In Araujo v. New York City Department of Education, No. 20 CIV. 7032 (LGS), 2023 WL 5097982, 123 LRP 24400 (S.D.N.Y. Aug. 9, 2023), the plaintiffs initially brought pendency funding claims on behalf of multiple students attending a private school known as iBrain. While those claims were resolved, a dispute remained regarding funding for specialized transportation for one student during the 2021–22 school year.
During that school year, a due process complaint dated July 8, 2021, was pending for the student. The student’s pendency placement was iBrain, and that placement included specialized transportation. In late July 2021, the parent entered into a contract with a private transportation company to provide specialized transportation to and from iBrain for the 2021–22 school year. An impartial hearing officer (IHO) issued a decision resolving the due process case concerning the student’s IEP on May 15, 2022, and neither party appealed.
The dispute before the district court concerned reimbursement for transportation costs. After considering and rejecting alternative jurisdictional theories, the court concluded that the only viable claim was brought under 42 U.S.C. § 1983, based on an alleged failure to implement the IHO’s decision. The IHO had found that the district denied the student a free appropriate public education (FAPE) and that the iBrain placement was appropriate for tuition purposes, but also determined that the evidentiary record was insufficient to support the full amount of transportation funding requested.
Consistent with that finding, the IHO declined to require payment of the full transportation costs under the parent’s private contract. Instead, the IHO ordered “that the district fund the costs of the student’s transportation services during the 2021–2022 school year at the lower of either (a) the Medicaid rate, or (b) a fair market rate as demonstrated to the district’s Implementation Unit, based on comparable transportation, utilizing a comparable vehicle with comparable accommodations for transportation services to and from the private program that were actually provided to the student.” 2023 WL 5097982, at *2.
The court emphasized that the IHO explicitly declined to require the district to pay the full contractual transportation rate. Because the parent did not appeal the IHO’s finding that the transportation costs previously funded under pendency were unreasonable, the court held that the parent could not challenge that determination in the present action. Id. at *4.
The court granted in part and denied in part both parties’ motions for summary judgment and ordered reimbursement only for transportation services provided on days when the student was actually transported to and from school. The court indicated that affidavits or other proof of attendance could be sufficient to establish entitlement to payment and set deadlines for the submission of supporting materials.
Taken together, the decision reflects that while pendency may encompass specialized transportation, reimbursement is limited to services actually delivered and to rates supported by the evidentiary record developed in the administrative proceeding.