STATE OF NEW YORK
OFFICE OF STATE REVIEW
26-009
Application of a STUDENT WITH A DISABILITY, by his parents, for review of a determination of a hearing officer relating to the provision of educational services by the New York City Department of Education
Appearances:
Liberty & Freedom Legal Group, Ltd., attorneys for petitioners, by Erin G. McGuinness, Esq.
Liz Vladeck, General Counsel, attorneys for respondent, by Ezra Zonana, Esq.
I. Introduction
This State-level administrative review is being conducted pursuant to an order of remand issued by the United States District Court for the Southern District of New York for the limited purpose of determining whether petitioner (the parent) was entitled to full transportation funding from respondent (the district) related to the student's unilateral placement at the International Academy for the Brain (iBrain) during the 2023-24 school year (see Cohen v. Aviles-Ramos, et al, 2025 WL 3715102 [S.D.N.Y. Dec. 22, 2025]). Having provided the parties with an opportunity to be heard and upon reexamination of the hearing record of the impartial hearing proceedings, the prior State-level submissions and administrative decisions, as well as the District Court's order of remand, the parent's appeal must be dismissed.
II. Overview—Administrative Procedures
When a student in New York is eligible for special education services, the IDEA calls for the creation of an individualized education program (IEP), which is delegated to a local Committee on Special Education (CSE) that includes, but is not limited to, parents, teachers, a school psychologist, and a district representative (Educ. Law § 4402; see 20 U.S.C. § 1414[d][1][A]-[B]; 34 CFR 300.320, 300.321; 8 NYCRR 200.3, 200.4[d][2]). If disputes occur between parents and school districts, incorporated among the procedural protections is the opportunity to engage in mediation, present State complaints, and initiate an impartial due process hearing (20 U.S.C. §§ 1221e-3, 1415[e]-[f]; Educ. Law § 4404[1]; 34 CFR 300.151-300.152, 300.506, 300.511; 8 NYCRR 200.5[h]-[l]).
New York State has implemented a two-tiered system of administrative review to address disputed matters between parents and school districts regarding "any matter relating to the identification, evaluation or educational placement of a student with a disability, or a student suspected of having a disability, or the provision of a free appropriate public education to such student" (8 NYCRR 200.5[i][1]; see 20 U.S.C. § 1415[b][6]-[7]; 34 CFR 300.503[a][1]-[2], 300.507[a][1]). First, after an opportunity to engage in a resolution process, the parties appear at an impartial hearing conducted at the local level before an IHO (Educ. Law § 4404[1][a]; 8 NYCRR 200.5[j]). An IHO typically conducts a trial-type hearing regarding the matters in dispute in which the parties have the right to be accompanied and advised by counsel and certain other individuals with special knowledge or training; present evidence and confront, cross-examine, and compel the attendance of witnesses; prohibit the introduction of any evidence at the hearing that has not been disclosed five business days before the hearing; and obtain a verbatim record of the proceeding (20 U.S.C. § 1415[f][2][A], [h][1]-[3]; 34 CFR 300.512[a][1]-[4]; 8 NYCRR 200.5[j][3][v], [vii], [xii]). The IHO must render and transmit a final written decision in the matter to the parties not later than 45 days after the expiration period or adjusted period for the resolution process (34 CFR 300.510[b][2], [c], 300.515[a]; 8 NYCRR 200.5[j][5]). A party may seek a specific extension of time of the 45-day timeline, which the IHO may grant in accordance with State and federal regulations (34 CFR 300.515[c]; 8 NYCRR 200.5[j][5]). The decision of the IHO is binding upon both parties unless appealed (Educ. Law § 4404[1]).
A party aggrieved by the decision of an IHO may subsequently appeal to a State Review Officer (SRO) (Educ. Law § 4404[2]; see 20 U.S.C. § 1415[g][1]; 34 CFR 300.514[b][1]; 8 NYCRR 200.5[k]). The appealing party or parties must identify the findings, conclusions, and orders of the IHO with which they disagree and indicate the relief that they would like the SRO to grant (8 NYCRR 279.4[a]). The opposing party is entitled to respond to an appeal or cross-appeal in an answer (8 NYCRR 279.5). The SRO conducts an impartial review of the IHO's findings, conclusions, and decision and is required to examine the entire hearing record; ensure that the procedures at the hearing were consistent with the requirements of due process; seek additional evidence if necessary; and render an independent decision based upon the hearing record (34 CFR 300.514[b][2]; 8 NYCRR 279.12[a]). The SRO must ensure that a final decision is reached in the review and that a copy of the decision is mailed to each of the parties not later than 30 days after the receipt of a request for a review, except that a party may seek a specific extension of time of the 30-day timeline, which the SRO may grant in accordance with State and federal regulations (34 CFR 300.515[b], [c]; 8 NYCRR 200.5[k][2]).
III. Facts and Procedural History
The student in this matter—who has continuously attended iBrain since the 2018-19 school year—has been, and continues to be, the subject of several prior State-level review proceedings that have addressed claims related to the student's unilateral placement at iBrain (see generallyApplication of a Student with a Disability, Appeal No. 25-430; Application of a Student with a Disability, Appeal No. 24-343; Application of a Student with a Disability, Appeal No. 23-262; Application of the Dep't of Educ., Appeal No. 21-082; Application of a Student with a Disability, Appeal No. 20-198; Application of a Student with a Disability, Appeal No. 20-068; Application of the Dep't of Educ., Appeal No. 18-127). The facts relevant to the student's educational history and the prior procedural history of this case at the school district and administrative hearing levels regarding whether the district offered the student a free appropriate public education (FAPE) for the 2023-24 school year were set forth in Application of a Student with a Disability, Appeal No. 23-262, and Application of a Student with a Disability, Appeal No. 24-343. As the parties' familiarity with this matter is presumed and given that the remand from the District Court is limited to the parent's request for relief in the form of direct funding of transportation costs for the 2023-24 school year, for purposes of context, some facts and procedural history with emphasis regarding the 2023-24 school year and the District Court action are set forth below.
Briefly, a CSE convened on March 14, 2023 to conduct the student's annual review, and, finding that the student remained eligible for special education as a student with a traumatic brain injury, developed an IEP for the student with an implementation date of March 27, 2023 (see Parent Ex. B at pp. 1, 78). The March 2023 CSE recommended 12-month programming for the student, which consisted of a 12:1+(3:1) special class placement in a specialized school, together with related services; supplementary aids and services, program modifications, and accommodations; and assistive technology devices and services (id. at pp. 71-73). The March 2023 CSE also recommended special transportation for the student, which included the following accommodations and services: "[t]ransportation from the closest safe curb location to school," "[a]dult [s]upervision—1:1 [p]araprofessional," a lift bus, accessibility for a regular-sized wheelchair, limited travel time (unspecified), and "climate controlled" (id. at pp. 77-78).
On June 26, 2023, the parent electronically executed an "Annual Enrollment Contract" with iBrain for the student's attendance during the 2023-24 school year from July 5, 2023 through June 21, 2024 (Parent Ex. E at pp. 1, 6). Based on the evidence in the hearing record, the student began attending iBrain on or about July 5, 2023 for the 2023-24 school year (see Parent Ex. K).
Thereafter, the parent initiated this administrative proceeding by due process complaint notice dated July 5, 2023, within which the parent alleged that the district failed to offer the student a FAPE for the 2023-24 school year based on various procedural and substantive violations (see generally Parent Ex. A). As relevant herein, the parent requested the following, in part, as relief: direct or prospective funding for the costs of the student's special education transportation services, which included "limited travel time, a 1:1 transportation paraprofessional, air conditioning, a lift bus, and a regular-sized wheelchair" (id. at p. 8).
The evidence reflects that the parent executed a "School Transportation Annual Service Agreement" (transportation agreement) with "Sisters Travel and Transportation Services, LLC" (Sisters Travel) to provide the student with round-trip transportation between his home and iBrain during the 2023-24 school year beginning on July 1, 2023 and concluding on June 30, 2024 (Parent Ex. F at pp. 1, 6).[1] According to the terms of the transportation agreement, the agreement covered "year-round transportation for approximately 218 school days based on [iBrain's], 12-month 2023-2024 [s]chool [y]ear calendar" (id. at p. 1). The schedule of services in the transportation agreement required that each one-way trip—i.e., from the student's home to iBrain or from iBrain to the student's home—was to be "no more than 60 minutes each way" (id. [emphasis in original]). In addition, the transportation agreement reflected that Sisters Travel, as the provider, was required to maintain vehicles with the following conditions: "[a]ir conditioning, regular-size wheelchair accessibility (e.g., lift-bus/wheelchair ramp), and sitting space to accommodate a person to travel" with the student "as needed"; Sisters Travel was also required to provide a "1:1 transportation paraprofessional, if required, for [the s]tudent" (id. at p. 2).
With respect to fees and payment for services, the transportation agreement indicated that services would be "billed at an annual rate of $128,620.00," which the parent (as the client) was to pay in three installments due respectively on July 5, 2023; September 1, 2023; and January 1, 2024 (Parent Ex. F at p. 2).[2] According to the transportation agreement, the fees for services were based on school days—described in the agreement as 218 days during the 12-month, 2023-24 school year—regardless of whether the student used the transportation services on a particular day, unless Sisters Travel was "at fault for the [student] not utilizing [the services]" (id. at pp. 1-2). Additionally, the transportation agreement allowed each party to terminate the agreement "for [c]ause"—i.e., the failure to "perform in the manner called for" in the transportation agreement—and allowed the parent to terminate the agreement if the student "relocate[d] outside of [the] local school district or due to health reasons [the student wa]s no longer requiring special school transportation services" (id. at p. 3). The transportation agreement further allowed the parent to terminate the agreement if the parent had "exhausted all legal remedies available to them to secure third party funding"; however, the parent "remain[ed] responsible for any balance due to [Sisters Travel] on the date of such termination" (id.).
In a decision dated October 18, 2023 (October 2023 IHO Decision), the IHO determined that the district failed to offer the student a FAPE for the 2023-24 school year, iBrain was an appropriate unilateral placement, and equitable considerations weighed in favor of the parent's requested relief with respect to funding for the cost of the student's tuition at iBrain for the 2023-24 school year (see Oct. 18, 2023 IHO Decision at pp. 15-24). However, although the IHO found "that the student was recommended for, and required, specialized transportation services" he ruled that "[t]he equities require[d] that the amount to be reimbursed or paid by the district not be unreasonably above the range of fair market rates" (id. at p. 25). As a result, the IHO ordered the district to directly fund the cost of transportation for the student for each day actually transported during the 2023-24 school year, capped by the highest of the following measures: (1) the approved Medicaid rate; (2) the approved Medicare rate; or (3) the actual rate paid by the district during the 2023-24 school year for comparable services in a comparable vehicle with comparable staff by entities contracting with the district to provide such services (id.).
The parent narrowly appealed the October 2023 IHO decision with respect to the special transportation award, arguing that the IHO erred by not awarding the full cost of the transportation services pursuant to the transportation agreement between the parent and Sisters Travel (see Application of a Student with a Disability, Appeal No. 23-262).
In a decision dated January 12, 2024 (January 2024 SRO decision), an SRO modified the October 2023 IHO decision by reversing that portion which ordered the district to fund the student's transportation for only the days the student was transported to and from iBrain capped by the highest of the three measures outlined by the IHO in his decision and remanded the matter to the IHO for further proceedings consistent with the SRO's decision (see Application of a Student with a Disability, Appeal No. 23-262). The SRO directed the IHO on remand to focus on four enumerated concerns: (1) the student's attendance for the 2023-24 school year; (2) whether the parent contacted any alternative service providers to determine a reasonable rate for private transportation services; (3) whether the parent fully understood that she would be responsible for payment to Sisters Travel if the district was not ordered to make payments; and (4) why the parent did not request the district to transport the student to and from iBrain, considering the district was offering the same special transportation services as privately sought by the parent (id.).[3]
Upon remand, the parties met for an impartial hearing on February 22, 2024, and concluded the proceedings on May 10, 2024, after five total days of proceedings to address the four concerns identified by the SRO (see Tr. pp. 137-350). The IHO afforded both parties an opportunity to submit evidence and to be heard with respect to each issue identified by the SRO.
By decision after remand dated July 4, 2024 (July 2024 IHO decision), the IHO found that the hearing "record [wa]s, upon remand, clear that the student attended the nonpublic program, in person, for essentially the entire school year, with no more than a handful of immaterial excused absences" (July 4, 2024 IHO Decision at p. 10). While finding that the student's actual attendance at iBrain for the purpose of special transportation was no longer a question in light of the evidence in the hearing record, the IHO noted that the district was "always within its rights to demand documentation of the actual performance [or] delivery of the terms of that agreement, and that this entitlement protect[ed] it from being bill for services beyond those contemplated by the contract it must fund" (id.). The IHO further determined that the parent never timely objected to the district's transportation recommendations nor requested district transportation for the student "prior to engaging in the self-help" remedy of securing private transportation services from Sisters Travel, and indicated that "this factor cut[] heavily against the [parent]'s actions here and in particular against [her] failure to have challenged reliance on district-provided transportation" (id. at p. 12). In addition, the IHO determined that neither party had submitted evidence to permit the IHO to determine the "appropriateness and reasonableness" of the parent's "transportation contract costs, or their lack" (id.). The IHO summarized the matter on remand, noting that "[n]either party met their burden at trial, the SRO gave them, . . . , a second opportunity to do so, and both sides failed to take meaningful advantage of that remarkable act of grace—they both failed to build a record adequate to meet their respective burdens" (id.). Next, the IHO found that, since the "entire school year [wa]s now over," and the parent had "established [her] right to pendency for the entire year," the demand for the district to fund the student transportation costs had been "rendered moot" (id. at p. 13). As a final point, the IHO noted that the parent had "not met its burdens pursuant to Educ[ation] Law § 4404(1)(c) to prove the appropriateness of private transportation funding from the district for the student's 2023-24 school year" (id.).
Thereafter, the parent appealed the July 2024 IHO decision, arguing that the IHO erred on remand by not awarding the full costs of the student's transportation services for the 2023-24 school year, consistent with the parent's transportation agreement with Sisters Travel. The parent further asserted that the IHO erred by concluding that the parent's request for transportation costs was rendered moot by the passage of time and the parent's rights under pendency.
In an answer, the district argued to uphold the IHO's decision in its entirety.[4]
By decision dated October 10, 2024 (October 2024 SRO decision), the undersigned found that, consistent with the July 2024 IHO decision, the matter concerning the parent's request for the district to fund the costs of the student's private transportation services for the 2023-24 school year had been rendered moot because the parent had already received all of the relief she sought with regard to transportation services under pendency (see Application of a Student with a Disability, Appeal No. 24-343). As such, no further relief could be awarded, and the parent's appeal was dismissed.
A. District Court Decision
The parent appealed the October 2024 SRO decision to the United States District Court of the Southern District (see Cohen v. Aviles-Ramos, et al, 2025 WL 3715102 [S.D.N.Y. Dec. 22, 2025]). The parent argued that the SRO erred by failing to decide the merits of whether she was entitled to full transportation funding for the 2023-24 school year because the school year had expired and therefore, the dispute had been rendered moot (Cohen, 2025 WL 3715102, at *1). Specifically, the parent argued that, although she did not "dispute that the transportation funding she sought through the [due process complaint notice wa]s no longer needed because she already received it pursuant to the Pendency Order," the case was not moot because the "underlying issue of transportation funding [wa]s 'capable of repetition, yet evading review'" (Cohen, 2025 WL 3715102, at *2). According to the parent, the facts of this matter met the exception to the mootness doctrine because she was already pursuing "litigation on the same or a similar issue"—the same level of funding for transportation costs—through a due process complaint notice for the 2024-25 school year (Cohen, 2025 WL 3715102, at *2). The court agreed with the parent, and found that the "issue of the appropriate level of transportation funding [wa]s 'capable of repetition, yet evading review'" (Cohen, 2025 WL 3715102, at *4). However, rather than deciding this issue in the first instance, the court remanded the matter to the Office of State Review for disposition consistent with the court's decision (Cohen, 2025 WL 3715102, at *4).
B. Parties' Positions on Remand to SRO
Prior to addressing the issue remanded by the district court, the SRO provided the parties with an opportunity to submit written statements of their respective positions. The parent contends that the IHO erred by denying reimbursement for the contracted transportation costs. The parent argues that, because the IHO found that the district failed to offer the student a FAPE for the 2023-24 school year and found that iBrain was an appropriate unilateral placement, the IHO could only reduce or deny reimbursement based on equitable considerations. The parent asserts that the district failed to appeal the IHO's findings with regard to FAPE and the appropriateness of the unilateral placement at iBrain, and it was undisputed that the student required special transportation to access his education. In addition, the parent contends that she cooperated with the district and complied with all the IDEA requirements.
The parent notes that the IHO, and then the SRO, erred by limiting reimbursement for the costs of the student's transportation. According to the parent, the IHO improperly used costs associated with Medicare and Medicaid to limit reimbursement rates, noting further that the use of such was "inconsistent with well-established administrative and judicial precedent." Relatedly, the parent argues that the IHO erred by ignoring the terms of the transportation agreement, especially when the district failed to establish that the transportation costs, per the agreement, were excessive. The parent also argues that the district failed to provide a meaningful alternative for transportation. As a final point, the parent contends that the evidence in the hearing record demonstrates that the student attended iBrain during the 2023-24 school year with "nearly perfect attendance," and reimbursement reductions based on a student's attendance or lack thereof have been "soundly rejected by the SRO." Consequently, the parent seeks to reverse the IHO's decision and for the district to fully fund the costs of the student's transportation as set forth in the transportation agreement.[5]
In its position paper, the district requests that the SRO "adhere" to the determination in the January 2024 SRO decision remanding the matter to the IHO for further fact finding. According to the district, the IHO, upon remand, failed to conduct further fact finding as directed in the January 2024 SRO decision and instead, found the matter moot in the July 2024 IHO decision. The district urges the SRO to remand the matter to the IHO to address the concerns noted within the January 2024 SRO decision and for the IHO to grant the district's proposed subpoenas to obtain the following information: the student's in-person attendance records from iBrain to determine how often the student used transportation services from Sisters Travel, to determine whether the rate charged by Sisters Travel was reasonable, and to recall the parent to testify concerning the issues raised by the SRO in the January 2024 SRO decision. The district contends that the proposed subpoenas would result in a full and complete hearing record, which was the foundational issue raised by the SRO when remanding the matter for further development. As relief, the district seeks to remand the matter to the IHO for further fact finding, consistent with the SRO's directives in the January 2024 SRO decision.[6]
V. Applicable Standards
Two purposes of the IDEA (20 U.S.C. §§ 1400-1482) are (1) to ensure that students with disabilities have available to them a FAPE that emphasizes special education and related services designed to meet their unique needs and prepare them for further education, employment, and independent living; and (2) to ensure that the rights of students with disabilities and parents of such students are protected (20 U.S.C. § 1400[d][1][A]-[B]; see generallyForest Grove Sch. Dist. v. T.A., 557 U.S. 230, 239 [2009]; Bd. of Educ. of Hendrick Hudson Cent. Sch. Dist. v. Rowley, 458 U.S. 176, 206-07 [1982]).
A FAPE is offered to a student when (a) the board of education complies with the procedural requirements set forth in the IDEA, and (b) the IEP developed by its CSE through the IDEA's procedures is reasonably calculated to enable the student to receive educational benefits (Rowley, 458 U.S. at 206-07; T.M. v. Cornwall Cent. Sch. Dist., 752 F.3d 145, 151, 160 [2d Cir. 2014]; R.E. v. New York City Dep't of Educ., 694 F.3d 167, 189-90 [2d Cir. 2012]; M.H. v. New York City Dep't of Educ., 685 F.3d 217, 245 [2d Cir. 2012]; Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 [2d Cir. 2005]). "'[A]dequate compliance with the procedures prescribed would in most cases assure much if not all of what Congress wished in the way of substantive content in an IEP'" (Walczak v. Fla. Union Free Sch. Dist., 142 F.3d 119, 129 [2d Cir. 1998], quoting Rowley, 458 U.S. at 206; see T.P. v. Mamaroneck Union Free Sch. Dist., 554 F.3d 247, 253 [2d Cir. 2009]). The Supreme Court has indicated that "[t]he IEP must aim to enable the child to make progress. After all, the essential function of an IEP is to set out a plan for pursuing academic and functional advancement" (Endrew F. v. Douglas Cty. Sch. Dist. RE-1, 580 U.S. 386, 399 [2017]). While the Second Circuit has emphasized that school districts must comply with the checklist of procedures for developing a student's IEP and indicated that "[m]ultiple procedural violations may cumulatively result in the denial of a FAPE even if the violations considered individually do not" (R.E., 694 F.3d at 190-91), the Court has also explained that not all procedural errors render an IEP legally inadequate under the IDEA (M.H., 685 F.3d at 245; A.C. v. Bd. of Educ. of the Chappaqua Cent. Sch. Dist., 553 F.3d 165, 172 [2d Cir. 2009]; Grim v. Rhinebeck Cent. Sch. Dist., 346 F.3d 377, 381 [2d Cir. 2003]). Under the IDEA, if procedural violations are alleged, an administrative officer may find that a student did not receive a FAPE only if the procedural inadequacies (a) impeded the student's right to a FAPE, (b) significantly impeded the parents' opportunity to participate in the decision-making process regarding the provision of a FAPE to the student, or (c) caused a deprivation of educational benefits (20 U.S.C. § 1415[f][3][E][ii]; 34 CFR 300.513[a][2]; 8 NYCRR 200.5[j][4][ii]; Winkelman v. Parma City Sch. Dist., 550 U.S. 516, 525-26 [2007]; R.E., 694 F.3d at 190; M.H., 685 F.3d at 245).
The IDEA directs that, in general, an IHO's decision must be made on substantive grounds based on a determination of whether the student received a FAPE (20 U.S.C. § 1415[f][3][E][i]). A school district offers a FAPE "by providing personalized instruction with sufficient support services to permit the child to benefit educationally from that instruction" (Rowley, 458 U.S. at 203). However, the "IDEA does not itself articulate any specific level of educational benefits that must be provided through an IEP" (Walczak, 142 F.3d at 130; see Rowley, 458 U.S. at 189). "The adequacy of a given IEP turns on the unique circumstances of the child for whom it was created" (Endrew F., 580 U.S. at 404). The statute ensures an "appropriate" education, "not one that provides everything that might be thought desirable by loving parents" (Walczak, 142 F.3d at 132, quoting Tucker v. Bay Shore Union Free Sch. Dist., 873 F.2d 563, 567 [2d Cir. 1989] [citations omitted]; see Grim, 346 F.3d at 379). Additionally, school districts are not required to "maximize" the potential of students with disabilities (Rowley, 458 U.S. at 189, 199; Grim, 346 F.3d at 379; Walczak, 142 F.3d at 132). Nonetheless, a school district must provide "an IEP that is 'likely to produce progress, not regression,' and . . . affords the student with an opportunity greater than mere 'trivial advancement'" (Cerra, 427 F.3d at 195, quoting Walczak, 142 F.3d at 130 [citations omitted]; see T.P., 554 F.3d at 254; P. v. Newington Bd. of Educ., 546 F.3d 111, 118-19 [2d Cir. 2008]). The IEP must be "reasonably calculated to provide some 'meaningful' benefit" (Mrs. B. v. Milford Bd. of Educ., 103 F.3d 1114, 1120 [2d Cir. 1997]; see Endrew F., 580 U.S. at 403 [holding that the IDEA "requires an educational program reasonably calculated to enable a child to make progress appropriate in light of the child's circumstances"]; Rowley, 458 U.S. at 192). The student's recommended program must also be provided in the least restrictive environment (LRE) (20 U.S.C. § 1412[a][5][A]; 34 CFR 300.114[a][2][i], 300.116[a][2]; 8 NYCRR 200.1[cc], 200.6[a][1]; see Newington, 546 F.3d at 114; Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 108 [2d Cir. 2007]; Walczak, 142 F.3d at 132).
An appropriate educational program begins with an IEP that includes a statement of the student's present levels of academic achievement and functional performance (see 34 CFR 300.320[a][1]; 8 NYCRR 200.4[d][2][i]), establishes annual goals designed to meet the student's needs resulting from the student's disability and enable him or her to make progress in the general education curriculum (see 34 CFR 300.320[a][2][i], [2][i][A]; 8 NYCRR 200.4[d][2][iii]), and provides for the use of appropriate special education services (see 34 CFR 300.320[a][4]; 8 NYCRR 200.4[d][2][v]).[7]
A board of education may be required to reimburse parents for their expenditures for private educational services obtained for a student by his or her parents, if the services offered by the board of education were inadequate or inappropriate, the services selected by the parents were appropriate, and equitable considerations support the parents' claim (Florence County Sch. Dist. Four v. Carter, 510 U.S. 7 [1993]; Sch. Comm. of Burlington v. Dep't of Educ., 471 U.S. 359, 369-70 [1985]; R.E., 694 F.3d at 184-85; T.P., 554 F.3d at 252). In Burlington, the Court found that Congress intended retroactive reimbursement to parents by school officials as an available remedy in a proper case under the IDEA (471 U.S. at 370-71; see Gagliardo, 489 F.3d at 111; Cerra, 427 F.3d at 192). "Reimbursement merely requires [a district] to belatedly pay expenses that it should have paid all along and would have borne in the first instance" had it offered the student a FAPE (Burlington, 471 U.S. at 370-71; see 20 U.S.C. § 1412[a][10][C][ii]; 34 CFR 300.148).
The burden of proof is on the school district during an impartial hearing, except that a parent seeking tuition reimbursement for a unilateral placement has the burden of proof regarding the appropriateness of such placement (Educ. Law § 4404[1][c]; see R.E., 694 F.3d at 184-85).
VI. Discussion
As noted, the issue in this matter is limited to whether the parent is entitled to reimbursement or funding for the costs of the unilaterally obtained special transportation services pursuant to the transportation agreement with Sisters Travel. The IDEA specifically includes transportation, as well as any modifications or accommodations necessary in order to assist a student to benefit from his or her special education, in its definition of related services (20 U.S.C. § 1401[26]; see 34 CFR 300.34[a], [c][16]). In addition, State law defines special education as "specially designed instruction . . . and transportation, provided at no cost to the parents to meet the unique needs of a child with a disability," and requires school districts to provide disabled students with "suitable transportation to and from special classes or programs" (Educ. Law §§ 4401[1]; 4402[4][a]; see Educ. Law § 4401[2]; 8 NYCRR 200.1[ww]). Specialized forms of transportation must be provided to a student with a disability if necessary for the student to benefit from special education, a determination which must be made on a case-by-case basis by the CSE (Irving Indep. Sch. Dist. v. Tatro, 468 U.S. 883, 891, 894 [1984]; Dist. of Columbia v. Ramirez, 377 F. Supp. 2d 63 [D.D.C. 2005]; see Transportation, 71 Fed. Reg. 46576 [Aug. 14, 2006]; "Questions and Answers on Serving Children with Disabilities Eligible for Transportation," 53 IDELR 268 [OSERS 2009]; Letter to Hamilton, 25 IDELR 520 [OSEP 1996]; Letter to Anonymous, 23 IDELR 832 [OSEP 1995]; Letter to Smith, 23 IDELR 344 [OSEP 1995]). If the student cannot access his or her special education without provision of a related service such as transportation, the district is obligated to provide the service, "even if that child has no ambulatory impairment that directly causes a 'unique need' for some form of specialized transport" (Donald B. v. Bd. of Sch. Commrs., 117 F.3d 1371, 1374-75 [11th Cir. 1997] [emphasis in original]). The transportation must also be "reasonable when all of the facts are considered" (Alamo Heights Indep. Sch. Dist. v. State Bd. of Educ., 790 F.2d 1153, 1160 [5th Cir. 1986]).
Initially, neither party disputes that the student in this matter requires special transportation services. The March 2023 CSE recommended special transportation with several accommodations: the provision of transportation from the closest safe curb location to school, adult supervision (1:1 paraprofessional), a lift bus, accessibility for a regular-sized wheelchair, limited travel time (unspecified), and a climate controlled environment (Parent Ex. B at pp. 77-78). Based on the evidence in the hearing record, the transportation agreement signed by the parent required Sisters Travel to provide the student with round-trip transportation services from his home to iBrain during the 12-month, 2023-24 school year with the following accommodations: limited travel time (no more than 60 minutes each way) and vehicles with air conditioning, regular-size wheelchair accessibility (e.g., lift-bus/wheelchair ramp), and space to accommodate a person to travel with the student as needed (Parent Ex. F at p. 2). In addition, the transportation agreement indicated that Sisters Travel was responsible for providing the student with a 1:1 transportation paraprofessional, if required (id.).
In the October 2023 IHO decision, the IHO noted that, although the parties did not dispute the student's need for special transportation, his finding that iBrain was an appropriate unilateral placement did not "automatically create an entitlement to district responsibility to pay for the unilateral selection of a transportation provider" (Oct. 18, 2023 IHO Decision at p. 24). The IHO determined that the district bore the initial responsibility to demonstrate, as part of its burden of proof, that it either provided transportation services for the student, or "sought to do so" (id.). The IHO determined that the district had not sustained its burden, therein, and as a result, the parent had "acted reasonably" when she "arrange[d] essential transportation to [iBrain] for the student" (id.).
When examining whether the parent was entitled to district funded transportation services, the IHO concluded that the district had not challenged the student's alleged need for "medically-recommended travel accommodations" of limited travel time and an air-conditioned vehicle, and with respect to the cost of the transportation services, the district failed to establish that it provided or sought to provide transportation services to the student as of July 1 (Oct. 18, 2023 IHO Decision at pp. 24-25). Therefore, the IHO determined that the district was "responsible for the service the [parent] contracted for at that time," through the conclusion of the instant proceeding (id. at p. 25). Nevertheless, the IHO noted that the hearing record was devoid of evidence concerning the "amount to be reimbursed" by the district, noting further that equitable considerations required that the amount to be paid was not "unreasonably above the range of fair market rates" (id.). It was here that the IHO ordered the district to fund the costs of the student's transportation services, but not pursuant to the rate in the transportation agreement; instead, the IHO listed three measures to be used to cap or limit the district's obligation to fund the transportation costs (id.). In addition, the IHO ordered the district to fund the student's transportation services for "each day actually transported during the 2023-2024 school year . . . at the rate billed, capped by the highest of the three measures" up through the date of the IHO's decision; thereafter, the IHO indicated that the district could then either continue to fund the student's transportation services or provide transportation services itself (id. at p. 27).
As previously noted, the parent appealed the October 2023 IHO decision, and in the January 2024 SRO decision, the SRO reversed that portion of the October 2023 IHO decision limiting the award of funding for the costs of the student's transportation services and remanded for further fact finding with regard to "four enumerated concerns" regarding equitable considerations (Application of a Student with a Disability, Appeal No. 23-262).
A. Impartial Hearing on Remand
To determine the issue presented, it is necessary to more closely examine the impartial hearing on remand. Initially, the IHO and the parties discussed the scope of the issues to be determined based on the directives in the January 2024 SRO decision. The parent's attorney stated his belief that the "issue arose in connection with the equities with respect to an award for transportation," but not with respect to whether the student needed special transportation services (Tr. pp. 142-43). The IHO agreed with the parent's attorney, noting further that the remand was about transportation, alone, and no other issues (see Tr. p. 143). The parent's attorney also noted more specifically that any award issued by the IHO was to be "reviewed" with respect to the student's "attendance," as the previous hearing record did not include evidence thereto or the evidence in the hearing record raised concerns about the student's in-person attendance at iBrain during the 2023-24 school year (Tr. pp. 143-46).
As discussion continued, the district's attorney made the point that, although the district did not challenge that the student required accommodated transportation services, the district disagreed with the parent's transportation agreement with Sisters Travel (see Tr. pp. 146-50). The district's attorney indicated that, during the prior impartial hearing, it had sought a subpoena for "transportation documents," which the IHO had not signed (Tr. p. 150). Therefore, the district's attorney opined that this was an area where the hearing record required development "based upon the SRO's decision" (id.). The district's attorney also noted that the district sought to "provide transportation that was on the [March 2023] IEP," but the parent "declined all transportation and didn't actually reach out to the [district's] Office of Pupil Transportation" (id.). The district's attorney confirmed that evidence of this purported fact was not in the original hearing record, and she could not recall whether it had been raised as part of the opening or closing statements in the original impartial hearing (see Tr. p. 151). However, the district's attorney indicated she would seek to subpoena iBrain's director of special education as a witness involved in communications regarding transportation for the student (id.).
Overall, the parties agreed to present evidence concerning the student's attendance at iBrain for the 2022-23 and 2023-24 school years, and through cross-examination of the parent and an iBrain witness, to develop the hearing record with respect to whether the "parent contacted any alternative service providers to determine a reasonable rate, whether the parent had a full understanding that she would be responsible for payment to Sisters Tra[vel] and why the parent did not seek to have the [d]istrict transport the student" (Tr. pp. 151-69). The IHO also invited both parties to present evidence concerning the fair market rates for the transportation services (see Tr. p. 169).
Both parties submitted new evidence as part of the impartial hearing on remand (see generally Parent Exs. K-U; Dist. Exs. 6-15). The IHO also signed two subpoenas submitted by the district (see Tr. p. 187). In its opening statement, the district's attorney indicated, in part, that the purpose of the remand was for "evidence regarding the equitable consideration and reasonableness of the cost of transportation services, and whether [the p]arent's decision to enter into a transportation contract was appropriate based on the student's attendance at iBrain" (Tr. p. 222). The parent's attorney also made an opening statement, indicating that the evidence would answer the questions posed by the SRO for remand about the student's attendance at iBrain and whether the transportation costs were excessive per the parent's transportation agreement with Sisters Travel (see Tr. pp. 242-44).
The district rested its case-in-chief on the documentary evidence entered into the hearing record and did not present any witnesses (see Tr. p. 246). In contrast, the parent, to support her burden of proof, testified and presented the deputy director of special education at iBrain (deputy director) as a witness, in addition to entering documentary evidence into the hearing record (see Tr. pp. 247-311; Parent Exs. T-U). In her direct testimony, the parent testified that the student never received remote instruction during the 2022-23 and 2023-24 school years and only missed a handful of days from school due to medical needs, appointments, or 'guardianship-related appointments" (Parent Ex. T ¶¶ 5-6). The parent also provided specific dates the student did not attend iBrain in-person for both the 2022-23 and 2023-24 school years (id.).[8] With respect to the transportation agreement with Sisters Travel, the parent testified that she understood her financial obligation to pay for the costs of the transportation services if she did not prevail at the impartial hearing (id. ¶ 9). She also testified that she had no "reason to look for alternatives for [the student's] transportation to iBrain" because she was "satisfied" with the services provided by Sisters Travel (id. ¶ 10).
During cross-examination, the parent confirmed that iBrain suggested the Sisters Travel company to her to provide the student's transportation services (see Tr. p. 249). The parent explained that she would contact the "coordinator" at Sisters Travel to "coordinate his daily trips," usually via text messages, if the "bus [wa]s running late," if the bus or "van" did not arrive, or if the student needed to leave earlier due to an appointment (Tr. p. 250). The parent could not specifically identify the individual she would contact at Sisters Travel, other than indicating a first name or "transport" as it was entered into her cellular telephone (Tr. pp. 249-52). The parent also testified that she got the telephone number used to contact Sisters Travel through either the student's teacher or the transportation paraprofessional, noting further that the telephone number connected directly to an individual rather than to a company (see Tr. pp. 252-53). When asked if the individual she connected with via text worked for Sisters Travel, the parent could not "verify" where the individual worked and could only state that the individual helped the student get "to and from school" (Tr. pp. 253-54). Upon further questioning by the IHO, the parent reiterated that she did not have "verifiable information," but assumed that the individual coordinating the transportation services worked for Sisters Travel (Tr. pp. 254-56). She also testified that she did not believe the individual worked for iBrain (see Tr. p. 256).
With respect to the transportation agreement with Sisters Travel, the parent testified that she received the document via electronic mail and did not know the individual who sent it to her (see Tr. pp. 257-28).[9]
Next, the parent testified that she did not communicate with the individual responsible for coordinating the student's transportation services concerning a "route" for the student; according to the parent, this individual only resolved logistical issues with transportation (Tr. pp. 266-67). She also testified that she had "never got[ten] an email regarding routes . . . from any transport system in [her] entire life, not even [from the district's Office of Pupil Transportation]" (Tr. p. 267). When asked how she knew that the student would be picked up for the first day of school, the parent testified, "[b]ecause they're reliable" and "they've been reliable year after year, unlike the yellow school buses, who sometimes would not show up" (id.). She further explained that the student's transportation schedule remained fairly consistent year to year, with pickup from 8:00 a.m. to 8: 15 a.m., and the transportation paraprofessional sometimes communicated with her about his pickup time (see Tr. pp. 267-68). The parent did not know whether the transportation paraprofessional worked for Sisters Travel or iBrain, and she did not know who paid the paraprofessional (see Tr. p. 268). The parent indicated that the student had had the same transportation paraprofessional for "at least two years" (id.). If the paraprofessional was sick, the parent testified that a "sub" was always provided (Tr. p. 269). The parent also testified that she had not made any payments to Sisters Travel for the costs of transportation for the 2023-24 school year (id.).[10]
Next, the parent testified that she did not reach out to the district's Office of Pupil Transportation to provide services for the student for the 2023-24 school; she also testified that the same office never reached out to her (see Tr. p. 271). She noted that, in "other years, sometimes they've called," but this year, the office did not call (id.).
After the parent completed her testimony, the deputy director of iBrain testified (see Tr. pp. 285-311; Parent Ex. U). Generally on cross-examination, the deputy director testified about the student's attendance at iBrain during the 2022-23 and 2023-24 school years, how he obtained knowledge about the student's attendance, and addressed information reported in the comments sections in some of the student's iBrain progress reports (see Tr. pp. 287-311; Parent Exs. Q at p. 15; U at pp. 1-2). With respect to transportation services, the deputy director testified that he did not oversee transportation as part of his role at iBrain; he also testified that he did not know the individual in charge of transportation services at iBrain (see Tr. p. 307). He confirmed, however, that the director of special education at iBrain did not handle transportation services in her role (id.).
Following the conclusion of the deputy director's testimony, the IHO turned to the issue of closing statements (see Tr. pp. 311-12). The district's attorney, however, raised the question about the iBrain witnesses subpoenaed to testify, noting that the "questions" about transportation services had not been answered (Tr. p. 312). The parent's attorney disagreed, indicating that the parent's testimony "clearly covered whatever issues that needed to be addressed in the SRO appeal" (id.). More specifically, the parent's attorney stated that the "student received transportation from an outside provider," and it was unnecessary to determine who drove the bus "or things like that" (id.). Therefore, the parent's attorney was unsure what information other iBrain witnesses could offer with regard to "transportation, the costs, [or] who provided it" (Tr. pp. 312-13). The parent's attorney also stated that additional iBrain witnesses were not necessary to address the attendance issue (see Tr. p. 313).
The IHO opined that, thus far, the hearing record did not identify any individual who had "taken responsibility for being the overseer of the transportation connection between the school and the student" (Tr. p. 313). According to the IHO, the hearing record, at best, provided "only the vaguest understanding of who's communicating with whom at the transportation company or even whether it's the transportation company the parent contacts or somebody subcontracted by the transportation company" (Tr. pp. 313-14). Therefore, the IHO indicated that it appeared to be a "legitimate request" for the individual responsible for coordinating transportation at iBrain to testify (Tr. p. 314). Based on the two witnesses subpoenaed by the district, the IHO was uncertain whether either could provide the information and inquired about whether the district's attorney would draft a subpoena to obtain that information (id.). The district's attorney indicated that she would draft such a subpoena, and the IHO indicated that he would sign it (id.).
While the parent's attorney noted that he could not formally object to the subpoena, he stated that he did not believe that this type of information was necessary given the issues remanded by the SRO (see Tr. pp. 314-15). The parent's attorney also noted that the district had had "three months to figure that out," and it was unclear how this information related to the "cost of transportation and the student's attendance" (Tr. pp. 315-16).
The IHO countered that it was difficult to "separate out the cost of transportation from the substance of the transportation and the means by which it [wa]s provided" and "no one ha[d] testified who seem[ed] to have any knowledge at all about the actual mechanics of getting [the student] to and from" iBrain, "who the people [we]re, how many people [we]re on . . . the bus, whether the bus br[ought] other students to school or not" (Tr. p. 316). According to the IHO, these issues might have "bearing on the direct questions raised in the remand" and the parent's testimony, while candid, did not provide any clarity on these issues (id.). The IHO also indicated that the parent's "memories" were not "clear" and were "secondhand" at best (Tr. pp. 316-17). The IHO added that the parent was "also pretty fuzzy about the specifics of the contract, which nobody from the school [wa]s going to be able to clarify" (Tr. p. 317).
The parent's attorney averred that the transportation agreement spoke for itself, but the IHO then questioned whether the agreement was performed (see Tr. pp. 317-18). The IHO indicated that the district was "entitled to find out more about the actual services" provided, and an individual at iBrain should be able to provide that information, especially given that the iBrain website identified a connection between the "founder" of iBrain and the bus company (Tr. p. 318). Without such details, the IHO opined it would be a "little difficult to ascertain on the equities how much it [wa]s worth" (Tr. pp. 318-19). The IHO further opined that he would be "willing to draw inferences from the [d]istrict's failure, given the opportunity to do so, to quantify, from its end, what reasonable transportation costs [we]re" (Tr. p. 319).
The parent's attorney professed confusion as to what information an additional witness might provide in this matter (see Tr. p. 319). The IHO explained that, consistent with the position he stated at the initial impartial hearing, the hearing record lacked evidence from "both sides" regarding "any detail or narrative about a significant financial component of what was being litigated" and remained largely without any information about the "performance of the contract" (id.). He also explained that the "only version of [the transportation agreement] that exist[ed wa]s entirely undated," and he questioned if that fact might affect whether it was enforceable in this State (id.). Therefore, the IHO believed that it might be "useful to have someone from Sisters [Travel] testifying" and for someone from iBrain who was responsible for coordinating transportation to testify (Tr. pp. 319-20).
The parent's attorney offered to recall the parent to testify about these concerns, but the IHO indicated that, based on her previous testimony, she did not have the requisite knowledge (see Tr. pp. 321-22). Nevertheless, the parent indicated that she would be willing to answer any further questions and her testimony continued (see Tr. p. 322).
When asked by the IHO if the "same van" picked the student up every day, the parent testified that she did not "think it [wa]s the same exact one," but "[s]ometimes," the student had the "same driver" or a "new driver," and she believed each driver had a "specific van" (Tr. pp. 323-24). Regardless of whether it was the same or a different driver, the parent clarified that it was the "same, . . . , type of van" that fit "about two wheelchairs" and sometimes the student travelled with a second student in the van—but she had "never seen" that other student (Tr. pp. 324-25). The parent also testified that, in addition to the driver, the student's van included his individual paraprofessional; however, she did not know how many adults travelled with the other student (see Tr. p. 325). When asked if the van had "anything written on the side," the parent testified that she recalled two different names: "Cathay or something" and "Seniors Care" (id.). According to the parent, the van used to transport the student was either black or white (see Tr. p. 326). She also believed that the van marked with "Cathay" also denoted it as an "Ambulette" (id.).
The IHO noted that the parent was doing a "heroic job . . . pulling [her] memories together," but it was not her job, as the consumer of the transportation services, to make sure that the "service provided ha[d] all of the safety and other requirements that one would expect, give the IEP" (Tr. p. 327). Next, the parent testified that the van was climate controlled, indicating that the student was prone to seizures due to the heat and the paraprofessional always kept her "up to date" (id.). She also testified that the student's travel time was limited, and the van was "always on time" (id.).
When the parent concluded her testimony, the IHO indicated that, while these were issues that concerned her as a parent, it would be helpful for someone else to testify about other aspects, such as how many people were regularly on the van, the route it took to school, whether the student was the first to be picked up, and whether he arrived at school at the same time every day (see Tr. p. 328). On that point, the IHO stated that if the district wanted to subpoena such person to testify, he would sign the subpoena; and to the parent's attorney, the IHO noted he would be "well served" by providing a witness who could "actually speak authoritatively about the transportation company"—however, the IHO stated that it was not his role to "construct" or to "make strategic decisions for either side as to what evidence to put it" (Tr. pp. 328-29).
Thereafter, the IHO and the parties discussed the scope of the SRO's remand in the January 2024 SRO decision and the burdens related thereto (see Tr. pp. 329-31). The parent's attorney stated that the remand was limited to the costs of transportation services and whether the costs were excessive (see Tr. p. 329). While agreeing that the student's need for transportation services was not at issue, the IHO nonetheless indicated that he could not "separate the concept of the cost of an item from the substance of the item" (Tr. p. 330). The IHO also stated that there had been no allegation that the transportation services had not been provided (id.). However, with respect to the reasonableness of the costs, the IHO indicated that it required a "very clear and non-third-party understanding . . . of what [wa]s being provided and how that compare[d] to other comparable provisions of that service" (Tr. pp. 329-30). In addition, the IHO noted that the SRO had invited both parties to "elicit standards for what constitute[d] this marketplace" and neither party had provided that information, other than the district's attempt to enter a "six-year-old document" that was "not exactly coherent" and "imprecise, at best, and unhelpful, at worst" (Tr. pp. 330-31).
The IHO then discussed with the parties what might constitute acceptable proof on these issues, without turning into a "fishing expedition" or a "sandbagging expedition": for example, the parties and the IHO discussed whether it included a witness from the district's Office of Pupil Transportation, as well as a witness from Sisters Travel, pursuant to subpoenas; how the evidence related to equitable considerations; and what evidence the IHO believed was needed in order to render a finding therein (Tr. pp. 331-33; see Tr. pp. 333-38).
Following those discussions, the parent's attorney stated his intention to rest the parent's direct case (see Tr. p. 338). The parent's attorney explained that the issues remanded by the SRO had been addressed because, based on prior SRO decisions examining this issue, the absence of documentation concerning such costs resulted in findings that the "contract [wa]s valid on its face, it [wa]s enforceable on its face, and it demonstrated that the student received the services provided with that contract" (Tr. pp. 338-39). Therefore, the parent's attorney stated that the parent had done "as much as [she] need[ed] to do" with regard to her burden of proof and no further witnesses were necessary (Tr. p. 339).
In response, the IHO noted that, on appeal, the SRO had had the same evidence as the IHO, and if the SRO "felt that reading that contract on its face was all [the IHO] should have done, the SRO should not have remanded this" and instead, the SRO should have "overturned [the IHO's] decision and enforced that contract" (Tr. p. 340). However, the IHO indicated that the SRO did not do that, but had noted—similar to the IHO's finding—that neither party had "built an adequate record to support a finding" (id.). The parent's attorney believed that the inadequate hearing record was "underscored" by the attendance issue, and the district's attorney believed that attendance remained an issue based on the deputy director's testimony (id.). The district's attorney stated that the deputy director's credibility was also an issue, as his testimony did not reflect his previous testimony and "verification of the [student's] actual attendance" was "nonexistent" (Tr. pp. 340-41). The IHO disagreed and pointed to the parent's testimony about the student's attendance (see Tr. p. 341).
At that point in the impartial hearing, the parent's attorney believed that the next step was for the IHO to issue a decision, notwithstanding that the IHO had found "gaps" in the hearing record (Tr. p. 344). The IHO noted it was not the parent's obligation to make the district's case, and the district's attorney stated her intention to subpoena a transportation witness from iBrain since there had been no response to the subpoena issued to Sisters Travel and to seek an adverse inference for the lack of response (see Tr. pp. 344-45). According to the district's attorney, the district did not have to prove the costs of "services on the other side," and stated that the district had "no cost of services" because the student did not use district transportation (Tr. p. 345). The IHO disagreed, noting that the district had transportation costs regardless of whether the student used those services (see Tr. pp. 345-46).
Moving forward, the IHO instructed the district's attorney to submit the subpoena for his consideration and, if signed, a date would be selected for further testimony (see Tr. pp. 346-48).[11]
B. July 2024 IHO Decision on Remand
Setting aside the IHO's finding that the parent's request for funding of transportation costs was moot due to the passage of time and the parent having received all of the relief she sought with respect to transportation costs, the IHO also addressed the concerns raised by the SRO in the January 2024 SRO decision. As a reminder, the SRO directed that the impartial hearing on remand focus on four enumerated concerns: (1) the student's attendance for the 2023-24 school year; (2) whether the parent contacted any alternative service providers to determine a reasonable rate for private transportation services; (3) whether the parent fully understood that she would be responsible for payment to Sisters Travel if the district was not ordered to make payments; and (4) why the parent did not request the district to transport the student to and from iBrain, considering the district was offering the same special transportation services as privately sought by the parent (id.).
With regard to the student's attendance at iBrain during the 2023-24 school year, the IHO concluded that the evidence supported a finding that he had attended in-person instruction for "essentially the entire school year, with no more than a handful of immaterial excused absences" (July 4, 2024 IHO Decision at p. 10). Additionally, the IHO noted that the student's attendance as "potentially equitably impacting on the entitled to transportation [wa]s simply a red herring" (id.).
With respect to the second concern—whether the parent contacted any alternative service providers to determine a reasonable rate for private transportation services—the IHO did not address this issue directly, but instead, indicated that the "delivery of an appropriate educational program to the student t[ook] precedence over finding the lowest cost available appropriate program" (July 4, 2024 IHO Decision at p. 10). The IHO also noted that the evidence in the hearing record provided "no basis for concluding that the [parent]'s provider was exorbitantly beyond the upper boundary of then costs sanctioned in a large and well established market for accommodated transportation" (id.).
Turning to the third concern raised by the SRO, the IHO indicated that it was "similarly irrelevant, similarly a red herring" (July 4, 2024 IHO Decision at p. 11). Here, the IHO pointed to the State Constitution for the proposition that the district "must provide all students the opportunity to partake of a sound basic education at no cost to their families," as well as federal and State special education laws, and finally, Supreme Court precedent (id., citations omitted).
Finally, in addressing the fourth concern, the IHO found that the parent had not objected to or otherwise challenged the special transportation recommended by the district in the March 2023 IEP in the due process complaint notice, the parent had not raised any issues about the district's special transportation recommendations in her 10-day notice of unilateral placement, and the parent had not requested special transportation from the district in her 10-day notice of unilateral placement (see July 4, 2024 IHO Decision at pp. 11-12). The IHO further noted that evidence in the hearing record reflected that the district reached out to "initiate transportation" by contacting iBrain, whose "agent respond[ed] that none of its student would be seeking district-provided transportation for the school year at issue" (id. at p. 12, citing Dist. Ex. 13). The IHO also noted that the parent testified that she did not reach out to the district's Office of Pupil Transportation to "facilitate district transportation for the student's school year," and "essentially just expected that private transportation would continue, year-after-year, that it would be paid for by the district, and that it was greatly preferred by the [parent] to yellow bus service" (July 4, 2024 IHO Decision at p. 12).
Given the parent's failure to object to the district's special transportation recommendations and her failure to request district transportation before unilaterally-obtaining private transportation services, the IHO found that these factors weighed heavily against the parent's actions (see July 4, 2024 IHO Decision at p. 12). According to the IHO, the evidence demonstrated that the district could have provided the transportation services upon request (id.).
As a final point, the IHO determined that, having reviewed the hearing record and upon consideration of the SRO's directives, neither party presented sufficient evidence "concerning the appropriateness and reasonableness of the [parent]'s transportation contract costs, or their lack" (July 4, 2024 IHO Decision at p. 12). Consequently, the IHO denied the parent's request for district funding of the costs of the student's transportation services by Sisters Travel for the 2023-24 school year (id. at pp. 12-13).
VII. Equitable Considerations
Turning to the instant appeal and as explained below, an independent review of the evidence in the hearing record support the IHO's ultimate conclusion denying the parent's request for district to fully fund the costs of the student's transportation services pursuant to the transportation agreement with Sisters Travel.
The final criterion for a reimbursement award is that the parents' claim must be supported by equitable considerations. Equitable considerations are relevant to fashioning relief under the IDEA (Burlington, 471 U.S. at 374; R.E., 694 F.3d at 185, 194; M.C. v. Voluntown Bd. of Educ., 226 F.3d 60, 68 [2d Cir. 2000]; see Carter, 510 U.S. at 16 ["Courts fashioning discretionary equitable relief under IDEA must consider all relevant factors, including the appropriate and reasonable level of reimbursement that should be required. Total reimbursement will not be appropriate if the court determines that the cost of the private education was unreasonable"]; L.K. v. New York City Dep't of Educ., 674 Fed. App'x 100, 101 [2d Cir. Jan. 19, 2017]). With respect to equitable considerations, the IDEA also provides that reimbursement may be reduced or denied when parents fail to raise the appropriateness of an IEP in a timely manner, fail to make their child available for evaluation by the district, or upon a finding of unreasonableness with respect to the actions taken by the parents (20 U.S.C. § 1412[a][10][C][iii]; 34 CFR 300.148[d]; E.M. v. New York City Dep't of Educ., 758 F.3d 442, 461 [2d Cir. 2014] [identifying factors relevant to equitable considerations, including whether the withdrawal of the student from public school was justified, whether the parent provided adequate notice, whether the amount of the private school tuition was reasonable, possible scholarships or other financial aid from the private school, and any fraud or collusion on the part of the parent or private school]; C.L., 744 F.3d at 840 [noting that "[i]mportant to the equitable consideration is whether the parents obstructed or were uncooperative in the school district's efforts to meet its obligations under the IDEA"]).
Additional factors that may warrant a reduction in tuition under equitable considerations is whether the frequency of the services or the rate for the services were excessive (see E.M., 758 F.3d at 461 [noting that whether the amount of the private school tuition was reasonable is one factor relevant to equitable considerations]). An IHO may consider evidence regarding whether the rate charged by the private agency was unreasonable or regarding any segregable costs charged by the private agency that exceed the level that the student required to receive a FAPE (see L.K. v. New York City Dep't of Educ., 2016 WL 899321, at *7 [S.D.N.Y. Mar. 1, 2016], aff'd in part, 674 Fed. App'x 100). Generally, an excessive cost argument focuses on whether the rate charged for the service was reasonable and requires, at a minimum, evidence of not only the rate charged by the unilateral placement, but evidence of reasonable market rates for the same or similar services.
Before analyzing the IHO's findings with respect to equitable considerations, which were made within the parameters set by the SRO on remand, it is useful to revisit the nature of the SRO's concerns and the underlying rationale for the remand. While rejecting the IHO’s initial equitable considerations determination as lacking basis in the hearing record, the SRO noted evidence in the hearing record that raised questions primarily pertaining to the reasonableness of the parent's decision to contract with Sisters Travel, based on both the terms of the contract and issues concerning the student's attendance at iBrain, as well as her cooperation, or lack thereof, with the district in terms of the potential provision of transportation by the district or through an alternative that was less costly than services provided by Sisters Travel. Noting the lack of record development in this area, which in part was attributable to the IHO and his focus on equitable considerations issues which were not relevant or supported by the record, the SRO proposed four areas of inquiry to be explored and developed on remand so that the issue of whether equitable considerations weighed in favor of the parent's request for relief, the necessary "final criterion" to be determined in order for the parent to obtain the relief sought, could be definitively determined.
Here, upon remand from the District Court, I find that the IHO complied with the SRO's directives on remand and there is no record basis to disturb his ultimate conclusion that equitable considerations did not weigh in favor of reimbursement or direct funding for the special transportation provided to the student by Sisters Travel during the 2023-24 school year.
Turning first to whether Sisters Travel charged an excessive or unreasonable rate, the evidence reflects that the parent entered into a transportation agreement with Sisters Travel for the provision of the student's transportation to and from iBrain for the 12-month, 2023-24 school year on or about July 7, 2023 (see Tr. pp. 25, 98, 265; see generally Parent Ex. F). While the terms of the transportation agreement have not been challenged by the district—other than asserting that the costs were excessive—neither the parent nor the district, consistent with the IHO's finding in the July 2024 IHO decision, presented any evidence to establish the reasonable market rates for the same or similar services (see generally Tr. pp. 1-350; Parent Exs. A-U; Dist. Exs. 1-15).
Next, with respect to whether the parent's actions were reasonable and supported an award of transportation costs, one of the SRO's concerns focused on whether the parent had contacted any alternative service providers to determine a reasonable rate for private transportation services. Significantly, at the impartial hearing on remand, the parent testified that she "never had any reason to look for alternatives for [the student's] transportation to iBrain" because she had been "satisfied" with the transportation services provided by Sisters Travel since the student began attending iBrain in the 2018-19 school year (Parent Ex. T ¶ 10).
Another concern raised by the SRO was whether the parent fully understood that she would be responsible for payment to Sisters Travel if the district was not ordered to make payments. At the impartial hearing on remand, the parent testified that she had not made any payments to Sisters Travel for the student's transportation costs during the 2023-24 school year (see Tr. pp. 269-70). She also testified, however, that she understood that if she did not prevail at the impartial hearing, then she would be "obligated to pay the costs" of the student's transportation (Parent Ex. T ¶ 8).
The SRO's final concern was why the parent did not request the district to transport the student to and from iBrain for the 2023-24 school year. When asked at the impartial hearing if she had contacted the district's Office of Pupil Transportation, the parent testified that she had not, and the Office had not reached out to her (see Tr. p. 271). She explained that, in "other years, sometimes they [ha]ve called"; however, this school year, the Office did not call her (id.). The district presented evidence, however, that a district school psychologist had reached out to the director of special education at iBrain in an email dated May 31, 2023, seeking information about any iBrain students who may need "transportation for the extended school year" (Dist. Ex. 13 at p. 3). To be clear, the district's email did not include the parent as a recipient of the email (id.). The district school psychologist sought to "confirm iBrain w[ould] be seeking for the [district] to create a code for [its] school to allow for [the] initiation of special education transportation for [iBrain] students" (id.). The district school psychologist noted that she wanted to ensure that iBrain was included in the process, if needed (id.). In an email dated June 27, 2023, the director of special education at iBrain responded to the district's email, indicating that she was "not aware of any iBrain students who w[ould] be seeking transportation through the [district]" and apologized for the delayed response (id. at pp. 1-2).
Other than alluding to Sisters Travel providing more reliable transportation than the "yellow school bus," the parent did not otherwise explain why she did not seek transportation services from the district (Tr. p. 267). [12]
As a result, under the particular circumstances of this matter, I find no basis in the hearing record to disturb the IHO's ultimate determination that it was equitable to deny the parent's request for special transportation funding because the parent "neither timely objected to the district's transportation recommendations for the student - and, in fact, agreed with them - nor requested (under protest or otherwise) district transportation prior to engaging in the self-help described in this hearing record" and such "factor cuts heavily against the family's actions here and in particular against their failure to have challenged reliance on district-provided transportation" (see IHO Decision at p. 12).
VII. Conclusion
Having complied with District Court's order of remand dated December 22, 2025 and determined that the hearing record does not warrant reversing the IHO's finding that the parent was not entitled to reimbursement or direct funding of special transportation services provided to the student for the 2023-24 school year by Sisters Travel because equitable considerations did not weigh in her favor, the necessary inquiry is at an end.
THE APPEAL IS DISMISSED.
Footnotes
[1] The transportation agreement does not include the date the parent executed the agreement (see generally Parent Ex. F). At the impartial hearing, the parent testified that she "electronically" signed the transportation agreement on July 7, 2023 (see Tr. pp. 25, 98). The parent also testified that the student began receiving transportation services for the 2023-24 school year on the first day of school at iBrain, either July 5 or July 6, 2023 (see Tr. pp. 98-99).
[2] The transportation agreement included a clause indicating that Sisters Travel would "suspend payment obligations until an interim or final administrative or judicial decision" was made obligating another party to pay for the transportation services (Parent Ex. F at p. 2). If the parent was not successful in an administrative or court proceeding seeking payment from another party, the transportation agreement indicated that "payment w[ould] be suspended until the [parent] ha[d] exhausted all legal remedies available to them to secure third party funding, when all payments w[ould] immediately become due" (id.). The transportation agreement also noted that Sisters Travel would "not take any deductions, omissions, or refunds for unexcused absences, withdrawal, suspension or for any other reason except as outlined" therein (id.).
[3] As the hearing record contained no documentary or testimonial evidence regarding the reasonableness of the transportation costs, the SRO found no support in the hearing record for the IHO's finding that the transportation services provided by Sisters Travel were excessive in terms of their costs (see Application of a Student with a Disability, Appeal No. 23-262).
[4] The parent had submitted a reply responding to the district's allegations and arguments in its answer; however, State regulation limits the scope of a reply to "any claims raised for review by the answer . . . that were not addressed in the request for review, to any procedural defenses interposed in an answer . . . or to any additional documentary evidence served with the answer" (8 NYCRR 279.6[a]). In this instance, the district's answer did not include any of the necessary conditions precedent triggering the parent's right to compose a reply. As such, the parent's reply failed to comply with the practice regulations and was not considered.
[5] The parent also seeks an award of attorney's fees; however, it is well settled that the due process hearing provisions in the IDEA do not authorize an administrative hearing officer to grant relief in the form of attorney's fees, and instead, at least in this jurisdiction, "in any action or proceeding brought under the IDEA, a court 'may award reasonable attorneys' fees . . . to a prevailing party who is the parent of a child with a disability'" (S.J. v. New York City Dep't of Educ., 2022 WL 1409578, at *1 [2d Cir. May 4, 2022]; see 20 U.S.C. § 1415[i][3][B][i][I]). Thus, it would not be permissible for the IHO, or the undersigned SRO, to award any reimbursement related to attorney fees or expenses. Moreover, the court in Cohen indicated that the parent's request for attorney's fees was premature (see Cohen, 2025 WL 3715102, at *4).
[6] Contrary to the district's arguments, both parties had the opportunity to present additional documentary and testimonial evidence in furtherance of the SRO's directives on remand for the purpose of additional fact-finding by the IHO. Both parties entered documentary evidence into the hearing record at the impartial hearing on remand and the parent presented additional testimonial evidence. Therefore, the district's arguments on appeal to remand the matter, again, for additional fact-finding is without basis, as both parties already had a full and fair opportunity to supplement the impartial hearing record and to further develop the hearing record with regard to the SRO's directives set forth in the January 2024 SRO decision.
[7] The Supreme Court has stated that even if it is unreasonable to expect a student to attend a regular education setting and achieve on grade level, the educational program set forth in the student's IEP "must be appropriately ambitious in light of his [or her] circumstances, just as advancement from grade to grade is appropriately ambitious for most children in the regular classroom. The goals may differ, but every child should have the chance to meet challenging objectives" (Endrew F., 580 U.S. at 402).
[8] The parent later testified that the student had only been absent from iBrain on the dates provided (see Tr. p. 274). She also testified that the student did not receive remote instruction or home instruction during the previous school year, 2022-23, because she was not "very open to remote learning since the pandemic" (id.). The parent also confirmed that the student did not receive remote or home instruction during the 2023-24 school year (see Tr. pp. 280-81).
[9] At the impartial hearing on remand, the parent searched through her email to locate confirmation that the transportation agreement had been signed and countersigned (see Tr. p. 264-65). The parent found an email indicating that the "document [was] completed"; however, the parent's email was not entered into the hearing record as evidence and the same email document was not provided pursuant to one of the district's subpoenas, which requested, in part, any and all communications between the parent and Sisters Travel (see Tr. pp. 261-65; Dist. Ex. 12 at pp. 5-6).
[10] The parent's testimony took place in May 2024, near the conclusion of the 2023-24 school year at issue (see Tr. p. 206).
[11] The IHO indicted in the July 2024 IHO decision that, in an email dated May 14, 2024, the district informed the parent's attorney and the IHO that the district would not pursue the subpoena discussed at the impartial hearing (see July 4, 2024 IHO Decision at pp. 8-9).
[12] In addition to the foregoing, the parent's testimony in the hearing record raised further questions pertaining to the provision of transportation services to the student by Sisters Travel and the reasonableness of the contract entered into by the parent for the 2023-24 school year. For example, the parent testified that she could not verify whether the individual she contacted via text message to coordinate the student's transportation services actually worked for Sisters Travel (see Tr. pp. 249-56). The parent testified that she "assume[d] it [wa]s Sisters [Travel] who provide[d] the transportation" and who employed the individual she contacted, but she had "never asked them" (Tr. p. 255). She also testified that the individual was "more immediately connected with the van" that transported the student to and from iBrain (Tr. p. 256). When arranging the student's pickup time, the parent testified that she was contacted by the student's transportation paraprofessional, but she could not answer whether the transportation paraprofessional worked for Sisters Travel (see Tr. pp. 267-68). Additionally, when asked to describe the vehicle used to transport the student, the parent indicated that "Cathay" and perhaps "Ambulette" was written on the vehicle, and the hearing record does not explain these markings (Tr. pp. 325-26).