In Polanco v. Banks, No. 23-373-cv, 2024 WL 2105530, 124 LRP 16192 (2d Cir. May 10, 2024), petition for cert. filed, No. 24-442 (Oct. 21, 2024), the Second Circuit issued a summary order affirming a district court’s affirmance of a state review officer (SRO) decision that reversed an impartial hearing officer’s (IHO) determination that a student who uses a wheelchair was denied a free appropriate public education (FAPE) based on placement and disability identification.
The court first addressed the parent’s argument that a delay of nearly one year in issuing the IHO decision denied FAPE. Treating the delay as a procedural violation, the court examined whether it resulted in substantive harm. It concluded that it did not, reasoning that the student’s individualized education program (IEP) was adequate and that the delay in resolving the challenge “cannot have prejudiced [the child’s] education.”
Turning to the merits, the court rejected the claim that the assigned classroom would not have provided appropriate functional grouping. The court explained that placement adequacy is assessed prospectively based on the IEP and found no basis, beyond speculation, to conclude that the school could not have implemented proper grouping. The court relied on testimony supporting the conclusion that the school was capable of providing an appropriate classroom placement.
The court also rejected the argument that the student was denied FAPE because she was classified as having multiple disabilities rather than traumatic brain injury. It reiterated that disability classification is not determinative so long as the IEP appropriately addresses the student’s needs. Similarly, the court rejected claims that the assigned school nurse lacked training in gastric tube feeding and that staff could not perform two-person transfers, noting that the IEP required training in both areas and that challenges based on anticipated noncompliance were speculative.
Finally, the court declined to consider a claim that the school building was wheelchair inaccessible beyond the first floor. Because that issue was not raised in the due process complaint and was introduced for the first time at the hearing, the court held the claim forfeited.
Taken together, the decision reflects a reluctance to find a denial of FAPE based on speculative concerns about future implementation, where the IEP on its face provides for appropriate services and supports and procedural challenges do not result in demonstrated educational harm.