thank you well this is an ideal case globally both the hearing officer and the district court concluded that we failed to timely implemented we disagree with that conclusion leaving that aside what brings u so our position from the start has been when we're considering what is the stay put we look to either in some place here that's not the case or applying burlington on the regulation we look actually to the hearing officers decision which was in favor of the parent and specifically our position has been we look to all of the terms all of the provisions in the hearing  if we do that we reach what we think is a result that's consistent with law policy and precedent and we get to the point of providing this young man a free and appropriate public education which is what was th that by a observing that you know it appears as if given time it would work but we need to give it time instant and first have this young man at perkins for a specified period of time and that's what i think is really unique honor is that you look at the hearing officers decision and it wasn't just have him have this young man at perkins for a school year she had a term limited two hundred sixty nine days nine nine and a half months second she actually qualified and specified that a placement decision would be married no later than february seventeenth two thousand and eight tame yes i know out there forgive me for having but but that's the whole rob because the parties didn't they didn't develop a phased yes i think you are going at this is a two phase a multi phase but the hearing officer i think quite expressly didn't have a plan for after i think it's february eighteenth right so this would be m foreshadowed the potential split or the potential divide with the parties and that's why she specified that this would not be responsible for any costs or to wish in after february eighteenth two thousand and eighteen and she went further than that she spent i'm anticipating a question or oh sorry so i'm getting used to your rhythm and i thought i was reading a question sorry so she did actually more than just that not only did she take pains to emphasize that we would not be responsible for any to action after february eighteenth two thousand and eighteen but then she laid out a canvas if you will of potential scenarios what happens if this happens what happens if this happens what happens of that happened and what she noted was in the event that the parties cannot agree upon a placement decision by february eighteenth two thousand and eighteen that the parties would go to mediation and in the event that they could not resolve the placement decision by that time then the parents would have the remedy under the law which is a due process proceeding and she specifically outlined that they would have the remedy of a due process proceeding now acting consistent with the hearing officers decision what the district it was issue was called the prior written notice and we advised the parents that in light of the limited range of evaluations that we were able to complete in january of two thousand and eighteen the very last week we had an interim placement in place that we believe the based upon expert testimony from jennifer white would provide this young man with a free and appropriate public education and the parents did not except that that decision we had to stay put decided by the district court and the district court concluded that the young man would stay at perkins i think the record is clear here particularly in light of the supplement that we had filed nothing is we've kind of reached an impasse in terms of trying to bring this to the e p table we had a taste of that a little bit i think in october of two thousand and seventeen when on the brink of the schedule evaluations perkins perkins school for the blind denied us access to their campus for purposes of completing the evaluations of observations that were planned at that time jumping forward to march of two thousand and eighteen perkins took the position that they basically disclaimed any responsibility under you know under the hearing officers decision essentially saying hey look that all ended on february eighteen and in terms of cooperating from here on out if we decided based upon our own discretion we will but otherwise you know you're kind of on your own that's not the status quo right we had this we entered an order july eleventh by taking traditional notice at the district court and just report well aware this problem of the allegations that there's been a failure to cooperate and of the huge financial consequences and she said no i think as clearly as you can signal that there are that the parents need to cooperate including you know weaning with perkins to make sure that there is a constructive dialogue and at the at the i think to the point of saying and then if there isn't if the court determines that there's been a failure to cooperate then the school district may not need to pay for again but for that period of time after february eighteenth as a district court made a determination about whether there was a failure to cooperate now we just filed in fact motion papers last week we've spent months now working i  don't want to point fingers mr reagan can and my question is yes but what has that been resolved one way or another no your honor it's not enough to make that finding a factually know it has not yet so why wouldn't we let that leave that alone and let that be resolved in that district i think i have that is even after the district court order might frankly my case and the show concern when i looked at this case was of course the human tragedy the enormous expense and why would the parents have an opp an incentive frankly to come to the table and that think the answer is that the the mid june order where the district court said if there's a failure to cooperate it may not be an expense borne by the school districts i just want to be blunt in my typical fashion and give you a fair opportunity to respond to deciding are we or are we not understanding what information is supposed to be received are we or are we not you know to the are you people stage for example would ordinarily be handled in an administrative hearing with administrative law so that's part one of the answer the second part though you know pertains also to the cost that you just identified those are very real costs for us your honor fourteen hundred dollars a day i think the record is clear you know we're not flush we do the best we can do we have we're no different than any other school district in alaska so significant burden that we're facing and who knows how long the district court will take to identify and resolve and untangle the issues that are now  that though i want to go back to judge christians first question it seems to me really what you're fighting against is josh away because joshua way is the case that says that this has to continue until the appeals are over now you say you're not contesting  joshua and if you're not you're there brace rely heavily on joshua way your brief did not cite josh away so i want to give you an opportunity to tell me you say you're not contesting joshua and obviously this three judge panel were locked in with joshua a but in light of joshua a what really is your argument as to why we would have the authority to terminate these payments now the hearing officers decision and specifically if  it reasoning judge owens on burlington and burlington very clearly drew the analogy analogy between a hearing officers decision and in favor of the parents and an agreement of the parties or additional comment but what the hearing officer decision very clearly did say is if the parties cannot agree on a placement then we go to mediation and if we can go to mediation the parents have a due process rights and so and i misspoke there a minute ago you asked about it segmented or i meant to say yes i do think when you when you read the actual terms in the hearing officers decision and particularly that the fact that it was term limited and the fact that she clearly specified we would not be responsible for any payment after february and when you also consider in the record the fact that we had provided a prior written doubtless with an interim placement so we we had said we've got this we have it now it's available it's based upon a limited evaluations that we conducted in january and it will provide a free an appropriate public education it would bring this young man who's four thousand five hundred miles away from home in an institution that we're fighting with just to get the information that we think we need  it's beyond frustrating your honor particularly when we're footing the bill at fourteen hundred dollars a day and so that's why we would ask the court respectfully please if  if you apply the black and white terms of the hearing officers decision and that's the status quo we maintain that will bring this dispute to a rapid close i believe i've got forty eight seconds i'd like to reserve the balance of the time  current educational placement the point of stay put is to protect the placement that's been found to be appropriate and to keep the child from having to bounce around that's what we're here to protect day in terms of the regulation  thirty four c a far five hundred five eighteen d the question is whether a due process hearing officer has agreed with the parents agreed with the child's parents that a change in placement is appropriate and if that's true the placement is treated as an agreement for purposes of stay put now if i could ask you to look at the text of the regulation the presentation that mr fisher has made says it's the order you know all of it's fourteen pages in three and four pages of appendix that is what is to be considered an agreement of the parties and applied that's not actually what the regulation says what the regulation says it is if the hearing officer agrees with the child's parents about a placement here the hearing officer agreed with the child's parents about a placement at perkins school that is what you stay put not the rest of the order so there's a very basic difference in the way we've presented this and the way they have presented this in terms of what the regulations require there should be no question that the hearing officer  said not not forever i mean it says until february eighteenth that is the crux of the difficulty in an interpreting that order and it is enormously expensive so we don't make light of that of course and i don't mean to imply that you are but is it it is a  took place in january we do not think that the parents are responsible for the delays getting to that point in fact as we try to point out in our brief the school district took the parents to do process about evaluations twice once in august of last year once in the fall and each time the parents prevailed on the grounds that it was not appropriate to demand of them that they conduct the evaluations and they were not the it not been alleged to be responsible for the delay so we won that quite nice evaluations have taken place we don't think we were responsible for the delay up until january and we don't think we're responsible for the lay between january and now we haven't seen the e mail you mention resolves the school district has been intent on arguing to whoever it can that the parents and perkin an appropriate place in which perkins is the student should stay there while the disputes about the hearing officers decision are being resolved that's what the district court is preparing to do  fisher is correct there is motion directives we're responding to it next week on we'll see what the district court wants to do for purposes of what you all are doing as an appellate court the questions really do come back down to what clothes and what the regulation says and what the hearing officers order does not do it does not establish a two phase placement where the second phase is something that happens at in anchorage or anywhere else it doesn't is family the mediation remedy that mr fisher was talking about that mediation remedy is for a different situation it's in the hearing officers appendix what it covers is if perkins school goes out of business or if the student is no longer able to attend perkins school then it sets up a search for another school and that search for another school that there's not agreement on that then we go to mediation then we maybe go to due process but that is not the situation here and so it's not a matter of mediation and due process it's a matter of following the hearing officers order which the district court as i think you noted has instructed us to do what we will be doing he is participating in the evaluation summary meetings participating in the ip development if there is a failure by the i e p team to agree on something then we will be proceeding further but right now what's going on is we are awaiting that process and the purpose of stay put is to preserve the status quo which is perking school while this goes on to the extent that the school district is arguing that there is no order in effect nothing to do once you get to mid february it's all over there's no protection from the hearing officers order things ought to go back to the school district in fact in one of their briefs they say the hearing officers order gives on controlling discretion to the school district decide what happens next that takes from the i e p t it's job of deciding what an appropriate placement is for the student what the ice cream is supposed to do under the hearing officer is a massive valuations work through what they mean on decide if anything else is necessary and try to make a decision under the hearing officers werder but she tried to  condition a little bit what the ip team was going to do by focusing its attention on whether this student had gotten the benefit that he was supposed to get from perkins school so it's not as if the hearing officer ordered that the student would come back to anchorage and be in an anchorage school district placement on starting in mid february starting in march that's not what the order says and that's not what the order fairly red meat instead the hearing officer said is there is no magic number about how long this student needs to stay at this particular school the hearing officer clearly contemplated that one of the things the ip team might do would be to decide that he ought to stay there for a much longer period than the period spelled out in her order it's where the order says the i p t meets if there is disagreement about further placement at perkins school for another further placement the parents have their remedies under the i have always contended that what that means is stay put that we could ask as we ask that his record to preserve the status quo while the dispute is going on now it's a little bit unusual here because what got the disparate quart into the stay put area was the fact that it was considering an appeal from the hearing off of decision and as joshua a dispute over whether the hearing officer got it right on is a continuing it is a continuing one through the district courts merits decision in june and it is a continuing one we think until the school district recently filed appeal to you is result so under joshua a stay put stays that way and the hearing officer did not attempt to foreclose continue payment placement payment payment to did not attempt to foreclose continue placement at perkins school in fact the reference for the parents having their remedies under the i d e a if the ip team doesn't agree on how long he needs his favorite school that is on an invitation to go through the state put remedies if we get into this position which we are now  so i'd be glad to entertain other questions about this but i don't think  you thank you your honor well briefly we all agree that the hearing officers decision is the court document where i part from mr reagan is the concept of placement i read any and indeed most cases to suggest that it's a much more nuanced concept it's not just a physical location you look at the educational program and granted that requires maybe ferreting out exactly ok what is what what information is being conveyed here and so i read the hearing officers decision those black and white terms seems abundantly clear that our obligation to fund to ishan stops on february eighteenth and that after that we have the normal process he's kick in which would include our prior written notice if the parents are not happy with that they have the due process remedy that the hearing officer expressly referenced in the in the decision and that would be if we're paying i'm sorry your honor i was i was telling judge christian before she says time to go i did have one question for you and you under your view of this case of the hearing officer had said look i know what the ninth circuit said and josh away but i'm saying that this is going to end when the district court decision is done for get the ninth circuit would we be bound by what the hearing officer said or with josh away still require this to continue through to the end of the of the appeal all legal conclusion my interpretation of that would be no judge oh and the hearing officer wouldn't you know in no different way than this panel could not overturn joshua i don't believe a hearing officer not applying those actual terms is not preserving the status quo it's turning it upside down we've got this young man four thousand five hundred miles away roughly in massachusetts in an institution that the record is clear has already disclaimed any obligation to comply with the order we've got to go through an article three judge to try to fight this out that's no way for us to be proceeding when we're about providing a free an appropriate public education if you apply