Gross Violation as a Prerequisite to Extended-Eligibility Compensatory Education: The Second Circuit’s Summary Order in Perez v. Banks

Introduction

In a non-precedential Summary Order, the United States Court of Appeals for the Second Circuit affirmed the Southern District of New York’s judgment upholding a State Review Officer’s (SRO) decision to vacate an Impartial Hearing Officer’s (IHO) award of extended eligibility—through age 25—for a student with disabilities under the Individuals with Disabilities Education Act (IDEA). The case, Perez v. Banks, centers on a parent’s effort to secure multi-year compensatory education at the International Institute for the Brain (iBrain) after the New York City Department of Education (DOE) failed to recommend vision education services in the student’s 2021–2022 Individualized Education Program (IEP).

The Second Circuit’s order clarifies and re-emphasizes two core points in IDEA litigation within the Circuit:

Extended-eligibility compensatory education (i.e., continuing IDEA services beyond the ordinary age cut-off) requires a “gross violation” of the IDEA.
The IDEA’s two-year statute of limitations can significantly cabin both liability and remedy by preventing reliance on earlier, untimely claims to prove the “grossness” of a violation.

While the panel’s order is non-precedential, it provides practical guidance on the remedy boundaries for relief like extended eligibility and the critical role of timeliness in building a record sufficient to support such extraordinary relief.

Summary of the Opinion

The student, C.P., has multiple disabilities, including cerebral palsy and cortical visual impairment (CVI). After years of non-public placements, the parent unilaterally placed C.P. at iBrain. In March 2021, DOE developed an IEP for the 2021–2022 school year that acknowledged CVI in goals/management needs but did not recommend vision education services. The parent filed two due process complaints:

One (June 29, 2021) alleging FAPE denials spanning 2007–2019 and seeking, among other things, 11 years of compensatory education and extended eligibility to age 25.
Another (July 6, 2021) challenging the 2021 IEP’s omission of vision services and seeking tuition reimbursement for the 2021–2022 extended school year and additional relief.

After eight hearing days, the IHO held that the broad historical claims were time-barred under the IDEA’s two-year limitations period but found a 2021–2022 FAPE denial based on the failure to recommend vision services. Despite not finding a “gross violation,” the IHO awarded tuition reimbursement and extended eligibility through age 25.

On DOE’s appeal, the SRO reversed the extended-eligibility award, reasoning that the single-year FAPE denial was not a gross violation warranting that level of compensatory education, though the SRO affirmed tuition reimbursement and other aspects of the IHO’s findings. The district court affirmed.

The Second Circuit affirmed the district court. Applying the familiar deference to the SRO on educational matters and reviewing the crafting of equitable relief for abuse of discretion, the court held that extended eligibility required a gross violation and that no such finding was made here. Because the earlier alleged violations (2007–2019) were time-barred, the record could not support a gross violation finding based solely on the 2021–2022 denial. The court thus sustained the SRO’s reversal of extended eligibility, while noting that the tuition reimbursement for the 2021–2022 extended school year remained intact.

Analysis

Precedents Cited and Their Influence

T.K. v. N.Y.C. Dep’t of Educ., 810 F.3d 869 (2d Cir. 2016) — Establishes that appellate review of IDEA administrative decisions is “independent, but circumscribed,” more probing than clear-error review but short of de novo. This frames the court’s role: it examines the record without substituting its own educational judgment, especially where the SRO has spoken.
R.E. v. N.Y.C. Dep’t of Educ., 694 F.3d 167 (2d Cir. 2012) — Directs deference to the SRO on questions requiring educational expertise unless the SRO’s decision is inadequately reasoned, in which case the IHO may be credited. Here, the panel found the SRO’s remedy analysis adequately reasoned and therefore entitled to deference.
Doe v. East Lyme Bd. of Educ., 790 F.3d 440 (2d Cir. 2015) — Two key threads: (1) crafting IDEA relief is reviewed for abuse of discretion; and (2) compensatory relief should be tailored to provide benefits that would have accrued if services had been properly delivered, quoting Reid. The panel invoked East Lyme to confirm the remedial tailoring principle and the deferential standard for remedy decisions.
Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105 (2d Cir. 2007) — Recites the FAPE standard: services reasonably calculated to enable educational benefit. This underlies the IHO’s core FAPE finding for 2021–2022.
Somoza v. N.Y.C. Dep’t of Educ., 538 F.3d 106 (2d Cir. 2008) — Grounding for the “gross violation” threshold when awarding compensatory education in the form of services beyond the age of eligibility. The panel’s reliance on Somoza signals continuity: extended eligibility is an extraordinary remedy reserved for egregious cases.
T.M. ex rel. A.M. v. Cornwall Cent. Sch. Dist., 752 F.3d 145 (2d Cir. 2014) — Reaffirms the broad equitable discretion courts possess under 20 U.S.C. § 1415(i)(2)(C)(iii), while still tethering remedies to the statute’s purposes. It supports the SRO’s and district court’s calibration of remedy to violation.
M.H. v. N.Y.C. Dep’t of Educ., 685 F.3d 217 (2d Cir. 2012) — Places the burden on the party challenging the SRO to show error (see footnote 3). The panel expressly notes Perez did not carry that burden to disturb the SRO’s reversal of extended eligibility.
Reid ex rel. Reid v. District of Columbia, 401 F.3d 516 (D.C. Cir. 2005) — A widely cited articulation that compensatory education must be individualized and reasonably calculated to provide the benefits that the child would have received. The Second Circuit continues to use this formulation to assess whether a proposed remedy “fits” the violation.

Collectively, these authorities orient the panel’s analysis: deference to a reasoned SRO decision, a tailored remedial approach, and a heightened “gross violation” threshold for the specific remedy of extending eligibility beyond the statutory age.

Legal Reasoning

The panel’s reasoning unfolds in three steps:

Standard of Review and Deference: The court reiterates its “independent, but circumscribed” review, deferring to the SRO on educational matters unless the SRO’s reasoning is inadequate. It also reviews the crafting of relief for abuse of discretion. Here, the SRO’s rationale—that four extra years of eligibility and placement at iBrain “far exceeded” an appropriate response to a single-year FAPE denial—was sufficiently reasoned and therefore entitled to deference.
Threshold for Extended-Eligibility Compensatory Education: The panel states plainly that “[a] gross violation finding is a prerequisite to any compensatory education award” and applies Somoza’s teaching to the request for extended eligibility. Although the IHO found a FAPE denial in 2021–2022 (for failure to recommend vision education services), neither the IHO nor the SRO found a gross violation. On this record, the court agrees with the SRO that a single-year denial did not rise to that level.
Notably, the IHO’s own decision did not contain a gross-violation finding; the IHO awarded extended eligibility notwithstanding. That gap proved dispositive once the SRO reversed on remedy and the district court deferred to the SRO’s view.
Statute of Limitations and Record Scope: The court underscores the impact of the IDEA’s two-year statute of limitations. The parent’s earlier claims (2007–2019) were time-barred, which prevented those years from bolstering a gross-violation showing. The panel also notes that the parent did not identify additional admissible evidence the district court should have considered to transform the 2021–2022 FAPE denial into a gross violation. In short, the record—circumscribed by timeliness—did not support the extraordinary remedy sought.

At the same time, the court makes clear that the non-gross single-year FAPE denial still supported conventional relief: the tuition reimbursement for the 2021–2022 extended school year remained undisturbed. This illustrates the remedial distinction the Second Circuit consistently draws between immediate-year equitable reimbursement and extraordinary, forward-looking compensatory education in the form of extended eligibility.

Impact and Implications

Although a summary order does not create binding precedent in the Second Circuit, this decision has practical implications for IDEA litigation strategy and for administrative hearing practice in New York:

Reaffirmation of the “gross violation” gatekeeper for extended eligibility: IHOs and district courts are likely to view multi-year extended-eligibility awards (e.g., through age 25) as off-limits absent a clear record of egregious, persistent, or systemic violations. A single-year shortfall—such as omitting a related service like vision education—will rarely suffice.
Statute of limitations as a remedial limiter: Plaintiffs who seek extended eligibility must file timely claims or establish a recognized tolling/exception. Time-barred years cannot be repurposed to prove “grossness,” materially narrowing the remedial landscape.
SRO oversight of disproportionate remedies: The SRO’s statement that the IHO’s award “far exceeded” an appropriate remedy signals heightened scrutiny of awards that effectively set long-term private placements at public expense without a record demonstrating a matching long-term deprivation.
Tailored versus categorical relief: The continued reliance on Reid and East Lyme’s tailoring principle discourages categorical awards and pushes parties to demonstrate a nexus between the specific denial and the scope and duration of the compensatory remedy.
Distinguishing remedy types matters: The case underscores a persistent line in IDEA jurisprudence: tuition reimbursement for a given school year can be awarded upon a FAPE denial without showing a gross violation, while extended eligibility past age cutoffs demands that higher showing.

Complex Concepts Simplified

FAPE (Free Appropriate Public Education): The IDEA guarantees special education and related services designed to meet a child’s unique needs and reasonably calculated to provide educational benefit. An IEP is the mechanism through which FAPE is delivered.
IEP (Individualized Education Program): A written plan that sets annual goals, services, and supports. Here, the 2021 IEP acknowledged the student’s cortical visual impairment in goals/management needs but did not recommend vision education services—a lapse the IHO deemed a FAPE denial for 2021–2022.
IHO and SRO: In New York’s two-tier administrative system, an IHO hears evidence and issues an initial decision. An SRO reviews the IHO decision on appeal. Courts typically defer to a reasoned SRO decision on matters requiring educational expertise.
Compensatory Education vs. Tuition Reimbursement:
- Tuition Reimbursement: Repayment to parents for unilateral private placement costs for a particular year when the district denied FAPE and the private placement is appropriate.
- Compensatory Education (Extended Eligibility): Additional services—or continuation of eligibility—often beyond the age of 21, designed to make up for past deprivations. In the Second Circuit, this remedy generally requires a “gross violation” of the IDEA.
Gross Violation: Not defined with mathematical precision, but typically signifies egregious, prolonged, or systemic violations that justify extraordinary relief, such as services beyond the statutory age of entitlement. A single-year denial, standing alone, rarely suffices.
Statute of Limitations (Two Years): IDEA claims must be filed within two years of when the parent knew or should have known of the alleged action. There are limited exceptions (e.g., misrepresentation or withholding of required information by the district). In Perez, the earlier claims were deemed time-barred, which narrowed the evidentiary basis for a gross-violation finding.
Standards of Review:
- Merits of administrative findings: Independent but deferential review, with respect for the SRO’s educational expertise unless the SRO’s reasoning is inadequate.
- Remedy: Abuse of discretion—courts look to whether the remedy was within the range of permissible choices and properly tailored to the violation.
- Burden on appeal: The party challenging the SRO’s decision (here, the parent) bears the burden to show error.

Additional Observations

Non-Precedential Nature: This is a Summary Order under Second Circuit Local Rule 32.1.1; it is citable but not precedential. Nonetheless, it is a persuasive data point on how panels may analyze extended-eligibility awards tied to single-year FAPE denials.
Scope of the Holding: The panel states broadly that a “gross violation” is a prerequisite to a compensatory education award. Historically, Second Circuit decisions have most clearly imposed that threshold in the context of services beyond age 21 (extended eligibility). Practitioners should read this order in that context; the case itself upholds tuition reimbursement for the year in question without requiring a gross violation.
Remedial Calibration: The SRO’s statement that a four-year extension “far exceeded” an appropriate remedy underscores the importance of proportionality. Even when a FAPE denial is found, the remedy must be no more than necessary to place the student where they would have been but for the denial.

Conclusion

Perez v. Banks reaffirms, in the Second Circuit’s parlance, that extended-eligibility compensatory education is an exceptional remedy requiring a gross violation of the IDEA. The order also demonstrates how the IDEA’s two-year statute of limitations can foreclose reliance on older, untimely claims to establish the severity necessary for such relief. While the parent succeeded in obtaining tuition reimbursement for the 2021–2022 extended school year, the SRO’s reversal of extended eligibility stood because the record—constrained by timeliness and devoid of a gross-violation finding—could not justify a multi-year remedy.

For practitioners, the key lessons are clear: file timely; build a comprehensive record if seeking extraordinary compensatory education; distinguish precisely among forms of relief (tuition reimbursement versus extended eligibility); and tailor requested remedies to the scope and duration of the proven denial. For hearing officers and courts, the decision counsels careful calibration of remedies to violations, continued deference to reasoned SRO determinations, and fidelity to the IDEA’s remedial goal of making students whole—without overshooting the bounds of equitable necessity.