IDEA Claims Not Pursued Before the IHO Are Forfeited as Unexhausted; District Courts Must Adjudicate Parents’ Attorneys’ Fee Requests

Nonprecedential posture: This decision is a Second Circuit “Summary Order,” which “do[es] not have precedential effect,” but it is nevertheless instructive as to how the court applies exhaustion/forfeiture principles in IDEA reimbursement disputes and how it treats unresolved attorneys’ fee requests on judicial review.

1. Introduction

Bautista v. Banks arises from a parent’s effort to obtain IDEA reimbursement/direct funding after unilaterally placing a child with significant disabilities, A.B., at a private program (iBrain) for the 2022–23 school year. Plaintiff-Appellant Leonarda Bautista sued the New York City Department of Education and the Chancellor in his official capacity (collectively, “DOE”), alleging denial of a free appropriate public education (“FAPE”) and seeking, among other relief, funding for (i) 1:1 nursing services and (ii) special education transportation.

The administrative process produced mixed results: the Impartial Hearing Officer (“IHO”) awarded a specified total amount for iBrain tuition and related services but did not award transportation or 1:1 nursing costs. The State Review Officer (“SRO”) affirmed the denial of those additional items. The district court affirmed the SRO on the merits but did not rule on Bautista’s pleaded and briefed request for attorneys’ fees. On appeal, the Second Circuit affirmed the merits rulings and vacated/remanded solely for consideration of attorneys’ fees.

Key issues

  • Whether the parent proved entitlement to 1:1 nursing reimbursement (both that it was necessary and that it was actually provided).
  • Whether the parent’s transportation claim was forfeited/unexhausted because it was not pursued before the IHO, despite being requested in the due process complaint.
  • Whether the district court’s failure to decide the parent’s attorneys’ fee claim required remand.

2. Summary of the Opinion

The Second Circuit:

  • Affirmed the denial of reimbursement for 1:1 nursing, holding that Bautista did not present competent medical evidence establishing the need for 1:1 nursing in addition to a 1:1 paraprofessional and school nurse, and the record also failed to show the service was actually delivered.
  • Affirmed the denial of transportation funding, holding the claim was forfeited and thus unexhausted under the IDEA because counsel did not pursue it before the IHO and affirmatively represented the “total amount” sought, which excluded transportation.
  • Vacated and remanded for the district court to decide whether Bautista was a “prevailing party” in the administrative proceedings and, if so, to calculate a fee award using the lodestar method.

3. Analysis

A. Precedents Cited

1) The reimbursement framework: Burlington/Carter and Second Circuit articulation

  • Sch. Comm. of Town of Burlington v. Dep't of Educ. of Mass., 471 U.S. 359 (1985), and Florence Cnty. Sch. Dist. Four v. Carter ex rel. Carter, 510 U.S. 7 (1993) are the foundational authorities for the three-part reimbursement test (often called the Burlington/Carter test). The panel invoked these cases to situate Bautista’s claims within the familiar structure: (1) denial of FAPE, (2) appropriateness of the unilateral placement, and (3) equities.
  • Ferreira v. Aviles-Ramos, 120 F.4th 323 (2d Cir. 2024) was cited for the Second Circuit’s current formulation of Burlington/Carter, confirming that the parent bears the burden on the private-placement prongs and that remedies are equitable.

2) Standard of judicial review and deference in IDEA “summary judgment” practice

  • Bd. of Educ. of Yorktown Cent. Sch. Dist. v. C.S., 990 F.3d 152 (2d Cir. 2021) supplies two key propositions used by the court: (i) IDEA “summary judgment” motions function as an appeal from the administrative decision rather than conventional Rule 56 litigation, and (ii) courts must give “due weight” to state administrative proceedings because educational policy judgments are specialized.
  • A.C. ex rel. M.C. v. Bd. of Educ. of the Chappaqua Cent. Sch. Dist., 553 F.3d 165 (2d Cir. 2009) was cited for de novo appellate review of the district court’s grant of summary judgment in the IDEA posture (while still respecting the “due weight” principle in the underlying merits evaluation).

3) Exhaustion/forfeiture under IDEA

  • J.M. v. New York City Dep't of Educ., 161 F.4th 149 (2d Cir. 2025) was the key authority for the court’s conclusion that failing to pursue a claim at the IHO level renders it unexhausted. The panel used J.M. to characterize Bautista’s transportation request as procedurally barred because it was effectively abandoned at hearing notwithstanding its appearance in the initial due process complaint.

4) Attorneys’ fees for prevailing parents; lodestar methodology

  • A.R. ex rel. R.V. v. New York City Dep't of Educ., 407 F.3d 65 (2d Cir. 2005) anchored the remand. It was cited for two propositions: (i) IDEA allows fees for administrative proceedings when the parent is a “prevailing party,” and (ii) fees are calculated under the lodestar method. The panel treated the district court’s failure to address the fee claim as an omission requiring remand for a prevailing-party analysis and lodestar calculation.

B. Legal Reasoning

1) 1:1 nursing: proof of necessity and proof of delivery

The SRO (affirmed by the district court and then by the Second Circuit) rejected 1:1 nursing reimbursement on an evidentiary record the court regarded as insufficient in two ways:

  • Necessity: The administrative record did not contain “competent medical evidence” demonstrating why A.B. required a separate 1:1 nurse at iBrain in addition to a dedicated 1:1 paraprofessional and access to an iBrain school nurse. The court emphasized that the IHO repeatedly flagged the evidentiary gap and invited clearer proof, but the submissions remained “too vague” to establish that “appropriate programming” included all the individual services sought.
  • Delivery: The SRO also relied on the lack of proof that 1:1 nursing was actually provided during 2022–23, noting evidence suggesting otherwise (e.g., an iBrain progress report identifying a school nurse but not an individual nurse).

The Second Circuit additionally noted that although Bautista attempted to submit additional evidence in district court, the district court declined to admit it and Bautista did not challenge that evidentiary ruling on appeal—locking the appellate review to the administrative record.

2) Transportation: abandonment at hearing becomes forfeiture and thus unexhausted

Transportation funding was requested in the due process complaint and a transportation contract was in the record. But the decisive facts were procedural: counsel did not pursue transportation costs during the IHO hearings and, at the final hearing, confirmed a “total amount” sought that excluded transportation. The SRO (and the Second Circuit) reasoned that the IHO was not required to reconstruct and award a transportation claim sua sponte by “comb[ing] through the hearing record” to calculate daily-rate amounts—particularly where counsel had affirmatively limited the relief request.

The Second Circuit then framed the consequence in exhaustion terms: by not pursuing transportation at the IHO stage and representing that no additional amounts were sought, Bautista forfeited the issue, rendering it unexhausted under the IDEA (citing J.M. v. New York City Dep't of Educ.).

3) Attorneys’ fees: remand required when the district court fails to rule

IDEA fee-shifting is discretionary, but it requires an adjudication of whether the parent is a “prevailing party” and, if so, what fee is reasonable. Because the district court acknowledged the request in describing the pleadings but did not rule on it, the Second Circuit vacated in part and remanded for:

  • a “prevailing party” determination for the state administrative proceedings, and
  • a lodestar calculation if prevailing-party status is found.

C. Impact

1) Issue preservation in IHO hearings is outcome-determinative

The decision underscores that merely listing a remedy in the due process complaint may not be enough; parties must actually litigate and quantify the item at hearing. If counsel states a capped “total amount” sought that omits a category (here, transportation), the omission can function as a binding abandonment that later becomes an exhaustion bar on judicial review.

2) “Related services” reimbursement requires service-specific evidentiary rigor

For add-on supports like 1:1 nursing, the panel’s reasoning signals two proof requirements that parents should anticipate: (i) a clear, medically grounded explanation of necessity in the context of other supports already provided, and (ii) documentation that the service was actually delivered (not merely contracted for or generally available).

3) Fee litigation remains live even when parents lose on some items

The remand illustrates that a parent may still qualify as a “prevailing party” (and be eligible for some fee award) based on successes in the administrative proceedings (here, substantial funding for iBrain) even if the parent does not prevail on every requested component (nursing and transportation). District courts must address fee claims explicitly.

4. Complex Concepts Simplified

  • FAPE (Free Appropriate Public Education): The IDEA’s guarantee that eligible students receive special education and related services designed to meet their unique needs.
  • IEP (Individualized Education Program): The written plan developed for a student, specifying services, goals, and placement.
  • CSE (Committee on Special Education): The body that develops/reviews the IEP in New York.
  • Unilateral placement: When parents place a child in private school without district agreement and later seek reimbursement.
  • Burlington/Carter test: The three-part test governing reimbursement for unilateral placements: FAPE denial, appropriateness of private placement, and equitable considerations.
  • IHO / SRO: New York’s two-tier administrative review system—an Impartial Hearing Officer decision may be appealed to a State Review Officer.
  • Exhaustion (IDEA): Generally, issues must be presented through the administrative process before a court will consider them. If a claim is not pursued at hearing, it can be treated as unexhausted.
  • Prevailing party: A party that obtains meaningful relief altering the legal relationship of the parties; in IDEA, can include success at the administrative level.
  • Lodestar: The typical fee calculation method: reasonable hourly rate × reasonable hours, with limited adjustments.

5. Conclusion

Bautista v. Banks reinforces two practical rules in IDEA reimbursement litigation: (1) service-specific reimbursement (like 1:1 nursing) requires clear evidence of both medical/educational necessity and actual delivery, and (2) remedies not actively pursued before the IHO—especially where counsel affirmatively narrows the amount sought—may be treated as forfeited and therefore unexhausted on judicial review. Separately, the decision highlights that district courts must explicitly resolve IDEA attorneys’ fee claims; failure to do so warrants remand for a prevailing-party determination and lodestar calculation under A.R. ex rel. R.V. v. New York City Dep't of Educ..