[00:00:00] Speaker 00: Case number 21 of 7134. [00:00:02] Speaker 00: Anne Davies on behalf of Braden Davies at Ballant versus District of Columbia, a municipal corporation. [00:00:10] Speaker 00: Ms. [00:00:10] Speaker 00: Savitt for the at Ballant, Ms. [00:00:12] Speaker 00: Latsat for the Eppley. [00:00:15] Speaker 03: Good morning. [00:00:16] Speaker 03: Good morning. [00:00:26] Speaker 02: Good morning, ladies and gentlemen. [00:00:27] Speaker 02: My name is Diana Savitt, appearing on behalf of Anne Davies [00:00:30] Speaker 02: who acts on behalf of her son, Braden Davis. [00:00:33] Speaker 02: With me this morning is Charles Moran, co-counsel for Ms. [00:00:36] Speaker 02: Davis, and Craig Wing, counsel for the Niki Curia, advocates for justice and education, and counsel of parents, advocates, and attorneys. [00:00:48] Speaker 02: Mr. Wing has filed an amicus brief, and if the court has questions for him, he can answer them. [00:00:54] Speaker 02: We are not, however, sharing. [00:00:56] Speaker 02: OK. [00:00:58] Speaker 02: And then with the court's permission, I will reserve three minutes for one. [00:01:03] Speaker 02: OK, thank you. [00:01:04] Speaker 02: The Supreme Court held in Board of Education versus Rowley that the purpose of the Individuals with Disabilities Education Act is to open the doors of education to students with disabilities. [00:01:16] Speaker 02: The Supreme Court held in the Andrew F. case that in enacting IDEA, Congress was concerned with eliminating the practice of warehousing these difficult to educate students. [00:01:27] Speaker 02: until they just aged out of the educational system. [00:01:31] Speaker 02: We are here today because the district court denied a preliminary injunction to maintain Raymond Davis in his current educational placement, and thereby frustrated both of these statutory purposes, as well as specific language in the IDEA that mandated entry of the injunction, which is colloquially known as a state [00:01:55] Speaker 06: Now we are facing some novel circumstances in this case, you know, in the facility is no longer available, but I don't suggest that that means that the district doesn't still have his obligation under the IDEA. [00:02:10] Speaker 06: So how should we tread ground in these novel circumstances? [00:02:14] Speaker 02: It's the specific facility was not available in discharge rate. [00:02:19] Speaker 02: That does not mean that a comparable [00:02:25] Speaker 02: facility or arrangement could not have been implemented for him far beyond what the district offered to him. [00:02:32] Speaker 06: And by comparable, you're not suggesting that the hotel arrangement would be suitable here. [00:02:37] Speaker 02: The hotel arrangement was a desperation measure on behalf on the part of the parents. [00:02:42] Speaker 02: They were justifiably concerned about simply bringing Graydon home. [00:02:47] Speaker 02: They knew that in the past when he had lived with him with them, [00:02:50] Speaker 02: He had engaged in highly dangerous activities, it remains an attractive uses for him. [00:02:56] Speaker 02: And so with no place else to go, they chose what they felt was their only option on very short notice. [00:03:04] Speaker 04: So let me ask the council, is it your position that the hearing officer's decision and what he ordered was also insufficient? [00:03:18] Speaker 02: It was much better, but yes, it was insufficient because what he ordered on an interim basis was for the district to provide a day program. [00:03:30] Speaker 02: None of the residential components, including none of the therapeutic supports, none of the behavioral supports, none of the functional living skills work. [00:03:41] Speaker 02: So while what he ordered [00:03:43] Speaker 02: was certainly better than what the district had proposed, which was sending home and the parents do everything, it now remains insufficient. [00:03:52] Speaker 04: So is it your position that your only way to address that is to file the stay put motion as opposed to seeking some sort of injunction? [00:04:07] Speaker 02: Well, the same motion would have maintained Braden's placements [00:04:13] Speaker 02: until we could reach the merits which is where where where would it have made his place where would it have retained his placement or maybe there were there were a few options the first option would have been for the district to simply replicate what are the audience well the first one would have been for the district to replicate what CSAC was doing CSAC had him in a greenhouse no i understand so how how do what is [00:04:43] Speaker 04: What is your view of your legal remedy at that point where you're dissatisfied with the hearing officer? [00:04:50] Speaker 04: I gather you thought it was to file a stay put motion. [00:04:56] Speaker 02: Oh, no, I'm sorry, Your Honor. [00:04:58] Speaker 02: I misunderstood your question. [00:04:59] Speaker 02: We have appealed the hearing officer's decision to the district court, but the district court has stayed that proceeding pending this court's decision. [00:05:07] Speaker 04: And denied it's your motion to unseal as well. [00:05:11] Speaker 04: Is that not correct? [00:05:12] Speaker 02: That is correct over the district's opposition, the district recommended and the district court accepted that recommendation to await the court's decision. [00:05:22] Speaker 04: So the hearing officer looked to the Fourth Circuit decision as offering a somewhat comparable situation. [00:05:34] Speaker 04: I mean, you're the expert in this area. [00:05:36] Speaker 04: I'm just trying to understand what your legal options were once the district court denied your motion to stay. [00:05:49] Speaker 02: Well, our legal options at that point were to model through as the Davis's did with the current situation or for the Davis's to unilaterally place rate if they were able to find [00:06:03] Speaker 02: place themselves and they did search quite diligently. [00:06:06] Speaker 04: What I meant was court options in terms of your legal options. [00:06:15] Speaker 01: Once the state put was denied, the option was- No, I'm sorry. [00:06:21] Speaker 04: I want to be clear. [00:06:22] Speaker 04: At the point that the district court denied the state put in motion, [00:06:30] Speaker 04: What were your legal options to appeal or modify that? [00:06:39] Speaker 04: We took this appeal. [00:06:41] Speaker 04: Yes. [00:06:42] Speaker 04: And the problem with it, I mean, I think everyone's in agreement on this. [00:06:48] Speaker 04: Aren't they? [00:06:48] Speaker 04: Except maybe the district court that granting your state put doesn't solve the problem. [00:06:58] Speaker 02: It wouldn't completely solve the problem is what you're. [00:07:02] Speaker 02: Insisting upon is placement in a private residential treatment center and therefore, depending on the 3rd party to admit him. [00:07:11] Speaker 04: Is it your view that the district. [00:07:15] Speaker 04: school system is incorrect in saying that it has looked for another such facility and not been able to find it throughout the United States and that there is generally a glut problem that's facing persons like Davis's son. [00:07:44] Speaker 02: We know that the district made referrals to 19 residential treatment facilities as of the day the court heard the preliminary junction hearing. [00:07:55] Speaker 02: All 19 ultimately said no for various reasons. [00:07:59] Speaker 02: Some didn't have space. [00:08:01] Speaker 02: Some said he was not appropriate. [00:08:02] Speaker 02: Some were not taking people because of COVID. [00:08:06] Speaker 02: To our knowledge, no further referrals have been made since then. [00:08:13] Speaker 02: have not been notified. [00:08:16] Speaker 04: So I thought, yes, what I'm trying to understand is literally what are your legal options? [00:08:24] Speaker 04: The state put motion seems to be serving another function and it isn't going to solve the Davis's problem. [00:08:35] Speaker 02: The state put motion had granted, had the district court exercised its equitable powers. [00:08:43] Speaker 02: could still have resulted in Braden getting most of the program that he is entitled to under his IEP. [00:08:53] Speaker 04: Now the equitable powers that you're referring to arise in the context of a civil action as opposed to a motion for state put order. [00:09:06] Speaker 02: They are found in the civil action section, but they have been, [00:09:12] Speaker 02: For us, I've exercised equal powers in the state with motions as well. [00:09:16] Speaker 02: For example, in the Austin case, in the GD case, both of which are cited in our brief, which were from the district court below. [00:09:24] Speaker 02: They have directed the district in the Austin case. [00:09:30] Speaker 02: The student was discharged from a residential placement. [00:09:33] Speaker 02: It was no longer available. [00:09:35] Speaker 04: So, did you cite any other circuit case taking that position on a stay put motion in comparable circumstances? [00:09:46] Speaker 04: The district court, I believe, not in a circuit case. [00:09:49] Speaker 04: Correct. [00:09:50] Speaker 04: So the district court may be in. [00:09:55] Speaker 04: dispute about this, but at this point, what do we do? [00:10:00] Speaker 04: That's all I'm trying to understand. [00:10:03] Speaker 04: And I read the bottom line is basically looking at what the district court did here, you want the district court basically to convert that motion into [00:10:16] Speaker 04: a civil action and exercise equitable powers or reverse its denial of your emotion to lift, no longer hold the case in abeyance? [00:10:31] Speaker 02: Well, one, the district court did not need to go that far. [00:10:38] Speaker 02: Under the authority of the ninth case that this court decided many years ago, what [00:10:45] Speaker 02: The district owed Braden, if his placement was no longer available, with similar services, not defined specifically in night. [00:10:54] Speaker 02: But what the district court could have ordered under that authority was the basic components of Braden's program to be provided to him directly by the district. [00:11:06] Speaker 02: There were other problems with what happened following the CSAC discharge besides simply not giving Braden [00:11:15] Speaker 02: a new place to live other than the family home. [00:11:18] Speaker 02: One was, of course, he was sent home, which is a different level of restrictiveness on the IDEA continuum. [00:11:25] Speaker 05: Another problem was... So I understand that Brayden's parents have cobbled together something that's similar to what they think he needs, using a hotel room and arranging their own round the clock. [00:11:40] Speaker 05: supervision. [00:11:41] Speaker 05: Are you suggesting that the district should have put together something like that independently or that the district should reimburse Brayden's parents for what they've done? [00:11:53] Speaker 05: What are you trying to get in the interim? [00:11:56] Speaker 05: Because I think it's undisputed. [00:11:58] Speaker 05: Everybody agrees on what he needs and what the IEP is. [00:12:02] Speaker 05: And the district is looking for that and have not been able to locate it. [00:12:05] Speaker 05: So what is it that you want in the interim? [00:12:07] Speaker 02: OK, well, whether the district is actually still looking for it is not clear from the record. [00:12:13] Speaker 02: But what we would want it was for the district to assume the responsibility for providing the components of Braden's IEP not. [00:12:24] Speaker 02: The request was never specifically put him in a hotel. [00:12:27] Speaker 02: The request was. [00:12:29] Speaker 02: To. [00:12:32] Speaker 02: Have the district continue to provide his services, so basically [00:12:37] Speaker 05: problem together just as the parents, but the district should do it. [00:12:41] Speaker 05: So, but let me ask you this. [00:12:43] Speaker 05: So why did you bring this under the state put injunction provision instead of just moving for a preliminary injunction saying that he's being deprived of his fair education? [00:12:54] Speaker 02: We do not believe that a traditional preliminary injunction was the appropriate [00:13:00] Speaker 02: Avenue because he satisfied the grounds for stay put. [00:13:05] Speaker 05: I think it's procedurally a little bit more difficult under stay put, which is intended to address a different situation. [00:13:12] Speaker 05: It seems to me that stay put is to address when the school wants to change the for the school district wants to change the placement. [00:13:19] Speaker 05: There's a dispute with the parents. [00:13:21] Speaker 05: The child stays in the current placement until that's resolved here through no fault of the district. [00:13:27] Speaker 05: This private institution decided [00:13:30] Speaker 05: that Braden couldn't have a space there anymore. [00:13:33] Speaker 05: The district is looking for a comparable space, and it seems to me what you're asking for, which is a comparable place until the permanent placement is found or the more long-term placement is found, is more appropriately addressed as just preliminary injunction to say the district needs to provide a fair and appropriate public education until that is done. [00:13:57] Speaker 05: Whereas the state put provision, it requires us to to read into current placement, all kinds of things that there's no precedent for right now. [00:14:05] Speaker 02: Well, there is precedent. [00:14:06] Speaker 02: There's not direct. [00:14:08] Speaker 05: Well, there's a nice case also by but the night wasn't exactly on all fours. [00:14:12] Speaker 02: It's not on all fours, but it does say provide similar program. [00:14:16] Speaker 02: Also, the separate problem, this is a huge problem highlighted in the state's declarations under the boost case, the district cannot [00:14:25] Speaker 02: transfer to the parents its obligations to implement the IEP. [00:14:31] Speaker 05: So we're not asking- No, I'm agreeing with that. [00:14:33] Speaker 05: Even if that is the remedy that you're entitled to, why didn't you bring it under a preliminary injunction? [00:14:38] Speaker 02: We did not believe that preliminary, that the traditional preliminary injunction was the appropriate action because the Davises- Why didn't you bring both in the alternative? [00:14:46] Speaker 02: The Davises were not seeking to change pregnant placements. [00:14:49] Speaker 02: They were not seeking to change the IEP. [00:14:51] Speaker 02: They were not challenging [00:14:53] Speaker 02: They were simply asking that the current IEP be implemented in as similar a fashion as possible. [00:15:03] Speaker 02: And to file the four-part injunction, they would have had to prove that they would have been asking for a change in the placement. [00:15:14] Speaker 05: And that is not- Why is that a change? [00:15:17] Speaker 05: My question [00:15:18] Speaker 05: is premised on the idea that what you're looking for is while the district is looking for a more long-term placement in the interim, the brain is entitled to have the elements that this IEP met. [00:15:32] Speaker 05: And it seems to me that procedurally, and based on the case law, it seems to be relying more on the FAPE [00:15:44] Speaker 05: sort of premise as opposed to the state put premise in saying that you're entitled to the same placement in the end. [00:15:49] Speaker 05: It just seems to be procedurally to make more sense for you to proceed under a plenary injunction posture. [00:15:56] Speaker 05: And I'm just wondering why you did not, because you're asking us to sort of make new law here and extend from where we are now on state put injunctions, extend it to something where we haven't held that before. [00:16:09] Speaker 02: Well, this was a highly unusual situation. [00:16:13] Speaker 02: I see I've run out of my time. [00:16:19] Speaker 02: Because the Davises wanted what Braden already had. [00:16:26] Speaker 02: A sacred injunction simply says maintain the current placement. [00:16:30] Speaker 02: And they wanted the current placement. [00:16:32] Speaker 02: If it could not be provided fully. [00:16:34] Speaker 02: But the things everybody agrees that he's entitled to that. [00:16:37] Speaker 02: But his placement had already been changed when the district [00:16:42] Speaker 02: When CSAC discharged him, CSAC, which was the district's agent for the implementation of his IEP, they discharged him and the district said, take him home and provide everything for him until we find something new. [00:16:55] Speaker 02: So his placement had already been changed. [00:16:57] Speaker 02: What the Davis's wanted was to bring it back to something closer to what his IEP called for. [00:17:03] Speaker 02: And that was a statement request. [00:17:06] Speaker 05: I think that's the question here. [00:17:08] Speaker 05: I understand what they wanted. [00:17:11] Speaker 05: trying to understand what's the best procedural way to get at what they wanted. [00:17:14] Speaker 05: And if I don't think it's the state put injunction, then it would be a preliminary injunction, but you didn't ask for that. [00:17:22] Speaker 02: No, we did not file them because we believe that the statement injunction was the appropriate remedy for him. [00:17:28] Speaker 02: The statement injunction was denied because the district court read into section 1415 J a provision that is not there, which is that [00:17:39] Speaker 02: The current placement shall be maintained only if it is available. [00:17:43] Speaker 02: And under haunted versus dough, you don't add to that section what is not in it already. [00:17:50] Speaker 05: Right. [00:17:50] Speaker 05: That's not my concern. [00:17:52] Speaker 05: My concern is I understand what you want. [00:17:54] Speaker 05: And even if he's entitled to it, I don't know if they put is the way to get at it. [00:17:59] Speaker 02: Well, as I said, we were not looking to change the placement. [00:18:02] Speaker 02: We were looking to maintain the placement in as similar a fashion as could be achieved. [00:18:09] Speaker 04: And certainly we understand your position on that. [00:18:14] Speaker 04: But suppose this court were to disagree. [00:18:18] Speaker 03: Then. [00:18:21] Speaker 04: Where are you and what are your options? [00:18:28] Speaker 02: Well, I suppose we go back to the district court where we have a complaint pending. [00:18:35] Speaker 02: And we litigate the. [00:18:39] Speaker 02: appeal from the hearing officer's determination and litigate the issues arising from the fact that he issued some favorable rulings for the databases that have not yet been complied with. [00:18:54] Speaker 02: And so we would litigate that. [00:18:59] Speaker 06: And has there been any finding that the child cannot stay home and receive those services there? [00:19:05] Speaker 02: It's been extremely rocky. [00:19:08] Speaker 02: He is intact at home now. [00:19:10] Speaker 02: The hotel did not work out. [00:19:12] Speaker 02: And he's been living at home for about a year now. [00:19:16] Speaker 02: And it's been very, very difficult. [00:19:18] Speaker 02: He receives almost nothing of the authorized services because of difficulties with virtual services, with transportation, with payments, with just the Davis' time serving as effectively his aides because they only are authorized for eight hours a day [00:19:38] Speaker 02: of five days, roughly five days a week. [00:19:41] Speaker 02: So he's getting some instruction, not much else, but there have been many, many incidents since then. [00:19:50] Speaker 02: And the search is, you said, not ongoing? [00:19:55] Speaker 02: To our knowledge, there is no search underway. [00:19:58] Speaker 02: What has happened, I can tell you what has happened. [00:20:03] Speaker 02: In October, two things happened. [00:20:05] Speaker 02: The first was that, [00:20:07] Speaker 02: Bancroft, to which the district had referred Braden a year earlier, did have a place for him and offered it to him, but in their adult program, not in their school, because he's too old for their school. [00:20:21] Speaker 02: The district had declined to place him there for various reasons. [00:20:25] Speaker 02: Also in October, a day program, the Alternative Paths Training School, offered him a program on an interim basis, consistent with the hearing officer [00:20:37] Speaker 02: termination, which had been placed within 21 school days. [00:20:40] Speaker 02: This was late. [00:20:43] Speaker 02: The Davis's were willing to accept that as an interim placement, but there have been huge problems with the range of transportation to get him there, and therefore he never started. [00:20:54] Speaker 02: So those are the only two things that have happened. [00:20:57] Speaker 04: But I just asked you, what do you mean, transportation problems? [00:21:02] Speaker 02: There were problems unique to Braden and systemic problems. [00:21:07] Speaker 02: The Office of the State Superintendent of Education, which runs the special education transportation system, is experiencing systemic failures. [00:21:16] Speaker 02: Their routes are substantially delayed. [00:21:19] Speaker 02: Students are taking two to three hours to get to school and to get home again. [00:21:23] Speaker 02: Because of Braden's unique characteristics, it was not a good idea to have them on the bus. [00:21:30] Speaker 02: for that long, and then there were issues about whether the aide who would be assigned to be with him on the bus was sufficient. [00:21:39] Speaker 02: He has very specific needs regarding the aide. [00:21:43] Speaker 02: His behavior intervention plan calls for an aide who was trained in a particular type of restraint, MAD. [00:21:52] Speaker 02: The Office of the State Superintendent puts aides on buses with instructions not to place hands on the students. [00:21:59] Speaker 02: that if they become uproarious, the buses to be pulled over to the side, and the police call, Braden now being 22, there was tremendous fear that if the police were called, he'd find himself in the adult criminal justice system. [00:22:15] Speaker 02: And so they were quite worried about that. [00:22:17] Speaker 02: So there were unique problems for Braden. [00:22:19] Speaker 02: There's a systemic problem. [00:22:21] Speaker 02: And as a result, they were not able to take advantage of this day program. [00:22:25] Speaker 02: And so they elected to unilaterally place him [00:22:29] Speaker 02: at Bancroft at their own expense, and he has been there one week. [00:22:33] Speaker 02: And as I understand, he has somewhat rocky start, but he's still there. [00:22:38] Speaker 02: So that is where we are. [00:22:40] Speaker 02: But we are not aware of any further searches by the district, at least no referrals. [00:22:47] Speaker 02: I believe the Davises are notified by the district when it makes a referral, but not necessarily when it makes a contact that it then chooses not to pursue. [00:22:58] Speaker 05: So on remand, you would not be precluded from moving for a preliminary injunction. [00:23:03] Speaker 05: I'm sorry, I didn't hear you. [00:23:05] Speaker 05: On remand, you could move for a preliminary injunction. [00:23:08] Speaker 05: We certainly could. [00:23:13] Speaker 02: I see I've run out of my time, so it's gone way over. [00:23:17] Speaker 06: Well, you've been answering our questions. [00:23:18] Speaker 06: You'll still have time for a vote. [00:23:20] Speaker 06: Okay. [00:23:21] Speaker 06: If the court has more questions? [00:23:22] Speaker 06: Not at this time. [00:23:45] Speaker 03: They please the court, Sonia Lipsak for the District of Columbia. [00:23:48] Speaker 07: The district acknowledges its obligation to identify a residential treatment center for Braden that can provide him with a free appropriate public education, commonly known as a FAPE. [00:23:58] Speaker 05: And why are you not currently looking for placements and making referrals? [00:24:04] Speaker 07: The district is engaged in a thorough and ongoing search for a residential treatment center. [00:24:10] Speaker 07: The district differs from my friends [00:24:13] Speaker 07: characterization of the search is ongoing. [00:24:16] Speaker 07: I've been part of those conversations and the district continues to look for a residential treatment center. [00:24:24] Speaker 07: And this was- So have you gone beyond the 19? [00:24:27] Speaker 07: Yes. [00:24:28] Speaker 07: The 19 that were sort of promptly identified and that are in the record on this court, the district court found that it was undisputed that this was an adequate search. [00:24:39] Speaker 07: And I would point the court most recently to the March [00:24:42] Speaker 07: 22 decision by the hearing officer who heard an even further developed record and found again that the district had think the words were sort of diligently tried to overcome the obstacles on a residential treatment centers, not admitting brain and they record for the hearing officer. [00:24:59] Speaker 07: I think 30 residential treatment centers have been identified and referrals had gone out and they're sort of been a process about them. [00:25:06] Speaker 07: And this is March 2022. [00:25:08] Speaker 07: So every... What is the problem? [00:25:11] Speaker 07: Is it his age? [00:25:13] Speaker 07: His age is a factor. [00:25:16] Speaker 07: His particular needs, including sort of fulfilling all of the obligations of the IEP are a factor. [00:25:24] Speaker 07: The sort of vacancies at residential treatment centers that might be able to serve him. [00:25:31] Speaker 06: are a factor. [00:25:32] Speaker 06: But the parents are also suggesting that even if Davis was at home, the additional services required for behavioral issues, the other things attended to the plan, those are not even being met at home. [00:25:49] Speaker 06: That's right. [00:25:50] Speaker 07: I mean, a residential treatment center is a highly specialized facility. [00:25:54] Speaker 07: These facilities are built, they're furnished, they're staffed. [00:25:59] Speaker 06: with a particular disability of the population that they serve. [00:26:03] Speaker 06: So when you said that's right, does that mean you don't feel that there's any obligation that under this interim circumstance that you have to provide the treatment providers to the parents home? [00:26:14] Speaker 07: Well, I think here any obligation like that would be would surface through the FAPE denial claim. [00:26:19] Speaker 07: And that's exactly how it's happened here. [00:26:21] Speaker 07: The hearing officer has ordered an interim placement as part of the appropriate relief for the FAPE denial [00:26:28] Speaker 07: that the hearing officer found. [00:26:30] Speaker 07: And so I think that is, I think, a good example of the way the IDEA handles remedies for faith denial. [00:26:39] Speaker 07: And that's very different from a safe foot injunction, which is a limited procedural safety. [00:26:46] Speaker 07: All it does is decide, while dispute is pending, which educational placement prevails. [00:26:54] Speaker 07: And the safe foot provision says, it's like a switch in the railroad. [00:26:58] Speaker 07: It says, the then current educational placement prevails. [00:27:02] Speaker 07: School authorities can no longer exclude disabled children from public education unilaterally. [00:27:10] Speaker 07: Instead, they have to vet their new placement, whatever it may be, through pre-processed procedures. [00:27:17] Speaker 07: In the meantime, the child stays put. [00:27:21] Speaker 07: And the place that the child stays put is in the then current educational placement. [00:27:27] Speaker 07: And so Statehood is serving a very different and important but limited function from the overall substantive guarantee of the IDEA. [00:27:39] Speaker 07: What we're doing is, it's already received reliefs through that substantive guarantee. [00:27:43] Speaker 07: The hearing officer has heard the faked denial claim. [00:27:47] Speaker 07: It has ordered a number of remedies, not just the interim day school, but also ordered the district to continue searching [00:27:57] Speaker 07: Again, that is, in fact, happening. [00:28:01] Speaker 07: And at Davis's request, the compensatory education request has been deferred. [00:28:06] Speaker 07: But compensatory education is certainly part of the remedy for a fave denial claim. [00:28:12] Speaker 07: In fact, it's the proper remedy, and it's the usual one. [00:28:15] Speaker 07: I think what Davis seeks to do here is essentially duplicate the IDA's substitute guarantee in a safe-foot posture. [00:28:24] Speaker 07: And this is an extreme and novel claim. [00:28:28] Speaker 07: To my knowledge, it has no support anywhere in the federal courts of appeals. [00:28:33] Speaker 07: And it's actually unnecessary. [00:28:35] Speaker 07: Because what the IDA substantive guarantee does is it takes care of this very problem. [00:28:41] Speaker 07: And I think, Judge Kanyu mentioned, isn't the right thing procedurally here a preliminary injunction? [00:28:47] Speaker 07: Precisely right. [00:28:50] Speaker 07: That is one procedural way to get the thing that the Davises are asking for. [00:28:55] Speaker 07: But they haven't pursued that. [00:28:57] Speaker 07: for more than a year, they have not pursued a preliminary injunction at all. [00:29:01] Speaker 07: But I'll say that there's also other remedies under the IDEA. [00:29:05] Speaker 07: One is that Davis could agree with the district on an interim placement. [00:29:08] Speaker 07: Agreement is part and parcel of the both due process procedures and even the safe put provisions. [00:29:16] Speaker 07: Again, we don't think safe put applies, but safe put expressly recognizes agreement. [00:29:21] Speaker 07: So agreement is one way to do it. [00:29:23] Speaker 07: Another way is to engage in an IEP process for Braden. [00:29:28] Speaker 07: If there is, if Braden has changed since 2021, which is what the IEP in effect is, then perhaps there could be additional solutions because there would be a new IEP in effect that the parties agreed on that could provide an appropriate placement for Braden. [00:29:47] Speaker 07: So these are the many solutions the IDEA already offers. [00:29:50] Speaker 07: State-put provision is simply [00:29:52] Speaker 07: not applicable here. [00:29:59] Speaker 06: What do you perceive as the then existing current placement? [00:30:05] Speaker 07: What is Braden's then current educational placement? [00:30:08] Speaker 07: It is a residential treatment center and that has some substance. [00:30:12] Speaker 07: That's not just a label that comes from the IEP. [00:30:16] Speaker 07: The parties have agreed that Braden's sort of [00:30:22] Speaker 07: least restrictive environment is, quote, a highly structured education and residential environment with one-to-one supervision and a highly structured behavioral intervention program. [00:30:32] Speaker 07: And throughout this litigation, I think up until maybe a footnote in Davis's reply group, the parties have agreed that what this describes is an RTC, a residential facility. [00:30:47] Speaker 07: And I point the court to complaint paragraph 10, where Davis alleges [00:30:52] Speaker 07: Braden's IEP recognizes a residential treatment center as his least restrictive environment in which he can be successfully educated, and therefore he would be in a therapeutic environment 24 hours a day, seven days a week. [00:31:04] Speaker 07: The district court opinion, page eight, I find that Braden's current educational placement at the time this location suit include a residential treatment facility with one-on-one support services, significant behavioral intervention, and even Davis's opening brief on page 48, [00:31:21] Speaker 06: Okay, so you're agreeing that that's what he needs and that you're looking. [00:31:27] Speaker 06: But what do we do for interim? [00:31:30] Speaker 07: Well, the hearing officer has answered that question. [00:31:33] Speaker 07: So the interim sort of relief that the hearing officer ordered as part of recognizing that there has been a FAPE denial has been the interim placement at a day school. [00:31:44] Speaker 07: The district, as my friend acknowledged, has in fact arranged a placement. [00:31:49] Speaker 07: It's at the Alternative Paths Training School, or APTS, and that day school is made available to Braden consistent with the hearing officer's determination. [00:32:00] Speaker 06: Okay, so you're saying that that's available now until you get to a residential facility? [00:32:05] Speaker 06: That's right. [00:32:06] Speaker 06: That's part of the hearing officer's determination. [00:32:10] Speaker 06: and that would be attended with all the necessary services as well? [00:32:17] Speaker 07: Well, it is a day school. [00:32:18] Speaker 06: Right. [00:32:19] Speaker 07: But it implements his IEP. [00:32:22] Speaker 07: And I think I heard my friend acknowledge as well that with respect to the educational services, it does implement the IEP. [00:32:30] Speaker 07: I think the point of disagreement is the housing. [00:32:33] Speaker 05: Is that the only thing that's missing from this interim placement? [00:32:37] Speaker 07: I want to acknowledge my friends, uh, the satisfaction with the transportation to a, I hope it's sufficient for me to say that the district strongly disagrees with the characterization of transportation. [00:32:51] Speaker 07: The district has made available transportation that's compliant with Braden's IEP. [00:32:57] Speaker 07: Uh, so we don't see transportation as having been an obstacle there. [00:33:01] Speaker 05: And I thought he was entitled to 24 hours. [00:33:04] Speaker 05: Am I misremembering that? [00:33:06] Speaker 05: I thought he was entitled to something. [00:33:08] Speaker 07: And that's part of the therapeutic residential environment. [00:33:12] Speaker 07: That's an RTC. [00:33:13] Speaker 07: If we can provide Braden with that therapeutic residential placement, that would be an RTC. [00:33:19] Speaker 05: That can't be replicated, the therapeutic part of the residential placement. [00:33:25] Speaker 05: For example, with that home health aid or something. [00:33:28] Speaker 07: That's right. [00:33:28] Speaker 07: It's sort of the distance between [00:33:33] Speaker 07: you know, an Airbnb and a hospital. [00:33:38] Speaker 07: The hospital arrangement, imagine how many things go into sort of this therapeutic residential environment, and that's what's necessary for Braden to access his education, but that's not available right now. [00:33:50] Speaker 07: And I don't think there's actually, that the parties dispute that sort of displacing Braden in an apartment or a hotel or a room in the day of his home satisfies that obligation. [00:34:03] Speaker 06: and have the are you suggesting they turn down the day school option. [00:34:09] Speaker 07: I'll let my friend answer that on rebuttal. [00:34:12] Speaker 07: The day school to my knowledge remains ready to serve Braden. [00:34:17] Speaker 05: I thought he'd had his first date. [00:34:20] Speaker 05: But so it seems to me that everybody agrees about what Braden is entitled to. [00:34:26] Speaker 05: And I think the issue here is, in my view, a procedural one that perhaps [00:34:33] Speaker 05: the Davises didn't go about this in procedurally the best way, but both sides agree what he's entitled to. [00:34:39] Speaker 05: And it bothers me a bit that the district seems to be just saying, well, we're looking and that's been dragging on for a long time. [00:34:50] Speaker 05: And it seems that what is being offered in the interim certainly falls short of what Braden is entitled to. [00:34:56] Speaker 05: So it seems to me that in a preliminary injunction setting, which may be in your future, [00:35:02] Speaker 05: they might have a quite potentially strong case. [00:35:07] Speaker 05: And so I would just think that the district would have every incentive to make efforts to reach an agreement with the Davises that goes beyond what's being offered right now. [00:35:18] Speaker 07: That's right. [00:35:18] Speaker 07: And there have been efforts on this front. [00:35:21] Speaker 07: I mean, I will say the party's engaged in thorough mediation earlier this year. [00:35:27] Speaker 07: So, I think the conversation about, can we find a good solution for Braden remains a strong commitment by the district. [00:35:34] Speaker 07: We're certainly interested in reaching any positive solution. [00:35:38] Speaker 07: But I think, procedurally, the state put provision, the district court got that absolutely right. [00:35:44] Speaker 07: A state put injunction is not a remedy here, and the district court's order should be affirmed. [00:35:54] Speaker 07: But just to go back on your point about the preliminary injunction and how that might shake out, I will say that one of the things that I think troubles the district and is part of our sort of alternative argument is that the ITA does not supply housing. [00:36:15] Speaker 07: What the ITA can do is provide education. [00:36:20] Speaker 07: And that education has to be proper under the Act [00:36:24] Speaker 07: And so any sort of change of placement or Braden would have to actually be an educational place somewhere he could access education. [00:36:34] Speaker 07: If there's no access to, if you can't actually receive education while he's in a basement, then I think that would be a concern of the district because it wouldn't really be idea really. [00:36:48] Speaker 07: I mean, I think that sort of goes back to, you know, the way this case was presented to the district court was a case for providing reimbursement for sort of room board and supervision, sort of general caretaking. [00:37:02] Speaker 07: And that's not appropriate relief under the IDEA. [00:37:06] Speaker 07: That's a lot closer to sort of consequential damages for not having an RTC incorporated. [00:37:12] Speaker 07: And that's not IDEA relief. [00:37:14] Speaker 07: But I just, I do think that that would be another way for this court to potentially resolve this case is to acknowledge that this sort of housing sort of room board and supervision sort of in the meantime, it's not IDEA relief, but it has to be, it's providing Braden with an education. [00:37:29] Speaker 05: I don't think we could make that finding. [00:37:31] Speaker 05: That would be something that district court would have to find because we don't know enough about what was happening at this residential alternative to say whether that's education. [00:37:40] Speaker 05: Certainly. [00:37:41] Speaker 07: I think I'm previewing in part some of the arguments that the district would be happy to make on remand to the district court. [00:37:50] Speaker 07: The court has no further questions. [00:37:52] Speaker 07: The district court's order denying a state put injunction should be informed. [00:38:04] Speaker 02: Thank you. [00:38:05] Speaker 02: I would first like to address the concept of displacing [00:38:09] Speaker 02: Placement is not simply a physical location that's well established in the case law. [00:38:14] Speaker 02: Placement is the entire experience, the overall education experience that the IEP provides for the student. [00:38:23] Speaker 05: Can I ask you a question? [00:38:25] Speaker 05: Certainly. [00:38:25] Speaker 05: What is it that you would want if you had your dreaders and the district were providing some interim [00:38:32] Speaker 05: Services until a residential treatment center could be found. [00:38:36] Speaker 05: What is it that you would what would be your wish list of things? [00:38:39] Speaker 02: Obviously if we could not find a residential treatment center First and foremost for the district to take the burden off the parents of doing everything for great They are his caregivers his arrangers. [00:38:51] Speaker 02: Could you be more specific? [00:38:52] Speaker 02: What is it exactly that yes to basically do what the hearing officer ultimately came up with [00:38:58] Speaker 02: which is directly provide all components of his IEP, but that would include the components that are to be provided in the residence. [00:39:08] Speaker 02: The IEP contains provisions. [00:39:11] Speaker 02: It's not just a place for him to live. [00:39:12] Speaker 02: He's supposed to be working on his adaptive living skills, his functional skills, his social skills. [00:39:18] Speaker 02: Those are all to be done in the residence and none of that is being done now. [00:39:22] Speaker 02: So we would. [00:39:23] Speaker 05: So is it a hotel room or what is this? [00:39:26] Speaker 05: No, no. [00:39:29] Speaker 05: Because the RTC is not available. [00:39:31] Speaker 05: So I'm just trying to understand. [00:39:32] Speaker 05: I'm hoping the two of you can reach an agreement. [00:39:34] Speaker 05: So I'm trying to understand what you're looking for. [00:39:36] Speaker 02: The last time this happened when Brayden was discharged from a residential treatment center in 2020, his parents were able to find a house that they rented and staffed there and provided as much of his program there as could be provided. [00:39:55] Speaker 02: They were able to find a house on a quiet street and eliminated all those attractions of the hospital near their home. [00:40:02] Speaker 02: And he lived there for five months with AIDS, with a behavior support program that was developed by a board certified behavior analyst. [00:40:13] Speaker 02: He received some of the educational components of his IEP, not everything, but he got most of what [00:40:23] Speaker 02: was in his IEP and including supportive services. [00:40:27] Speaker 02: So it could be done. [00:40:30] Speaker 02: And if, as you said, if we had our druthers, that would be something that we think should be done and could be done. [00:40:37] Speaker 02: As far as the claim that the district doesn't quote unquote provide housing, they provide housing every time they order, they agree that a residential placement is what the student needs. [00:40:49] Speaker 02: He is housed. [00:40:51] Speaker 02: he lives where he receives his education. [00:40:54] Speaker 02: So all this would be another way of providing that. [00:41:01] Speaker 02: But in addition to that, as I said, one of the most important things, which continued up until October, a full year, until the APTS made the offer, [00:41:16] Speaker 02: to accept rating was to take the burden off his parents. [00:41:21] Speaker 02: As the circuit said in Booth, in Booth Search District of Columbia, it is not a parent's job to implement the IEP. [00:41:28] Speaker 05: Are you aware of any precedents for the district taking the initiative to put together the house or the apartment, et cetera? [00:41:37] Speaker 02: I'm not aware of any precedents within taking the initiative. [00:41:40] Speaker 02: The hearing officer did order them analogously to engage private consultants to help them find the RTC, which to our knowledge did not happen. [00:41:50] Speaker 05: The district could have... So it seems that the precedence for what you're asking for is when the parents do the legwork and then the district reimburses. [00:41:59] Speaker 05: What you seem to be asking for is that the district do the legwork, take the burden off the parents, but I don't think they do that. [00:42:07] Speaker 02: Well, they are required to provide the educational services. [00:42:12] Speaker 05: But practically speaking, it seems that what you're asking for, they tend to reimburse the parents after the parents have done that. [00:42:20] Speaker 05: And then courts find that that was appropriate. [00:42:22] Speaker 02: Well, actually, the hearing officer found that that was not appropriate. [00:42:26] Speaker 05: No, I'm saying just in precedents where this type of situation has occurred, it's usually a reimbursement of the parents for what they've [00:42:35] Speaker 02: If the parents undertake a unilateral action and then they are later upheld to have done the right thing, yes. [00:42:45] Speaker 02: They get reimbursed. [00:42:46] Speaker 02: That's the Burlington case. [00:42:48] Speaker 02: And it's progeny. [00:42:50] Speaker 02: But that's not what the DACEs were not asking for that because they were unable to take on the burden here. [00:42:59] Speaker 02: It was not a question of finding all these providers and simply arranging for them and [00:43:05] Speaker 02: paying for them, and the one thing the district offered to do was to pay them after the cap, although there had been problems with that. [00:43:11] Speaker 02: The problem was with delivering the services in the first place. [00:43:16] Speaker 02: Ms. [00:43:16] Speaker 02: Davis was very clear in her declarations how difficult it was for her to find everything Braden needed on her own, both because of the payment arrangement and because of Braden's needs made it very difficult. [00:43:29] Speaker 04: What about the hearing officer's order that they engage an expert to help them? [00:43:39] Speaker 04: To our knowledge, that did not happen. [00:43:42] Speaker 04: No, but what about that as an option? [00:43:46] Speaker 02: We welcomed that. [00:43:48] Speaker 02: We thought that that was appropriate. [00:43:50] Speaker 02: That was to help them find the residential treatment center. [00:43:53] Speaker 02: Well, actually, it was to make recommendations as to the type of residential placement he needed and then to make recommendations as to where that could be found. [00:44:04] Speaker 02: It was not specifically to find a residential treatment center. [00:44:08] Speaker 02: I misspoke. [00:44:10] Speaker 02: Had that been complied with, [00:44:13] Speaker 02: Perhaps there would have been recommendations. [00:44:16] Speaker 04: Your position is that you're reading the hearing officer's instruction to be addressed to the DC school system, even in this interim period. [00:44:29] Speaker 02: Oh, his instruction is in his March determination. [00:44:33] Speaker 02: He directed the District of Columbia Public Schools to hire this consultant. [00:44:38] Speaker 02: to aid with the search and to make recommendations about Raven's current needs. [00:44:42] Speaker 04: So if that hasn't been done, that's something that the preliminary injunction can address. [00:44:49] Speaker 02: Yes, and we wish to do so in case of state, but yes, we could address that. [00:44:55] Speaker 02: That is not something we are asking this court to deal with directly, but we think it's important for the court to know about the hearing officer's decision. [00:45:08] Speaker 02: The it is tunnel vision to say that great that a residential place or that a placement in general is simply the physical location that has been addressed in this court's precedence in in in lots of in many other cases. [00:45:30] Speaker 02: It is totality of the IEP is something more than the physical location or [00:45:37] Speaker 02: Less than the full physical education, more than just the bundle of services, it is the totality of the educational experience. [00:45:45] Speaker 02: And that has been found to be appropriate for same-foot. [00:45:49] Speaker 02: I would call to your attention, for example, LJ versus School Board, the 11th Circuit case cited in our briefs, that same-foot must produce as closely as possible the overall educational experience enjoyed by the child under the previous IEP. [00:46:05] Speaker 02: So what we were seeking in state book was precisely that, to give Braden the educational experience he is supposed to receive under his agreed IEP. [00:46:20] Speaker 02: And if a residential treatment center was not available, there were ways to come closer to his IEP than the district offered [00:46:33] Speaker 02: and that the district court therefore allowed them to continue it with the, as I said, placing close to the full burden on the parents, sending him home, removing him from any contact with his non-disabled peers, albeit in a more restrictive environment than even a residential treatment center where he at least would interact with peers to some degree. [00:46:59] Speaker 02: The uncertainty of the ability to fulfill even what the interim services letters called for all of those things were implicated by the district's failure to provide to find a new residential treatment center. [00:47:18] Speaker 02: And those things should have been addressed in the preliminary injunction, even if anything new that you want to argue on reply. [00:47:28] Speaker 04: Because we've heard these arguments before from you. [00:47:35] Speaker 01: I would simply reiterate there was a question. [00:47:38] Speaker 01: No, reiteration is not a response. [00:47:44] Speaker 01: Don't we fully have your argument? [00:47:47] Speaker 01: I would just like to respond to a few things that the district said. [00:47:52] Speaker 02: For example, the alternative paths training school, while it is prepared to offer the day program, great will continue not to receive any of the after school services. [00:48:04] Speaker 02: And therefore, while it would be better than sitting at home, it is not a substitute, it would be an interim. [00:48:15] Speaker 02: I would also like to address the compensatory education question. [00:48:18] Speaker 02: Compensatory education is [00:48:21] Speaker 02: not the appropriate remedy or a denial of state education is something that is done when there's been a failure to provide a free, appropriate public education. [00:48:34] Speaker 02: But the duty is to provide the free, appropriate public education from the outset. [00:48:41] Speaker 02: And the [00:48:43] Speaker 02: Any delay in providing the education the student needs is deemed to be irreparable harm, which is why the statehood injunction does not require proof of that harm. [00:48:56] Speaker 02: So while compensatory education may unfortunately be the remedy that's left to Braden for the time that has already passed, it is not an adequate remedy. [00:49:06] Speaker 02: It would be like saying we don't have to repair the sidewalks too quickly [00:49:10] Speaker 02: Because if somebody slips and falls and breaks a leg, we'll pay the medical expenses. [00:49:15] Speaker 02: The goal is not to have the slip and fall and break the leg in the first place. [00:49:20] Speaker 02: The goal is to bring him to have his uninterrupted services. [00:49:25] Speaker 04: I know, but your logic and example don't. [00:49:31] Speaker 04: work, because when there is a sidewalk problem, the district fences it off for a while, hires a contractor, and then somebody comes to repay. [00:49:40] Speaker 04: So you don't have the pavement restored immediately. [00:49:44] Speaker 03: Anything new? [00:49:51] Speaker 03: Only the court understands our position. [00:49:53] Speaker 03: Thank you. [00:49:55] Speaker 03: Thank you. [00:49:58] Speaker 06: Thank you very much. [00:50:05] Speaker 06: Submitted.