please the court your honor if i might i'd like to reserve one minute of my time for a bottle yes you may thank you when this matter was before this court two years ago one critical fact was missing in the winter of twenty ten as the department of education was proposing to change the statute of limitations in its special education regulation from forty years to two there wasn't a look back period or filing deadlines those terms simply eleven an administrative hearing officer in maine offered a view that there could be two separate points that view however our was after the twenty ten rule making proceeding it was not the view or the formally a part of a two thousand and eleven proceeding but certainly what happens in those two thousand and those administrative proceeding to should be relevant to the responsibilities of their part of education what whatever to the honor the department did nothing under id say i did mistreated hearing officers decision is independent of the department and doesn't represent the view the position of the department in this case we're talking about transparently clear that anyone would have understood that the only regulation in place is a two year statute of limitations provision surely the decision of the administrative hearing officer at least regulation was in place how an administrative hearing officer chooses to interpret it really was not the department's concern respectfully or our administrative hearing officers and ideating make decisions all the time that the department disagrees with would never have to consider aired some of those decisions as you know come to this court or to the federal district court and we get actual case law on the issue but the rest of them fall by the wayside the reality is that if you looked at all of the cases brought in maine subsequent to twenty eleven i can find no case that actually use it is a four plus two methodology at all in that two thousand and two thousand and ten period where the department was attempting to amend the regulations if the department believe that the two provisions were in fact doing with one subject matter to your statue of limitations department of education had been clear and the department knew that the u s department considered those two provisions together to be one statute of limitations in twenty zero seven the department made a deliberate from your point of view you were trying to adopt exactly your honor we said very clearly in our notice and in our comment and in our discussions with the legislature we wanted to go to the two year federal statute of limitations and the language that remained in chapter one o one is exactly that which is the two year statute of limitations the federal standard we previously called the structure of the petitions provision it simply doesn't matter because the rows administrative procedure are compliance with the so called work better provision if we don't accept you two separate separate substantive statutes of limitation or limitations periods in chapter one zero one then yes your honor it would be improper for the department to have changed the work to t but there is only one there has always been only one we know now from the records back to two thousand and seven want to statute of limitations first was put in the regulation that when the same mistake was made and we forgot to do the second one the next year we came back to change it and people asked us not to go back to what they wanted and we said no there is one statute of limitations and the legislature has already decided at that time herald can you please not try to slide off the topic go back to why didn't you make the argument the first time around you have said it didn't exist that time i believe my colleagues are ready to question you on that point time on any ground that was apparent from the record there's no question that subsection f was discussed during the appeal you never made the what to me is the obvious claim that because this court has the option of moving forward and finding the right answer to this case and the right answer is in these provisions you're on it and you understand that we have we have the option because we have it within not within our power one not to a waiver but i take it that you can see that a waiver did exist i wish i had made the argument on a yes i do absolutely i think also if you were standing here alone without having intervention of the department of education which is not subject certainly to a waiver or a human one how could you argue it again if you were  highlight to this court the record that has come forward through the direction that you guys gave and that's that from two thousand and seven and it's the supplemental addendum in the  have that information before we now do that legislature says this rule must be amended and then cites the first division not the second provision and says to clarify that  functional language of these two rules has been identical through this whole time identical also with the federal law and this first provision which looks like and has been called a look back provision is called by iowa main familiar agree with the department of education as to how these regulations should be read so they're going forward there is now a clarity in the law that has not existed previously why should your client get the benefit of that clarification of the law given what seemed to be a clear weaver right to make that argument how how how was it in any sense f will tell you this the school district has been in discord and through many levels of court argue it trying to make a good argument in regard to a dilemma but it didn't create my first choice and we've been in from the very beginning trying to do that and a ruling against as listening to my two opponents today i think the point you should take is the fact that mr holden who represents many of the school districts and mayor has been intimately involved in the statute of limitations and other he didn't think to make the argument he did not say the argument was not clear you know what i'm saying is those limitations periods be exactly the same thing even though they're worded quite differently it was not clear to anybody including statute of limitations that's in two different places that are regularly since has changed multiple times as we stated and i agree it was four in part one and two and part two then it was for war and for that it was two and four and then through specifically but you participated in a legislative hearing where your testimony indicated you understood at that time that what was that issue you you may try leans in and attempt to get cases in before there would be a change from four to two years so that i gather the suggestion is that contrary to your e that affected a number of cases so we did file cases before that was going to take effect that's absolutely true and in my testimony i think if you look at it it's written testimony and i was very careful in that because i understood the call i said but the change purports to create a two year statute of limitation filing and if you look at my letter that's exactly what it says because the state was saying at the time we are going to the federal to your standard and yet what it produced did not do that and so it was a difficult situation we obviously wanted to stop the change in the look back provision cutting that went back to two years because it could affect medicare us but we didn't want to fly the issue that in fact they were doing what they said they were one but they mostly resolved where the issue went away for some other reason resident so september of twenty allowed that we actually got a ruling from a hearing officer on the issue and that's the first one where the hearing officer said that that's an explanation what's your calendar archiver is it does by the department there's decisions of the independent very officers are binding on the department they actually have to enforce that was a decision binding in a particular case but they don't have presidential venue other cases correct but everybody was waiting your honor to see what the result of that case was and that's exactly why mr harland didn't think it was our event because we both were to get at that case we got the ruling from the departments hearing officer about what the any other hearing officer however that was the way all practitioners and all hearing officers treated the issue for the next six years it wasn't until the department to be in this case in twenty seventeen that we had a different view which is that it had always  one statute not two for the six years between twenty eleven it's only seventy in every case that was litigated was litigated out of what's the look back provision what's the follow limitation to the facts of the case merit that of course there are exceptions that are in the federal out of the state rule which we had to litigate in several cases as well and so you will i don't think it matters for the start of it but i want to make it clear that the practical effect of the very officers who were in twenty eleven was to fly for the whole community that this regulation significant thing for this appeal is the department did nothing to dissuade the community of schools or the parents of kids with disabilities but that was wrong everyplace went forward with that as the backdrop assumption i is on every issue of special education but there's nothing about this guidance say that it should be just a one statute of limitations across the board counsel do you have them or just you probably don't but  of that earlier decision we didn't have a clue i think it's fair to say that because of the way it was argued that there was a claim that we produce two very different provisions ruling on subsection af which you read and a certain way which you say create smaug the case is that the argument my argument is that this court in order so called look back provision our focus was on that two year provision and was it acted was it adopted in compliance with with nappa it seems to me there is a fair they are arguing that that two year that to your provision is valid in kind of a backwards way they're saying it's valid because well the look back was  adopted with not compliance but i think would be hard to argue that the guidance that they were trying to give to the district court was not intended to establish the validity of the two y to take a look at the map of compliance with respect to the second part definitely assumes that the first part's passage in compliance with does not answer the question otherwise there's no reason for does leave you  because of the way which the case was argued to us we didn't have a clue that there was an argument that these two provisions might be in charge one so i do think there has been  some is application of all reference to there's no ambiguity here again that ambiguity only went to the words foreign to me not just larger question of how these two provisions interact correct concern yes our concern is to validate that we've properly applied the administrative procedures act and adopted it to year one single two year statute of limitations for due process and you're right because the district has borne an extraordinary financial burden and that's a burden on the district's taxpayers oh financing this litigation but the department of education wants a ruling that  the state doesn't disagree that special education proceedings constitute burdens on families and on taxpayers of school district in other cases and other situations that could be reawakened if if this is viewed as a as a remedy you mean there are other cases in which you may have waived the argument then if we adopt a waiver here all if you believe you wait so what is it that you want to give special consideration and i think i'm right i think we're right on the law and i think that the outcome should just be based upon the law you know on and so i don't