I. Introduction

Petitioner (the parent) appeals from a decision of an impartial hearing officer issued after remand ordered by the United States District Court for the Southern District of New York (see F. v. Banks, 2024 WL 4635315 [S.D.N.Y. Oct. 30, 2024]).  Upon remand, the IHO denied the parent's request that respondent (the district) fully fund the costs of her daughter's unilaterally obtained special transportation services for the 2021-22 and 2022-23 school years.  The district cross-appeals from that portion of the IHO's decision which ordered the district to fund special transportation without regard to whether the student utilize the transportation services.  The appeal must be dismissed.  The cross-appeal must be sustained.

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 an IHO (IHO 1) who presided over a due process proceeding involving the 2021-22 and 2022-23 school year.  The District Court directed IHO 1 to interpret her May 30, 2023 order with respect to the scope of the district's obligation to fund transportation costs (Banks, 2024 WL 4635315).  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.

A. Prior Proceedings

Briefly, the parent filed a due process complaint notice dated November 17, 2022, alleging that the district denied the student a free appropriate public education (FAPE) for the 2021-22, and 2022-23 school years (see Parent Ex. A).[1]  Among other allegations not relevant to the current issues in dispute, the parent contended that the district failed to recommend appropriate special transportation service accommodations for the student (id. at p. 7).  Among other relief, the parent requested direct payment/prospective funding of special transportation with limited time travel, a 1:1 transportation nurse and/or paraprofessional, air conditioning, a lift bus, and a regular size wheelchair (id. at p. 9).

The parties proceeded to an impartial hearing before IHO 1, which convened on January 13, and concluded on April 25, 2023, after five days of proceedings (see Tr. pp. 1-185).  During the impartial hearing, IHO 1 admitted two transportation agreements between the parent and a private transportation company, Sisters Travel and Transportation Services, LLC (Sisters Travel) (Parent Exs. E; J).  In a final decision dated May 30, 2023, IHO 1 held that the district failed to offer the student a FAPE for both the 2021-22 and 2022-23 school years, which the district conceded (Dist. Ex. 3 at pp. 14, 18).[2]  Specific to transportation, IHO 1 held that there was no dispute that the student needed specialized transportation to and from school, the specialized transportation that enabled the student to access her educational program was costly due to her needs, and that the parent's transportation contract with Sisters Travel obligated her to pay for the student's transportation expenses (id. at p. 17).  IHO 1 noted that the parent was seeking direct payment to Sisters Travel (id.).  IHO 1 held that the parents demonstrated they had an obligation to pay for tuition, services, and transportation costs and, therefore, an analysis and ruling on the parents' inability to pay was not necessary or appropriate (id.).  IHO 1 ordered that the district "shall fund for [the student] the costs of tuition and related services at iBrain and the costs of specialized transportation for [the student] between home and iBrain, for the time period from April 5, 2022 through June 24, 2022 and for the 2022-23 12-month school year" (id. at p. 18).[3]  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]).

In March 2024, the parent commenced an action in District Court for  the Southern District of New York seeking enforcement of IHO 1's May 2023 decision and the parties subsequently filed cross-motions for summary judgment (see Dist. Ex. 4).[4]  In an Opinion and Order dated October 30 2024, District Court noted that the parent "appropriately redacted [the student's] personal information, such as her name and address, in the publicly filed contract with Sisters" … "however, [the parent] also omitted the service provider's costs and fees" (id. at p. 3 fn. 1).  "The Court cannot see any apparent justification for redacting this information about [the student's] specialized transportation services, given the nature of the dispute at hand and the [district's] legitimate concerns about waste, fraud, and abuse" noting the relationship between the founder of iBrain and Sisters (id.).

The Court discussed that the sole dispute was whether the district must reimburse the parent for all transportation costs or whether the reimbursement should be limited to transportation "actually provided" (id. at p. 5).  The Court noted that IHO 1's decision ordered the district to fund specialized transportation between home and iBrain, and the Court held that this "language, as other courts in this District have concluded in the context of identically and similar phrased orders, is unclear as to the [district's] reimbursement responsibilities" (id.).   The Court cited to three cases to support that contention (id. at pp. 5-6).  The Court found that IHO 1's wording was open to competing interpretations and that the IHO's decision was ambiguous (id. at p. 6).  Because the IDEA does not speak directly to what transportation costs the district is required to pay, and that the sole source of the district's reimbursement obligation is the administrative order, the Court determined the case must be remanded to the IHO for clarification (id. at pp. 5-6).  Accordingly, the district court denied the parties' motions for summary judgment without prejudice and remanded the case to IHO 1 for clarification on the transportation order (Dist. Ex. 4 at p. 1). In its order, the court noted that the "IHO may wish to explore whether the terms of the Agreement are unnecessarily unfavorable to the [district] and whether additional, uniform language could assist parties and courts alike in carrying out administrative directives" (id. at pp. 6-7).[5]

B. Remand Proceeding

For reasons that are unclear, upon remand the case was assigned to a different IHO (IHO 2) and the parties participated in a hearing on February 24, 2025 (see Feb. 24, 2024 Tr. pp. 1-52).  As evidence, the parent offered the same exhibits upon remand that were offered during the impartial hearing before IHO 1 in 2023 (compare IHO 2 Decision at p. 9. with Tr. p. 16; see also Dist. Ex. 3 at pp. 19-20).  The district entered exhibits 1 through 8 (Feb. 24, 2025 Tr. at p. 9).[6]  During the February 2025 hearing, each party rested on the evidence presented (Feb. 24, 2025 Tr. at pp. 18-19).  The parent's attorney indicated that they were seeking payment pursuant to the contracts in the hearing record (Feb. 24, 2025 Tr. at p. 20).  The parent's attorney stated that the contracts were "written in terms of daily costs" (Feb. 24, 2025 Tr. at p. 21).  IHO 2 questioned the parent's attorney regarding the costs of the contracts and the parent's attorney asserted that the cost for the 2021-22 school year was $375 per day for 52 days (Feb. 24, 2025 Tr. at pp. 22-23).  For the 2022-23 school year, the parent's attorney asserted that the cost per day was $405 for 219 days (Feb. 24, 2025 Tr. at pp. 26-27).  The district's attorney declined to stipulate to 219 school days for the 2022-23 school year asserting that there were only 210 school days, and the parent's attorney acknowledged that iBrain had a longer school year than the district (Feb. 24, 2025 Tr. at pp. 27-28).

During his closing statement, the district's attorney argued that the district should only be required to fund transportation services "to and from home and iBrain pursuant to the receipt of affidavits and invoices that the transportation was provided" and, further, that the district should only have to fund the services actually provided after the contract was signed 2021-22 school year (Feb. 24, 2025 Tr. p. 38).  The district argued that there was no evidence in the hearing record of attendance or use of transportation services and that evidence of these services should be easy to obtain as such documents should have been kept in the ordinary course of business (Feb. 24, 2025 Tr. pp. 38-39).  The district's attorney also pointed to documentation that showed the owners of iBrain and the Sisters Travel have a personal relationship, which district argued implies that the contract costs are inflated (Feb. 24, 2025 Tr. p. 44).

In her closing argument, the parent's attorney asserted that the district should have to pay for transportation services pursuant to the terms of the contracts between the parent and Sisters Travel (Feb. 24, 2025 Tr. pp. 45-50).  The parent's attorney contended that the public bears the expense of the service, even if the student does not attend public school on a given day and that that district did not present evidence of what would be a more reasonable costs for transportation services (Feb. 24, 2025 Tr. pp. 48).  Moreover, the attorney noted that attendance records for iBrain do not distinguish between virtual/remote learning versus in-person learning and that iBrain does not record when a student is transported by bus or car (Feb. 24, 2025 Tr. pp. 49-59).

C. IHO Decision

In a decision dated February 26, 2025, IHO 2 held that based upon the procedural history the only issue before him was "whether the [district was] responsible for paying the full contractual amounts, as set forth in the transportation contracts submitted into evidence by both Parent and the [district], or if the [district was] solely responsible for paying for transportation on days when Student attended school" (IHO Decision at pp. 5, 7).  IHO 2 found that the parties did not dispute that for the 2021-22 school year there were 52 total days of school during which the transportation fee was $375 per day, and the student attended iBrain during the  2022-23 school year  from July 1, 2022 to June 30, 2023 for which the transportation fee per day was $405 (id.).

With regard to the district's argument that it should only have to the pay for transportation on the days that the student attended school, IHO 2 determined, as a matter of equitable considerations, that the district was responsible to provide the student with the "appropriate roundtrip transportation to school" (IHO Decision at p. 5).  IHO 2 reasoned that the district was obligated to provide transportation to the student and the district failed to do so (id.).  According to the IHO, the parent had to seek transportation for the student and entered into the contracts with the transportation provider due the district's failure (id.).  IHO 2 noted that those contracts "specifically state that the fees" are based on school days, "whether the [s]tudent used the services or not" (id. at pp. 5-6).  IHO 2 held that to "require [p]arent to pay the transportation services for any day [s]tudent was absent would be inequitable" (id. at p. 6).  IHO 2 further reasoned that it was not the parent's "legal responsibility to secure transportation" for the student and therefore, "it should not be [p]arent's responsibility to pay for transportation on days when [s]tudent was unable to attend school" (id.).  IHO 2 also noted that the district did not present any evidence that it was "customary for it to pay for transportation based upon a student's school attendance" (id.).

Next, with regard to the district's argument that price of the transportation contract was "artificially inflated due to the relationship between the owner of the Private School and the owner of the transportation company," IHO 2 held that the district failed to submit any documentary or testimonial evidence to support this position, and therefore, IHO 2 declined to find that the hearing record supports the argument (IHO Decision at p. 6).  IHO 2 noted that the number of school days on iBrain's school calendar for the 2022-23 school year was 219 days as compared to the 210 school days for the district school calendar (IHO Decision at p. 6).  IHO 2 held that equitable considerations demanded that the district should be required to pay for 219 school days for transportation because the district failed to provide the student with an appropriate placement which forced the parent to place the student at iBrain (id.).  Accordingly, IHO 2 ordered the district to fund/reimburse the costs of the student's transportation from Sisters for the 2021-22 school year in the amount of $19,500 and to fund/reimburse the student's transportation for the 2022-23 school year in the amount of $88,695 (id. at p. 7).

IV. Appeal for State-Level Review

The parent appeals.  The parent contends that the IHO correctly determined that the funding for transportation costs should be based on the number of school days, not the days that the student used the services and therefore, correctly found that funding was warranted for 52 days for the 2021-22 school year and 219 days for the 2022-23 school year.  However, the parent argues that the IHO erred in awarding only $375 per day for the 2021-22 school year and only $405 per day for the 2022-23 school year.  For the first time on appeal, the parent asserts that the contract with Sisters Travel provides that the costs above were for each trip, (once in the morning and again in the afternoon), and that the IHO erred in failing to award $750 per day for the 2021-22 school year $810 per day for the 2022-23 school year.  The parent requests that the IHO order be modified and that the undersigned accordingly order the district to pay transportation funding for Sisters Travel in the amount of $39,000 for the 2021-22 school year and $177,390 for the 2022-23 school year.

The district cross appeals.  The district alleges that IHO 2 did not attempt to make factual findings regarding what IHO 1 meant when she wrote her May 30, 2023 order as directed by District Court and instead supplemented his own unsupported reasoning to conclude that the district was required to fund transportation regardless of attendance.  The district contends that IHO 2 impermissibly expanded the scope of his mandate, arguing that the District Court's remand was limited to clarification of IHO 1's order.  The district asserts that it should only be responsible for paying for transportation on the days that the student attended school and notes that there is no evidence to show how often transportation services were used, if at all, by the student.

Additionally, the district argues that during the remand proceeding, the parent, through the arguments of her attorney sought the very figures ordered by IHO 2 and that on appeal parent "obfuscates the role her attorney played in stating the amount sought" at the impartial hearing and is now seeking double the amount requested.  The district contends that IHO 2 rendered his order based upon on the clear representations of the parent's attorney during the remand proceeding.

In response to the district's cross appeal, the parent asserts that IHO 1 held that she was entitled to transportation funding and the district is engaging in a "blatant attempt to misinterpret the intent" of the Court's remand order.  The parent contends that IHO 2 understood the intent of the remand, which was to determine whether the district was responsible for paying for the entire contractual amount of transportation services.  Therefore, the parent alleges that the district was obligated to pay the full costs of the specialized transportation per the terms of the transportation agreements.  According to the parent, the district's arguments that it should only be required to fund services when used should have been argued before IHO 1, were not timely appealed by the district and should be held as outside the permissible scope of the matter that was remanded by the Court.  The parent contends that there is no legal or factual basis to limit the parent's relief.

Further, the parent counters that the district's argument about the amount of relief is misleading as she is not seeking double the reward but to correct the IHO miscalculation.  The parent asserts that the miscalculation was due to " error and simple misunderstanding of the question/calculation of the IHO as well as on part of the [p]arent representative."  The parent argues that she should not have to bear the burden of this error.  The parent notes that the statements of her attorney are not testimony or evidence and should not be substituted for evidence as the contract terms are clear and unequivocal.

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.

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 1's May 2023 decision and the District Court issued a limited remand to IHO 1 to clarify her ambiguous order with respect to the transportation costs that the IHO intended to provide as equitable relief.  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.  Thus, this proceeding should have occurred as precisely as possible in manner specified in by the District Court.

First, I note that the district, who is ultimately responsible for the first-tier due process proceedings within its jurisdiction, did not explain why IHO 1 was not assigned to preside over the clarification of her order.  There is no indication that IHO 1 is no longer a certified IHO within the State, thus I am left to speculate whether IHO 1 was unavailable for this request from the Court, refused to take the case, or there was some other complicating factor, but the record is utterly silent on this point.  As the Court explained "[t]he IHOs are plainly in the best position to interpret their own orders and, to the extent the existing orders do not resolve the parties’ dispute, further factfinding may be warranted" (Dist. Ex. 4 at p. 6 [emphasis added and internal citations omitted]).  However, that fact that IHO 1 was not re-appointed, for whatever reason, cannot be undone. [7]

As for the parties' dispute over the District Court's intent upon remand, that is, whether IHO 2 should determine  whether district was responsible to fund the student's transportation to and from iBrain on only those days it was used by the student or for all amounts charged under the terms Sisters Travel contracts regardless of whether the transportation services were used, the parent's argument that the district is "belatedly" delving into the issue of the extent to which Sisters Travel provided transportation services to the student and that the argument is "outside the scope of this matter" is without merit.  In the Court's analysis, the judge carefully explained that the issue was "whether, as [the parent' contends, the district must reimburse her for all transportation costs incurred pursuant to the Agreement or, as the [district] counters, whether reimbursement is limited to services actually provided" (Dist. Ex. 4 at p. 5 [emphasis added]).  The Court further explained why either outcome may have been contemplated by IHO 1 and cited possible rationales posited by both parties (id at p.6).  Furthermore, the Court remanded not only for clarification as the parent asserts but also for "further proceedings not inconsistent with this Order". The IHO may wish to explore whether the terms of the Agreement are unnecessarily unfavorable to the [district], and whether additional, uniform language could assist parties and courts alike in carrying out administrative directives (Dist. Ex. 4 at p. 6-7), which in my view, was an invitation to expand the record to in order to ensure that there was adequate evidentiary support the administrative decision upon remand (whatever the outcome), since the hearing record before IHO 1 was inadequate to make such a determination on issues that the parties argued in their briefing to the court.  Unfortunately, neither party made any significant effort to further develop the hearing record.[8]

Instead, the parent was recalled as a witness and asked one question on direct examination about the date the parent signed the Sisters Travel contract (Feb. 24, 2025 Tr. pp. 35-36).  The district attempted to cross-examine the parent on whether the Sisters Travel contract was provided to her in the parent's native language and began to inquire about the student's attendance at iBrain; however, upon objection by the parent regarding the "scope" of direct examination, IHO 2 precluded further examination about the student's attendance (Feb. 24, 2025 Tr. pp. 36-37).[9]  Thus the questioning that was relevant to one of the disputed issues of significance that was remanded was cut off by IHO 2.

During the remand hearing, the rest of the transcript consisted of colloquy between IHO 2 and the attorneys.  The parent accurately describes terms of her contracts with Sisters Travel, which stated for both school years in question that the parent was charged the dollar figure specified for a trip in the morning and then again for a trip in the afternoon (see Parent Exs. E, J; Dist. Exs. 1, 2).  For the 2021-22 school year, this would indicate that the costs for two trips in accordance with the Sisters Travel contract, morning and afternoon each day, was $375 twice per day for 52 school days or a total of $750 per day (Parent Ex. E at pp. 1-2; Dist. Ex. 1 at pp. 1-2).    For the 2022-23 school year, the Sisters Travel contract indicated that with the charge of $405 twice per day for 219 school days, which would amount to $810 per day for the trip to school and from school (Parent Ex. J at pp. 1-2; Dist. Ex. 2 at pp. 1-2).  Additionally, each of the Sisters Travel contracts state that the parent will be charged whether the student uses the transportation service of not (Parent Exs. E. at p. 2, J at p. 2; Dist. Exs. 1 at p. 2, 2 at p. 2).

The district is also correct that the parent's attorney affirmatively informed IHO 2 at the cost for the Sisters Travel contracts was $375 per day for the 2021-22 school year and $405 per day for the 2022-23 school year (Feb. 24, 2025 Tr. pp. 22-23).  IHO 2 specifically requested this information from the parent's attorney and implied that he did not wish to rely on his own calculations but wanted the parent's attorney to confirm the award requested (Feb. 24, 2025 Tr. pp. 22-29).  Disappointingly, the parent's attorney stated that she "went to law school because there was no math requirement. [d]on't ask me" to which IHO 2 responded that he "also went to law school, so you better take on your calculator … and verify this number" (Feb. 24, 2025 Tr. p. 23).[10]  The parent's attorney then confirmed that she calculated the same number as IHO 2, apparently without reading and taking into account the terms as set forth in the contract (id.).  Later, in relation to the number of days funding was sought for IHO 2 stated to the parent's attorney I'm not going to do homework for you," to which she responded that she understood (Feb. 24, 2025 Tr. p. 25).  The parent's attorney then stated that they were seeking 52 days at $375 for a total of $19,500 (id.).  For the 2022-23 school year, IHO 2 requested the same breakdown from the parent's attorney (Feb. 24, 2025 Tr. p. 26).  The parent's attorney provided that the cost per day was $405 for 219 school days (Feb. 24, 2025 Tr. pp. 26-27).  IHO 2 and the attorney agreed that the total amount being requested was $88,695 (Feb. 24, 2025 Tr. p. 27).[11]  IHO 2 then requested confirmation of the total award amount for both school years, to which the parent's attorney noted that IHO 2's numbers were correct, but she had not done the math on the total award (Feb. 24, 2025 Tr. pp. 28-29).  IHO 2 requested that the parent's attorney do the math, to which the parent's attorney stated that she "just did and it is correct" (Feb. 24, 2025 Tr. p. 29).

The parent now argues on appeal that the information her attorney gave IHO 2 was incorrect and requests the undersigned correct an error by the IHO. However, I am not convinced that IHO 2 is responsible since he was unequivocally clear that he expected the parties to accurately state the total amount due. The parent's attorney easily could have verified the information that IHO 2 was requesting by checking the documentary evidence submitted during the impartial hearing, but did not do so.  Importantly, IHO 2 specifically stated that he would not do the work for the parent's attorney (Feb. 24, 2024 Tr. p. 25).  Notably, the parent failed to mention the fact that IHO 2 specifically asked for this information at the impartial hearing and used the numbers provided to him by their own attorney.[12]  Instead, the parent has unreasonably placed the blame on IHO 2.[13]  IHO 2 was allowed to rely on the specific representations and request for relief made to him by the parties at the hearing and he was not required to second guess their positions.

Turning to the district's argument in its cross-appeal regarding whether IHO 2 erred failing to find that transportation funding should be limited to the school days that the student actually used the service, as described above, the hearing record lacks any significant evidence regarding when the student used the transportation services during either school years in question.[14]  During the 2023 hearing before IHO 1, a single question was asked, namely if the student attended iBrain for the "the whole time" in person, to which the parent responded yes (Apr. 24, 2023 Tr. p. 97).  The parent's attorney stated at the remand proceeding that the student did not have any extended absences during the 2021-22 school year (Feb. 24, 2025 Tr. pp. 23-24).  However, the parent's attorney later stated during the remand proceeding that iBrain does not "distinguish between" virtual and in-person learning and does not keep records of when a student is transported by bus or car to school (Feb. 24, 2025 Tr. p. 50).[15]

That too is problematic because it makes clear that iBrain's stated attendance policy is in contravention of State regulation as a "record of each pupil's presence, absence, tardiness and early departure shall be kept by each public and nonpublic elementary, middle or secondary school in a register of attendance" (8 NYCRR 104.1[c] [emphasis added]).  Additionally, "any absence for a school day or portion thereof shall be recorded as excused or unexcused" (8 NYCRR 104.1[d][7][iii]). The position taken by the parent's attorney that iBrain would not know and should not know when the student attended school and used transportation services is extremely questionable at best and is an abdication of its responsibilities.  Although, the parent was called to testify regarding the day she signed the 2021-22 contract, this testimony was extremely limited (Feb. 24, 2025 Tr. pp. 35-36).  As noted above, when the district attempted to further inquire the parent about attendance, IHO 2 sustained the objection finding the question was outside the scope of direct examination (Feb. 24, 2025 Tr. p. 37).  Based on the hearing record before me, there is insufficient evidence of the student physically attended iBrain during either the 2021-22 or the 2022-23 school year.  Unlike other due process proceedings, there are no attendance records or service provider records showing where or when the student attended iBrain. As I lack that information, I am unable to conclude that the contract terms imposed by Sisters Travel are not unfavorable to the district, which was an issue that District Court urged the parties to explore.[16] Further, there is no information in the hearing record about the transportation services the district could have provided to the student.[17]

Another area of inquiry that went unexplored was the terms of the Sister Travel contracts themselves. IHO 2 pointed out the parent's liability and the potential that Sisters Travel could attempt to recover those costs from the parent. The undersigned conducted a search to determine if Sisters Travel had a record of suing or obtaining judgments against any parents having similar contractual provisions to those in this case in circumstances and such parents did not prevail in an impartial hearing. I could find none. However, the undersigned found one other proceeding involving Sisters Travel as a party.  I note that both contracts in the hearing record contained provisions contemplated that Sisters Travel could sub-contract the services out to other agents or entities (Parent Exs. E at pp. 3-4; J at pp. 3-4).  An examination of public documents involving Sister Travel, of which the undersigned takes judicial notice, reveals that the company is currently engage in a dispute over the payment with one of the companies' sub-contractors (Sinai I Inc. v. Sisters Travel and Transportation Services LLC et al, No. 652816/2024 [New York Cnty Sup. Ct.]). It is unknown which specific student(s) the case involves, and the outcome of the contractual dispute between the Sisters Travel and the sub-contractor therein is not relevant, but the fact that Sisters Travel's contracts with the parent permit sub-contracting and that at least some sub-contracting appears to occur does lend support to the fact that Sisters may not be employing its own drivers, purchasing its own vehicles and that Sisters Travel's costs could very well vary based on a student's attendance, especially if the sub-contractors have a different fee structure than the one used by Sisters Travel.  Based on the information in the hearing record, I have significant concerns that the amount of money called for by the Sisters Travel contracts, which add up to substantial amounts, may well be unnecessarily unfavorable to the district when the student does not attend school.

Furthermore, the inquiry by the undersigned into additional litigation in the public record did not end there.  Although not disclosed by the parent, she was among the plaintiffs listed in another litigation in district court, again regarding enforcement of an IHO order (Ogunleye v. Banks, 2025 WL 1078301 [S.D.N.Y. Mar. 27, 2025]).  In that case, the three parent-plaintiffs, including the parent in this case, were seeking funds under the IDEA pendency provisions (id. at p. *1).  While the preliminary injunction was denied in that case, the court noted that there was only an outstanding balance of $8,175 overall due to Sisters Travel in the proceeding, including the outstanding transportation costs for this student for the 2021-2024 school years (id. at pp. *1-*2), which notably, covers the same time period in this case and calls into question the validity of the parties' arguments in this appeal.   The district court in Ogunleye found that there was no reason to believe the student was in danger of losing the transportation services from Sisters Travel (id.).[18]

SROs have denied transportation to and from iBrain for many reasons in the past (see Application of a Student with a Disability, Appeal No. 24-486 [SRO upheld the IHO's denial of transportation on equitable grounds]; Application of a Student with a Disability, Appeal No. 24-437 [SRO upheld the order that only ordered funding for transportation costs to and from iBrain on days the student physically attended iBrain]; Application of a Student with a Disability, Appeal No. 23-312 [SRO upheld the IHO's denial of transportation funding to and from iBrain]; Application of a Student with a Disability, Appeal No. 24-433 [SRO upheld IHO's order to only fund transportation on the days the student physically attended iBrain]; Application of a Student with a Disability, Appeal. No. 24-409 [SRO upheld IHO's order to only fund transportation on the days the student physically attended iBrain].

Ultimately, the burden of production and persuasion in a due process proceeding rests on the parent for private services that are unilaterally obtained without the consent of school district officials. Although District Court remanded this matter for the parties to develop the record, the evidence proffered by the parent in the remand proceeding is virtually the same as what the district Court found inadequate.  Although the district similarly showed a lackluster effort to develop the evidentiary record, it at least tried to show that iBrain, Sisters Travel, the two founders and the parents' law firm all have an uncomfortably close business relationship insofar as two people may have considerable influence over much of the decision making in this proceeding.

As a result of the events of the remand proceeding there is no reliable way for me to know what IHO 1 may have intended at the time of her May 2023 decision.  The analysis above, leads me to the opposite conclusion to the one reached by IHO 2's as I am not convinced that transportation services should be funded for each school day (52 days for the 2021-22 school year and 219 school days for the 2022-23 school year) without any meaningful inquiry into the student's attendance or the reasonableness of the terms of the Sisters Travel contracts Instead I find that should only be funded for the days the student physically attended iBrain and utilized the Sisters transportation services, which would be a permissible interpretation of IHO 1's order.  The hearing record lacks any information regarding the days that the student attended the iBrain and it shows that the contract terms may well be unfavorable to the district due to the relationship between Sisters Travel and iBrain and their founders.  IHO 2 permissibly considered the potential effect upon the parent of being liable for the remaining amounts under the Sisters Travel contracts, but weigh any other factors as envisioned by the District Court and impeded a relevant area of inquiry by the district.  Based on the evidence in this hearing record, judicial notice of litigation involving Sisters Travel and a review of relevant case law, I will order the district is to fund transportation services provided by Sisters Travel on those days during the 2021-22 school year that the student physically attended iBrain at the daily rate as sought by the parents attorney upon the repeated questioning of the IHO, namely $375 per day. For the 2022-23 school year the district is similarly required to fund the student's transportation at $405 per day for those days that the student attended iBrain in person. My findings in this proceeding are not intended to affect any obligation that the district may have or may have already paid for the student's transportation from Sisters Travel in the context of the Ogunleye proceeding.

VI. Conclusion

The analysis above leads me to conclude that IHO 1's order should not be interpreted as holding that the district must fund that cost of the transportation services for 52 school days during the 2021-22 school year and 219 school days during the 2023-24 school year.  However, the hearing record does support IHO 2 determination that the district should fund transportation from Sisters Travel at the rate of $375 per day for the 2021-22 school year and the rate of $405 for the 2022-23 school year.

THE APPEAL IS DISMISSED.

THE CROSS-APPEAL IS SUSTAINED.

IT IS ORDERED that IHO 2's decision is modified by reversing that portion which held that the district to must fund transportation services without regard to the days that the student physically attended iBrain during the 2021-22 and 2022-23 school years;

IT IS FURTHER ORDERED that the district shall fund the student's transportation services at the rate of $375 per day for those days that the student physically attended iBrain during the 2021-22 school year from April 5, 2022 through June 30, 2022; and

IT IS FURTHER ORDERED that the district shall fund transportation services at the rate of $405 per day for those days that the student physically attended iBrain during the 2022-23 school year.