In Rivas v. Banks, No. 22-CV-10007 (LJL), 2023 WL 8188069, 123 LRP 34269 (S.D.N.Y. Nov. 27, 2023), reconsideration denied, 2024 WL 292276 (Jan. 25, 2024), aff’d, No. 24-268, 2024 WL 5244849 (2d Cir. Dec. 30, 2024), the district court affirmed administrative decisions rejecting a parent’s challenge to a proposed public-school placement under the Individuals with Disabilities Education Act (IDEA) on the ground that the objections were speculative and unsupported by the evidentiary record.
The case involved an eleven-year-old student with significant disabilities, including cystic encephalomalacia, global central nervous system injury, seizure disorder, hypoxic-ischemic encephalopathy, cerebral palsy, optic atrophy, and cortical visual impairment. He was non-ambulatory, nonverbal, and required a feeding tube. For the 2021–22 school year, the student attended iBrain, where staff developed an educational plan in January 2021. In February 2021, the Committee on Special Education (CSE) developed an individualized education program (IEP) providing for a twelve-month program in a 6:1:1 class with a one-to-one paraprofessional. While similar to the iBrain plan, the IEP did not include music therapy.
The district notified the parent that the IEP would be implemented at a District 75 public school, P.S. 168, and later advised that the student would attend the same school at a different location. In June 2021, the parent rejected the IEP and placement and stated an intent to unilaterally place the student at iBrain, while indicating continued openness to an appropriate public placement.
The parent filed a due process complaint. The impartial hearing officer (IHO) concluded that the district offered a free appropriate public education (FAPE) for the 2021–22 school year. Although acknowledging that music therapy could be beneficial, the IHO found that its functional goals could be met through other services. The IHO further determined that the student did not require an extended school day and that concerns about placement alongside students with autism were speculative. The IHO did not reach the issue of wheelchair accessibility because it was raised for the first time in the parent’s closing argument. The IHO nevertheless found iBrain appropriate and concluded that the equities favored the parent. The state review officer (SRO) affirmed the determination that the district offered FAPE.
On judicial review, the district court agreed that the administrative findings were supported by the record. It held that objections based on anticipated peer composition were speculative and that the accessibility claim was waived because it was not raised in the due process complaint and was not addressed by the IHO or SRO. The court remanded a discrete issue concerning whether a pendency order required the district to fund one-to-one nursing services, explaining that the administrative record did not clearly resolve that question.
In a summary order, the Second Circuit affirmed. It agreed that the accessibility issue was waived and that the objection based on placement with students with autism lacked evidentiary support. The court also endorsed the conclusion that push-in services could be provided within the public placement, eliminating the need for an extended school day, and that the functional benefits of music therapy could be delivered through other interventions.
Taken together, the decision reflects that challenges to proposed placements must be grounded in record evidence rather than speculation, that related services may be delivered through different modalities so long as identified needs are addressed, and that issues not raised in a due process complaint may be deemed waived, even where they implicate significant access concerns.