Rivas v. Banks

Background

Claudia Rivas sued David C. Banks, in his official capacity as Chancellor of the New York City Department of Education, and the New York City Department of Education (together, the DOE). The dispute concerned S.C.’s education during the 2021–2022 school year. S.C. had severe disabilities and attended the private International Institute for the Brain (iBrain).

The DOE’s 2021–2022 individualized education program (IEP), the written plan for a student’s special-education services, provided for a twelve-month program, a six-student-to-one-teacher-and-one-paraprofessional classroom, one-to-one paraprofessional care, related services, and special transportation. Unlike iBrain’s proposed plan, the DOE’s IEP did not require music therapy. Rivas also argued that the IEP needed to require a longer school day so that all academic and related services could be provided.

Rivas rejected the IEP and school placement, enrolled S.C. at iBrain, and sought tuition reimbursement through administrative proceedings. An impartial hearing officer (IHO) found that the DOE had offered S.C. a free appropriate public education (FAPE), meaning the education and services required by federal special-education law. The IHO also found that iBrain was appropriate and that the equities favored Rivas, but denied reimbursement because the DOE had offered a FAPE. A state review officer (SRO) affirmed.

An earlier IHO pendency order required the DOE to fund S.C.’s attendance at iBrain, related services during the 2021–2022 extended school year, one-to-one paraprofessional services, and special transportation up to $355 per trip. Rivas separately argued in federal court that the DOE had not paid for S.C.’s one-to-one nursing services under that order.

Rulings on the IEP and School Placement

The court reviewed the administrative record under the Individuals with Disabilities Education Act (IDEA). It gave substantial weight to the IHO and SRO because they agreed that the IEP was adequate and because the SRO carefully analyzed the record.

The court held that omitting music therapy did not make the IEP inadequate. The record showed that music therapy could benefit S.C., but the DOE’s school psychologist testified that the IEP’s occupational, physical, speech-and-language, and assistive-technology services could address the same physical, communication, and social goals. The IEP included goals involving movement, turning toward sounds, and activating a switch to communicate. The court deferred to the administrative officers’ conclusion that music therapy was not necessary for S.C. to receive a FAPE.

The court also rejected the argument that the IEP required a longer school day. Although the IEP called for thirty-five periods of special-education classes and nineteen hours of related services each week, it provided that most related services could be delivered in the classroom. The court explained that classroom-based services can occur at the same time as classroom instruction, while separate services take place outside the classroom. The record did not show that S.C. needed all services to be provided separately, so the DOE could implement the IEP during ordinary school hours.

The court rejected Rivas’s challenge to the student grouping at the assigned DOE school. Rivas relied on testimony from an iBrain administrator who had taught at a different District 75 school more than a decade earlier and was unfamiliar with S.C.’s assigned school. Because S.C. never attended the assigned school, and because the evidence did not establish which students would have been in his class, the court found the concern that he would be in an inappropriate class to be speculative.

The court did not reach the merits of Rivas’s wheelchair-accessibility challenge. The due process complaint did not identify accessibility as an objection, and neither the IHO nor the SRO decided the issue. The court concluded that the general statement that the DOE had not recommended an appropriate school location did not give the DOE fair notice of a challenge to the building’s physical accessibility. The accessibility issue also was not central to the specific objections litigated in the administrative proceedings.

Because the DOE offered S.C. a FAPE and Rivas did not establish a valid challenge to the assigned school, the court held that she was not entitled to reimbursement for the unilateral placement at iBrain. The court therefore did not address whether iBrain was appropriate for S.C. or whether the equities otherwise favored reimbursement.

Pendency Order and Disposition

The court treated the pendency, or stay-put, issue separately from the merits of the IEP. Under the IDEA, a school district generally must continue funding the child’s then-current educational placement while the dispute is pending. That obligation can apply even when the district ultimately offered a FAPE.

The court could not determine from the administrative record whether the pendency order required the DOE to pay for S.C.’s one-to-one nursing services. The order referred to related services and one-to-one paraprofessional services but did not list the related services covered. The record also showed that the IHO had deliberately tracked the wording of an earlier decision without deciding whether that wording included nursing services. The court therefore found the order ambiguous.

The court denied both parties’ motions for summary judgment on the limited nursing-services question and remanded the case for clarification of whether the pendency order required the DOE to pay those costs during the 2021–2022 school year. In the conclusion, the court stated that Rivas’s motion was denied; the DOE’s motion was denied as to its financial obligations for one-to-one nursing services under the pendency order but granted in all other respects. The court remanded for further proceedings, directed the DOE to confer with Rivas and file a proposed judgment by December 7, 2023, and directed the Clerk of Court to close the motions and the case.