being county board of education in this matter i have asked to reserve three minutes as rebuttal line in this case the appellant's the being county board of education six review of the united states district court's decision ordering the public school district to reimburse the a pelleas private school tuition purportedly under id provisions for stay put this occurred after there had been in ministre given judicial findings that the parents who'd unilaterally place their son and you in the private school setting and that the bin canning school district and consistent with i d e s me and dates offered a free and appropriate public education or faith which that offer was rejected by the parents we are asking that you read that you reverse the district court's erroneous application of stay put and reinstate the abs well reasoned and legally supported decision in this case the issues that are presented in this appeal are fairly narrow the issues are whether the district court commit it reversible error by failing to give any effect whatsoever to the i provisions pertaining to unilateral placements in particular to section fourteen twelve subsection a subsection ten c which bars parents from reimbursement propri when they unilaterally place a child in the private school and then fail to show that the public school denied them fate the second issue is even whether stay put was even properly applied in this instance given the fact that as a matter of law the private school setting in this case a b s was never and stay put placement but what is your contention would be the state put placement in this case our contention is that the stay put placement would have been the private school that he was placed in when he was in preschool which was st rita's school for the death by way of background when n w was three years old his parents came to the public school  communicate and he was unrolled at st rita's school for the deaf sing read a school for the death until summer of two thousand and ten at which point his parents made the unilateral decision to remove him from s rita's they enrolled him in a b s without coming back to be in county school district they did not provide notice to the school district of this change of placement they simply enrolled him at a b s a b s is a different private school offers different services and st rita's in is completely unrelated to st rita's it's also in a different location but a b s provide specialized instruction for children with autism using a b methodology the bin canny school district in two thousand and ten utilized the same a b a methodology had the same quality teachers in some cases as the ek i pointed out had  quality teachers because the school district could it offer just as a b s did individualized classroom small ratios small teacher to student ratio is saying readers are for those  novel pusing me a little bit is that you were saying that st rita's is the stay put placement but then when you were comparing the school that the child and the child's parents sent him to a  that you're comparing it to the boone county public schools that's correct not st rita's not st rita's because at that point once the parents changed placement the been canvassed in the school in the school district became aware that they changed placement the school district then convened an a r c to address the change in placement and to address is this the appropriate place my poor and you at this time or can we provide him with free and appropriate public education if the parents concern here is for the autism and not the a practice at this point can the public school district provide the services that they are seeking from the private school was an eye e p undertaken at that point in did not want to move him from a b s because they had just enrolled him there and did not want to go through the disruption that they thought he would go through in moving to a different school so there was no consensus reached as to placement and therefore the parties went to mediation which is a mechanism under i d e a when the parties cannot reach consensus through the air or sea process they went to mediation november fifteenth two thousand ten they still did not reach consensus or agreement as to end placement the school district was still insistent that it could provide free appropriate public education for him in the in the public school setting the parents  however did not want to moving from a b s the mediated agreement that the parties reached the school district agreed to pay for one years limited to wish and pay for one year to ishan and a but the mediated agreement specifically stated that the district was not making any admission to placement the agreement contemplated that at the end of the school year the parents would transition and back to the public school district so that was the end of the school year ten to eleven that's correct and as the records show whether the child then moved into the public school the record shows that the child did not move into the public schools because the parents didn't know roll him in the public school what the record says is that beginning in the spring of two thousand and eleven the school district convened several a r c v s to formulate the transition plan with the parents to transition him specifically to transition him to the bin hammam school district however on august twenty fifth the parents walked out of the bat a r c and said no we're not going to do this you're not ready for us and that became the issue at the process procedure that was one of the issues that the due process proceeding where the hearing officer in every judicial and administrate of fact finder in this case has found that the district did in fact offer faith did in fact offer appropriate education and that the parents had unreasonably rejected that so earlier in your discussion you mentioned fourteen twelve a ten c are on the stay put what is your contention or the governor our contention on the stay put is that the district court simply misapplied here's what the district court in the district court said was stay put applause because it's so facto that he was a b s at the time that the due process proceedings were initiated therefore because he was physically there that that's a stay put placement and yet that is not with that that's not what the ideate that's not the law under idea it's not under the law under the subsequent decisions instead and if we've talked we have cited the court to this by d k so the second circuit the k d case out of the ninth circuit the six circuits on top case and tucker versus callaway all of those cases a stabl that it is not where the child was physically at the time but rather where did the a r c first of all where did the r c place him and in this case we are see never ever the  a never placed him at st reaper a b s in second you did the school district a agree to it now the appellee is have argued well the school district agreed to it by through the mediation by going in in should say established that a school district merely agreeing to pay for tuition for a limited period of time does not establish placement in fact those are two separate variation we go those are two cases from outside the circu so so is there a provision either in the statute or the regulations that indicates that payment for one year is not enough to establish placement yes i would direct your attention to the provisions under eighteen and see there were fourteen twelve again yes fourteen twelve that reimbursement private school placement under sub section two if the parents of a child with a disability enrolled the child in a private elementary school or secondary school without the consent or referral of the public agency or a court orders of officer may require the agency to reimburse the parents for costs of the enrollment only if the court or the hearing officer finds the agency had not made a free an appropriate education available to the child in a timely manner appealed by the way by the appellate he's that the free and appropriate education was made by that offer was made by the school district at the very outset and i would also direct the the courts address attention to the tucker tucker case in the six circuit the tuckered out right rejected the application to stay put in the manner which the district court did in this case in that care the tucker court stated the court sees no need to address at any length the tuckers argument that stay put apply in this case they unilaterally place her son in l c d c for the one thousand nine hundred ninety four school case any parent could take his or her chances on an initial unilateral placement banking on the likelihood that this would be protracted litigation and thereby artificially force the school district to pay at least for the later years when they had offered free and appropriate education thank you please the court my name is karen guinn i represent the apple e the minor child and w who brings this case through his parents and next friends j w n j w the unilateral placement you speak up a little mosquito i certainly will thank you it's our contention that none of the fourteen twelve a ten c cases are relevant the unilateral placement statute because no unilateral placement occurred during the make a unilateral closed on monday then file suit on tuesday and rely upon the stay put provision because it was done before the suit was filed in this case it obviously that's an exaggeration but in this case it was a finding from june of two thousand and ten and then the mediated agreement had been fulfilled the contract was completed on may twentieth eleven and the school district continued to meet with the family in preparation for the child to return to be in county schools for meetings during the summer and all the while although appellants contend that a b s was never written is his placement the i p that was being proposed in the admissions and release committee stated again and again as the latest july twentieth of two thousand and eleven and august twenty fifth of twenty eleven that the that the child would attend a b s school with the district continuing to pay for it because they were paying for it they had acquiesced at that point even though their obligation under the mediation had ended in may of two thousand and eleven the plan written in the eye e p at that point was that the child would never even attend the school  boone county which is called the new haven elementary school until late september at which time he would begin a transition with prepare for days and then continue on until he was prepared and ready  implemented in which is accurately noted by the district court in the thomas case from this circuit wherein i mean implemented i can never be the placement which is my question to you was you seem to say you start out by saying the case is the the district is relying upon or in a in a pluggable because the change in placement didn't occur during the during the case so i asked you you can unilaterally put your answer seem to be focusing on the fact that there was a settled procedure for one year and you use the words in your answer the district thereby acquiesced in the child staying at that school where do i find that acquiescence given that the language of the mediated suttle months seem to seems to say exactly the opposite of that one place that it would be found is in i think what was respond saying they're bound by their proposed by e p then why aren't the parents bound by the proposed i e p which invision transitioning into the public school the distinction in that is that it wasn't necessarily the p but the fact that the school district continued to pay continued to allude to the fact in represent to the parents that they would continue to pay all the while they were transitioning the child back to being county schools the important part of the mediated agreement so maybe that maybe the school district would honor that had the parents not simply withdrawn from the procedure and walked out well the but the importan you're saying could've should've would've happened is not what happened here well what happened was that in june of two thousand and ten there was a unilateral placement a year later the a the mediat which the parents in the school district own it had their own terms that they both agreed would be complete and it was completed in may of two thousand and eleven is the parents attempted to continue to work with the school district in anticipation of the child returning which they intended to do absolutely and despite appellants contention is that they worked through the summer and still despite the fact that they were starting so late in in preparing the i that's the real reason the transition was still where they are still working on the i p the provisional district says that it was late because they scheduled four different meetings none of which your clients attended is true there were attempts to contact them to schedule a meeting but the very first attempt was after the deadline the drop dead deadline that was listed in the mediated agreement a term that parents asked to be included in the in the mediation agreement which the school district ignored they didn't even make attempt to contact the parents to schedule interrogated him to contact the school district and say hey look we've got this drop dead date we haven't heard from you let's get going now honestly that wasn't the barents term to abide it was the school discussion is did they contact the school district whether it was their responsibility or not to my knowledge they did not in told the school district contacted them and then they began to know is that the settlement that you're relying upon which seems to refute what you say or is it the fact that the school district started the peep peep process late that somehow distinguishes this case from others it is definitely not the mediated agreement we're relying on for stay put because case law is clear that the mediated breman doesn't create stay put however the mediated agreement was over we were past that the clients were in the family was meeting with the school district so then what are you relying upon if you're not relying upon the mediated settlement if you told me earlier that the school district had acquiesced in that so that means to me you're lying about it so now if you're not relying upon it what what are you relying upon relying on their acquiescence after during the summer of two thousand and eleven which is after the terms of the  have no ability to force a parent to put a kid in any particular school public or private you have a legal obligation as i understand it to make sure your child is being educated but you can pick where that is as long as it's a licensed place it were this argument is about fighting about money not whether the child is being educated or not so what did the school district do that caused to tooted acquiescing in something that they were powerless to change anyway that's that's where i'm struggling here the power that the school district ted was to develop the program that they would have allowed the child to be back in school by the time school started in early august which is when bin county begins fourteenth the air sea had the admissions and release committee which consists mostly of school personnel had met and said we have a placement this child will return on august fourteenth have him report to new haven school into this classroom if the child didn't show up and if in fact that program was in place in the school district at every opportunity to file due process and obtain a ruling that that was the appropriate free of her pre publication at that point they did not because the program wasn't ready there was no program for n w so despite the fact that was there any authority that you've located that says that there is some temporal requirement here that if you start the process by a certain date unilateral persimmon wouldn't apply but if you don't you know lateral placement will apply no in fact your honor the state put statue which is really the state that statute fourteen fifteen subject puts these elements in play during the pendency of the proceeding which by the way in earlier in subsection c and e refer to appeals as well the child shall remain in the then current educational placement in courts have struggled with that then appropriate for them current educational placement the case in a footnote said that neither statute  or legislative history instructs the court how to identify that it most certainly is not temporal under any court's in analysis of the statute doesn't have any temporal requirements the cases don't nobody yet has mentioned the regulation that seems to me to be relevant to distinguish some of these earlier cases including one of ours how do you address what should we do see if our three hundred point one one six the defiance placement well i would i would say that three hundred five one eight is more relevant regarding the stay put that's the one that defines stay further what's the number again three hundred twenty five point eight it's the one that the district court cited here why is three is three hundred one one six not relevant three hundred one one six just elaborate on that in three hundred one one six i is in that the thomas case is that the one knows defined as best asking you about the regulation when thomas when we issued thomas there was no regulation in the court says in a footnote in the absence of a definition  regulation here's what we think then they promulgated a regulation it seems to me unless i'm missing something it defines of the the operative word you're relying upon in the stay put provision it why how can you just dismiss that well rather than dismiss that what i would draw the court's attention to is to say that it the placement can't be selected unilaterally by the parents or the school district neither body is able to do that so while the school district now wishes to go back to one of the other case law definitions of the last agreed upon placement that creates an absurd result in rida the child was two years removed from that school at the time and in fact had been removed from that school because his behaviors had escalated based on his autism that they found him on the roof of the school building at one time it doesn't make sense to think that we would go back to that placement and force the child back there so one problem with three hundred point one one six is it says that the child's placement in subsection b the child's placement the two is based on the child's i p the problem is that there was no i e p after the i e p that sent him to st and that right there was there was an i e d every year because he continued to be a student of the bin county schools the district has said that he didn't enroll there but they continued to have admissions and release committee meetings every year they treated him as a student at the school district despite the fact that he wasn't attending school there and he never here he'd never been in a been coming to school yes are you finished other than the placement of s suggesting that he come back to a placement in been county schools in their own properties but he went from the time he was three years old until seven to st rita and then a b s think readers is the only one they should send him there and w agreement and that and i think that was the whole basis of the acquiescence is that they would continue on to relieve that and certainly nothing since the agreement was reached the settlement agreement the main there there is certainly nothing that the school board has done no affirmative placement corps agreed to play at any outside expense on an individualized education program which is a multi page document there is a box for for placement where you write that in but all through the conference summary notes and through the programs that were created for this child it was noted that he would be at a b s continue just all through the summer which is a year round school he would attend there through the summer into the fall when they would just begin to go and observe and then he would begin in late september to begin to go back to i would be in county school i see that amount of time would you like me to continue yes are we only arguing here about the one school year forgotten which year it is so let me describe it by saying it's the school year beginning when you say the start of the i e p late are we only arguing in this case about that one year or has he stayed he is then stayed in that private school every subsequent year right hand so does a decision here then apply to each subsequent years well i believe it does under the print there's never been an i e p that the school district and the parents of agreed upon during any of that period may have legit in the wrong direction there wasn't i e that they were working on it a b s the admissions and release committee continued to meet they developed i these subsequent school years yes although i will make the caveat that signing in and i d p is not your dream to ed but it's but your presence at the meeting but yes there was there was consensus and an a then in an i e p a prude that they were operating with that a b m what does it say for the for the years after this first year in question what is the e p that you say that everybody agreed to what does it say about the well actually it's an expired i p because there was not in the spring summer of two thousand and eleven there was not one that was ever agreed and was there one ever agreed after that now so you said a minute ago there was the one the one for the ten eleven school year that they were following and a b s ok there was a q thank you i think on that last point i do want to clarify that in subsequent school in the subsequent time period efter the due process hearing the parents have refused to meet with the school district to update and i e p the school district has sent invitations for them to participate in a r c s and they just refused so always who respond to i mean that ends make her case for but is there a potential timeliness argument assuming respect to the mediated agreement first of all there are findings by the hearing officer the ek entered bertelsmann all have been affirmed none of those have been appealed that the district was not in breach of that agreement  agreement called for in a r c to be held by april fifteenth i think it was the school district contacted the parents shortly before they did not respond there the school district attempted to schedule it within a couple days of the fifteenth i think it was like on april twenty first twenty second somewhere in there in the parents refused to participate that all went back to the in that was an issue that was litigated and decide it and it has not been appealed to the court of to this court of appeals about the district's compliance with the mediated agreement but the district did it the findings are that the district did comply and the record just established that and that's not been appealed essentially you know before i can reach the end of rebuttal i think what's important here is to look at what is the effect of this decision not only just to the been county school district but to the very fabric of i d e a itself ideate contemplates collaboration and cooperation in any educational decision and placement between collaboration with the school district and the parents neither one miskin correct neither one can unilaterally place a child and neither one can penalize the other side because of that unilateral decision and yet in this case that's  exactly what what is happening here and i truly believe that the district court in the end was trying to split the baby more or less uphold the findings of the ek ab and i think the district court that while pro bono over to if it's an agreed upon placement that expires at the end of the year no agreement is reached and subsequent years essential you are precluded from challenging the out under the stay put provision the whole issue here is an issue preclusion it's it's the question of unilateral place it's the question of you know lateral placement and absolutely in the in in then is the provision that frankly the district court when you read his memory and i'm opinion never addresses thank you very much thank you for your