I. Introduction

Petitioners (the parent) appeals from a decision of an impartial hearing officer (IHO) issued after remand ordered by the United States District Court for the Southern District of New York (see Z. v. Banks, 2024 WL 4882370 [S.D.N.Y. Nov. 25, 2024]).  Upon remand, the IHO determined that for the 2021-22 and 2022-23 school years the district must directly fund the costs of unilaterally obtained special transportation services for the parent's daughter only for those school days that she actually used the special transportation services.  The appeal must be dismissed.

II. Overview—Administrative Procedures

A due process proceeding initially arose under the Individuals with Disabilities Education Act (IDEA) (20 U.S.C. §§ 1400-1482) and Article 89 of the New York State Education Law.

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).  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

As briefly mentioned at the outset, this appeal arises from an order of remand issued by the District Court directing the IHO who presided over a due process proceeding involving the 2021-22 and 2022-23 school years to clarify the transportation aspects of the her final decision (see IHO Ex. III).[1]  The parties' familiarity with the prior due process proceeding and District Court action is presumed and, therefore, the facts and procedural history will not be summarized in detail, except as relevant to the issues presented in  this State level administrative review.[2]

Briefly, the parent filed a due process complaint notice dated October 20, 2022 seeking, among other requested relief, direct tuition payment for the student's attendance at the International Academy for the Brain (iBrain) and funding for the costs of private, special transportation to and from the student's home and iBrain for the 2021-22 and 2022-23 school years (see Parent Ex. A).[3]  An administrative hearing was conducted before the Office of Administrative Hearings and Trials (OATH) between January 2023 and April 2023, during which the assigned IHO admitted two transportation agreements between the parent and a private transportation company, Sisters Travel and Transportation Services, LLC (Sisters Travel) (see Tr. pp. 1-61; April 3, 2023 Tr. pp. 1-14; Parent Exs. H, N).[4]

The IHO issued a final decision dated June 2, 2023, which found that the district denied the student a FAPE for the 2021-22 and 2022-23 school years; that iBrain was an appropriate unilateral placement and offered the student specially designed instruction to meet her needs; that the student was entitled to 1:1 nursing and paraprofessional services; that the student was entitled to special education transportation; and that equitable considerations favored the parent; but that the parent was not entitled to reimbursement for private services obtained during the 2020-21 school year (see June 2, 2023 IHO Decision).  As relief, the IHO ordered the district to directly fund tuition at iBrain for the 2021-22 and 2022-23 school year including the cost of related services, 1:1 nursing services, 1:1 paraprofessional services and to fund the cost of private special transportation to and from iBrain at a rate not to exceed $320 "per trip" for the 2021-22 school year and $345 "per trip" for the 2022-23 school year, including 1:1 transportation nursing services (June 2, 2023 IHO Decision at pp. 14-15). Neither party appealed the June 2, 2023 IHO decision to an SRO, and thus the IHO's decision became final and binding upon both parties (34 CFR 300.514[a]; 8 NYCRR 200.5[j][5][v]).

The parties' relationship remained contentious. The parent commenced an action in the District Court for the Southern District of New York seeking enforcement of the June 2, 2023 IHO decision and subsequently filed a motion for summary judgment (see IHO Ex. III).  As relevant to this proceeding and the parent's enforcement of the IHO's June 2, 2023 decision, the remaining dispute before the Court was whether the district was obligated to pay all transportation costs that were envisioned by the transportation contracts that the parent had entered into with Sisters Travel or for only per diem costs of transporting the student on the days that she actually used the services from Sisters Travel (see id. at pp. 1-2, 6, 8).  The Court determined that the language used in the June 2023 IHO decision was ambiguous and required further clarification on whether the IHO meant for a broad reading that would require the district to pay for "any transportation costs" or "in accordance with the contract, or for a narrow reading the required reimbursement only for services "actually provided" (id. at pp. 13-14).  Accordingly, on November 24, 2024, the Court issued an Opinion and Order remanding the matter to the IHO to interpret his own order with respect to the scope of the district's obligation to fund transportation costs (id. at p. 16).

Upon remand from the District Court in Z. v. Banks, the IHO issued a new written decision dated March 3, 2025 which ordered the district to directly fund the cost of special transportation for trips "actually provided to the student for in-person attendance" for both the 2021-22 and 2022-23 school years (IHO Decision After Remand at p. 3).[5]

IV. Appeal for State-Level Review

The parent appeals the IHO's March 3, 2025 decision after remand directly to the undersigned and argues that the IHO erred by clarifying that the district was responsible for only the costs of transportation when the student actually used the services rather than the full contractual amount the parents incurred pursuant to her third-party transportation contracts.

In an answer, the district generally denies the material allegations contained in the request for review.  The district requests to uphold the IHO's clarification that it only needs to fund the student special transportation only for the days the student attended iBrain in-person arguing that the IHO was in the best position to interpret his own orders.

In a reply, the parent responds to the district's arguments and reiterates her allegations from the request for review.

V. Discussion

Upon remand, I have examined the hearing record of the impartial hearing proceedings, the IHO decisions, and the District Court's order of remand.

To the extent that the parent elaborates or expands upon arguments in support of her view on the transportation and argues additional grounds upon which to conclude that transportation should be awarded pursuant to the transportation contract within her request for review, such arguments are substantive arguments that were raised and considered by the District Court and were the basis for the clarification on remand to the IHO.

As explained in detail above, the parent commenced an action in the United States District Court for the Southern District of New York to compel the district to comply with the IHO's June 2023 decision and the District Court issued a limited remand to the IHO to clarify the scope of his order with respect to the transportation costs that the IHO intended to provide as equitable relief (see IHO Ex. III).  Generally, neither IHOs nor SROs have authority to enforce prior decisions rendered by administrative hearing officers (see Educ. Law §§ 4404[1][a]; [2]; see, e.g., A.R. v. New York City Dep't of Educ., 407 F.3d 65, 76, 78 n.13 [noting that IHOs do not retain jurisdiction to enforce their orders and that a party who receives a favorable administrative determination may enforce it in court]; A.T. v. New York State Educ. Dep't, 1998 WL 765371, at *7, *9-*10 & n.16 [E.D.N.Y. Aug. 4, 1998] [noting that SROs have no independent "administrative enforcement" power and granting an injunction requiring the district to implement a final SRO decision]).  Accordingly, the parent sought enforcement in District Court.

As identified in the Court's order, the two disputes before it were whether the district was responsible for funding the student's transportation costs for the entire school year or only for the days she attended school in person and actually used the transportation services; and whether the parent had supplied the documentation required for the IHO's decision as prerequisite to reimbursement for related services (IHO Ex. III at pp. 1-2).[6]  The District Court noted that most IHO decisions that deal with private transportation services fall into one of three categories: (1) the district was obligated to reimburse the parents for transportation regardless of the student's in-person attendance at school; (2) the district was obligated only to reimburse the parents for transportation on days the student attended school in person; or (3) the IHO decision included language that was ambiguous and that both parties proffered plausible interpretations of the relevant language that required remand for further clarification (id. at pp. 11-12).  The District Court determined that this matter fell under the third category as the "per trip" language used by the IHO in his decision could be interpreted to mean the district only need reimburse the parent for trips actually taken, as argued by the district; or could be read to require payment for the contractually agreed upon terms of the transportation contract, as argued by the parent (IHO Ex. III at p. 13).  Accordingly, the District Court remanded the matter to the IHO for clarification on this issue (id. at p. 14). [7] The District Court's order of remand did not reopen the hearing on the merits or reopen the entirety of the IHO's final determination, as the remand was limited to the IHO issuing a clarification of the transportation aspects of his June 2023 order (see IHO Ex. III).

The IHO issued a March 3, 2025 decision after remand where he clarified his transportation order only required the district to fund transportation costs for trips actually provided to the student for in-person attendance (IHO Decision After Remand at p. 3).  Accordingly, the IHO issued clarification as instructed by the District Court and as identified above, neither party appealed the IHO's June 2, 2023 decision and any underlying substantive challenges, such as those raised by the parent in her request for review, cannot now be raised as the time to appeal the merits of that decision passed long ago.[8]  The IHO has rectified the ambiguity in the language of his order, which is exactly what the District Court asked.

Although the IHO's decision after remand included the standard statement of instruction on how to appeal such decision to an SRO, the IHO did so in light of the requirements that all IHO decisions "shall also include a statement advising the parents and the board of education of the right of any party involved in the hearing to obtain a review of such a decision by the [SRO] in accordance with subdivision (k) of this section" (8 NYCRR 200.5[j][5][v]).  As an SRO, I lack any jurisdiction to hear what amount to the parents' enforcement challenges and, with respect to the purpose of remand, I am in no better position than the IHO to clarify what the IHO intended but left ambiguous in his June 2023 order.

Consequently, the parents' challenges to the March 3, 2025 decision after remand must be dismissed as the IHO's decision does not fail to comply with the District Court's directives, and I have no jurisdiction over enforcement of prior decisions rendered by administrative hearing officers as noted above (see Educ. Law § 4404[1][a]).

VII. Conclusion

Having found that the request for review must be dismissed because the IHO's March 3, 2025 decision after remand appears on its face to have accomplished the clarification task that the District Court set before the IHO, the necessary inquiry is at an end.

I have considered the parties' remaining contentions and find that I need not address them in light of my determinations above.

THE APPEAL IS DISMISSED.