Boffa et al v. Banks et al

Filing 54

OPINION AND ORDER re: 36 MOTION for Summary Judgment filed by Noreen Boffa, 45 MOTION for Summary Judgment filed by David C. Banks, New York City Department of Education. For the foregoing reasons, Boffa's m otion for summary judgment is GRANTED and Defendants' motion for summary judgment is DENIED. By February 14, 2025, the parties shall file a proposed judgment in accordance with this order. By February 28, 2025, Plaintiff shall file her application for attorneys' fees. The Clerk of Court is respectfully directed to terminate the motions at ECF Nos. 36 and 45. SO ORDERED. ( Motions due by 2/28/2025.) (Signed by Judge Analisa Torres on 1/29/2025) (vfr)

and global developmental delay. Id. ¶ 2. As a result of her disabilities, A.M. is entitled to
receive special education services and an individualized education program (“IEP”) from DOE,
her local educational agency. Id. ¶¶ 4–5; see also 20 U.S.C. § 1414(d)(2)(A).
From school years (“SYs”) 2009–10 through 2019–20, A.M. attended the Hungerford
School (“Hungerford”), a specialized public school in New York City, and received a variety of
targeted services, including special transportation to and from Hungerford. Pl. 56.1 ¶ 6; Admin.
Record (“AR”) at 16, 51–53, ECF No. 35. On January 16, 2020, the DOE Committee on Special
Education (the “CSE”) convened to develop an IEP for A.M. for SY 2020–21 (the “2020 IEP”).
Id. at 53. The 2020 IEP recommended, inter alia, that A.M. continue her placement at
Hungerford. Id. In June 2020, after schools had closed because of the COVID-19 pandemic,
Boffa, dissatisfied with the recommendations in the 2020 IEP, enrolled A.M. at the International
Institute for the Brain (“iBrain”), a private school, for SY 2020–21. See id. at 17. Boffa
subsequently notified DOE of her intention to unilaterally place A.M. at iBrain and seek tuition
reimbursement. Id. at 53. DOE informed Boffa that it would not voluntarily pay iBrain’s tuition
and advised her to file a due process complaint if she remained interested in pursuing a unilateral
placement at DOE’s expense. Id. at 54. In July 2020, Boffa brought a due process complaint
against DOE, alleging that it failed to provide A.M. with a free appropriate public education
(“FAPE”) for SYs 2009–10 through 2020–21. Pl. 56.1 ¶ 11; AR at 17, 171. That autumn, iBrain
assessed A.M. and found that she possessed indications of cortical visual impairment (“CVI”), a
neurological processing disorder that impacts one’s vision. AR at 221.
In April 2021, the CSE convened and developed a new IEP for A.M. (the “2021 IEP”).
Id. at 54. The 2021 IEP again recommended placement at Hungerford, this time with more
specialized instruction, and the provision of targeted services. Id. at 54–55. As before, Boffa

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disagreed with the recommendations in the 2021 IEP, and in a June 23, 2021 letter, she informed
DOE of her intent to unilaterally keep A.M. at iBrain for SY 2021–22. Id. at 55. DOE again
told Boffa that she would need to file a due process complaint to seek tuition reimbursement, so
on July 8, 2021, Boffa filed another due process complaint, alleging denial of a FAPE for
SY 2021–22. Id. at 18, 56, 298; Pl. 56.1 ¶ 15. The two complaints were consolidated before the
same impartial hearing officer (the “IHO”). AR at 19.
In November 2021, A.M. visited the NYU Langone Eye Center, where she received
several vision-related diagnoses. Pl. 56.1 ¶ 9; AR at 56. The doctor who evaluated A.M.
recommended that she be considered blind and receive full vision services. Pl. 56.1 ¶ 9; AR at
56. Three months later, in February 2022, DOE conducted its own assessment of A.M.’s vision
and recommended that she receive full vision services by a trained vision instructor twice a
week, for 30 minutes per session. Pl. 56.1 ¶ 10; AR at 56, 541. In March of that year, a
neuropsychologist conducted an extensive neuropsychological independent educational
evaluation (“IEE”) of A.M. AR at 57, 1018. The neuropsychologist reported that, during A.M.’s
years in public school, she demonstrated “[l]ittle evidence of measured progress” but that, since
attending iBrain, A.M. had made significant and measurable improvements across a variety of
skills. Id. at 57–58, 1025–26. The neuropsychologist hypothesized that A.M. could have made
progress sooner had she received such high-intensity services at a younger age. Id. at 57–58,
1025–26.
Later that month, the CSE met and developed an IEP for SY 2022–23 (the “2022 IEP”).
Id. at 58. Although the 2022 IEP recommended the provision of vision services twice a week, it
still recommended placing A.M. at a DOE public school, did not recommend limited travel time
and air conditioning as a part of A.M.’s transportation, and did not recommend the provision of

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music therapy, decisions that Boffa and iBrain found concerning. Id. So, on July 6, 2022, Boffa
filed a third due process complaint, alleging denial of a FAPE for SY 2022–23. Pl. 56.1 ¶ 28;
ECF No. 37-1. In addition to asserting the denial of a FAPE for SY 2022–23, Boffa requested a
ruling that iBrain constitutes A.M.’s pendency placement, in other words, the school at which
A.M. is entitled to remain until the present claims are resolved. Pl. 56.1 ¶¶ 29–30; ECF No. 371; see 20 U.S.C. § 1415(j). This complaint and the pendency issue remain unresolved.
II.

The IHO’s Decision
After overseeing a six-day due process hearing, the IHO issued her findings of fact and

decision (the “FOFD”) on May 4, 2023. Pl. 56.1 ¶ 17; AR at 48. First, according to the IHO,
Boffa’s claims concerning SYs 2009–10 through 2017–18 are barred by the IDEA’s two-year
statute of limitations. AR at 66–68. Second, DOE failed to consider sufficient evaluative data
during the CSE meetings for SYs 2009–10 through 2021–22, resulting in the denial of a FAPE
for those years. Id. at 72–73. Third, DOE’s failure to identify or address A.M.’s vision-related
deficits during SYs 2009–10 through 2021–22 resulted in the denial of a FAPE and constituted a
gross violation of the IDEA. Id. at 73–74. Fourth, DOE’s failure to provide A.M. with sufficient
related services and supports during SYs 2012–13 through 2020–21 denied A.M. a FAPE. Id. at
75–76. Fifth, DOE’s failure to recommend music therapy services for A.M. during SYs 2018–19
through 2020–21 resulted in the denial of a FAPE. Id. at 76–77. Sixth, DOE’s failure to provide
Boffa an opportunity to meaningfully participate in the IEP-development process during
SYs 2018–19 through 2020–21 resulted in the denial of a FAPE. Id. at 77–78. Seventh, DOE’s
failure to recommend an appropriate placement for A.M. during SYs 2018–19 through 2020–21
resulted in the denial of a FAPE. Id. at 78–80. Lastly, DOE’s failure to recommend the

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provision of a transportation paraprofessional for A.M. during SY 2020–21 resulted in the denial
of a FAPE. Id. at 81–83.
The IHO then addressed the issue of relief. She determined that Boffa’s unilateral
placement of A.M. at iBrain for SYs 2020–21 and 2021–22 was appropriate and that equitable
considerations counseled in favor of tuition and transportation reimbursement for those years.
Id. at 84–92. She also determined that, although A.M. is entitled to compensatory education to
remedy DOE’s failure to provide her a FAPE, traditional compensatory education “would prove
burdensome, duplicative[,] and unwarranted” at this point. Id. at 95–96. However, because
DOE’s “failure to timely and appropriately evaluate [A.M.], failure to identify [A.M.]’s vision
education needs, and failure to recommend or provide appropriate educational programs and
placement for [A.M.] amounted to gross violations of the IDEA,” A.M. is entitled to extended
eligibility of special education services until age 25. Id. at 96–99. During those years, stated the
IHO, DOE must provide tuition and supplemental tuition for iBrain or “another equallycredentialed school of [Boffa]’s choosing if continued enrollment at [iBrain] becomes
unavailable,” plus special transportation. Id. at 98.
III.

The SRO’s Decision

DOE appealed to the New York State Education Department’s Office of State Review. Id.
at 145. DOE did not challenge the IHO’s award of tuition reimbursement for the two years A.M.
spent at iBrain, but did appeal the portions of the FOFD finding that A.M. was denied a FAPE
from SYs 2009–10 through 2017–18 and that her eligibility for services should therefore be
extended through age 25. Id. at 41, 147–54.
The assigned state review officer (the “SRO”) issued her decision on July 26, 2023. Id. at
15. She determined, first, that any finding the IHO made regarding the denial of a FAPE during

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the period barred by the statute of limitations was “improper” and therefore reversed. Id. at 24.
She next held that, although the CSE considered sufficient evaluative data regarding many of
A.M.’s special needs,2 DOE “knew, or should [have] known, of [A.M.]’s visual impairments as
far back as 2016,” yet it “failed to recommend [vision education services] or that [A.M.]’s vision
be evaluated during the timeframe at issue.” Id. at 25–31. Accordingly, the SRO affirmed the
IHO’s determination that DOE denied A.M. a FAPE during SYs 2018–19 through 2021–22 by
failing to properly evaluate her vision or recommend vision education services. Id. at 32.
However, the SRO concluded that there was not sufficient evidence to uphold the IHO’s findings
that DOE’s failure to provide A.M. with music therapy or a transportation paraprofessional
resulted in the denial of a FAPE. Id. at 36–39. The SRO also determined that the IHO erred in
considering Boffa’s challenge to the ability of the assigned SY 2021–22 school placement to
implement the 2021 IEP, which the SRO deemed “speculative.” Id. at 39–41.
Given these conclusions, the SRO upheld the portion of the FOFD requiring DOE to pay
for A.M.’s iBrain tuition and the costs of special transportation for SYs 2020–21 and 2021–22.
Id. at 41. However, she reversed the IHO’s decision to grant A.M. four years of extended
eligibility on top of that tuition reimbursement. AR at 43. As the SRO explained, A.M. will not
turn 21 until SY 2023–24, leaving her at least two years beyond SY 2021–22 to “achieve the
progress guaranteed by the IDEA—that is, the progress which is appropriate in light of the
circumstances of her disability.” Id. at 43. The SRO described how A.M. made “gradual
progress” in her assigned public school and had been “steadily progressing” at iBrain. Id. at 43–
44. Because “a request for compensatory education should be denied when the deficiencies

Because the IHO’s determination that DOE’s failure to provide Boffa an opportunity to meaningfully participate in
the IEP-development process during SYs 2018–19 through 2020–21 was based entirely on her assessment that the
CSE did not consider sufficient evaluative data, the SRO did not separately consider Boffa’s participation in the
IEP-development process. AR at 24 n.6.
2

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suffered have already been mitigated,” the SRO stated, extended eligibility was not warranted.
Id. at 44 (citation omitted). Such extended eligibility would be particularly inappropriate here
because the IHO crafted this relief in part based on her finding that A.M. was denied a FAPE
during SYs 2009–10 through 2021–22, including during those years that fall outside the IDEA’s
statute of limitations. Id. at 44. The IHO’s award was also improper, explained the SRO,
because by mandating that A.M. be placed at iBrain during her years of extended eligibility, the
IHO effectively “circumvent[ed] the statutory process,” pursuant to which a CSE must
periodically review a student’s progress and recommend appropriate services. Id. at 44–45.
IV.

Procedural Background

Boffa commenced this action in August 2023. See generally Compl. She asks the Court
to: (1) overturn the portion of the SRO’s decision that reversed the IHO’s award of four years of
extended eligibility, (2) declare that iBrain was A.M.’s pendency placement for SY 2022–23 and
require DOE to reimburse her for A.M.’s tuition during that period, and (3) award reasonable
attorneys’ fees.3 Id. ¶¶ 25–28. Before the Court are the parties’ cross-motions for summary
judgment. ECF Nos. 36, 45; see also Pl. Mem., ECF No. 40; Def. Mem., ECF No. 46; Pl. Opp.,
ECF No. 49; Def. Opp., ECF No. 53.
LEGAL STANDARD
Although the parties have ostensibly filed cross-motions for summary judgment, “the
procedure is in substance an appeal from an administrative determination, not a summary
judgment.” Perez v. Banks, No. 23 Civ. 2966, 2024 WL 4307934, at *2 (S.D.N.Y. Sept. 26,

Boffa previously asked the Court to enforce the unchallenged portion of the IHO’s order, which required DOE to
reimburse A.M.’s tuition and transportation costs for SYs 2020–21 and 2021–22. Compl. ¶ 24. In her
memorandum in support of her motion for summary judgment, dated April 15, 2024, Boffa asserted that she was
still awaiting reimbursement. Pl. Mem. at 23–24. In their briefing, Defendants responded that they had already
satisfied the reimbursement by check dated January 29, 2024. Def. Mem. at 15. Boffa later confirmed that she did
receive payment for the relevant SYs. Pl. Opp. at 12.
3

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2024) (citation omitted); see also Lillbask ex rel. Mauclaire v. Conn. Dep’t of Educ., 397 F.3d
77, 83 n.3 (2d Cir. 2005). The Court therefore conducts an independent review of the record and
“bas[es] its decision on the preponderance of the evidence,” 20 U.S.C. § 1415(i)(2)(C)(iii),
“giv[ing] due weight to the administrative proceedings, mindful that the judiciary generally lacks
the specialized knowledge and experience necessary to resolve persistent and difficult questions
of educational policy,” A.C. ex rel. M.C. v. Bd. of Educ. of the Chappaqua Cent. Sch. Dist., 553
F.3d 165, 171 (2d Cir. 2009) (cleaned up) (quoting Gagliardo v. Arlington Cent. Sch. Dist., 489
F.3d 105, 113 (2d Cir. 2007)).
Where, as here, “the SRO’s decision conflicts with the earlier decision of the IHO, the
IHO’s decision ‘may be afforded diminished weight.’” Id. (quoting Gagliardo, 489 F.3d at 113
n.2). Ultimately, the Court must “defer to the final decision of the state authorities, even where
the reviewing authority disagrees with the hearing officer.” Id. (citation omitted). “Deference is
particularly appropriate when the state officer’s review ‘has been thorough and careful.’” R.E. v.
N.Y.C. Dep’t of Educ., 694 F.3d 167, 184 (2d Cir. 2012) (quoting Walczak v. Fla. Union Free
Sch. Dist., 142 F.3d 119, 129 (2d Cir. 1998)).
DISCUSSION
I.

Extended Eligibility
A. Statute of Limitations
The IHO determined that Boffa’s claims pertaining to years predating SY 2018–19 are

barred by the statute of limitations.4 Id. at 66–68. Boffa contends that the statute of limitations
The SRO did not have occasion to conduct its own analysis because Boffa did not appeal the IHO’s determination
that claims concerning SYs 2009–10 through 2017–18 are barred by the statute of limitations. AR at 24. Usually,
an “aggrieved” party’s failure to appeal any portion of an IHO’s decision leads to forfeiture of the issue. Phillips v.
Banks, 656 F. Supp. 3d 469, 483 (S.D.N.Y. 2023). However, if a party raised an issue before the IHO but was not
“aggrieved” by the IHO’s resolution of her claim, and thus had no occasion to press the issue before the SRO, the
party may raise the issue before a reviewing court. Id.; see also D.N. ex rel. G.N. v. N.Y.C. Dep’t of Educ., 905 F.
Supp. 2d 582, 587–88 (S.D.N.Y. 2012). Because Boffa received “precisely the relief she sought” before the IHO—
4

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was tolled until November 2021, when she first obtained an eye exam for A.M. and learned that
her daughter is legally blind. Pl. Mem. at 10–12; see AR at 56. The Court reviews the
application of a statute of limitations de novo. See Somoza v. N.Y.C. Dep’t of Educ., 538 F.3d
106, 112 (2d Cir. 2008); K.H. v. N.Y.C. Dep’t of Educ., No. 12 Civ. 1680, 2014 WL 3866430, at
*15 (E.D.N.Y. Aug. 6, 2014).
Under the IDEA, a parent may file a due process complaint asserting a violation “that
occurred not more than 2 years before the date the parent . . . knew or should have known about
the alleged action that forms the basis of the complaint.” 20 U.S.C. § 1415(b)(6)(B). Boffa
testified that although she has long known that her daughter has limited vision in her left eye, she
did not know that A.M. was legally blind until iBrain conducted a vision assessment in
September 2020 and Boffa confirmed the diagnosis with an eye doctor in late 2021. AR at 64,
127, 221, 2515–16, 2532. Boffa argues that her claims did not begin to accrue until that period
and that the IHO mistakenly conflated her knowledge of A.M.’s generalized special needs with
her knowledge of A.M.’s vision problems. Pl. Mem. at 11–12; see AR at 68.
The Court agrees. The “knew or should have known” language in the IDEA’s statute of
limitations reflects the principle that families “should [not] be blamed for not being experts about
learning disabilities.” K.C. v. Chappaqua Cent. Sch. Dist., No. 16 Civ. 3138, 2018 WL 4757965,
at *14 (S.D.N.Y. Sept. 30, 2018) (citation omitted). DOE points to no evidence suggesting that
Boffa knew or should have known about the severity of A.M.’s vision problems before she
enrolled A.M. at iBrain, nor does Boffa’s preexisting knowledge that A.M. suffers from global
delays suffice to put Boffa on notice of the specific statutory violations at issue here. Cf. K.H.,

reimbursement for A.M.’s placement at iBrain and four years of extended eligibility—“she ‘had neither the
responsibility nor the right’ to cross-appeal any portions of the IHO’s decision.” D.N., 905 F. Supp. 2d at 588
(quoting Antkowiak ex rel. Antkowiak v. Ambach, 838 F.2d 635, 641 (2d Cir. 1988)). The Court will, therefore,
consider her argument on the merits.

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2014 WL 3866430, at *17 (rejecting the argument that parents “should have known to file a due
process complaint when they learned how little progress [their child] was making in school”
because “they had no reason to know how much progress [the child] was capable of making”).
Because Boffa did not have reason to know about A.M.’s blindness until September
2021, Boffa’s claims reaching back to SY 2009–10, to the extent they concern DOE’s failure to
provide A.M. with vision-related services, are not precluded by the IDEA’s statute of limitations.
B. Denial of a FAPE
Having determined that Boffa’s claims are not time-barred, the Court now considers
whether DOE denied A.M. a FAPE during the relevant years. DOE does not challenge the IHO
and SRO’s determinations that the 2019, 2020, and 2021 IEPs, each of which failed to identify
A.M.’s blindness and recommend vision services, were inappropriate and led to the denial of a
FAPE during SYs 2018–19 through 2020–21. See AR at 31–32, 71–78. The Court, therefore,
need only decide whether A.M. was denied a FAPE from SYs 2009–10 through 2017–18, the
years the IHO determined were time-barred. See AR at 66.
The IDEA requires states to provide disabled students with a FAPE through age 21. 20
U.S.C. § 1412(a)(1)(A). To effectuate that mandate, school districts must create IEPs for each
disabled child within their jurisdiction. Id. § 1414(d)(2)(A). These IEPs are “the centerpiece of
the IDEA’s education delivery system,” W.A. v. Hendrick Hudson Cent. Sch. Dist., 927 F.3d 126,
133 (2d Cir. 2019) (quoting Mr. P v. W. Hartford Bd. of Educ., 888 F.3d 735, 741 (2d Cir.
2018)), and every IEP must be “reasonably calculated to enable [a] child to receive educational
benefits,” R.E. v. N.Y.C. Dep’t of Educ., 694 F.3d 167, 175 (2d Cir. 2012) (citation omitted).
The IHO and SRO, as state administrative specialists, are better positioned than the Court
to evaluate whether an IEP is substantively adequate under the IDEA, and their determinations

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regarding the sufficiency of A.M.’s IEPs merit judicial deference. See Grim v. Rhinebeck Cent.
Sch. Dist., 346 F.3d 377, 382 (2d Cir. 2003) (explaining that “the sufficiency of goals and
strategies in an IEP is precisely the type of issue upon which the IDEA requires deference to the
expertise of the administrative officers”). Although the SRO did not have occasion to consider
the adequacy of the IEPs before SYs 2018–19, the IHO—despite finding that the earlier years
were barred by the statute of limitations—ultimately evaluated those IEPs and found that their
failure to include vision services, despite indications that A.M. required such services, resulted in
the denial of a FAPE.5 AR at 73–74. The Court defers to that administrative determination,
which is buttressed by the SRO’s finding that DOE’s failure to recommend vision services in
subsequent years similarly denied A.M. a FAPE during that later period. See id. at 31–32.
Accordingly, DOE’s failure to recommend vision services for A.M. resulted in the denial of a
FAPE from SYs 2009–10 through 2021–22.
C. Appropriate Remedy
The Court now turns to the appropriate remedy. The IHO awarded Boffa full tuition
reimbursement for SYs 2020–21 and 2021–22 and, after determining that A.M. was entitled to
compensatory education but that traditional compensatory education would prove “burdensome”
and “duplicative,” granted A.M. extended eligibility for special education services through age
25. AR at 91, 96–99. The SRO affirmed the award of tuition reimbursement but found that the
circumstances did not warrant four years of extended eligibility. AR at 41–45. Boffa appeals
that latter determination. Pl. Mem. at 6.

The Court agrees with the SRO that, once the IHO determined that the statute of limitations barred Boffa’s claims
before SY 2018–19, it was legally improper for the IHO to consider any potential denial of a FAPE during the
earlier nine-year period. See AR at 24.
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If a parent believes that DOE has failed to provide a FAPE to her child, she “may enroll
the child in a private school at [her] own financial risk and seek retroactive reimbursement from
the school district for the cost of the private school.” W.A., 927 F.3d at 133. She may
additionally seek compensatory education, a variety of “prospective equitable relief[] requiring a
school district to fund education beyond the expiration of a child’s eligibility as a remedy for any
earlier deprivations in the child’s education.” Doe v. E. Lyme Bd. of Educ., 790 F.3d 440, 456
(2d Cir. 2015) (quoting Somoza, 538 F.3d at 109 n.2). Generally, an award of compensatory
education is appropriate “only for gross violations of the IDEA” and “must be reasonably
calculated to provide the educational benefits that likely would have accrued from special
education services the school district should have supplied in the first place.” Somoza, 538 F.3d
at 109 n.2; E. Lyme Bd. of Educ., 790 F.3d at 457 (citation omitted).
The record establishes that, despite issuing multiple IEPs that described A.M. as a “visual
learner” who required “vision services,” AR at 31–32, 734 (2015 IEP), 773 (2016 IEP), 1647
(2017 IEP), DOE failed to take any measures to evaluate A.M.’s pronounced CVI symptoms or
recommend vision services until February 2022, thirteen years after A.M. started at Hungerford.
See id. at 32, 74, 541. Although the Second Circuit has not defined what constitutes a gross
violation of the IDEA, Doe ex rel. Doe v. E. Lyme Bd. of Educ., No. 11 Civ. 291, 2020 WL
7078727, at *19 (D. Conn. Dec. 3, 2020), the Court determines that the denial of a crucial
resource like vision education services for most of a child’s education qualifies as a gross
violation of the statute. This conclusion is bolstered by the IHO’s finding of a gross violation6
and the opinion of A.M.’s evaluating neuropsychologist, who wrote that A.M. showed “little

As explained above, the SRO did not evaluate DOE’s actions during SYs 2009–10 through 2017–18, so the Court
does not give substantial deference to its conclusion that the IHO erred in finding that DOE perpetrated a gross
violation of the IDEA. See AR at 43–44, 96.
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evidence of measurable progress” during her years at Hungerford and “hypothesized with a
reasonable degree of clinical certainty that [A.M.] could have made improvements sooner across
[a wide range of capabilities] had she received the same intensity of treatments and services [at
Hungerford] as she receives at iBrain, beginning at a much younger stage.” AR at 1020, 1026.
The Court’s decision is also supported by the testimony of A.M.’s iBrain physical therapist, who
testified that, had A.M. received the sorts of interventions she receives at iBrain from a younger
age, she would “definitely [be] more independent and active in her activities of daily living,”
“would not be [] chair-bound,” and “wouldn’t have regressed so much in different activities.”
AR at 2314.
Defendants observe that the harm caused A.M. has been somewhat mitigated by her
attendance at iBrain, reducing the need for compensatory education. See Def. Mem. at 12; cf.
Perez, 2024 WL 4307934, at *5 (faulting an IHO for failing to explain why attendance at a
private school was not adequate to mitigate the denial of a FAPE). Be that as it may, the Court
finds it hard to believe that three years of attendance at iBrain could come close to making up for
a thirteen-year denial of vision services. The Court, therefore, awards A.M. compensatory
education in the form of extended eligibility through age 25.7
II.

Pendency During SY 2022–23
The Court next resolves the issue of pendency placement. Boffa contends that A.M.’s

pendency placement for SY 2022–23 was at iBrain because, although A.M.’s 2022 IEP did not
recommend placement there, the IHO found—and DOE did not challenge—that A.M.’s
placement at iBrain during SYs 2020–21 and 2021–22 was appropriate. Pl. Mem. 20–23; see

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The Court agrees with the SRO that mandating that A.M. remain at iBrain or an alternative private school for the
duration of her extended eligibility would inappropriately circumvent the IDEA’s procedural requirements, which
charge states with periodically assessing a student’s needs and updating her recommended services and placement
accordingly. AR at 44–45; see 20 U.S.C. § 1414(a)(2), (c)(1), (d)(4).

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also AR at 41, 87. In fact, Boffa argues, had the IHO and SRO issued their opinions within the
time allotted by New York law, A.M.’s pendency placement would unquestionably have been
iBrain. See Pl. Mem. at 20. DOE insists that pendency does not lie at iBrain for SY 2022–23 or,
in the alterative, that pendency was not effective until July 26, 2023, the date of the SRO’s
decision confirming the appropriateness of A.M.’s unilateral placement at iBrain. Def. Mem. at
13–15.
Once a parent initiates an administrative proceeding by filing a due process complaint, the
IDEA’s “pendency” provision mandates that a student remain in her “then-current educational
placement” until all due process proceedings have concluded. 20 U.S.C. § 1415(j); see T.M. ex
rel. A.M. v. Cornwall Cent. Sch. Dist., 752 F.3d 145, 170–71 (2d Cir. 2014). The term “thencurrent educational placement” usually refers to the last agreed-upon educational placement
before the parent filed her complaint. Ventura de Paulino v. N.Y.C. Dep’t of Educ., 959 F.3d
519, 532 (2d Cir. 2020). However, this placement may be changed “if an impartial hearing
officer or state review officer finds the parent[’s] new placement to be appropriate by
adjudicating the IEP dispute in the parent[’s] favor, and the school district chooses not to appeal
the decision.” Id. Accordingly, once DOE chose not to appeal the finding that Boffa’s
placement of A.M. at iBrain was appropriate, iBrain became A.M.’s pendency placement. The
question is whether Defendants must reimburse Boffa for A.M.’s tuition and related services
during the period before pendency was established.
The Court finds that reimbursement is both authorized and warranted. In Mackey ex rel.
Thomas M. v. Board of Education for Arlington Central School District, the Second Circuit
confronted a factually similar situation. Parents, who unilaterally placed their child at a private
school and were ultimately awarded tuition reimbursement, rejected an IEP and kept their child

14

at the private school while the earlier reimbursement action was still pending. 386 F.3d 158, 161
(2d Cir. 2004). Like this case, the earlier reimbursement action was decided long after the date
when the state administrative process should have concluded. Id. at 163–64. Similarly, the
reimbursement action was decided in the parents’ favor. Id. at 161. The court determined that it
would be “unfair” to penalize the parents for the state’s delay, reasoning that if the state had
issued its final order within the required thirty days, the private school would have been the
child’s placement from that point on, and the parents would, “without question,” have been
entitled to tuition reimbursement on a pendency basis for at least the remainder of the review
process. Id. at 164. Relying on the IDEA’s grant of “equitable authority” to the federal courts,
the Second Circuit held that “retroactive” reimbursement based on pendency was appropriate.
Id. at 165; see also R.S. v. N.Y.C. Dep’t of Educ., No. 21 Civ. 2257, 2022 WL 902671, at *2
(S.D.N.Y. Mar. 28, 2022) (applying Mackey and explaining that “the financial burden of pendent
placement should not be borne by parents whose position has been vindicated by the IDEA
decision” (cleaned up) (citation omitted)).
In this case, the IHO and SRO found that iBrain was an appropriate placement for A.M.
beginning in SY 2020–21, a determination DOE did not appeal. AR at 31–32, 85–91. Applying
this decision retroactively, A.M.’s then-current educational placement on July 6, 2022, the date
Boffa filed her due process complaint for SY 2022–23, was iBrain. Accordingly, A.M.’s
pendency placement was iBrain for the entirety of SY 2022–23, and Boffa is entitled to tuition
and transportation reimbursement from that date forward. See S.H.W. v. N.Y.C. Dep’t of Educ.,
No. 21 Civ. 4808, 2023 WL 2753165, at *8 (S.D.N.Y. Mar. 31, 2023).

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III.

Attorneys’ Fees
Lastly, Boffa requests reasonable attorneys’ fees as the prevailing party in this action. Pl.

Mem. at 24–25. Pursuant to the IDEA, the Court, “in its discretion, may award reasonable
attorneys’ fees as part of the costs . . . to a prevailing party who is the parent of a child with a
disability.” 20 U.S.C. § 1415(i)(3)(B)(i)(I). Such fees “shall be based on rates prevailing in the
community in which the action or proceeding arose for the kind and quality of services
furnished.” Id. § 1415(i)(3)(C). To qualify as a “prevailing party,” the party must “attain[]
success on any significant issue in the litigation that achieves some of the benefit sought in
bringing the litigation, and the manner of the resolution of the dispute constitutes a change in the
legal relationship of the parties.” B.W. ex rel. K.S. v. N.Y.C. Dep’t of Educ., 716 F. Supp. 2d 336,
344 (S.D.N.Y. 2010) (quoting Mrs. M. v. Tri-Valley Cent. Sch. Dist., 363 F. Supp. 2d 556, 569
(S.D.N.Y. 2002)). The Court interprets the prevailing party standard “generously.” Student X,
2008 WL 4890440, at *27.
Boffa has succeeded on all of her claims and will receive meaningful relief: She has
demonstrated both that A.M. was denied a FAPE during the majority of her years as a student,
entitling A.M. to four years of extended eligibility, and that pendency placement was appropriate
at iBrain during SY 2022–23, entitling Boffa to tuition and transportation reimbursement for the
years this suit remained pending. Accordingly, Boffa is entitled to reasonable attorneys’ fees.
CONCLUSION
For the foregoing reasons, Boffa’s motion for summary judgment is GRANTED and
Defendants’ motion for summary judgment is DENIED. By February 14, 2025, the parties
shall file a proposed judgment in accordance with this order. By February 28, 2025, Plaintiff
shall file her application for attorneys’ fees.

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The Clerk of Court is respectfully directed to terminate the motions at ECF Nos. 36 and
45.
SO ORDERED.
Dated: January 29, 2025
New York, New York

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