00:
Okay.

[00:28:22] Speaker 00:
And in this court?

[00:28:25] Speaker 02:
Well, I mean, if there's a pending action, which there is here in the district court, then it surely applies.

[00:28:31] Speaker 02:
That distinguishes this case from Anderson, no?

[00:28:40] Speaker 00:
No, I think, well, my memory of reading it is that it would not, it would not apply, it only applies through the district court proceeding, and that's through the, if there's a subsequent appeal.

[00:28:54] Speaker 02:
But this is not a subsequent appeal, this is, there's no determination on the merits.

[00:28:59] Speaker 02:
If the district court rules against the family, then they don't continue to get their state put while they appeal.

[00:29:05] Speaker 02:
But that's not this case.

[00:29:07] Speaker 02:
Right.

[00:29:08] Speaker 02:
Right, that's not the state.

[00:29:09] Speaker 05:
Yeah, but you're saying if it went back and you won on the merits, the state put wouldn't apply through that appeal of the merits.

[00:29:21] Speaker 01:
That's what Anderson says.

[00:29:23] Speaker 05:
Yeah, just to clarify that, yeah.

[00:29:26] Speaker 05:
Just making sure.

[00:29:27] Speaker 05:
Okay, and that's it.

[00:29:29] Speaker 05:
Thank you.

[00:29:35] Speaker 03:
Thank you, honors.

[00:29:36] Speaker 03:
I just want to touch on one point that the district articulated, and that is that KP's IEP are the only services she requires, or I think Mr. Love framed it as, stay put would require that we have a chilling effect on schools from providing extra services that are not on the IEP.

[00:29:54] Speaker 03:
The problem with that argument is that the hearing officer said that those services were necessary to receive a FAPE, and that's why they should have been on the IEP.

[00:30:04] Speaker 03:
granting state put in this case and saying that yeah, KP should receive all of those services wouldn't have a chilling effect.

[00:30:11] Speaker 03:
It's just correcting what the district should have done in the first place, which is to write an IEP that accurately reflected KP's in current placement.

[00:30:21] Speaker 03:
The court doesn't have any further questions.

[00:30:23] Speaker 03:
Okay, thank you both.

[00:30:24] Speaker 03:
The case is submitted.