In Davis v. Banks, No. 22-CV-8184 (JMF), 2023 WL 5917659, 123 LRP 29611 (S.D.N.Y. Sept. 11, 2023), the district court addressed two recurring issues arising from pendency (“stay-put”) orders involving placements at a private school known as iBrain: (1) whether a student who turned 21 remained entitled to pendency services, and (2) whether pendency orders required reimbursement for all transportation costs incurred under parental contracts or only for transportation services actually provided.
The court first considered the claims of student K.T., who turned 21 in December 2021. The hearing officer issued a pendency order on August 23, 2022, requiring the New York City Department of Education (DOE) to fund transportation to and from the student’s home and iBrain retroactive to July 6, 2022, the date the due process complaint was filed. The DOE did not appeal that order. As a result, the court held that the order became final and enforceable, and the DOE was required to comply with it.
The court did not decide whether K.T.’s age otherwise terminated eligibility for pendency services under 20 U.S.C. § 1415(j). Instead, the court emphasized that the enforceability of the pendency order turned solely on the DOE’s failure to appeal. The court noted that a separate administrative proceeding addressed whether K.T. had aged out of IDEA eligibility and whether pendency terminated for the 2022–23 school year. Any relief relating to pendency after the purported termination of the August 2022 order would need to be resolved in that separate proceeding. For purposes of the case before it, however, the court ordered full compliance with the pendency order for the period during which it remained in effect and retained jurisdiction to resolve any disputes regarding the timing of its termination.
The court next addressed claims by ten families seeking reimbursement for transportation costs under pendency orders. The court explained that the pendency orders themselves defined the scope of the DOE’s obligation. For four students, the orders expressly required reimbursement only for transportation services “actually provided.” The court granted summary judgment to the DOE on those claims, reasoning that transportation services are “actually provided” only when a student is transported to and from school.
For the remaining six students, the pendency orders required reimbursement for transportation services “to and from iBrain” or used similar language without expressly limiting reimbursement to services actually utilized. The parents argued that this language encompassed all transportation costs incurred under their contracts, regardless of whether the students used the services. The court concluded that the orders were ambiguous and that clarification from the issuing hearing officers was required. The court remanded those cases to the IHOs for clarification and noted that additional factfinding might be necessary, including evidence regarding industry practices that may require parents to pay transportation providers regardless of usage.
The decision serves as a cautionary reminder that pendency orders must clearly specify the scope of required reimbursement. Ambiguous remedial language may result in remand, delay, and additional litigation to determine the precise obligations imposed on school districts.