me two of my minutes for rebuttal and will now proceed with my argument this is this is a case in which we are not asking this panel to change the law and i want to be really clear about that we're not asking for any ruling that would disturb any of the existing law regarding placement in this circuit and particularly we're not asking the court to reconsider other rulings of rachel h or the other case that followed the end drew f case decided by the supreme court which was  the mc case versus antelope valley both of which discuss the issue of location as a consideration in placement i will not spend a lot of time reviewing which i think fairly be characterized as dramatic medical history or as parents who wrote efforts to keep him moving forward developing and frankly a life i think can i ask you very stream hypothetical of course own suppose that the parents had decided to move to maui would your position be that the school district would have to incur the transportation costs of transporting him every day here from maui to honolulu and back well i think that it's an incomplete hypothetical your honor in so far as the a question to the first question would be is there is there no place on maui that could provide the services and let's assume for purposes of my extreme hypothetical that maui has the same medical facilities that the castle medical center could afford on the windward side of the when hawaii was under federal consent decree which was in the period of i believe one nine hundred ninety two through two thousand and one two thousand and two there actually were programs developed  maoi for that specific reason because there was no day treatment center on the way for children with severe autism those resources were developed locally and that's what i would expect would happen in the movie example you gave the same thing doesn't need to have i obviously pose i have a federals that the elderly seem to be heavily influenced by the fact that the parents voluntarily chose to move to conejo and set up precipitated entire controversy i is that they did move and i mean the school district and say if you want the services that your child needs you're going to have to move to the other side of the island because that's the only place where we can provide those services right well let's look just follow on cutting off all overs a s l services would be a denial of faith interfering or cutting off all of person or sink here would be a denial of faith taking oliver out of the small classroom with fourteen students who are typically developing because even though oliver has down's he set average or above in terms of his cognitive abilities but that too would be a net denial of faith because part of his head moved none of those districts are fictional they are can their districts of convenience the state of hawaii has a single unified school district so the fact that the accounting is spread out through various district offices is simply a matter of convenience it's not a matter of fact or it's not a matter of law it's a legal distinction so it's not just now you're just it seems to me a statute is a person of school age shall be required to have the school of the service area has determined by the department in which the person resides right thought if we take that back to a service area i think judge thomas question again makes a lot of sense because now we're not so so so going back to the to the to the question you your honor the answer is this why has exempted students who are exceptional from the service area requirement that is one thing we prevailed on below before judge quote we are she in which she said that the language in the regulations means what it says exceptional students are not bound by the geographic women taishan and do not need to obtain a geographic exception in order to attend the school of their choice that ruling pardon me then what did she say the good judge was she said this was not a  change of of placement because it was not a change of program even though she said all that stuff looking at the same thing she said this hearing officer should nonetheless be affirmed understand the order i was addressing your question all i'm trying to do is i'm trying to get you back to the hypothetical he's giving these parents turman they were going to move they did move into a different service area rather than the district and when they moved to this service area then they failed jay had to determine whether the whether that child was going to get the same type of education that they were getting in the other service area and that's what this case is about not in the idea that the child must attend the school in the service area she did not say that anywhere she said exactly have said what she did say was that this she did not consider this change a change in program and therefore placement did not change services were found by the day to be comparable to the services they were not identical but as a matter of fact they were comparable well your honor respectfully where are that where is that in the record throughout the record we've heard and a l j say that and we've heard judge coakley actually said that on the near representation that some day those services might be in place and let me tell you what those services would be that inherently a factual determination i mean we we obviously can overturn it but don't we have to give substantial deference to the fact that the is is a mix question of law in fact that under gregory k versus one view school district this court has said is to noble review and well is to noble review for the application of law playable but we're not going to be changing the factionalism claire well what what what gregory case says is the court review the court will review the appropriateness of a special education placement de novo and that's what we're talking about here i think the key fact driven in corrie because the court the administrative law judge heard a lot of testimony from all of the witnesses about what types of supportive services would be available in the new location and that the i guess legal determination if you want to call it that that the that the services were copper so the day the services were to and the parents at could hear the parents were first notified there was no nurse identified there was no one to one identified no maid at least temporarily very temporarily to to move one now this st john could not move because she had  uncontroverted testimony there from ms st john a registered nurse was and all of his a s l interpreter it would take two months to train staff so that oliver could make an adequate transition and not regre now what the school district is saying is that we don't care about that we don't care about the fact that oliver may regress even though i d e a says you can't put a child in circumstances where they w at risk should he suffer an emergency and she substituted her judgment for the direct testimony of ms st john cited in our brief who said that the bus ride was useful to oliver because he could rest if you look at the video that was if he if he goes into some sort i don't know what the medical term is cardiac arrest or whatever it might be and he's you know stuck in the tunnel on the poly highway  isn't that an increased risk of injury or death all over because of the geographical location that he has it's actually worse for him to be reliant on castle and i will tell you that since that hearing there's been an incident over has been he has a pulse oximeter and his pulse his blood oxygen level dropped below ninety and his parents could not raise it when they took him to council to try and get treatment there cassel didn't have the pediatric pediatric equipment and they had to rush through that tunnel that you're mentioning over to copy a lonnie to make sure that he didn't need to be resuscitated yet again every single medical care provider who's treated oliver is either a copula any or or on this side and has all of them have recommended to a person that he remain where he is you cannot punish the parents or oliver because he moved especially given the fact that in this state we have a regulation that says he can receive services at any school and that as i said is the one thing that judge she is your answer to my extreme i better call them the school district would have had to incur the cost of the parents decided to move him to maui that the answer to the question is the school district would have to find some way of providing the same level of services that he needs to advance because we're not like his case is so severe i would just ask pete that he really needs to be sort of tethered to the children's hospital because that's the only they couldn't afford something on this side windward side properties are affordable they're frankly i will represent to the court that they've been for me they're moving back here for this very reason because they're too far from medical care after the incident in rationally concluded that there is no absolutely no requirement that oliver apply for a geographic exception and the deal he's invoking of that or asserting as judge s was questioning me that geographic boundary defines the school it doesn't for oliver or any other acceptable student which are gifted students or students like oliver with extreme challenges that's why it took that's why we're not mooted out here we are here with a very light issue and this is a direct follow on to the rachel h case if if making in making this determination of what significance to i give to the hearing officers questioning of the parents creeds i don't think she said anything about the specific it she did not identify any specific instance of parental testimony but did absolutely suggest that she was questioning whether the parents were credible she did that to slee and without factual i give significance to those that was my question do not your honor you could if the standard force it's a sliding scale if she had made specific findings and said i find the parents testimony not credible because they exaggerated they lied they fabricated  misrepresented their relationship with the st john or the one to one or whatever none of that is in the record that kind of fix it all who is the wrong kind of tool to be using set the record to comments that i believe the mother disavow about her real objections to a plaything right so let's let's just say this is an ugly very ugly nicole spends her life serving poor people she is a social worker who at the time was working at catholic charities who now is a domestic abuse advocate working for the navy the joint coun here has to give a fair amount of deference to the finder of facts the terminations look in the face of conflicting testimony from two witnesses as to which witness to cry to ok so you're asking me to retry the case and i i don't think i can do what we're asking you to do is look at the rachel aged case page ten ninety two sets it all out in fin e detail the knowledge of a particular classroom or teacher may well be relevant to allowing parents to participate in making in meaning meaningfully in the ip process that was totally lacking here day called the these these parents and the last day of course and oh by the way i've decided it's going to be ben parker see you in ten days when the intercessions over no introduction of step oliver in particular and i invite you to look at that video just told me you see a little boy with his fourteen peers and they're cheering him on with his custom walker you know that that's an environment where he went from bear crawling to walking where he went from  refusing to speak to using a s l and actually although he can't speak and won't be able to into a straight is taken out for attempting to verbalize so his peers and teachers could understand him that's what we're talking about here in terms of meaningful participation where were those opportunities outlined in the record the l g can say whatever she wants but if that it's not in the record it doesn't count the final think i'd like to say is what what this what this court said and rachel age is extremely important to your decision making here you said this doesn't mean the school districts have carte blanche to assign a child to a school that cannot satisfy the peace requirements nor does it mean that not identifying a school can never result in a denial of faith etc what this court is saying very clearly and what it said in the mc case is location is never going to be a per se violation we are not to let parents say oh you didn't name the schools or you you get to run off and asked for private services certainly this is nowhere near that case the parents are only asking for a continuation of an existing program and no dish no expense do what that rachel it stands force the proposition that you have to look at the totality and i understand very well judge thom what you're saying about not retrying the case what my response that is if the facts are not there this court must exercise its authority on  basis because of what we're talking about here and say this doesn't work well you're confusing different standards of what we would have to find is that the record the fact finder clearly based on the record in making a factual determination that as to as to such things as the credibility determination i agree respectfully on the issue of the whether or not there was a change of placement that is clearly a mix question and to novo review would apply to that question of fact or yes exactly roger i'm sorry i've gone over time i really appreciate the court main issues here first whether students placement for the two thousand and sixteen seventeen school year in students i e p what is it quote regular education setting on a department campus or whether it was crucial elementary school and second whether opponents were entitle or not entitled to stay put relief as requested because of the preschool program at ben parker was in the general education classroom on a department campus which was substantively similar and comparable to a preschool she'll and therefore it was not a change in placement but a change in location the two applicable laws that we should hear two are found in twenty us section fourteen fifteen j and also of the companion hawaii administrative rules section eight dash sixty dash seventy two under the definition of stay put in particular regarding the relevant portions of stay put it states quote that during the pendency of any proceeding conducted pursuant to the section unless the state and local education agency and the parents otherwise agree the child should remain in the then current placement of the child now for so guidance with respect to what defined as placement of the child during the stay put proceedings i would refer to the l m case that judge comment you're very familiar with i'm certain as you had authored that opinion  and in that particular kiddies your honor stated that the phrase current educational placement is typically the placement described in the child is most long as the school in the service area which all over resides in which all over was placed through was a regular educations setting on a d o a campus that could meet all offers i e the requirements that no stay put issues stay put order should be issued that true what in this particular case that is correct because of the fact that the placement did not change there was no change in placement and therefore for the purpose of stay put it did not apply though were really focus again then on your word is placement that is correct and so i get at the next that mark case in this circuit which is empty versus the state of what you and that is the controlling circuit precedent on the definition of placement now in april of two thousand and ten the ninth circuit in and universe a state of hawaii versus did department of education held that educational placement means the general education program of the student educational placement we first did the type of educational setting that a student is in for example a regular education classroom i the self contained special education classroom or it residential program a change in educational placement relays to whether the student has moved from one type of program for example it regular classroom or regular education classroom to let's say home instruction or residential placement in that case there would be a significant change in the quote students program ruling in n d yes so are we suggesting then that all over must be part because he was in a reggie regular educational setting that he has to go to another regular regular educational setting is that what you're suggesting what i'm suggesting is that placement did not change for his i e p that's identified in the prior with written notice and i guess that's what i'm getting  so you're saying the placement did not change so determining whether the placement did not change is pretty important and the hail j made that determination right that is correct careful and in that particular for that reason this court should give substantial weight that the district court gave that it was sent as though they became aware that the family was moving they immediately contacted the when word school district to set up and arrange for his transition to take place now this is not the type of plan transition plan took place in this particular instance was unique routinely and regularly when a family moves outside of the service area and role as the child in the new service area the child usually and immediately starts school in that news service area however in this case knowing number one the very complex medical needs of this child and also allowing for there should be a transition period of time the honolulu district actually gave one month not one day not one week but a whole month of transition services to continue so that the family could get a custom and acclimated into their new service area and that there would be then an ease of transition with respect to the servicing of this child with the move a program that over from as well as the supplementary aids and supports would be afforded and fully implemented to all of her own at his new home school nothing would have changed the only thing that would change would of course as was clearly mentioned the preschool program at ben parker would be the head start program as compared to the program that was affiliated with who here elementary school which was i believe a sort of cooperate of between the school and the university of hawaii objectives and goals that were developed there would be no change in and the assistance by partnering of education to absolutely and in fact in this particular case that was one of the reasons why i've been parker was chosen to give him the opportunity to experience  family it was in the keitel area but one of the factors that was mentioned was the fact that that school didn't have the kind of stairs that he would continue to move the progress because number one his eye e p would have been fully implemented there was no change in the servicing there was no change in the fact that he would have the same paper of advantages and experience to interact with typically developing peers my understanding that the nurse there was a nurse that he had and that this nurse was agreed to transitional with him and give one on one assistance if you will to another nurse train alongside of that nurse for a week i was adequate the nurses if i may interject what was elicited in that nurses testimony in hearing was that that particular nurse actually had to take and i know their job outside of the contracted agency and therefore she herself was not going to be able to continue providing the services under that contracted agency however her supervisor of that contract deficiency was still be one and the same so it was the department of education's position that the supervisor who knew the own condition and the complexities of other ver with then so if i may in this particular situation during the transitional period of time the women district office actually had all the staff there would be working with  trained in a s l as well as looking at the i guess modified sign so that wasn't done there i think particular i think in anticipation of other coming to school the school wanted to make sure that they were able to effectively communicate and so during that period of time of that one month period believe well first of all his home school is actually his elementary school that was the school that was in there closest in proximity to his home at the time when they moved a subsequent juncture there were openings available in the preschool i generally education preschool setting work that is correct and so that was another factor that was taken into consideration all there is a concern regarding his safety but also and more importantly it was clear that if the student would be missing two hours empathize with the with all adverse conditions and they made special arrangements so that she could take the bus at a different time then what would have been in the event late if you were required to remain and he would then be on the regular bus schedule  the just district court gave appropriate substantial weight because the decision evinces they age eight zero as careful impartial consideration of all of the evidence and demonstrates her sensitivity to the complexity of the issues therefore we ask that this court affirm the district court as october twenty sixth two five thank you for the rebuttal opportunity riddle time i'd like to turn to judge smith and answer a question that you didn't i think it a direct answer to and that was how the change would affect the p objective and goal of oliver's mobility the direct answer to that is it is found among other places in the record in the answering brief of the department in which  campus he could ride in a wheelchair or a way again now obviously this presents tremendous risks for a child who has just gone from there crawling on all fours to finally using the little walker that he has made for him and to for the deal we need to say we'll just put him back in a wagon which is how he rode when he was an infant is an obvious denial a fake that's why i asked the or a way in order that you could rest and that the record the record is that oliver is still resistant to walking that's the primary problem right now and as soon as he gets tired of missing johns testimony which i've outlined in the opening brief speaks to this he he for all the difficulties he's been through he is a tremendous fighter and he fights for what he wants and when he doesn't feel like walking he fights the walker they finally we're getting him to use the walker at the small campus because he doesn't tire what happens when he tires goes back to bear crawling  uncontroverted testimony of oliver's father and his mother was that when they asked miss reedy who are the folks who are going to be working with him who who's who is going to do the s so who's going to suction him four times an hour who's going to make sure he's not bare crawling or scooting and using that walker she said she referred him to miss male here who they had never met and who had never met  ok that's the risk these parents are being asked to take now the other question that judge smith i asked that of i thought was very cogent of counsel you are now well over your time so i'll have to answer the question to judge smith drop thank you just by being i truly appreciate the additional time the other question judge smith asked was as long as the school in the service area could provide a setting in a regular education that